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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-13748
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 6:12-cv-00078-BAE-JEG



JESSE L. LOSEY,

                                                               Plaintiff-Appellant,

                                      versus

WARDEN DANNIE THOMPSON, et al.,

                                                                        Defendants,

TIFFANY NAIL,
Correctional Officer,

                                                             Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                                (January 2, 2015)
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Before TJOFLAT, HULL, and WILSON, Circuit Judges.

PER CURIAM:

      In this civil action under 42 U.S.C. § 1983, plaintiff Jesse Losey appeals the

grant of summary judgment in favor of defendant Tiffany Nail, a correctional

officer at the prison where plaintiff Losey was incarcerated at the time of the

events in issue. Losey’s complaint alleged defendant Nail violated his rights under

the Eighth Amendment by failing to protect him from violence by another inmate,

Reggie Whitehead. After careful review of the record and the briefs, we affirm the

district court’s grant of summary judgment in favor of the defendant Officer Nail.

                                I. BACKGROUND

      Plaintiff Losey was raped by inmate Whitehead during his incarceration. He

alleges that the rape could have been prevented if defendant Officer Nail had

properly performed her duties as a correctional officer.

      We relate the factual background—as we must at this stage of the

litigation—in the light most favorable to the nonmovant, here plaintiff Losey.

Goodman v. Kimbrough, 

, 1329 (11th Cir. 2013).

A.    The Unit

      On July 8, 2010, Losey was an inmate in the D-1 unit at Smith State Prison

(“SSP”) in Glennville, Georgia. The D building at SSP contained D-1 and D-2,

two dormitory units separated by a control room. D-1 had the capacity to hold 101


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inmates. The unit would be staffed with a dorm officer, as would the D-2 unit.

The control room was also staffed with a correctional officer.

B.    Events Prior to the Attack

      At some point between 8:00 p.m. and 9:00 p.m. on July 8, 2010, Losey

entered Whitehead’s cell in the D-1 unit to use a contraband cell phone. Because

other inmates were also using the contraband phone, Losey had to wait for a period

of time before making the first of three short phone calls. He waited again, in

Whitehead’s cell, before the second and third calls. After concluding his phone

calls, Losey remained in Whitehead’s cell, using Whitehead’s desk to write what

Losey remembers as his commissary list.

      In his deposition, Losey admits that he used Whitehead’s contraband phone

in this manner for roughly one week, that he was “hang[ing] out in [Whitehead’s

cell] occasionally,” and that Losey was aware of Whitehead’s reputed affiliation

with and leadership in a prison gang. Prior to the attack, Whitehead “always

seemed nice” to Losey, and Losey “figured if [he] knew someone that was

important there, [he] would have an easier time [in SSP].”

      Though Losey and Whitehead were lodged in separate cells in the D-1 unit

on the night of the July 8 attack, Losey had moved into Whitehead’s cell for “about

two or three days” earlier in July. Nothing in the record suggests Losey had any

discomfort or fear of being alone with Whitehead prior to the attack.


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C.    The Attack on 8 July 2010

      While Losey sat writing by the desk, Whitehead rose, walked over to the cell

door, closed and locked the door, and turned off the lights inside the cell.

Whitehead then walked back over to Losey and put him in a chokehold. He told

Losey to lay flat on his stomach on the lower bunk. (Id. at 43-44) Losey’s head

was positioned towards the door, with his face in the blanket at the foot of the bed.

Whitehead proceeded to rape Losey. Losey initially pleaded with Whitehead, but

“knew that it was pointless . . . to really fight” and did not further resist

Whitehead’s attack.

      In his deposition, Losey states he was unsure exactly how long the rape

lasted, but it was at least fifteen or twenty minutes. In the incident report filed

following the attack, Losey stated that he believed the rape occurred at

approximately 11:00 p.m. In his deposition, Losey stated that it was likely 10:00

or 10:30 when he was placed in the chokehold. Losey acknowledges that he did

not know, even at the time of the incident, the precise time the rape occurred.

      At some point during the rape, however, Losey recalls another inmate

calling “twelve,” which was the signal for a correctional officer entering the dorm.

Following this signal, and still during the rape, Losey observed the presence of an

officer with a flashlight at the window to Whitehead’s cell. The officer shined the

flashlight through the window in the door, in a “swaying motion” across the cell.


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The light from the flashlight did not illuminate the cell, but rather cast a beam

within the cell. The flashlight remained at the window for three to five seconds.

From Losey’s perspective, the officer was “looking in the room but not looking in

the room, to where she was maybe, [ ] looking more [ ] towards the lockers to

make it look like she was looking in but not actually looking in.” Losey

introduced no testimony that the officer acknowledged the presence of two bodies

on the lower bunk of the cell.

      Nor did Losey get a clear view of the officer who was standing at the

window. Upon initial questioning in his deposition, Losey described the guard as

“female” and “probably a little bit heavier set.” When initially asked about the

guard’s race, Losey said she was white. Defendant Officer Nail is African-

American. Losey acknowledges that he does not know Officer Nail.

      Clarifying his statement in response to further direct questioning, Losey

admitted: “I didn’t see the person at all, really.” Losey explained that he saw the

officer’s hair and part of her uniform, and that he again saw the uniform and same

color hair as the officer walked along the upper level of the dorm across the hall

some minutes later. And in response to later questioning by his own counsel,

Losey explained that he “couldn’t see” the officer at the cell door with the

flashlight, but that he “saw the one upstairs” and “just assumed” that it was the

same officer.


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D.         Officer Nail’s Actions

           On the night of July 8, 2010, Officer Nail worked the third shift, which runs

from 10:00 p.m. until 6:00 a.m. the following morning. She was assigned to be the

dorm officer for the D-1 unit that night. At 11:30 p.m., Officer Nail, after

performing a census check, reported a census count of 100 inmates to the control

room officer. That count is recorded in the control room officer’s log.

           Though Officer Nail does not specifically remember the census check she

performed on the night of July 8, 2010, she testified that it usually took place

around 11:25 p.m. on nights when lockdown would not occur until 1:00 a.m. 1 In

her deposition testimony, Officer Nail acknowledged that the purpose of a census

check was simply to “count heads,” whether the inmates were in the dayroom or in

their cells. Officer Nail also stated that, unlike the more formal census count that

occurs at lockdown, the census check is performed by one officer, the officer

assigned to that dorm unit.

           In her declaration, Officer Nail averred that she “did not see Plaintiff Jesse

Losey, or any other inmate, being held down or raped in a cell at Smith State

Prison on July 8, 2010 or at any other time.” Officer Nail further averred that had

she seen an inmate being held down or raped or even seen two inmates lying on the

same bunk, she would have immediately called for assistance to separate the


     1
         On the night of the attack, the record shows that lockdown did not occur until 1:00 a.m.
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inmates. No other evidence in the record indicates that Officer Nail actually

witnessed any inmate-on-inmate assault, or the presence of two inmates on a single

bunk, on the night of July 8, 2010. Officer Nail also averred that she had no

information or knowledge of inmate Whitehead’s history or gang affiliation on

July 8, 2010.

E.    The Complaint and Initial District Court Proceedings

      On April 18, 2012, Losey filed a complaint in the Superior Court of Fulton

County against the Georgia Department of Corrections (GDOC), the GDOC

Commisioner, the Warden of SSP, and various SSP correctional officers. At the

time, Officer Nail’s identity was unknown to Losey. She was designated as “Mary

Doe” in the initial complaint. That complaint included a state law claim against

GDOC.

      On July 2, 2012, the state court entered a consent order dismissing that state

law claim along with several of the defendants, including GDOC and the GDOC

Commissioner. On the same day, Losey filed a second amended complaint,

naming Officer Nail (and other individual correctional officers) for the first time.

      On August 10, 2012, the defendant officers filed their Answer and removed

the action to the United States District Court for the Northern District of Georgia.

On August 23, 2012, the case was transferred to the Southern District of Georgia,

where SSP is located.


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      The defendants filed dispositive motions. The defendant Warden filed a

Motion to Dismiss and the defendant officers filed a Motion for Judgment on the

pleadings. After referring the case to a magistrate judge, the district court entered

two orders. On October 24, 2012, the district court adopted the Report and

Recommendation of the magistrate judge and granted the defendant Warden’s

Motion to Dismiss. On November 20, 2012, the district court adopted a separate

Report and Recommendation and granted the defendant officers’ Motion for

Judgment on the Pleadings. On December 14, 2012, Losey timely appealed both

orders.

F.    Initial Appeal Before This Court

      On June 4, 2013, this Court affirmed the dismissal of all claims against the

Warden and the other defendant officers, but held that the district court erred in

granting the Motion for Judgment on the Pleadings in favor of Officer Nail. Losey

v. Warden, 

, 720 (11th Cir. 2013).

      This Court recited the factual allegations in Losey’s complaint against

defendant Officer Nail as follows: (1) “that Officer Nail conducted an unofficial

count on the night he was raped, walking directly past the cell in which he was

being held”; (2) “at the time that Officer Nail was conducting the count, Mr.

Whitehead was holding down Mr. Losey and covering his mouth, which Officer

Nail would have seen had she looked into the cell”; “that unofficial counts


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typically involve officers walking cell-to-cell and looking into the window of each

cell to check on the status and whereabouts of each inmate”; and (4) “that Officer

Nail ‘either looked into the cell and did not care what she saw, or she did not care

to look at all[.]’ ” 

concluded that, “[i]f true, these allegations show

that Officer Nail knew of a substantial risk of serious harm to Mr. Losey and failed

to intervene to prevent his rape.” 

against Officer Nail was thus

remanded to the district court for further proceedings.

G.    District Court Proceedings on Summary Judgment

      On May 2, 2014, after the parties conducted discovery, Officer Nail filed a

Motion for Summary Judgment. On July 7, 2014, the magistrate judge issued a

Report and Recommendation that Officer Nail’s motion be granted. On August

18, 2014, the district court adopted the Report and Recommendation and granted

summary judgment to Officer Nail.

      On August 21, 2014, Losey timely appealed.

                                 II. DISCUSSION

A.    Summary Judgment Standard

      Summary judgment is appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.




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. P. 56(a). 2 There is only a “genuine” dispute as to a material fact if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” FindWhat Investor Grp. v. FindWhat.com, 

, 1307 (11th Cir.

2011) (quoting Anderson v. Liberty Lobby, Inc., 

, 248, 

, 2510 (1986)). The court must “view all of the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in that party's

favor.” 

party bears the initial burden of demonstrating the absence of a

genuine dispute of material fact.” 

Corp. v. Catrett, 

, 323, 

, 2553 (1986)). If the nonmoving party would have the

burden of proof at trial, the moving party may satisfy this initial burden either by

producing “affirmative evidence demonstrating that the nonmoving party will be

unable to prove its case at trial” or by showing that “there is an absence of

evidence to support the nonmoving party’s case.” United States v. Four Parcels of

Real Prop., 

, 1437–38 (11th Cir. 1991) (quotation marks omitted). If

the moving party satisfies its burden by either method, the burden shifts to the

nonmoving party to show that a genuine issue remains for trial. 

   2
    We review the district court's grant of summary judgment de novo, viewing the facts and
drawing all reasonable inferences in the light most favorable to Losey, the nonmoving party.

.

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      At this point, the nonmoving party must “ ‘go beyond the pleadings,’ and by

its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on

file,’ designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 

, 593–94 (11th Cir. 1995) (quoting

, 106 S. Ct. at 2553).

B.    Eighth Amendment Standard

      The Eighth Amendment “imposes a duty on prison officials” to “take

reasonable measures to guarantee the safety of the inmates.” Caldwell v. Warden,

FCI Talladega, 

, 1099-100 (11th Cir. 2014) (quoting Farmer v.

Brennan, 

, 832, 

, 1976 (1994) (quotation marks

omitted and alterations adopted)). In particular, under the Eighth Amendment,

“prison officials have a duty . . . to protect prisoners from violence at the hands of

other prisoners.” 

, 114 S. Ct. at 1976 (quotation marks

omitted and alterations adopted). “It is not, however, every injury suffered by one

prisoner at the hands of another that translates into constitutional liability for

prison officials responsible for the victim's safety.” 

114 S. Ct. at 1977.

      A prison official violates the Eighth Amendment “when a substantial risk of

serious harm, of which the official is subjectively aware, exists and the official

does not respond reasonably to the risk.” Carter v. Galloway, 

, 1349

(11th Cir. 2003) (quotation marks omitted and alterations adopted) (emphasis


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added). To survive summary judgment on a failure-to-protect claim under the

Eighth Amendment, “a plaintiff must produce sufficient evidence of (1) a

substantial risk of serious harm; (2) the defendants’ deliberate indifference to that

risk; and (3) causation.” 

(quotation marks omitted).

      “The second element—that [a prison official] evidenced a deliberate

indifference to a serious risk that [a prisoner] would be injured—forms the crux of

the matter at hand.” 

official must “actually (subjectively) know[ ]

that an inmate is facing a substantial risk of serious harm, yet disregard[ ] that

known risk by failing to respond to it in an (objectively) reasonable manner.”

Rodriguez v. Sec'y for Dep't of Corr., 

, 617 (11th Cir. 2007). With

regard to the subjective component of the defendant's actual knowledge, the

defendant “must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and [s]he must also draw the

inference.” 

, 114 S. Ct. at 1979.

      Moreover, this must be shown by “conduct that is more than gross

negligence.” Townsend v. Jefferson Cnty., 

, 1158 (11th Cir. 2010).

“[T]he deliberate indifference standard—and the subjective awareness required by

it—is far more onerous than normal tort-based standards of conduct sounding in

negligence: ‘Merely negligent failure to protect an inmate from attack does not




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justify liability under [§] 1983.’ ” 

(quoting Brown v.

Hughes, 

, 1537 (11th Cir. 1990)).

C.    Our Analysis

      Here, Losey presents no evidence that Officer Nail actually knew of the

danger Losey faced on the night of July 8, 2010. There is no allegation of any

prior attack on Losey by Whitehead to put any prison official or correctional

officer on notice. Losey does not claim that he alerted any officer, much less

Officer Nail, that he was in danger. To the contrary, prior to the attack, Losey

freely and often went in and out of Whitehead’s cell. Even Losey himself had no

knowledge of a substantial risk of rape. And certainly neither did Officer Nail.

      As a result, Losey is left to argue (1) that Officer Nail, during her census

count, looked into the cell and witnessed the rape in progress or (2) that Officer

Nail failed to look in the cell and thus failed to notice the rape as a result of some

dereliction of duty. While Losey made these allegations in his second amended

complaint, those claims fail based on the summary judgment record.

      Indeed, Losey himself now admits that he cannot clearly identify who was at

the window during the attack. He did not see the officer’s face. He initially

identified the officer as being white, but Officer Nail is African-American. And

Officer Nail denies she saw any such attack.




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      This leaves Losey’s claim that Officer Nail conducted her census count, but

failed to even look into the cell during that census count. This claim also fails for

lack of any evidence. Losey admits that he cannot specify the exact time of the

rape. Losey went into Whitehead’s cell between 8:00 p.m. and 9:00 p.m., waited

to make his three calls on the contraband cellphone, and the rape occurred an

indeterminate time later. Officer Nail did not begin her shift until 10:00 p.m.

Officer Nail’s census count was completed around 11:30 p.m. (her testimony

shows that census count usually takes place around 11:25 p.m.) and there is no

evidence that the rape was between 11:00 p.m. and 11:30 p.m.

      In any event, even if Officer Nail failed to look into the cell during the

census count and even if the rape was still ongoing during the few seconds she was

supposed to look into the cell, there would still be no issue of fact as to actual

knowledge that inmate Whitehead posed a substantial risk of serious harm to

Losey.

      This Court has held that “the fact that [ ] officers deviated from policy or

were unreasonable in their actions—even grossly so—does not relieve [the

plaintiff] of the burden of showing that the officers were subjectively aware of the

risk; in other words, he cannot say, ‘Well, they should have known.’ ” 

. In Goodman, we explained that “[w]ere we to accept that theory

of liability, the deliberate indifference standard would be silently metamorphosed


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into a font of tort law—a brand of negligence redux—which the Supreme Court

has made abundantly clear it is not.” 

added that, “[a]lthough we view

the evidence and draw all inferences in the light most favorable to [the plaintiff],

we cannot reasonably base an inference on mere supposition, and nothing in this

record creates a genuine issue of fact as to whether [the defendant officers] were

subjectively aware of a substantial risk of serious harm to [the plaintiff].” 

this case. It is easily distinguished from cases where the individual

defendants had a clear awareness of specific danger of an inmate-on-inmate attack.

See 

(holding summary judgment inappropriate where

defendants knew of attacker’s violent past, of specific “targeting” of the plaintiff,

and that plaintiff “feared for his life” when prison officials returned him to a cell

with the attacker).

       In short, Officer Nail’s failure to look into a cell during a census count does

not show that Officer Nail had subjective awareness of a substantial risk of serious

harm to Losey, and because the legal standard for deliberate indifference requires

more than even gross negligence in the execution of Officer Nail’s required duties,

and thus “the law compels that we affirm the judgment of the district court.”

.3

   3
    Because Losey’s Eighth Amendment claim of deliberate indifference fails, Officer Nail has
no need of qualified immunity, so we do not separately address it. See 

n.10.

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                               III. CONCLUSION

      For the foregoing reasons, we find no reversible error and affirm the district

court’s grant of summary judgment in favor of defendant Officer Nail.

      AFFIRMED.




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