Harper v. Dourrette, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 26, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-30392
Summary Calendar
FABIAN HARPER,
Plaintiff-Appellee,
versus
DOUG DOURRETTE, Etc.; ET AL.,
Defendants,
DOUG DOURRETTE, Assistant Warden; STERLING, Lieutenant
Colonial; RONNY CONSTANCE, Captain,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 03-CV-638
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Before REAVLEY, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Doug Dourrette, Lt. Col. Sterling, and Capt. Ronny Constance
appeal from the district court’s summary judgment denial of
qualified immunity on inmate Fabian Harper’s failure to protect
claim. We have jurisdiction to determine whether the defendants
are entitled to qualified immunity after accepting all of
Harper’s factual allegations as true and to determine, as a

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No. 04-30392
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matter of law, whether their conduct was objectively reasonable.
See Colston v. Barnhart, 130 F.3d 96, 98-99 (5th Cir. 1997).
The appellants contend that Harper’s failure to seek
protection by means other than a verbal request provided them
with insufficient facts from which to infer that there existed a
significant risk of serious harm and, therefore, their inaction
was objectively reasonable. However, for purposes of this
appeal, Harper’s factual allegation must be taken as true that as
the result of his oral request for protection, the appellants
possessed the requisite knowledge of a substantial risk of
serious harm. See Farmer, 511 U.S. at 842. The pertinent
question is therefore whether the appellants, possessing actual
knowledge of a substantial risk to Harper’s safety, responded
reasonably to that risk. See id. at 844. The appellants have
not made that showing; their own affidavits attest that an inmate
who makes a verbal request for protection is not returned to his
cell but is instead sent to Administrative Segregation until his
request is reviewed by the Threat Review Board. They have
therefore failed to show an entitlement to qualified immunity.
AFFIRMED.

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