Case: 15-11109    Date Filed: 06/22/2016   Page: 1 of 27


                                                                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           _______________________

                                  No. 15-11109
                            _______________________

                       D.C. Docket No. 5:13-cv-00256-MTT

WALKER D. BOWEN,
as administrator of the Estate
of TERRANCE DESMOND BOWEN,

                                                   Plaintiff-Appellant,

versus

WARDEN, BALDWIN STATE PRISON,
DOUG UNDERWOOD,
Deputy Warden of Security, Baldwin State Prison,
CAGER EDWARD DAVIS,
Correction Officer, Baldwin State Prison,

                                                   Defendants-Appellees,

ANTHONY BROOKINS,
Lieutenant, Baldwin State Prison, et al.,

                                                   Defendants.
                            _______________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                         ________________________
                                (June 22, 2016)
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Before ED CARNES, Chief Judge, JILL PRYOR and RIPPLE, ∗ Circuit Judges.

RIPPLE, Circuit Judge:

       On March 9, 2010, Terrance Bowen was beaten to death by his cellmate,

Carl Merkerson, at Baldwin State Prison in Milledgeville, Georgia. The

administrator of Mr. Bowen’s estate brought this action under 42 U.S.C. § 1983,

alleging that Mr. Bowen’s Eighth Amendment right to be free from cruel and

unusual punishment was violated when he was housed in a cell with Merkerson.1

In his complaint, the administrator named, among others, several prison officials as

defendants in their individual capacities. After twice allowing the administrator to

amend his complaint, the district court dismissed the action, holding that it did not

state Eighth Amendment claims against the prison officials and that, in any event,

the officials were entitled to qualified immunity. For the reasons set forth in this

opinion, we reverse the judgment of the district court with respect to two of these

officials, Deputy Warden Doug Underwood and Corrections Officer Cager Edward

Davis, and we remand those claims for further proceedings. In all other respects,

we affirm the judgment of the district court.


       ∗
          Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
       1
          “The Eighth Amendment’s ban on cruel and unusual punishment is made applicable to
the states by virtue of the Fourteenth Amendment.” Carter v. Galloway, 

, 1347
n.1 (11th Cir. 2003) (citing Robinson v. California, 

(1962)).



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                                                I

                                      BACKGROUND

                                               A. 2

       After nearly two years of incarceration for murder, Carl Merkerson was

transferred to Baldwin State Prison on February 18, 2010. At all relevant times,

Carl Humphrey was the warden of that institution; Doug Underwood was the

deputy warden of security; and Cager Edward Davis was the supervising

corrections officer of Unit K-3, the unit in which Mr. Bowen was murdered.

Collectively, we refer to these three individuals as the “defendant officials.”

       Merkerson was designated, according to prison guidelines, 3 a Level III

mental health inmate. This designation meant that he exhibited “a tenuous mental

status that is easily overwhelmed by everyday pressures, demands and frustrations

resulting in . . . impulsive behavior, poor judgment, a deterioration of emotional




       2
        The following factual allegations are taken from the administrator’s second amended
complaint; we must accept them as true for the purposes of this appeal. Murphy v. DCI
Biologicals Orlando, LLC, 

, 1305 (11th Cir. 2015).
       3
         The second amended complaint refers to the two policies at issue—those relating to
placement and mental health—only as “the Prison’s Placement [G]uidelines” and “[t]he Prison’s
manual,” respectively, R.83 at ¶¶ 10, 21, but does not give any additional context as to the origin
or authority of the policies. The defendants, however, refer to the Placement Guidelines as both
“GDOC guidelines,” R.53-1 at 4, and “Georgia Department of Corrections (GDOC) standard
operating procedure (SOP) VG40-0001,” R.86-1 at 2. They also refer to the mental health policy
as the “GDOC mental health policy.” R.86-1 at 12, 16.



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controls, loosening of associations, delusional thinking and/or hallucinations.”4

Specifically, Merkerson had suffered for several years from severe chronic

paranoid schizophrenia. He also experienced auditory hallucinations as well as

bizarre and violent delusions involving his cellmates. When his mental condition

decompensated, Merkerson became easily agitated and frustrated and was unable

to control his impulses or to appreciate the consequences of his actions; he also

became violent and dangerous. The defendant officials “were aware of

Mr. Merkerson’s mental illness”5; they “knew that [he] was a Mental Health

inmate, Level III.”6

      Merkerson initially was housed in Unit H-2, a unit for Level III mental

health inmates. On February 26, 2010, he assaulted his cellmate, John Williams.

The resulting disciplinary report characterized Merkerson’s conduct as

“High-Assault without a weapon.”7 Because of this attack, and due to his status as

a mental health inmate, the prison’s “Placement Guidelines” required that

Merkerson be housed alone unless “the demands of a specific situation require[d] a



      4
          R.83 at ¶ 21 (emphases omitted).
      5
          

90.
      6
          

22.
      7
          

¶ 26–27.



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placement contrary to the Placement Guideline[s].” 8 The defendant officials

“knew that Mr. Merkerson, pursuant to the Placement Guideline[s], had to be

‘housed’ alone.”9 After the assault, Merkerson was transferred from Unit H-2 to a

single occupancy cell in Unit K-3, “the lock-down segregation unit for

disciplinary, protected custody and mental health individuals.”10

      On or around March 2, 2010, Merkerson’s mother called the prison and

spoke with Merkerson’s mental health counselor, Pat Tyler. She told Tyler that her

son’s “mental health condition was decompensating,” that “when [his] mental

health decompensates, [he] becomes violent and dangerous,” and that he “needed

to be isolated from other inmates, so that he would not hurt anyone.” 11

Merkerson’s mother was told that Merkerson would be isolated. Deputy Warden

Underwood and Officer Davis knew Tyler and knew that he was Merkerson’s

counselor. However, the complaint does not allege specifically that any of the

defendant officials knew about the phone call from Merkerson’s mother.

      Merkerson remained alone in his cell in Unit K-3 until March 7, 2010, when

Terrance Bowen, also a mental health inmate, was placed in the cell with him.

      8
          

¶ 13–15.
      9
          

32.
      10
           

¶ 28, 35–36.
      11
           

¶ 128–30.



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“There was no specific situation justifying” the housing of Mr. Bowen with

Merkerson. 12 Mr. Bowen apparently could have been housed in Unit H-2, the unit

for mental health inmates. 13 Nevertheless, Merkerson and Mr. Bowen were housed

together in the same cell because Warden Humphrey had “instituted a policy of

double-celling inmates.” 14

       Merkerson was six inches taller than Mr. Bowen and outweighed him by

nearly one hundred pounds. The defendant officials knew of this size disparity.

The cell in which the two men were housed was small, measuring twelve feet by

eight feet, with solid cinder-block walls and a concrete floor. The cell’s door was

solid with a small window. The inside of the cell was not visible from the outside

unless the flap that covered the window, which was kept closed, was lifted. The

cell also was not equipped with an alarm. Both Deputy Warden Underwood and

Officer Davis were familiar with the layout of the cell.

       On March 8, 2010, the night before he was murdered, Mr. Bowen asked to

be removed from the cell “because of Mr. Merkerson,” but the request was denied



       12
            

46.
       13
         As mentioned earlier, according to the complaint, Unit H-2 is a unit for mental health
inmates. Unit K-3 is “the lock-down segregation unit for disciplinary, protected custody and
mental health individuals.” 

36.
       14
            

¶ 145, 149.



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“because of [Warden] Humphrey’s double-celling policy.” 15 The administrator

does not allege specifically that Mr. Bowen asked to be moved because Merkerson

had threatened him or that Mr. Bowen feared for his safety if he remained in the

cell, nor does the administrator allege that any of the defendant officials knew

about Mr. Bowen’s request.

      A large population chart in the unit office identified the inmates in each cell,

stated the crime for which each inmate was incarcerated, stated why each inmate

was in the unit, and stated whether the inmate was a mental health inmate.

Attached to the outside of each cell door was a “segregation/isolation checklist,”

which indicated each inmate’s mental health status, the unit from which they had

been transferred, and the reason they had been transferred. 16 At 10:47 a.m. on

March 9, 2010, the morning of Mr. Bowen’s murder, Deputy Warden Underwood

inspected the cell and saw the two men together inside. Deputy Warden

Underwood knew from the cell’s checklist that Merkerson was a mental health

inmate, that he had been convicted of murder and that he was in the cell for

assaulting another inmate. He had also seen the population chart in the unit office.

That same morning, Officer Davis, who had also observed Mr. Bowen in the cell

with Merkerson, signed the checklist outside the cell door. From the checklist,
      15
           

¶ 151–54.
      16
           

¶ 64–67.



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Officer Davis knew that Merkerson was a mental health inmate who had been

transferred to Unit K-3 from Unit H-2 and that he had recently assaulted another

inmate. Officer Davis also read the population chart in the unit office on the

morning of Mr. Bowen’s murder.

       Prison officials later discovered Mr. Bowen with his head stuffed in the

cell’s toilet and his body limp, brutally beaten, and unmoving. Merkerson had his

hands around Mr. Bowen’s neck and was pressing his knee against Mr. Bowen’s

back. Mr. Bowen was transported to the Medical Center of Central Georgia, where

he died a few hours later from injuries caused by the beating.

                                             B.

       On July 19, 2013, the administrator of Mr. Bowen’s estate brought this

action under 42 U.S.C. § 1983 in the United States District Court for the Middle

District of Georgia. The administrator alleged that Mr. Bowen’s Eighth

Amendment right was violated when he was housed in the cell with Merkerson,

and he named as individual defendants Warden Humphrey, Deputy Warden

Underwood, Officer Davis, and Rex Schoolcraft, a psychiatrist contracted by the

prison.17 On September 13, 2013, Dr. Schoolcraft moved to dismiss the claim



       17
         The initial complaint also named Lieutenant Anthony Brookins as a defendant, but
Lieutenant Brookins was not included as a defendant in the second amended complaint.



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against him, and the district court denied the motion.18 In a separate motion to

dismiss, the defendant officials—Warden Humphrey, Deputy Warden Underwood,

and Officer Davis—contended that the administrator had failed to state any claims

under the Eighth Amendment and that they were entitled to qualified immunity.

The district court then allowed the administrator to conduct limited discovery and

amend his complaint. The defendant officials again moved to dismiss.

       After a second discovery period, and with leave of the court, the

administrator filed his second amended complaint, and the defendant officials

moved to dismiss for a third time, raising the same arguments they had raised in

their two previous motions. With respect to the Eighth Amendment claims against

Deputy Warden Underwood and Officer Davis, the defendant officials argued that

the administrator had not made the necessary showing that either official

subjectively knew of a serious risk of harm to Mr. Bowen. They also asserted that

the administrator had failed to state a supervisory claim against Warden

Humphrey. Finally, the three defendant officials maintained that they were entitled

to qualified immunity because they were acting within their discretionary authority

and their conduct was not in violation of clearly established law.



       18
          The administrator’s case against Dr. Schoolcraft is ongoing. Dr. Schoolcraft has since
moved for summary judgment, and, according to the record before us, the motion is pending
before the district court.



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      The district court granted the motion and dismissed all of the administrator’s

claims. In the court’s view, the claims against Deputy Warden Underwood and

Officer Davis failed because the administrator “ha[d] not sufficiently alleged facts

to state a plausible claim that either Underwood or Davis was subjectively aware

that Merkerson posed a substantial risk of serious harm to Bowen.” 19 It held,

therefore, that both men were entitled to qualified immunity. The court also

dismissed the administrator’s supervisory claim against Warden Humphrey,

explaining that the administrator had failed to “allege that Humphrey knew or even

should have known that his double-celling policy had resulted in constitutional

violations” and concluding, therefore, that Warden Humphrey also was entitled to

qualified immunity. 20

      The administrator timely appeals the dismissal of the claims against

Deputy Warden Underwood and Officer Davis. The administrator does not,

however, challenge the dismissal of the supervisory claim against Warden

Humphrey, and so we do not address that claim.

                                           II

                                    DISCUSSION


      19
           R.93 at 10.
      20
           

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      We review the district court’s dismissal of the administrator’s claims de

novo, accepting the allegations in the second amended complaint as true and

construing them in the light most favorable to the administrator. Murphy v. DCI

Biologicals Orlando, LLC, 

, 1305 (11th Cir. 2015).

      To survive a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 570 (2007)). It

is established law in this circuit that “the Twombly-Iqbal plausibility standard”

applies equally to “[p]leadings for § 1983 cases involving defendants who are able

to assert qualified immunity as a defense.” Randall v. Scott, 

, 707

n.2, 709 (11th Cir. 2010); see also Hoefling v. City of Miami, 

, 1276

(11th Cir. 2016) (reaffirming holding of Randall).

                                           A.

      Deputy Warden Underwood and Officer Davis maintain that they are

entitled to the protections of qualified immunity. “To receive qualified immunity,

[a] government official must first prove that he was acting within his discretionary

authority.” Caldwell v. Warden, FCI Talladega, 

, 1098 (11th Cir.

2014) (internal quotation marks omitted). The administrator does not dispute that

the defendant officials have made this showing. Consequently, the burden now


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rests on the administrator to establish that Deputy Warden Underwood and

Officer Davis are “not entitled to qualified immunity by showing that the facts

alleged make out a violation of a constitutional right and that the constitutional

right was clearly established at the time of [the] conduct.” Perez v. Suszczynski,

, 1218 (11th Cir. 2016). We therefore must consider two questions:

(1) “whether, taken in the light most favorable to the [administrator], the facts

alleged show [Deputy Warden Underwood and Officer Davis’s] conduct violated a

constitutional right,” and, (2) if so, “whether the right was clearly established.” 

marks omitted).

      We first consider whether the facts alleged in the second amended complaint

make out a violation of the Eighth Amendment. “It is undisputed that the

treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment.” Helling v.

McKinney, 

, 31 (1993). Beyond just restraining prison officials from

inflicting “cruel and unusual punishments” upon inmates, “[t]he Amendment also

imposes duties on these officials, who must . . . ‘take reasonable measures to

guarantee the safety of the inmates.’” Farmer v. Brennan, 

, 832

(1994) (quoting Hudson v. Palmer, 

, 526–27 (1984)). To this end, the

Supreme Court has made clear that “prison officials have a duty . . . to protect

prisoners from violence at the hands of other prisoners.” 

(alteration in


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original) (internal quotation marks omitted); see also Zatler v. Wainwright, 

, 400 (11th Cir. 1986) (“[I]t is well settled that a prison inmate has a

constitutional right to be protected . . . from physical assault by other inmates.”).

      Deliberate indifference in the context of a failure to prevent harm has a

subjective and an objective component, i.e., a plaintiff must show both “that the

defendant actually (subjectively) kn[ew] that an inmate [faced] a substantial risk of

serious harm” and “that the defendant disregard[ed] that known risk by failing to

respond to it in an (objectively) reasonable manner.” 

(alterations in original) (internal quotation marks omitted). Not “every injury

suffered by one prisoner at the hands of another . . . translates into constitutional

liability for prison officials responsible for the victim’s safety.” 

. Rather, a prison official violates the Eighth Amendment in this context

only “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.” 

(emphasis omitted) (internal quotation marks omitted).

Accordingly, to state an Eighth Amendment claim premised on a failure to prevent

harm, a plaintiff must allege facts showing that: (1) a substantial risk of serious

harm existed; (2) the defendants were deliberately indifferent to that risk, i.e., they

both subjectively knew of the risk and also disregarded it by failing to respond in




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an objectively reasonable manner; and (3) there was a causal connection between

the defendants’ conduct and the Eighth Amendment violation. See 

district court, the defendant officials moved three times to dismiss the

various iterations of the administrator’s complaint, each time asserting that

Deputy Warden Underwood and Officer Davis were entitled to qualified immunity

on two grounds: (1) that the administrator had failed to make the necessary

showing that either was subjectively aware of a substantial risk of harm to

Mr. Bowen, and (2) that even if he had, preexisting law at the time did not clearly

establish that their failure to act violated the Eighth Amendment. In their briefs to

this court, the parties have focused their arguments on the same issues.

Accordingly, at this point in the proceedings, we will also focus our Eighth

Amendment inquiry on those issues,21 but we do not mean to imply that the

defendants may not raise other issues and make additional arguments as the facts

are developed. See Oladeinde v. City of Birmingham, 

, 1289 (11th

Cir. 2000) (explaining that defendants are “not precluded from asserting the

qualified immunity defense throughout the proceedings as the facts develop[]”).


       21
          See Caldwell v. Warden, FCI Talladega, 

, 1100 (11th Cir. 2014)
(limiting analysis to subjective component of deliberate indifference element where defendants
did not dispute remaining elements of plaintiff’s claim); Rodriguez v. Sec’y for Dep’t of Corr.,

, 620 (11th Cir. 2007) (“Because it is not necessary for us to do so, we decline to
address the objective component of Rodriguez’s Eighth Amendment claim.”).



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      In the district court’s view, the administrator did not plead sufficient facts

showing that Deputy Warden Underwood and Officer Davis subjectively knew of

the substantial risk posed to Mr. Bowen by allowing him to be housed in a cell

with Merkerson. We find ourselves in respectful disagreement with that

assessment. A prison official possesses actual, subjective knowledge of a

substantial risk when the official is “both . . . aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and . . . also

draw[s] the inference.” 

. “Whether a prison official had

the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial

evidence.” 

The trier of fact may, therefore, “conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious.” 

is only a heightened degree of culpability that will satisfy the

subjective knowledge component of the deliberate indifference standard, a

requirement that “is far more onerous than normal tort-based standards of conduct

sounding in negligence.” Goodman v. Kimbrough, 

, 1332 (11th Cir.

2013).

      We begin by setting out fully and precisely what, according to the

complaint, Deputy Warden Underwood and Officer Davis allegedly knew at the

time they failed to take action. Setting aside any conclusory legal allegations, the


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second amended complaint alleges that these two defendants knew: (1) that

Merkerson had been convicted of murder; (2) that Merkerson was a severe

paranoid schizophrenic who suffered from auditory hallucinations and violent

delusions involving his cellmates; (3) that Merkerson could become impulsive and

dangerous if his mental condition decompensated; (4) that Merkerson was

designated by the prison as a Level III mental health inmate, meaning he exhibited

“a tenuous mental status that is easily overwhelmed by everyday pressures,

demands and frustrations resulting in . . . impulsive behavior, poor judgment, a

deterioration of emotional controls, loosening of associations, delusional thinking

and/or hallucinations” 22; (5) that, according to the population chart and the cell

checklist, Merkerson had been transferred from Unit H-2 to Unit K-3, the

segregation unit, for assaulting his previous cellmate; (6) that the prison’s

“Placement Guideline[s]” required mental health inmates who had committed an

assault to be housed alone23; (7) that Mr. Bowen was being housed in the cell with

Merkerson in contradiction to the Guidelines’ requirement; (8) that Merkerson was

significantly larger than Mr. Bowen; and (9) that the cell that the two inmates

shared was small, not observable from the outside unless the window flap was

lifted, and not equipped with an alarm.
      22
           R.83 at ¶ 21 (emphases omitted).
      23
           

32.



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      Deputy Warden Underwood and Officer Davis’s primary contention is that

these factual allegations show, at most, that they possessed only a generalized

awareness of Merkerson’s problematic nature, a level of culpability we have held

insufficient to “satisfy the subjective awareness requirement.” Carter v. Galloway,

, 1350 (11th Cir. 2003). In Carter, John Carter was placed, over his

objection, in a cell with fellow inmate Termayne Barnes, “a close-security, Level 5

inmate.” 

Barnes informed Carter that he intended to fake a hanging in

order to obtain a transfer, and when Carter refused to assist Barnes in this

endeavor, Barnes told Carter that he would help him “one way or another.” 

to this verbal exchange, Barnes also “paced the cell like a caged animal”

and “generally act[ed] in a disorderly manner.” 

marks

omitted). Carter relayed this information to prison officials in an attempt to be

removed from the cell he shared with Barnes, but no action was taken. 

week later, Barnes stabbed Carter in the stomach with a shank. 

brought claims against the prison officials alleging that they had

violated the Eighth Amendment by allowing him to remain in the cell with Barnes,

and the district court dismissed the claims on summary judgment. 

we acknowledged that the prison officials were aware that

“Barnes was a problem inmate with a well-documented history of prison

disobedience and had been prone to violence” and that he was “acting crazy” and


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pacing his cell. 

(internal quotation marks omitted). Nevertheless, we

explained that “before [a defendant’s] awareness arises to a sufficient level of

culpability, there must be much more than mere awareness of [an inmate’s]

generally problematic nature.” 

prison officials possessed a

“generalized awareness” of “Barnes’s propensity for being a problematic inmate,”

without knowledge “of a particularized threat or fear,” we could not conclude that

the officials actually drew the inference that Barnes posed a substantial risk of

serious harm to Carter. 

We therefore affirmed the district court’s

grant of summary judgment in favor of the prison officials.

      At this stage of the proceedings, the administrator’s factual allegations,

taken as true, render his claims materially distinguishable from those in Carter.

According to the second amended complaint, Deputy Warden Underwood and

Officer Davis were not merely aware of Merkerson’s “generally problematic

nature.” 

. Rather, they knew specifically that he had committed a

“High-Assault” against his previous cellmate and that the assault had precipitated

his transfer and segregation in Unit K-3.24 Far from a generalized awareness of

Merkerson’s propensity to misbehave, this allegation indicates a degree of

specificity in the risk of harm posed to Mr. Bowen that simply was not present in


      24
           

¶ 14, 27–28, 35–36.



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Carter. See 

–22 (distinguishing Carter based on the

specificity of the information concerning the risk of harm provided by the inmate

to the defendant prison official); see also 

–43 (noting that

subjective knowledge may exist where a risk was “expressly noted by prison

officials in the past, and the circumstances suggest that the defendant-official being

sued had been exposed to information concerning the risk and thus ‘must have

known’ about it”). Furthermore, it is clear from the pleadings that Merkerson was

not merely “acting crazy.” 

. Deputy Warden Underwood

and Officer Davis allegedly understood the volatile and dangerous nature of

Merkerson’s mental condition. Both officials knew that Merkerson was a severe

paranoid schizophrenic who suffered from violent delusions, auditory

hallucinations, and impulsive tendencies. And if either official harbored any

doubts concerning the validity of Merkerson’s illness, they should have been

quelled by the knowledge of his designation as a Level III mental health inmate.

For these reasons, our decision in Carter involved an appreciably different set of

circumstances and cannot control our decision today.

      Far more relevant to the present case is Cottone v. Jenne, 

(11th Cir. 2003). In Cottone, Peter Cottone Jr. was arrested and eventually

“transferred from the Broward County Jail to Unit 1 of the North Broward

Detention Center, which houses mentally ill inmates.” 

Around the


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same time, Widnel Charles also was arrested. 

his arrest, Charles had

been detained “on numerous occasions due to his violent tendencies and a history

of schizophrenia,” and “[w]hile in the booking area of the Broward County

Jail . . . , Charles [had] struck another inmate.” 

Several days later,

Charles also was transferred to the North Broward Detention Center. 

Roughly a month after that, a staff psychiatrist determined that Charles was

mentally stable, resulting in his placement in Unit 1 with Cottone and another

inmate. 

1 was divided into three separate cells, the cell doors

were not locked, which allowed the three men to interact. 

day,

“[d]uring a schizophrenic episode, Charles allegedly strangled Cottone with

shoelaces.” 

transported to the North Broward Medical Center

where he later died. 

of the estate, Cottone’s father brought claims against the prison

officials under § 1983, alleging that their “reckless indifference toward a

substantial risk of serious inmate harm” had violated Cottone’s Eighth Amendment

right. Id.25 The district court denied the prison officials’ motion to dismiss,


       25
          The factual basis for the claim in Cottone occurred while Cottone was a pretrial
detainee. “[T]he relevant constitutional guarantee [therefore was] not the Eighth Amendment's
prohibition against cruel and unusual punishment, but rather the Due Process Clause of the
Fourteenth Amendment.” Cottone v. Jenne, 

, 1356 n.4 (11th Cir. 2003).
Nevertheless, we noted that, given the nature of Cottone’s claim, our analysis was the same
under either Amendment. 

15-11109   Date Filed: 06/22/2016   Page: 21 of 27


concluding that they were not entitled to qualified immunity, and the officials filed

an interlocutory appeal. 

Affirming the district court’s decision, we

explained that there was evidence that the prison officials were subjectively aware

of the substantial risk posed by Charles to other inmates because: (1) they were

assigned to Unit 1 and therefore “knew they were monitoring mentally ill inmates,

who were so mentally ill that they had been assessed, classified, and separated for

housing in Unit 1”; and (2) “they were aware of the substantial risk of serious harm

that Charles individually posed to other inmates based on his violent,

schizophrenic outbursts which occurred prior to the murder incident.” 

      Our decision in Cottone controls the present case. Like the prison officials

in Cottone, Deputy Warden Underwood and Officer Davis allegedly knew from

the population chart and the cell checklist that Merkerson, a convicted murderer,

was designated a Level III mental health inmate who had been transferred to Unit

K-3, “the lock-down segregation unit for disciplinary, protected custody and

mental health individuals,” after assaulting his former cellmate.26 They also

allegedly were aware of the specifics of Merkerson’s severe paranoid

schizophrenia, his delusions, and his violent impulses. Having personally seen

Mr. Bowen in the cell with Merkerson prior to the murder, both defendant officials


      26
           R.83 at ¶¶ 28, 36.



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would have known that such double celling violated the Placement Guidelines’

requirement that mental health inmates like Merkerson be housed alone.27

Moreover, unlike in Cottone, there is no indication in the pleadings here that

Merkerson’s mental stability was ever reassessed. There was no question that he

was unstable.

       The defendant officials do not discuss Cottone. Instead, they contend that

dismissal is appropriate because the administrator failed to make direct, explicit

allegations either (1) that Deputy Warden Underwood or Officer Davis knew that,

the night before his murder, Mr. Bowen had requested that he be removed from the

cell “because of Mr. Merkerson,” 28 or (2) that these defendants were aware of

Merkerson’s mother’s warning the week before to Pat Tyler, the prison mental

health counselor, that her son’s mental state was decompensating. For several

reasons, we decline to take such a parsimonious view of the administrator’s

complaint.


       27
          We recognize that “failure to follow procedures does not, by itself, rise to the level of
deliberate indifference.” Taylor v. Adams, 

, 1259 (11th Cir. 2000). It may still be
relevant to the extent that it shows subjective awareness of a substantial risk. See Hott v.
Hennepin Cty., Minn., 

, 906–07 (8th Cir. 2001); Williams v. Benjamin, 

,
766 & n.5 (4th Cir. 1996). But more than just a failure to follow procedure has been alleged in
the present case. That allegation is coupled with the allegations that the defendant officials knew
about Merkerson’s severe and documented mental illness, his violent behavior, and his recent
assault on a cellmate, and it is those allegations together that form the basis for the claim. At the
motion to dismiss stage, that is enough.
       28
            R.83 at ¶¶ 151–52.



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       As an initial matter, the Supreme Court has made clear that knowledge of an

inmate’s specific request to be moved based on a particular threat is not necessary

to state a failure-to-protect claim under the Eighth Amendment, as subjective

knowledge may be established “by reliance on any relevant evidence.” 

(explaining that “the failure [of an inmate] to give advance notice

[of a risk of harm] is not dispositive”); see also Hale v. Tallapoosa Cty., 

, 1583 (11th Cir. 1995) (same). In any event, the absence of these specific

allegations “does not diminish the reasonable inferences drawn from the”

considerable factual matter alleged in the second amended complaint. 

. According to the administrator, Deputy Warden Underwood and

Officer Davis knew the troubling details of Merkerson’s severe mental condition;

they knew of his recent assault against his cellmate; and they knew that, under the

Placement Guidelines, he should have been housed alone.

       These are not assertions of mere negligence or even gross negligence,29 nor

are they mere recitations of the legal elements of the administrator’s Eighth




       29
          Cf. Goodman v. Kimbrough, 

, 1334 (11th Cir. 2013) (affirming summary
judgment against plaintiff where defendants failed to conduct head counts or cell checks and
deactivated emergency call buttons because such evidence of negligence did “not relieve
Goodman of the burden of showing that the officers were subjectively aware of the risk”).



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Amendment claim. 30 On the contrary, the administrator alleges that Deputy

Warden Underwood and Officer Davis were actually aware of a substantial and

seemingly conspicuous risk posed to Mr. Bowen by allowing him to remain in the

small cell with Merkerson. See 

(explaining that

subjective knowledge can be inferred from circumstantial evidence and “the very

fact that the risk was obvious”). Even assuming that these defendant officials were

unaware of Mr. Bowen’s removal request or Merkerson’s mother’s warning, this

lack of awareness does not serve to negate or even to discount the facts they

allegedly did know.

       We conclude, therefore, that the administrator has set forth in his second

amended complaint sufficient facts showing that Deputy Warden Underwood and

Officer Davis were both “aware of facts from which the inference could be drawn

that a substantial risk of serious harm exist[ed], and . . . also dr[e]w the inference.”

Because this was the sole disputed element of his claims against these

defendants, dismissal was inappropriate.

                                               B.

       Although the administrator has made the necessary showing, on the face of

the complaint, that Mr. Bowen’s Eighth Amendment right was violated, “qualified

       30
          Cf. Franklin v. Curry, 

, 1251 (11th Cir. 2013) (reversing denial of
motion to dismiss where plaintiff’s complaint consisted mainly of “conclusory legal allegations”
lacking factual support).


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             Case: 15-11109     Date Filed: 06/22/2016    Page: 25 of 27


immunity will still attach unless that right was clearly established at the time”

Deputy Warden Underwood and Officer Davis failed to act. 

. “In determining whether a right is clearly established, the relevant,

dispositive inquiry is ‘whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’” 

(quoting 

). Thus, the “salient question” is whether,

looking to the decisions of the Supreme Court, the Eleventh Circuit, and the

Georgia Supreme Court, “the state of the law in” March 2010 gave Deputy Warden

Underwood and Officer Davis “fair warning” that their conduct was unlawful.

Hope v. Pelzer, 

, 741 (2002); McClish v. Nugent, 

, 1237

(11th Cir. 2007). We conclude that it did.

      Given the nature of the pleadings before us and the allegations that the

conduct at issue occurred in 2010, our discussion and reiteration of 2003 Cottone

circuit precedent in the 2014 decision in Caldwell v. Warden, FCI Talladega, 

(11th Cir. 2014), is dispositive. In Caldwell, addressing the clearly

established prong of qualified immunity, we explained that our 2003 decision in

Cottone had “held that the total failure to monitor or supervise a visibly violent,

mentally unstable, schizophrenic inmate who was housed in a separate unit for

mentally ill inmates and who posed a substantial risk of serious harm to other

inmates in that housing unit constituted deliberate indifference” in violation of the


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             Case: 15-11109     Date Filed: 06/22/2016    Page: 26 of 27


Eighth Amendment. 

(citing 

–59). As we have discussed in detail above, the record in this case is

materially indistinguishable from the circumstances present in Cottone. Deputy

Warden Underwood and Officer Davis were therefore on notice in March 2010

that “the law of this Circuit, as expressed in Cottone, clearly established that the

defendants’ total failure to investigate—or take any other action to mitigate—the

substantial risk of serious harm that [Merkerson] posed to [Mr. Bowen] constituted

unconstitutional deliberate indifference to [Mr. Bowen’s] Eighth Amendment

rights.” 

These defendants therefore are not entitled to qualified

immunity at this stage of the proceedings.

      We emphasize that the claims against Deputy Warden Underwood and

Officer Davis were dismissed on the pleadings and that in our analysis we have

taken the administrator’s factual allegations as true and construed them in his

favor. This case may look very different as it moves beyond the pleadings and the

record is developed more fully. See 

(explaining that

the “defendants [are] not precluded from asserting the qualified immunity defense

throughout the proceedings as the facts develop[]”). Nevertheless, at this stage and

on the pleadings alone, Deputy Warden Underwood and Officer Davis are not

entitled to the protections of qualified immunity.

                                     Conclusion


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      Because we conclude that Deputy Warden Underwood and Officer Davis are

not entitled to qualified immunity, we reverse the judgment of the district court and

remand the case for further proceedings. In all other respects, we affirm the

decision of the district court. The administrator may recover his costs in this court.

                       AFFIRMED in part, REVERSED and REMANDED in part.




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