PUBLISH

F I L E D

United States Court of Appeals

Tenth Circuit

APR 29 2003
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PATRICK FISHER
Clerk

HERIBERTO VERDECIA,
Plaintiff - Appellee,
v.

No. 01 - 1130

OFFICER ADAMS, U.S.P.,

Florence, CO; D. PRUYNE, Officer,
U.S.P., Florence, CO; UNITED
STATES OF AMERICA;
Defendants,
COLLADO, Lieutenant, U.S.P.,
Florence, CO; MR. FELZ, S.I.S.,
U.S.P., Florence, CO,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-B-2535)
John R. Mann of Kennedy & Christopher, Denver, Colorado, (Frank R. Kennedy
with him on the brief) for Defendants-Appellants.
Antony Mark Noble of Perkins Coie, Denver, Colorado, (Eric R. Jonsen and Paula
M. Ray of Jonsen & Ray, Broomfield, Colorado; Virginia M. Creighton, Denver,
Colorado, on the brief) for Plaintiff-Appellee.

Before KELLY and OBRIEN, Circuit Judges, and EAGAN, District Judge. *
EAGAN, District Judge.
Heriberto Verdecia filed this action asserting claims against defendants
Reuben Collado and Edward Felz, alleging that his rights under the Fifth, Eighth
and Fourteenth Amendments were violated when the defendants, acting with
deliberate indifference to a substantial risk of harm to plaintiff, placed him in a
cell with gang members who assaulted him because of his Cuban nationality. The
district court referred the defendants motion for summary judgment to the
magistrate judge. The magistrate judge recommended that the summary judgment
motion be denied on the ground that the plaintiff had presented sufficient
evidence to create a genuine issue of material fact as to whether defendants
Collado and Felz acted with deliberate indifference to a substantial risk of harm
to the plaintiff, and the magistrate judge found that the defendants failed to
demonstrate their entitlement to qualified immunity. The district court adopted
the magistrate judges report and recommendation and denied the defendants
motion for summary judgment.
Defendants Collado and Felz filed an interlocutory appeal challenging the

The Honorable Claire V. Eagan, United States District Judge for the
Northern District of Oklahoma, sitting by designation.
*

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district courts denial of summary judgment and the magistrate judges finding
that the defendants were not entitled to qualified immunity. Because this Court
finds that the defendants were entitled to qualified immunity, the judgment of the
district court is reversed.
I.
Heriberto Verdecia is a Cuban male currently in federal detention in
Talledega, Alabama. Prior to his transfer to Alabama, Verdecia was placed in the
United States Prison in Florence, Colorado (USP-Florence). Defendants Lt.
Edward Felz and Lt. Reuben Collado are employed as Special Investigative
Agents by the Bureau of Prisons at USP-Florence. Their responsibilities were to
investigate all criminal activity at the facility.
On July 28, 1998, Verdecia was removed from the general population at
USP-Florence and was placed in the Special Housing Unit. Verdecia was placed
in a cell in the Special Housing Unit with two other inmates, Juan Rodriguez and
Roberto Rodriguez. Both Juan Rodriguez and Roberto Rodriguez were members
of a gang known as the Latin Kings. 1 Verdecia alleges that on July 30, 1998, he
spoke to Collado and asked him to get him out of his cell in the Special Housing
Unit. On the following day, Verdecia gave his case manager a transfer form

Juan Rodriguez and Roberto Rodriguez are unrelated, and Roberto

Rodriguez is himself Cuban.
1

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directed to the attention of Felz, which indicated that Verdecia feared an attack
from his cell mates. However, there is no evidence that Felz received the transfer
form before Verdecia was attacked. On August 4, 1998, Verdecia was attacked
with a razor blade by his two cell mates. As a result of the assault, Verdecia was
hospitalized and received 110 stitches in his back.
In July 1998, before Verdecia was placed in the Special Housing Unit, a
prisoner of Cuban descent and another prisoner who was a member of the Latin
Kings were involved in an altercation in the prison yard at USP-Florence. Felz
investigated the incident and determined that the prior altercation was an isolated
incident between two individuals and was not gang-related. In addition to the
altercation at USP-Florence, there was an incident between a Cuban prisoner and
a Latin King gang member at a separate institution in Leavenworth, Kansas,
which occurred prior to Verdecias placement in the Special Housing Unit.
Verdecia alleges that the series of events leading up to his assault created
an obvious risk when he was placed in the cell with two members of the Latin
Kings. Verdecia alleges that Collado and Felz ignored that series of events and
acted with deliberate indifference to a substantial risk of harm to his safety.
II.
Orders denying qualified immunity before trial are appealable to the extent
they resolve abstract issues of law. Foote v. Spiegel, 118 F.3d 1416, 1422 (10th
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Cir. 1997). Because defendants contend that, even accepting plaintiffs version of
the facts, they are entitled to qualified immunity, the Court has jurisdiction to
hear this appeal. DeAnzona v. City & County of Denver, 222 F.3d 1229, 1233
(10th Cir. 2000) (If the defendant argues that [he] is entitled to qualified
immunity under the plaintiff's version of the facts because the plaintiff has not
demonstrated a violation of clearly established law, this Court may properly
exercise jurisdiction over an interlocutory appeal).
This court reviews the denial of qualified immunity on summary judgment
de novo. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998).
Summary judgment is ultimately appropriate when there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a matter of
law. Oliver v. Woods, 209 F.3d 1179, 1184 (10th Cir. 2000). The evidence is
viewed, and reasonable inferences are drawn from the evidence, in the light most
favorable to the nonmoving party. Byers v. City of Albuquerque, 150 F.3d 1271,
1274 (10th Cir.1998).
This court, however, reviews summary judgment orders deciding qualified
immunity questions differently from other summary judgment decisions because
of the purposes behind qualified immunity. Holland v. Harrington, 268 F.3d
1179, 1185 (10th Cir. 2001). Qualified immunity is an entitlement not to stand
trial or face the other burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511,
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526 (1985). The privilege is an immunity from suit rather than a mere defense to
liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial. Id.
Once a defendant asserts a qualified immunity defense, the burden shifts to
the plaintiff. Scull v New Mexico, 236 F.3d 588, 595 (10th Cir. 2000). The
plaintiff must show that (1) the official violated a constitutional or statutory right;
and (2) the constitutional or statutory right was clearly established when the
alleged violation occurred. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.
1995). If the plaintiff does not satisfy either portion of the two-pronged test, the
Court must grant the defendant qualified immunity. Gross v. Pirtle, 245 F.3d
1151, 1156 (10th Cir. 2001).
III.
Verdecia contends that defendants Collado and Felz placed him in danger
of attack and serious harm at the hands of his cell mates by placing him in a cell
with members of the Latin Kings. Verdecia alleges that Collado and Felz
incarcerated him under conditions posing a substantial risk of serious harm, due
to the prior incidents between Cuban inmates and members of the Latin Kings.
Prison officials have a duty . . . to protect prisoners from violence at the
hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation
omitted, alteration in original). The deliberate indifference of a prison official
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to a substantial risk of serious harm to an inmate violates the Eighth

Amendment. Id. at 828. To establish a cognizable Eighth Amendment claim for
failure to protect, the plaintiff must show that he is incarcerated under
conditions posing a substantial risk of serious harm the objective component, and
that the prison official was deliberately indifferent to his safety, the subjective
component. Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). The
subjective component of the deliberate indifference test requires that, before
liability can be imposed, a prison official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference. Craig v. Eberly, 164 F.3d 490, 495 (10th
Cir. 1998).
The Supreme Court has explained that deliberate indifference entails
something more than mere negligence . . . [but] something less than acts or
omissions for the very purpose of causing harm or with the knowledge that harm
will result. Farmer, 511 U.S. at 835. The Court defined this deliberate
indifference standard as equal to recklessness, in which a person disregards a
risk of harm of which he is aware. Id. at 836-37.
Verdecia alleges that Collado and Felz should have been aware that the
placement of a Cuban in a cell with two members of the Latin Kings constituted
an excessive risk to his safety. Verdecia contends that Collado and Felz ignored
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the fact that prior to his assault there were two incidents of violence between
Latin King inmates and Cuban inmates in the federal prison system. Defendants
Collado and Felz argue that these prior altercations are insufficient to show that
they were subjectively aware of a substantial risk of serious harm to Verdecia or
that they were deliberately indifferent to that risk. Defendants Collado and Felz
argue that the previous stabbing at USP-Florence was investigated and determined
to be an isolated, non-gang-related incident.
Even if the conclusion Felz drew from his investigation was erroneous or
negligent, it does not rise to the level of an Eighth Amendment violation based on
deliberate indifference. Deliberate indifference requires more than a showing of
simple or heightened negligence. Board of County Commrs. v. Brown, 520 U.S.
397, 407-10 (1997); see Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Verdecia
must do more than establish that Collado and Felz should have known of the risk
of harm. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). To establish
deliberate indifference, Verdecia must present evidence supporting an inference
that Collado and Felz actually knew about a substantial risk of serious harm to his
safety. Oxendine v. Kaplan, 241 F.3d 1272, 1277 (10th Cir. 2001). Deliberate
indifference requires that the defendants conduct is in disregard of a known or
obvious risk that was so great as to make it highly probable that harm would
follow, or that the conduct disregards a known or obvious risk that is very
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likely to result in the violation of a prisoners constitutional rights. Berry v. City

of Muskogee, 900 F.2d 1489, 1494 (10th Cir. 1990). The mere showing of simple,
or even heightened, negligence does not establish that Collado and Felz were
subjectively aware of the risk. Subjective awareness requires that the defendant
must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.
Craig, 164 F.3d at 495. This awareness requirement exists because prison
officials who lacked knowledge of a risk cannot be said to have inflicted
punishment in a manner that violates the Eighth Amendment. Farmer, 511 U.S.
at 844.
Even when taking Verdecias version of the facts in the light most
favorable to him, the facts are insufficient to establish deliberate indifference.
Verdecia presents no allegations, nor evidence, that Felz and Collado subjectively
knew of the risk to Verdecia or that they were deliberately indifferent to the risk.
Rather, Verdecia appears to argue that Felz and Collado were negligent in
assessing the risk. Verdecia contends that defendants should have been aware
that the placement of a Cuban in a cell with two members of the Latin Kings
constituted an excessive risk to his safety. However, Verdecia does not establish
that Collado and Felz were subjectively aware that the placement of a Cuban in a
cell with two members of the Latin Kings was a risk to his safety.
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There is no evidence that Felz knew Verdecia was Cuban, or that Felz knew
that Verdecia had been housed in a cell with members of the Latin Kings.
Although Verdecia gave his case manager a transfer form directed to the attention
of Felz, and which indicated that Verdecia feared an attack from his cell mates,
there is no evidence that Felz received the transfer form before Verdecia was
attacked. In addition, Felz specifically investigated one of the prior altercations
and, based on his investigation, concluded that it was an isolated one-on-one fight
between two inmates and was not gang-related.
Collado was aware of Felzs investigation and of its results and Felzs
conclusion that the altercation was not gang-related. Verdecia states that he
spoke to Collado and asked him to get him out of his cell in the Special Housing
Unit, but there is no evidence that Verdecia explained the reason for his requested
transfer. Verdecia has presented no evidence to support a finding that Collado and
Felz subjectively drew an inference that was contrary to the findings and
conclusion of Felzs prior investigation.
Verdecia has presented facts from which the inference could be drawn that
a substantial risk of serious harm exists, but he has failed to establish that Collado
and Felz actually drew such an inference. Absent subjective awareness and
knowledge of the risk, Collado and Felz cannot be found to have inflicted
punishment in a manner that violates the Eighth Amendment.
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Additionally, the magistrate judge appears to have applied a negligence

standard when considering whether genuine issues of material fact existed, by
concluding: Although Felz may escape liability if the jury instead concludes that
Felzs response to the Pena-Colone incident was reasonable in light of his
conclusion that the Pena-Colone incident was an isolated incident of retaliation,
that is a factual issue which cannot be resolved on summary judgment. Aplt.
App. at 142. The implication of this statement is that Felz could be held liable if
the jury concludes that his conclusion or response was unreasonable. However, a
finding of unreasonableness is merely a finding of negligence and not deliberate
indifference. Deliberate indifference requires more than a finding of negligence.
Board of County Commrs. v. Brown, 520 U.S. 397, 407-10 (1997); see Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976). Absent actual subjective awareness of the
risk, Felz and Collado cannot be deliberately indifferent to the risk. Craig, 164
F.3d at 495.
The failure of Felz and Collado to alleviate a potential risk that should have
been perceived, but was not, does not satisfy the deliberate indifference standard
of the Eighth Amendment. Farmer, 511 U.S. at 838. Accordingly, Verdecia
cannot establish that Felzs and Collados actions violated a federal constitutional
right or statutory right. Because Verdecia cannot meet the first portion of the
two-pronged test, the defendants are entitled to qualified immunity. Gross, 245
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F.3d at 1156.
IV.
For the above reasons, the order of the district court denying summary
judgment in favor of defendants is REVERSED and the case is REMANDED for
further proceedings not inconsistent with this opinion.

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