Notes:

Pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West Supp.2003), a magistrate judge reviewed Odom's case and recommended entry of summary judgment. The district court accepted this recommendation without modification. In the interest of simplicity, the magistrate judge's report and recommendation is referred to throughout this opinion as the district court's opinion

Our colleague does an admirable job of taking the evidence from Odom and presenting it with flourish and hyperbole in a light most favorable to the guards. Unfortunately, this approach is contrary to the legal standard we are to apply on summary judgment. For example, it is suggested by our friend that we have "omit[ted] any reference to the fact that the defendants knew at all times that other guards ... were standing by, armed with pepper spray and ready to intervene if hostile inmates were able to tear a hole in the fence of Odom's cage and attempt an assault on Odom."Infra at 778.

There are several reasons why such a statement is not included in our opinion. The most obvious reason is that no one says it. The defendants have provided no affidavits to show what they knew or what they believed. To reach the conclusion proposed we would have to draw an inference the guards knew or believed that someone else would protect Odom. But this would be an inference in favor of the defendants, which we are prohibited from drawing under the summary judgment rules, see Taylor, 155 F.3d at 482, particularly where Odom gives a statement under oath that the guards, who were theoretically being relied on by the defendants, were themselves asking the defendants to get Odom out of the cage. This confusion over the summary judgment standard persists throughout the dissent.

In his dissent, our friend worries that we have omitted important allegations from Odom's complaint, which suggested that "at the very moment that Odom shouted at Taylor to free him from his cage, Taylor wasevacuating other prisoners out of the burning prison facility." Infra at 778. The inference made by our friend is that Odom only asked Taylor for help one time. This inference would be strained even if we were viewing Odom's complaint in a light most favorable to the guards. But, to repeat yet again, this is not our standard of review. In addition to the allegations in Odom's complaint, the record contains statements by Odom made under oath that are uncontradicted by the defendants. Those statements show that Odom continuously begged the defendants for help and that, in response to those pleas, even guards Alford and Martin at one point told Taylor and the other defendants to get Odom out of the cage. Odom states that the defendants laughed at his pleas and ignored Alford and Martin's order to get Odom out.

This evidence can reasonably be viewed as establishing that the danger to Odom was obvious, that continuous requests for help were being made to Taylor and the other defendants by Odom, that a request was made by other guards to Taylor and the other defendants to help Odom, and that the refusal of the defendants to help Odom was not due to the fire or the anticipated assistance from other guards, but because of the deliberate indifference of the defendants.

It is honestly no more "obvious" to us that Powell's profane response can only be viewed as some kind of official statement, than would be Taylor's response to Odom that "you should not have snitched on them guys you stupid m____." J.A. 13. But, in any event, we know our disagreement with our dissenting brother is one that stems from an honest difference of opinion among colleagues (whichis possible), rather than "flat mischaracterizations" and agenda-driven judicial monkey-shines on his part.

LUTTIG, Circuit Judge, dissenting:

On the face of the allegations as Odom makes them, not as the majority distorts them, it is indisputable that the defendant prison officials responded constitutionally throughout the emergency with which they were confronted. Indeed, the denial of qualified immunity to these officials, given the exigent circumstances and their responsible conduct in those circumstances, may well represent the most far-reaching decision to date denying qualified immunity in our circuit.

Needless to say, the court's opinion is not even arguably reconcilable with our precedent in Robles v. Prince George's County, 302 F.3d 262, 266-67, 269 (4th Cir.2002), reh'g denied, 308 F.3d 437, in which we granted qualified immunity to officers who, in the middle of the night and in a deserted parking lot, handcuffed a man to a metal pole, and left him there, admittedly for no law enforcement purpose whatsoever. Thus, apart from the commission of error in this case, the majority also extends to the other end of the qualified immunity continuum the confusion that the court sowed by its decision in Robles, rendering principled predictions as to the availability of qualified immunity in our circuit now all but impossible.

It might be thought the saving grace of today's decision, that it will not be followed by the members of our court any more faithfully than has Robles. Properly viewed, however, this is the tragedy of such opinions, not their grace. For such confirms (for the cynic at least) that law really is but the ad hoc, not the principled application of pre-existing rule to fact.

I.

The majority's opinion is riddled with three distinct categories of error, all of which are evident upon a reading of Odom's own complaint. First, the majority selectively recites the contextual facts from Odom's allegations and the record, featuring only those facts that tend to bolster its conclusion, and excluding those facts that undermine its disposition. Next, it engages in advocatory characterization of the facts that it does choose to recite, presenting them in such a way that they are unrecognizable as they are alleged in Odom's own pleadings. Finally, the majority simply omits altogether those facts that would, in and of themselves, confirm the error of its holdings both as to a constitutional violation and as to the reasonableness of the defendants' actions. Through this composite of errors, the majority fails both to capture fairly the volatile circumstances Officers Powell, Evans and Taylor faced and to detail the emminently reasonable actions that each took in the course of their response to those exigent circumstances.

The irony in the end is that the majority postures itself as merely scrupulously repeating the allegations in the complaint and resting decision exclusively on those allegations, when in fact, itself not content to accept the plaintiff's allegations as they have been made, the majority has resorted to full-throated advocacy on the plaintiff's behalf.

The telling fact is this. If one reads Odom's handwritten complaint, he is actually struck by the care and specificity with which Odom has described the events of which he complains. From his description, it is plain that Odom does not allege a constitutional violation, but at least one is left with the belief that Odom has been scrupulously exacting in the allegations that he has made. In contrast, if one reads Odom's complaint, and then compares it with the majority's asserted recitation of Odom's report of events and allegations, one is left with the unmistakable impression that the majority has been anything but scrupulously exacting in its presentation of Odom's well-pleaded complaint.

A.

As to its selective recitation of Odom's allegations, the majority, first, hardly even acknowledges that the defendants' actions were taken during and in response to a fire that had engulfed the Special Management Unit where Odom was housed. Thus, despite its professed reliance upon Odom's allegations, the majority chooses not to include Odom's own description of the fire, which confirms the magnitude of the emergency with which the defendants were faced. According to Odom himself, "the fire reached such a level to where the whole B-side of the [Special Management Unit] had to be evacuated due to the smoke being so bad, that the officers had to put on oxygen tanks, and gas masks in order to evacuate the building." J.A. 11. Indeed, Odom states that at the moment when Officer Powell arrived to evacuate him from his cell, the smoke was so suffocating that he "could not breath [sic]." J.A. 106. In short, the defendants were evacuating prison inmates in response to a full-scale emergency — the burning of the building in which the inmates were housed — a fact that the majority all but ignores both in its factual recitation and in its analysis.

Second, although the majority refers in passing to the fact that Odom was housed in the Special Management Unit, it similarly chooses not to explain that this unit is the high-security ward at Evans Correctional Institution, in which the most dangerous inmates are kept segregated in their individual cells for twenty-three hours per day because of their dangerousness. J.A. 226. Relatedly, the majority also chooses not to mention that Odom was placed in this high security unit because he was found in possession of a homemade weapon. J.A. 225. Thus, when the Special Management Unit caught on fire, the defendants were faced with the task of evacuating and controlling not rank-and-file prison inmates, but the most dangerous and disobedient inmates in the correctional facility — another fact ignored by the majority in both its factual recitation and its analysis.

Third, although the majority notes that, when the fire broke out, the Special Management Unit inmates had to be moved from their cells into outside recreational cages, it also chooses not to cite those portions of the record that reveal the difficulty the guards had in maintaining control over those inmates once they were outside the burning building. For example, Odom reports that even before inmates broke into his cage, "[s]everal cages down ... several inmates had succeeded in busting a hole in [their] rec cage door and escaped from [their] cage and went to the next cage to help those inmates escape from [their] cage. [And][o]nce all of them were out, they started trying to break into the cage I was in." J.A. 14. A report filed by Captain Rogers, who was in command at the prison, explains that even after the Special Management Unit wing was finally cleared of smoke, "inmates refused to be restrained and placed back in their cells." J.A. 80. And, in fact, the guards ultimately had to call for reinforcements, force all the inmates to lie on the ground, and then strip search them before they could be allowed back into their permanent cells following the fire. Id. Thus, the picture that emerges from Odom's actual allegations (together with the uncontradicted record reports), as opposed to that painted by the majority, is not one of calm and orderliness during which guards stood idly by, but rather one of pandemonium that could well have devolved into full riot. Again, another fact all but ignored by the majority in its factual recitation and in its analysis.

To read the majority's opinion, then, one would scarcely know that, as Odom candidly alleges, the events in question took place during the emergency evacuation of the high-security unit at Evans Correctional Institution, during which the defendants were responding to near riotous conduct by the prison's most dangerous inmates.

B.

Having selectively recited Odom's allegations so as to minimize the magnitude of the exigency confronting the defendants, the majority next mischaracterizes the defendants' actions in ways so as to build the impression that those actions were anything but reasonable.

First, for example, the majority characterizes Powell as having "dismissed" Odom's concerns, when he said to Odom that "those dudes ain't going to f____ with you." It is not even credible to draw the inference that the majority does, that this statement was a "dismissal" of Odom's concerns, evidencing deliberate indifference. No reasonable factfinder could so find. To the contrary, on their face, these words reflect not only an acknowledgment of those concerns, but an expression that others would not be permitted to harm Odom. Were there any doubt as to this (which there is not), it would be laid to rest by yet another of Odom's allegations. In that allegation, which immediately precedes the one referenced above and, again, is left out by the majority, Odom states as follows: "Once ... Powell got to my cell to place the cuffs on me, I told him `I can't go out there with those guys on the rec field, they are going to try and kill me.' He [Powell] stated `O.K. come on,' so I put the cuffs on and he opened my cell door." J.A. at 11-12 (emphasis added).

Second, in like (mis)characterization, in summarizing Evans' actions, the majority asserts that "[t]here is no evidence that Evans took any action to assist Odom." J.A. 5. A more inaccurate characterization of Odom's own complaint could hardly be imagined. Odom himself reports that after Officer Evans placed him in an outside cage, Evans proceeded to evacuate another group of prisoners from the building. And Odom also reports that when Odom's enemies asked Evans to place them in Odom's cage, Evans refused and instead placed the hostile inmates in cages separate from Odom's, in order to protect Odom. J.A. 12.

Indeed, later, when Evans observed the inmates in the cage adjoining Odom's attempting to tear a hole in the fence, he went to Odom's cage to let Odom out, and retreated only when one of Odom's enemies brandished "a sharpened piece of fence band" and shouted at Evans that he would "stab the [expletive] out of [him]" if he continued to approach. J.A. 13. While, in his pleading, Odom included this account of Evans' initial attempts to rescue Odom, J.A. 13, Odom omitted mention of Evans' effort in the declaration of facts that he filed with his memorandum opposing the defendants' motion for summary judgment, see J.A. 107. Thus, even though the majority fails to appreciate the negative implications of this information for Odom's chances of success on the merits, Odom certainly understood those implications.

Again, Odom's own allegations prove the error in the majority's mischaracterization that there is "no evidence that Evans took any action to assist Odom."

Third, the majority mischaracterizes the actions of Odom's enemies, in order to buttress its dubious conclusion that the defendants were aware that Odom was in danger for the entire time that he was in the outside cage. According to the majority, when Odom's enemies were evacuated into the adjoining cage, "they immediately began tearing down the fence that separated them from Odom." Ante at 767. Yet again, Odom himself tells a different story. According to Odom, the inmates first "started kicking on the chain link fence trying to bust through it. This was not working, so they took their towells [sic] put them through the fence and pulled them back through and started bending one of the chain links back and forth in order to weaken and break it." J.A. 13. Odom's own allegations, therefore, reveal not only that the first efforts of his enemies to access his cage failed but that their succeeding efforts did not appear any more likely to succeed — and certainly not sufficiently more likely to succeed as to render the threat so imminent that abandonment of the inmates' evacuation from the burning building was warranted.

And there are similar inappropriate characterizations (and mischaracterizations at that) of Odom's pleadings throughout the majority's opinion.

C.

Finally, in addition to its selective recitation of facts and mischaracterization, the majority omits entirely to recite perhaps the most critical facts from Odom's allegations that ultimately prove the reasonableness of the actions taken by all of the defendants, and Taylor in particular.

As to defendant Taylor, according to Odom's own pleadings, at the very moment that Odom shouted at Taylor to free him from his cage, Taylor was evacuating other prisoners out of the burning prison facility. Nowhere in the majority's opinion does this indisputably critical fact appear. Compare J.A. 13 with ante at 768, 771-72. And after Taylor finished with the evacuation of those prisoners, he returned into the building to continue to rescue others. See J.A. 13, 81.

But similar omissions from the pleadings are made by the majority when those alleged facts would negate its conclusion of unconstitutional conduct by all three of the defendants. Among others, the majority omits any reference to the fact that the defendants knew at all times that other guards — whom Odom has not named as defendants here — were standing by, armed with pepper spray and able to intervene if hostile inmates were able to tear a hole in the fence of Odom's cage and attempt an assault on Odom, see ante at 769-71. And this fact not only appears on the face of Odom's complaint, but, needless to say, contrary to the majority's unconvincing assertion, see ante at 769 n. 2, requires no inference that the "guards knew or believed that someone else would protect Odom." Once again, as Odom's own complaint makes clear, Officer Alford, even before inmates broke into Odom's cage, had already used pepper spray on an inmate inside Odom's cage, whom other inmates goaded into attacking Odom. J.A. 15. And all in all, Officer Alford reports that he and Officer Moore discharged nine pounds of pepper spray on the hostile inmates that evening. Id. at 70. That other officers were present, armed with pepper spray, and able to intervene in any assault that did occur while the defendants completed the inmate evacuation from the burning building is plainly relevant, if not fully dispositive, of the reasonableness of these defendant's actions.

D.

In sum, while posturing itself as but faithful scriveners of plaintiff's allegations, the majority selectively recites the facts that Odom himself candidly recites that convey the emergency context in which the defendants found themselves, leaving out that the fire that forced the evacuation was of such magnitude as to require oxygen masks and gas tanks; taking no notice whatever that the Special Management Unit under evacuation was the facility's high-security ward, home to the most uncontrollable of the uncontrollable; and making no mention at all of the difficulties that beset the guards in attempting to bring under control these inmates, who, once evacuated from the burning building, began to riot.

The majority additionally characterizes and mischaracterizes the record, inaccurately (not to mention unfairly) describing Officer Powell's conduct as dismissive of Odom's concerns, when in fact Powell actually evinced genuine concern for Odom not only by personally rescuing him from the fire, but also by his reassurances in reply to Odom's expressions of fear; criticizing Evans for doing nothing to assist Odom, when in fact Evans took affirmative steps to protect Odom from harm; and misleadingly describing the hostile inmates as immediately having begun to tear down the fence, when in truth their initial attempts to weaken the fence had failed and their subsequent efforts appeared destined, if not to fail, then to prove time-consuming.

And, if this were not enough, the majority deliberately omits critical information from Odom's own allegations that confirms the reasonableness of the defendants' actions, failing even to mention Odom's own statement that Taylor was in the process of evacuating other inmates when Odom called to him, and omitting all reference whatsoever to the fact that other guards armed with pepper spray were standing by at all times, ready to quell any attack on Odom that materialized.

When Odom's allegations are fairly and honestly presented in full, an entirely different picture emerges from that painted by the majority. In that picture, guards at a high-security prison were evacuating the worst of the worst as the prison filled with suffocating smoke from a fire set by the prisoners themselves. One of those prison guards, Powell, who was wearing an oxygen tank and a gas mask, personally rescued Odom from his cellblock and led him to the safety of an outside recreational cage. When Odom noticed that another guard, Evans, was evacuating some of his enemies, Odom pleaded with Evans that these inmates not be allowed into his recreational cage, and Evans responded to those pleas by placing Odom's enemies in a cage separate from Odom's. And later, when Odom saw that his enemies were trying to use towels to weaken the fence separating his cage from theirs, he called out and Evans came to his rescue, retreating only when an inmate threatened to stab him if he proceeded further. Odom then called out to yet another officer, Taylor, but Taylor was occupied with the ongoing evacuation at that time. And all the while, other guards, armed with pepper spray, were present, ready to assist Odom should be become the victim of an inmate's assault, and ultimately in fact assisting him when inmates finally did break through and into Odom's cage.

It is not even arguable that anything occurred in this sequence of events that comes anywhere close to an Eighth Amendment violation.

II.

A.

The majority's qualified immunity analysis is even more strikingly indefensible than its Eighth Amendment analysis. The majority cites as controlling Fourth Circuit precedent Gordon v. Leeke, 574 F.2d 1147 (4th Cir.1978), stating that, on the strength of this opinion, it was well-established at the time of the attack on Odom "that a correctional officer who stands by as a passive observer and takes no action whatsoever to intervene during an assault violates the rights of the victim inmate." Ante at 773. Gordon v. Leeke, which includes only a handful of lines even addressing the Eighth Amendment claim, is, to the extent that one can discern anything at all about the allegations in that case, of no relevance whatsoever to the case before us.

There, we held that it was error for a district court to grant summary judgment to prison guards on an inmate's claim of Eighth Amendment violation, where the inmate had alleged that the guards stood idly by and watched while other inmates raped and robbed him. Gordon, 574 F.2d at 1152. Quite obviously, Powell, Evans and Taylor neither "stood idly by" nor were "passive observers." Rather, even from Odom's own allegations (which the majority distorts), it is clear that Powell personally evacuated Odom from his cell, that Evans attempted to free Odom from his cage until inmates threatened to stab him, forcing him to retreat, and that Taylor was evacuating other Special Management Unit prisoners from the burning building at the time that Odom called for help.

Moreover, unlike in Gordon, where the officers who did stand idly by were the only ones who observed the rape, here, other officers, armed with pepper spray, were present to observe, and respond affirmatively to prevent, any serious assault upon Odom by other inmates.

And if these distinctions were not enough, unlike in this case, there were no exigent circumstances of any kind whatsoever present in Gordon, against the backdrop of which the reasonableness of the defendants' conduct must be assessed.

Even to suggest, much less hold, as the majority does, that Gordon v. Leeke constituted clearly established law that these defendants' actions were unconstitutional is simply indefensible.

B.

Unable to find authority from our circuit that even comes close to supporting its disposition, the majority string cites four additional cases from other jurisdictions, which it claims in similarly general fashion support the proposition that "a prison official acts with deliberate indifference when he ignores repeated requests from a vulnerable inmate to be separated from a fellow inmate who has issued violent threats which the aggressor will likely carry out in the absence of official intervention." Ante at 773. If it is possible, these cases are even less relevant to the case sub judice than Gordon v. Leeke. Not only, as in Gordon v. Leeke, were there no exigent circumstances in any of these cases, but in each of these cases the defendant officers failed to respond over an extended period of time to the threat of which they had been made aware — a fact that the majority happens not to mention.

In Spruce v. Sargent, 149 F.3d 783, 785-86 (8th Cir.1998), prison officials ignored for over twelve months an inmate's requests for protection from sexual assaults. In Haley v. Gross, 86 F.3d 630, 632-34 (7th Cir.1996), prison officials failed, for over five days, to respond to an inmate's request to be separated from his dangerous cellmate, who eventually set the cell on fire. In Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 617-19, 621 (2d Cir.1996), prison officials ignored for months the requests of an inmate with known enemies in the prison to be transferred to a different location. And in Roland v. Johnson, 856 F.2d 764, 765-67, 770 (6th Cir.1988), prison officials allowed certain individuals for a considerable period of time to enjoy the privilege of being able to access other inmates' cells, despite evidence of the privileged individuals' tendencies toward sexual aggression. The contrast between the facts in these cases and the facts here, where the defendants had only minutes, if not moments, within which to respond during an emergency, and actually did so, could not be any starker.

To rest denial of qualified immunity on these authorities is nothing less than to read out of existence the foundational notice requirement that officials must have violated clearly established law in order to be held liable.

III.

That the majority's opinion is insupportable is only confirmed, as often is the case, by the nature of the response to the critique of its opinion. It presents itself as simply relying upon Odom's allegations, and this, without any characterization. But in responding to this dissent the majority does not even bother so much as to add reference to those allegations from Odom's complaint that it omits, nor remove its own advocatory characterizations. And neither does it attempt to marshal additional authority or clarify the authority relied upon in support of its legal conclusion that the defendants would have violated clearly established law had they conducted themselves as Odom alleges. Instead, it merely tries to deflect attention from its selective recitation of the contextual facts, its advocatory characterization, and its omission of facts, by suggesting that ours is a dispute over the standard of review on summary judgment, and that the majority, unlike the dissent, is simply drawing all inferences in favor of the plaintiff, as required. Ante at 773. As the majority well knows, this is not the nature of the dispute. I dissent from the majority's conclusion and opinion because it does not present the facts accurately, compare Hamdi v. Rumsfeld, 337 F.3d 335, 345 (4th Cir.2003) (Traxler, J., concurring in the denial of rehearing en banc), with 337 F.3d 335, 357 (Luttig, J., dissenting from denial of rehearing en banc), and when the facts are presented accurately, the majority's conclusion and opinion cannot withstand scrutiny.

Because Odom's own allegations fail to establish even a prima facie case that the defendants violated any of Odom's rights under the Eighth Amendment, let alone "clearly established" ones, I would affirm the district court's grant of summary judgment, and I dissent from the unprecedented disposition announced by the majority today.