Filed: Jul. 03, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1828 DAVID KARL DANSER, Plaintiff - Appellee, v. WARDEN PATRICIA R. STANSBERRY; LIEUTENANT BOBBY ROY; OFFICER THERON BOYD, Defendants – Appellants, and LIEUTENANT DODSON; OFFICER DIAZ, Defendants. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-ct-03116-BO) Argued: May 13, 2014 Decided: July 3, 2014 Amended: September 12, 2014 Before
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1828 DAVID KARL DANSER, Plaintiff - Appellee, v. WARDEN PATRICIA R. STANSBERRY; LIEUTENANT BOBBY ROY; OFFICER THERON BOYD, Defendants – Appellants, and LIEUTENANT DODSON; OFFICER DIAZ, Defendants. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-ct-03116-BO) Argued: May 13, 2014 Decided: July 3, 2014 Amended: September 12, 2014 Before ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1828
DAVID KARL DANSER,
Plaintiff - Appellee,
v.
WARDEN PATRICIA R. STANSBERRY; LIEUTENANT BOBBY ROY; OFFICER
THERON BOYD,
Defendants – Appellants,
and
LIEUTENANT DODSON; OFFICER DIAZ,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-ct-03116-BO)
Argued: May 13, 2014 Decided: July 3, 2014
Amended: September 12, 2014
Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded with instructions by published opinion.
Judge Keenan wrote the opinion, in which Judge Wilkinson and
Judge Diaz joined.
ARGUED: Michael Gordon James, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellants. Elizabeth
Guild Simpson, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G.
Walker, United States Attorney, R.A. Renfer, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellants.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
erred in holding that certain prison officials were not entitled
to qualified immunity for injuries inflicted by an inmate on
David K. Danser, a federal prisoner serving a sentence for
convictions involving the sexual abuse of a minor. The incident
occurred after prison officials left an enclosed recreation
space unsupervised for several minutes, during which period
Danser was attacked by an inmate who was a member of a violent
prison gang. Danser filed a complaint against the prison
officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971) (Bivens), alleging that the officials’ actions showed a
deliberate indifference to his safety, thereby violating his
constitutional rights. The prison officials filed a motion for
summary judgment asserting qualified immunity, which the
district court denied.
On appeal from the district court’s summary judgment
determination, the prison officials argue that they did not
violate Danser’s constitutional rights because the record lacks
any evidence that they had the “culpable state of mind”
necessary to establish a deliberate indifference claim. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). In response,
Danser argues that we lack jurisdiction over this appeal and,
alternatively, maintains that the district court correctly
3
concluded that the defendants were not entitled to qualified
immunity at the summary judgment stage of the proceedings.
Upon our review, we conclude that we have jurisdiction to
decide this issue of law, and that the district court erred in
denying the prison officials’ motion for summary judgment
asserting qualified immunity. Accordingly, we vacate the
district court’s order and remand the matter with instructions
that the court enter judgment in favor of the prison officials.
I.
Danser is a federal inmate serving a 370-month sentence for
convictions of sexual exploitation of children in violation of
18 U.S.C. § 2251(a), sexual abuse of a minor in violation of 18
U.S.C. § 2243(a), and possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B). At the time of the
incident at issue in this civil action, Danser was housed in the
“low” security facility at the Federal Correctional Institution
in Butner, North Carolina (FCI-Butner).
On August 21, 2005, Danser was assigned to the Special
Housing Unit (SHU) within FCI-Butner, after he engaged in a
verbal altercation with another inmate. The SHU is a secure,
closely supervised facility within FCI-Butner that houses
inmates whom prison officials have determined need separation
from the general inmate population, either because the inmate
4
violated prison rules or because the inmate requires protective
custody. See 28 C.F.R. §§ 541.21-541.23. Inmates in the SHU
are allowed only five hours of outdoor recreation per week.
About 100 inmates were housed in the SHU when Danser was
assigned to that unit.
Theron Boyd is a correctional officer employed by the
Federal Bureau of Prisons who worked in the SHU at FCI-Butner.
On August 22, 2005, Boyd reported to the SHU and was assigned to
a post that placed him in charge of the SHU’s recreation area.
The recreation area consists of eight fenced-in “recreation
cages,” which each are about ten feet long and ten feet wide and
hold up to five inmates per cage. Among other responsibilities,
Boyd was required to ask each SHU inmate if he wanted outdoor
recreation, determine which inmates would be placed together in
the recreation cages, and help transport inmates from their
cells to the cages.
On the day of the incident, Danser informed Boyd that he
wanted to participate in outdoor recreation. Boyd did not
recall Danser expressing concerns to him about being placed in a
recreation cage with any other inmate, and there is no evidence
in the record showing that Boyd was aware that Danser was a sex
offender.
Boyd made assignments to the recreation cages based on the
inmates’ custody level, the location of the inmates’ cells
5
within the facility, and information contained in a computer-
generated “SHU Report.” As a general matter, the SHU Report
includes each inmate’s name, his prison identification number,
and whether any inmate should be “kept separate” from any other
inmate in the SHU (“separation orders”). 1
The SHU Report is compiled from information entered into
the SHU computer by the “Officer-in-Charge” of the SHU. Danser
did not name this officer as a defendant in this lawsuit, and it
is undisputed that Boyd had no role in compiling or entering the
information in the SHU Report.
The parties dispute the content of the information
contained in the SHU Report that Boyd used in making the
recreation cage assignments, including whether separation orders
were included in the report. 2 However, it is undisputed that the
SHU Report did not contain information concerning Danser’s
status as a sex offender or the gang affiliation of Danser’s
1
An inmate may be considered a “separatee” from another
inmate if the two prisoners have engaged in physical violence
toward each other or if prison officials have determined that
physical violence would occur if the two inmates were placed
together. Under prison rules, two inmates with separatee status
toward each other are not allowed to participate in the same
recreation period, even if the inmates are placed in different
recreation cages.
2
We observe that neither the SHU Report used by Boyd on the
date of the incident, nor any examples of other SHU Reports from
other dates, are included in the record.
6
assailant. Instead, that information was entered into the
“Sentry” and “Central Information Monitoring” (CIM) systems,
which are separate databases maintained by the Bureau of
Prisons. As an officer in the SHU, Boyd had access to these
databases but there is no evidence in the record that he was
required to examine the two databases, or actually consulted
either of them, in making the recreation cage assignments.
Boyd assigned Danser to a recreation cage with three other
inmates, including Scott Gustin, a convicted drug dealer who is
a member of the violent prison gang “La Nuestra Familia.” 3 It is
undisputed that Danser and Gustin had never met before being
placed in the same recreation cage, and that there were no
“separation orders” requiring that Danser and Gustin be kept
apart from each other.
After placing the inmates in their recreation cages, Boyd
left the recreation area. By leaving the area unsupervised,
Boyd violated a duty specified in the orders for his post, which
required that inmates in the recreation area remain supervised
at all times.
3
Gustin originally was sentenced to prison for charges
relating to possession with intent to distribute heroin and
methamphetamine, and was assigned to the SHU after assaulting
another inmate.
7
While Boyd was away from the recreation area, 4 Gustin
knocked Danser to the ground and repeatedly kicked and stomped
his face, head, and body. Danser stated that Gustin uttered
obscenities and commented on Danser’s sex-offender status during
the attack. After prison officials responded to the assault,
Danser was transported to a local hospital where he received
treatment for a ruptured spleen, a punctured lung, some broken
ribs, and numerous bruises and abrasions. Boyd was not
disciplined or reprimanded by his supervisors for his actions in
connection with the incident.
Danser filed a complaint pursuant to Bivens against
Patricia Stansberry, the Warden of FCI-Butner at the time of the
incident, 5 in which he sought damages for his injuries. 6 Danser
later filed an amended complaint (the complaint) naming Boyd and
4
The parties dispute the amount of time that the area was
left unsupervised, with Boyd asserting that he was gone for
about one minute and Danser asserting that Boyd was away for at
least five minutes.
5
Danser also named two other prison officials, Officer
Carmine Diaz, Jr., and Lieutenant Robert Dodson, as defendants
in the original complaint. The district court granted summary
judgment in favor of Diaz and Dodson based on qualified
immunity, and Danser does not appeal from the court’s dismissal
of those defendants.
6
The Supreme Court held in Bivens that a violation of the
Fourth Amendment committed by a federal agent acting under color
of his authority may give rise to a cause of action for damages.
403 U.S. at 397; see Carlson v. Green,
446 U.S. 14, 24 (1980)
(extending Bivens to claims for Eighth Amendment violations).
8
his direct supervisor, Bobby Joe Roy, the Special Housing
Lieutenant in charge of the SHU at the time of the attack, as
additional defendants. Danser alleged in the complaint that
Boyd, Stansberry, and Roy (collectively, the defendants) were
deliberately indifferent to Danser’s safety, and that his
injuries resulting from the defendants’ conduct constituted
cruel and unusual punishment in violation of the Eighth
Amendment (the deliberate indifference claim).
Following discovery, the defendants filed a motion seeking
summary judgment based on qualified immunity. The district
court denied the motion, holding that there were material
disputed facts concerning whether the defendants violated
Danser’s constitutional rights. The defendants filed a timely
notice of appeal.
II.
A.
We first address Danser’s argument that we lack
jurisdiction over this appeal, because our review of the
district court’s decision would require that we review whether
the court’s factual findings are supported by the record. We
disagree with Danser’s position.
Under the collateral order doctrine, we have jurisdiction
to review a district court’s denial of qualified immunity at the
9
summary judgment stage of the proceedings to the extent that the
court’s decision turned on an issue of law. Cooper v. Sheehan,
735 F.3d 153, 157 (4th Cir. 2013); see Mitchell v. Forsyth,
472
U.S. 511, 530 (1985) (holding that a district court’s denial of
qualified immunity, “to the extent that [the decision] turns on
an issue of law,” is an appealable final decision under 28
U.S.C. § 1291). We lack jurisdiction, however, if the decision
was based on questions of evidentiary sufficiency properly
resolved at trial.
Cooper, 735 F.3d at 157; Al Shimari v. CACI
Int’l, Inc.,
679 F.3d 205, 221-22 (4th Cir. 2012) (en banc); see
also Gray-Hopkins v. Prince George’s Cnty.,
309 F.3d 224, 229
(4th Cir. 2002) (courts of appeal lack jurisdiction to determine
in an immediate appeal of denial of qualified immunity whether
the evidence is sufficient to support the facts as set forth by
the district court).
In this matter, contrary to Danser’s suggestion, our review
of the district court’s holding does not require that we reweigh
the evidence or resolve any disputed material factual issues.
See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008). Rather,
we determine as a matter of law whether the defendants violated
Danser’s constitutional rights, considering the facts as the
district court viewed them as well as any additional undisputed
facts. See Winfield v. Bass,
106 F.3d 525, 529-30, 532 n.3 (4th
Cir. 1997) (en banc). Accordingly, we conclude that we have
10
jurisdiction over this appeal, and we proceed to address the
merits of the defendants’ qualified immunity defenses.
B.
Boyd, Stansberry, and Roy argue that the district court
erred in denying their motion for summary judgment asserting
qualified immunity. They contend that, as a matter of law, the
undisputed material evidence failed to establish that they
violated Danser’s constitutional rights. Before we address each
defendant’s argument, we first set forth the applicable legal
principles.
We review de novo the denial of a motion for summary
judgment asserting qualified immunity. Iko, 535 F.3d at 237.
Summary judgment in such cases should be granted when, viewing
the facts in the light most favorable to the nonmoving party,
there is no genuine issue of material fact and judgment for the
moving party is warranted as a matter of law.
Id. at 230; Fed.
R. Civ. P. 56(c). In reviewing the district court’s decision
denying qualified immunity, we generally accept the facts as the
court viewed them.
Winfield, 106 F.3d at 530. Additionally, we
may also consider any undisputed facts that the court did not
use in its analysis. See
id. at 532 n.3, 535-36.
The doctrine of qualified immunity “balances two important
interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
11
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). The doctrine protects government officials
from liability for civil damages, provided that their conduct
does not violate clearly established statutory or constitutional
rights within the knowledge of a reasonable person. Harlow v.
Fitzgerald,
457 U.S. 800, 818 (1982). An official asserting the
defense of qualified immunity bears the burden of proof with
respect to that defense. Meyers v. Baltimore Cnty., Md.,
713
F.3d 723, 731 (4th Cir. 2013) (citation omitted).
In reviewing a district court’s decision rejecting a
defendant’s assertion of qualified immunity, we apply the
analysis set forth by the Supreme Court in Saucier v. Katz, 533
U.S. 194 (2001), as modified by the Court’s later decision in
Pearson. See
Meyers, 713 F.3d at 731. The Court’s holding in
Saucier requires a two-step approach, under which a court first
must decide whether the undisputed facts show that the
government official’s actions violated the plaintiff’s
constitutional rights.
Id. (citing Saucier, 533 U.S. at 201).
When the plaintiff has satisfied this initial step, a court must
determine whether the right at issue was “clearly established”
at the time of the events in question. 7
Id. (citing Saucier, 533
7
Thus, although a plaintiff may prove that an official has
(Continued)
12
U.S. at 201); see
Pearson, 555 U.S. at 236 (modifying the
Saucier approach such that courts are no longer required to
conduct the analysis in the sequence set forth in Saucier).
In this case, we focus our analysis on the first prong of
the Saucier test, namely, whether Danser has established for
purposes of summary judgment that the defendants violated one of
his constitutional rights. The constitutional right at issue is
Danser’s Eighth Amendment right to be protected from violence
committed by other prisoners. See Farmer, 511 U.S. at 833-35.
This constitutional right derives from the Supreme Court’s
holdings that the treatment an inmate receives in prison and the
conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.
Id. at 832-33. Because being
assaulted in prison is not “‘part of the penalty that criminal
offenders pay for their offenses against society,’”
id. at 834
(quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)), prison
officials are responsible for “protect[ing] prisoners from
violence at the hands of other prisoners.”
Id. at 833
(citations and internal quotation marks omitted).
violated the plaintiff’s constitutional rights, the official
nonetheless is entitled to qualified immunity if a reasonable
person in the official’s position “could have failed to
appreciate that his conduct would violate those rights.”
Meyers, 713 F.3d at 731 (citation and internal quotation marks
omitted).
13
An Eighth Amendment claim of this nature requires proof of
two elements to establish deprivation of a constitutional right.
Id. at 834; Brown v. N.C. Dep’t of Corr.,
612 F.3d 720, 723 (4th
Cir. 2010). First, a prisoner must establish a serious
deprivation of his rights in the form of a “serious or
significant physical or emotional injury.” 8
Brown, 612 F.3d at
723; see also De’lonta v. Johnson,
708 F.3d 520, 525 (4th Cir.
2013). It is undisputed here that Danser’s injuries qualify as
“significant” under this first element.
The second element, which forms the core of the present
dispute, requires that a plaintiff show that the prison official
allegedly violating the plaintiff’s constitutional rights had a
“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834
8
We observe that in Wilkins v. Gaddy, 559 U.S. 34, 37-38
(2010) (per curiam), the Supreme Court rejected the “significant
injury” requirement in the context of an Eighth Amendment
excessive force claim concerning an assault committed by a
corrections officer. The Court’s decision emphasized that in
cases involving the use of force committed by a prison official,
the “core” inquiry was not the degree of harm the prisoner
suffered but rather whether the official used force
“‘maliciously and sadistically to cause harm.’”
Id. at 37
(quoting Hudson v. McMillian,
503 U.S. 1, 7 (1992)). We do not
discern anything in the Wilkins decision that casts doubt on our
requirement that an inmate show a significant injury in
deliberate indifference cases, as opposed to excessive force
cases such as Wilkins. Indeed, in a case issued after Wilkins,
we applied the significant injury requirement to an Eighth
Amendment deliberate indifference claim involving allegations of
inadequate medical treatment. See De’lonta v. Johnson,
708 F.3d
520, 525 (4th Cir. 2013).
14
(citation and internal quotation marks omitted). In this
context, the required state of mind that must be established is
a “deliberate indifference to inmate health or safety.” Id.
(citations omitted).
A plaintiff establishes “deliberate indifference” by
showing that the prison official “kn[ew] of and disregard[ed] an
excessive risk to inmate health or safety.” Id. at 837.
Importantly, deliberate indifference is “a very high standard,”
Grayson v. Peed,
195 F.3d 692, 695 (4th Cir. 1999), which
requires that a plaintiff introduce evidence suggesting that the
prison official had actual knowledge of an excessive risk to the
plaintiff’s safety.
Farmer, 511 U.S. at 837. Notably, the
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.” Id.; see also
id. at 840-
42 (evidence concerning “constructive notice” of a substantial
risk is generally not sufficient proof to establish a deliberate
indifference claim); Rich v. Bruce,
129 F.3d 336, 338-40 (4th
Cir. 1997). A “showing of mere negligence” will not suffice.
Grayson, 195 F.3d at 695. Thus, “an official’s failure to
alleviate a significant risk that he should have perceived but
did not” will not give rise to a claim under the Eighth
Amendment.
Farmer, 511 U.S. at 838;
Iko, 535 F.3d at 241
(stating that “[i]t is not enough that the [defendant] should
15
have recognized” a substantial risk of harm for purposes of a
deliberate indifference claim) (citation and internal quotation
marks omitted).
1.
We turn to address Boyd’s argument that the district court
erred in concluding that he is not entitled to qualified
immunity. Boyd asserts that he did not have a culpable mental
state amounting to deliberate indifference, because he was not
aware of any facts suggesting that Gustin posed a particular
threat to Danser. In response, Danser argues that Boyd was not
entitled to summary judgment because a jury could determine
that, based on information available to Boyd, Boyd knew that
placing Danser and Gustin in the same recreational cage and
leaving the area unsupervised would create an excessive risk to
Danser’s safety. We disagree with Danser’s argument.
In this procedural posture, we are limited in our
consideration of the parties’ arguments to the district court’s
factual findings and any additional undisputed facts. Winfield,
106 F.3d at 530, 534. The district court based its decision on
the undisputed facts that Boyd assigned Danser, a convicted sex
offender, to the same recreation cage as Gustin, a violent gang
member, and that Danser’s injuries occurred when Boyd left the
area unsupervised in violation of his duties. The court further
noted that Boyd relied on information provided to him in the SHU
16
Report, and that the SHU Report did not include any data about
the inmates’ sex offender status or gang affiliation. However,
the court concluded that there was a “material fact in question
as to whether the information provided to [Boyd] had the
separation orders apparent on the [SHU] report.” 9
Critically, the district court’s analysis did not include
any findings concerning the fundamental issue whether Boyd had a
“sufficiently culpable state of mind,” namely, that he “kn[ew]
of and disregard[ed] an excessive risk to [Danser’s] health or
safety” in assigning him to the same recreation cage as Gustin.
Farmer, 511 U.S. at 834, 837 (citations and internal quotation
marks omitted). Moreover, there is no evidence in the record
that Boyd was aware Danser was a sex offender, or that Boyd was
required to check the prison databases in which that information
was contained. 10
9
The district court also considered whether the information
generally included on the SHU Report was sufficient and the fact
that Boyd was not disciplined for his actions in connection with
the attack. Because Boyd was not responsible for the content of
the SHU Report or for his own discipline, these issues are not
relevant in deciding whether he is entitled to qualified
immunity. See Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir.
2001) (liability in a Bivens case is personal, based upon each
defendant’s own actions).
10
Danser’s unsupported speculation to the contrary is
insufficient to create a disputed issue of material fact for
purposes of summary judgment. See Othentec Ltd. v. Phelan, 526
F.3d 135, 142 (4th Cir. 2008) (defendants’ mere access to
information insufficient to show on summary judgment that
(Continued)
17
The record also lacks any evidence of separation orders
issued before the attack requiring that Danser and Gustin be
separated from each other. The mere fact that Danser and Gustin
each had separation orders with respect to other inmates does
not show that Boyd would have appreciated the risk posed by
putting Danser and Gustin in the same recreation cage. Thus,
although the district court concluded that there were disputed
facts concerning the content of the SHU Report relating to
existing separation orders, that factual dispute was not
material to Boyd’s assertion of qualified immunity based on his
lack of knowledge that Danser and Gustin should be separated
from each other. See Al Shimari, 679 F.3d at 221-22 (whether a
disputed fact is material may be considered in an appeal of the
denial of qualified immunity on summary judgment).
With regard to Boyd’s act of leaving the recreation area
unsupervised, it is undisputed that this act was a violation of
Boyd’s responsibilities. However, there is no evidence in the
record showing that this dereliction of duty constituted
defendants actually used that information); Goldberg v. B. Green
& Co., 836 F.2d 845, 848 (4th Cir. 1988) (conclusory assertions
about defendant’s motivation and state of mind not sufficient to
withstand summary judgment); cf. Odom v. S.C. Dep’t of Corr.,
349 F.3d 765, 771-72 (4th Cir. 2003) (prison officials not
entitled to qualified immunity at summary judgment because
affirmative evidence showed they knew of and disregarded an
excessive risk to plaintiff’s safety).
18
anything other than negligence. Because the record lacks any
evidence that Boyd knew that Gustin posed a particular danger to
Danser, the record as a matter of law fails to show that Boyd
must have appreciated that his act of leaving Danser and Gustin
together in an unsupervised area created an excessive risk to
Danser’s safety on that basis. See Farmer, 511 U.S. at 837.
Accordingly, although Boyd may well have been negligent in his
actions, the evidence on which Danser relies fails to show that
Boyd acted with deliberate indifference.
Danser nevertheless argues that it was “obvious” to Boyd
that placing Danser in a recreation cage with Gustin and leaving
the area unsupervised would have led to an attack. See id. at
842 (evidence showing that a substantial risk of harm was
“obvious” constitutes circumstantial evidence that a defendant
was actually aware of that risk). However, the district court
did not conclude that the risk was obvious to Boyd, nor, as
discussed above, does the record suggest that the risk was
obvious given the lack of evidence concerning Boyd’s awareness
of Danser’s sex-offender status. To establish that a risk is
“obvious” in this legal context, a plaintiff generally is
required to show that the defendant “had been exposed to
information concerning the risk and thus must have known about
it.”
Id. (citation and internal quotation marks omitted). On
this record, there is no evidence that Boyd was exposed to such
19
information. Thus, as a matter of law, the record fails to
support Danser’s claim that Boyd violated his Eighth Amendment
rights. Accordingly, we conclude that the district court erred
in denying Boyd’s motion for summary judgment asserting
qualified immunity.
2.
We next address the arguments of Stansberry and Roy
challenging the district court’s denial of qualified immunity.
Stansberry and Roy argue that they did not violate Danser’s
constitutional rights because there is no evidence that they had
any personal involvement in the events leading up to the attack,
or that they were aware of an excessive risk to Danser’s safety.
In response, Danser argues that Stansberry and Roy were not
entitled to qualified immunity because, as Boyd’s supervisors,
they “tacitly authorized” Boyd’s actions by failing to
discipline him for his role in the assault. See Slakan v.
Porter, 737 F.2d 368, 372-73 (4th Cir. 1984). We disagree with
Danser’s argument.
We first set forth the entirety of the district court’s
analysis concluding that Stansberry and Roy were not entitled to
qualified immunity:
[T]o the extent that FCI-Butner or the SHU had a
policy or practice of ignoring or failing to update
the BOP classifications in Sentry and the CIM system,
or failed to adhere to acknowledged correctional best
practices regarding the protection of sex offenders,
20
Boyd’s supervisors, defendant Lieutenant Roy, as the
Special Housing Lieutenant in charge of the SHU, and
defendant Warden Stansberry[,] are directly
responsible and not shielded by qualified immunity for
the purposes of summary judgment.
The district court’s brief analysis concerning Stansberry
and Roy is problematic in several respects. As an initial
matter, government officials cannot be held liable in a Bivens
case under a theory of respondeat superior for the actions of
their subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). Rather, liability may be imposed based only on an
official’s own conduct.
Id. at 676-77; Trulock v. Freeh,
275
F.3d 391, 402 (4th Cir. 2001); see also McWilliams v. Fairfax
Cnty. Bd. of Supervisors,
72 F.3d 1191, 1197 (4th Cir. 1996)
(supervisors may not be held liable under 42 U.S.C. § 1983 for
actions of subordinate employees unless the supervisors have
“direct culpability” in causing the plaintiff’s injuries),
overruled on other grounds by Oncale v. Sundowner Offshore
Servs., Inc.,
523 U.S. 75 (1998).
The district court’s analysis fails to apply these legal
principles. The court’s observation that Stansberry and Roy
were “directly responsible” cannot be reconciled with the
court’s failure to identify any conduct of Stansberry and Roy
supporting this conclusion. Moreover, the record fails to
reveal any such evidence, or other evidence that FCI-Butner or
the SHU “had a policy or practice of ignoring or failing to
21
update the BOP classifications in Sentry and the CIM system.”
Thus, all that is present in the record before us is the mere
fact that Stansberry and Roy were Boyd’s supervisors, and under
Iqbal that is insufficient as a matter of law to conclude that
Stansberry and Roy violated Danser’s Eighth Amendment rights.
See 556 U.S. at 676.
Our conclusion is not altered by Danser’s argument that
Stansberry and Roy are not entitled to qualified immunity
because they “tacitly authorized” Boyd’s actions by failing to
discipline him after the incident. At its core, Danser’s
argument reflects a misperception of the “tacit authorization”
theory, which focuses on information known to a supervisor
before an incident occurs. See Shaw v. Stroud, 13 F.3d 791,
798-800 (4th Cir. 1994). A supervisor may be held liable under
a tacit authorization theory if that supervisor fails to take
action in response to a known pattern of comparable conduct
occurring before the incident at issue took place. See
McWilliams, 72 F.3d at 1197;
Slakan, 737 F.2d at 373. Here,
there is no evidence in the record that either Stansberry or Roy
was aware before the date of Danser’s attack of any alleged
defects in the assignment process for the recreation cages or of
a pattern of officers leaving the recreation area unattended.
Therefore, neither Stansberry nor Roy may be held liable under a
tacit authorization theory. See
McWilliams, 72 F.3d at 1197;
22
Slakan, 737 F.2d at 373. Accordingly, based on the record
before us, we conclude as a matter of law that the district
court erred in denying the summary judgment motion of Stansberry
and Roy. 11
III.
For these reasons, we vacate the district court’s order
denying the defendants’ motion for summary judgment. We remand
the matter to the district court with instructions that the
court enter an order granting judgment in the defendants’ favor
on the ground of qualified immunity.
VACATED AND REMANDED WITH INSTRUCTIONS
11
Having concluded that the defendants did not violate
Danser’s constitutional rights, we need not analyze under the
second Saucier prong whether such rights were clearly
established at the time of these events. See 533 U.S. at 201.
23
