Filed: Mar. 12, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7606 ADIB EDDIE RAMEZ MAKDESSI, Plaintiff – Appellant, v. LT. FIELDS; SGT. KING; CAPT. GALLIHAR; DAVID BELLAMY; GLEN BOYD; JANE DOE; THOMAS HALL, Defendants – Appellees, and HAROLD W. CLARKE, Director of Virginia Corrections; TIMOTHY SUMPTER; BRANDON WOODWARD; CLARENCE SHUPE; DENNIS SLUSS, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7606 ADIB EDDIE RAMEZ MAKDESSI, Plaintiff – Appellant, v. LT. FIELDS; SGT. KING; CAPT. GALLIHAR; DAVID BELLAMY; GLEN BOYD; JANE DOE; THOMAS HALL, Defendants – Appellees, and HAROLD W. CLARKE, Director of Virginia Corrections; TIMOTHY SUMPTER; BRANDON WOODWARD; CLARENCE SHUPE; DENNIS SLUSS, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District J..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7606
ADIB EDDIE RAMEZ MAKDESSI,
Plaintiff – Appellant,
v.
LT. FIELDS; SGT. KING; CAPT. GALLIHAR; DAVID BELLAMY; GLEN
BOYD; JANE DOE; THOMAS HALL,
Defendants – Appellees,
and
HAROLD W. CLARKE, Director of Virginia Corrections; TIMOTHY
SUMPTER; BRANDON WOODWARD; CLARENCE SHUPE; DENNIS SLUSS,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:11−cv−00262−GEC−PMS)
Argued: October 28, 2014 Decided: March 12, 2015
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge Wynn wrote the
majority opinion, in which Judge Motz joined. Judge Motz wrote
a separate concurring opinion. Judge Shedd wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Stephen William Kiehl, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant. Trevor Stephen Cox, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Daniel Suleiman, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant. Mark R. Herring, Attorney
General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney
General, Stuart A. Raphael, Solicitor General of Virginia, Linda
L. Bryant, Deputy Attorney General, Richard C. Vorhis, Senior
Assistant Attorney General, Kate E. Dwyre, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.
2
WYNN, Circuit Judge:
Plaintiff Adib Eddie Ramez Makdessi lodged numerous
complaints about repeated physical and sexual abuse he suffered
while imprisoned in Virginia Department of Corrections
facilities. The court below found it “clear” that prison
officials “should have been more diligent in handling Makdessi’s
claims of sexual assault.” J.A. 975. Nevertheless, the
magistrate judge recommended, and the district court adopted,
the view that because the prison officials named as defendants
in Makdessi’s suit did not actually know of the substantial risk
of harm Makdessi faced, his claims must fail.
The Supreme Court has stated, however, that the subjective
“actual knowledge” standard required to find prison officials
deliberately indifferent to a substantial risk of serious injury
may be proven by circumstantial evidence. Prison officials may
not simply bury their heads in the sand and thereby skirt
liability. Rather, they may be held accountable when a risk is
so obvious that it had to have been known. Because we do not
believe that the court below appreciated this nuance, we vacate
the dismissal of Makdessi’s claims against Defendants Fields,
King, and Gallihar.
3
I.
Makdessi does not dispute the facts found as a result of
the bench trial below. Makdessi is a five-foot-four-inch,
forty-nine-year-old man with physical and mental ailments that
make him “vulnerable to harassment and attacks” in prison. J.A.
956. Thus, Makdessi has been forced to pay for protection from
such abuse.
Makdessi testified that Defendant Christopher King, a
prison official at Wallens Ridge State Prison, where Makdessi
was incarcerated, repeatedly called him names including “sand
nigger” and “bitch.” Id. Makdessi testified that as far back
as 2007, he complained to the Assistant Warden about
mistreatment by his cellmate, that King accused him of being a
“snitch,” and that no one ever investigated and nothing was
done.
In 2010, Makdessi sent another complaint to the Assistant
Warden, stating that King hated him, refused to listen to him,
and retaliated against him when he complained. Makdessi
testified that this complaint, too, garnered no response.
In August 2010, Makdessi was moved to a cell with a new
cellmate, Michael Smith, who was an aggressive gang member.
“Although Makdessi went to the floor correctional officer to
request that he be placed in a different cell or protective
custody, and the officer said he would advise Sgt. King, he
4
remained in the same cell with Smith.” J.A. 957. Makdessi also
testified that he wrote a complaint about being housed with
Smith, which Smith destroyed.
Per prison operating policy, offender enemies are to be
identified and separated. Under the policy, prison officials
“shall take appropriate measures to protect those offenders
involved,” and an enemy is defined as an offender who “pose[s] a
significant threat to the life of another offender.” J.A. 962.
Makdessi testified that he was physically and sexually
assaulted by Smith and his Gangster Disciple associates numerous
times. On one such occasion, December 8, 2010, Smith beat and
raped Makdessi, Makdessi “tried to report this incident to Sgt.
King, but King told him to ‘get the hell away’ from him, and no
investigation occurred.” J.A. 957. Within a day of the
December 8 attack, Makdessi wrote a letter to the Assistant
Warden about it but received no response.
Makdessi also reached out to the Federal Bureau of
Investigation on December 20, 2010, stating that he feared
prison staff and prison gang members had teamed up to end his
life. In the letter to the FBI, Makdessi also underscored that
despite the multiple attacks and his telling Defendant Tracy
Fields and others that he was in danger and needed to be placed
in protective custody, he remained unprotected in the cell with
Smith.
5
Makdessi testified that on December 20, 2010, he met with
Defendant Fields regarding an informal complaint he had filed.
During that meeting, Makdessi told Defendant Fields that he
feared for his life due to his cellmate Smith, a gang leader,
and that he wanted to be placed in protective custody. Makdessi
testified that Defendant Fields said he would advise Defendant
King.
The following day, December 21, 2010, Smith attacked
Makdessi. According to Makdessi, Smith confronted him with the
letter Makdessi had sent to the Assistant Warden about the
December 8 attack and told him that “[b]efore the day is over,
we’re going to kill you.” J.A. 959. Smith punched and beat
Makdessi, called him a “snitch,” flushed the letter down the
toilet, and then raped Makdessi. Id. Makdessi testified that
he screamed loudly, yelled for help, and tried—but failed—to
push the emergency button in his room. “Makdessi testified that
his screams could have been heard.”
Id. Makdessi testified
that Smith ejaculated onto the bed, cleaned himself up, and
ordered Makdessi to clean himself.
The prison was on “restricted movement” that day, meaning
that inmates had to eat lunch in their cells. J.A. 959.
Nevertheless, inmates were allowed out, four cells at a time, to
retrieve lunch trays. Makdessi testified that Smith refused to
let him leave the cell when the doors opened. And when they
6
shut, Smith forced Makdessi to perform oral sex, during which
Makdessi bit Smith. Smith again beat Makdessi. Makdessi
testified that Smith’s gang associates came by the cell, and
prison guards performed their rounds, but no one intervened.
Makdessi testified that Smith packed his television and
other personal items in a laundry bag for a gang associate to
retrieve. When the cell door opened, while Smith placed
Makdessi’s things outside the cell, Makdessi escaped. Smith and
a gang associate chased and caught him, and Smith again began
punching Makdessi. A warning shot was fired, Smith and his gang
associates hit the floor, but Makdessi continued to run away.
Makdessi was taken to medical, where he required stitches
to his face and an x-ray of his ribs. Blood was also found in
Makdessi’s anorectal sample and inside the back of Makdessi’s
underpants. Despite Makdessi’s report that Smith ejaculated
into the bed sheets, those were never analyzed. Neither was the
blood found under Makdessi’s fingernails. After discharge from
the hospital, Makdessi spent forty-seven days in the mental
health infirmary. Smith refused medical treatment after the
December 21 altercation and denied the rape allegation.
Makdessi testified that while he was in the mental health
infirmary, Defendant King came by and said “‘I told these guys
to go ahead and kill you’” and that “‘[y]ou need to stop filing
all these grievances because what happened to you is nothing
7
compared to what’s going to happen to you.’” J.A. 961. Soon
thereafter, Makdessi was transferred to another prison, where he
was placed in protective custody.
Defendants contradicted much of Makdessi’s story.
Defendant King, for example, testified that he “never threatened
Makdessi.” J.A. 969. Defendant Fields testified that Makdessi
did not complain of problems with his cellmate on December 20,
2010, nor did Makdessi “indicate[] that he was in fear for his
life from anyone, that he was being sexually assaulted or that
he feared being sexually assaulted by anyone.” J.A. 970.
“Likewise, Sgt. King testified he was never made aware that
Makdessi feared for his life or that he feared being sexually
assaulted.” J.A. 971. Defendant Arvil Gallihar, whose duties
included being responsible for the overall operations of all the
prison buildings, testified that “Makdessi never informed him
that he feared for his life, and he never made any allegations
of being raped to him.” Id. And Defendants King and Gallihar
both denied having seen any grievances Makdessi made involving
sexual assault.
A half year later, in June 2011, Makdessi brought this suit
against various prison officials, alleging violations of his
Eighth Amendment right to be free from cruel and unusual
punishment. After Makdessi amended his complaint and some named
defendants were dismissed, the case proceeded to trial before a
8
magistrate judge. The magistrate judge issued a report and
recommendation finding that “Makdessi clearly suffered serious
physical injuries” and that “the evidence admitted at trial
undoubtedly shows that Makdessi filed numerous grievances and
complaints to various departments, and he wrote letters to the
Assistant Warden and the Director of the [Virginia Department of
Corrections], alleging that he had been sexually assaulted on
multiple occasions while incarcerated . . . . [I]t is clear to
the undersigned that the staff . . . should have been more
diligent in handling Makdessi’s claims of sexual assault.” J.A.
964, 974-75.
Nevertheless, the magistrate judge found that “Makdessi
cannot show that defendants failed to protect him . . . in
violation of the Eighth Amendment” and recommended that the
district court enter judgment in Defendants’ favor. J.A. 975-
76. Makdessi specifically objected to only some of the
magistrate judge’s determinations. The district court adopted
in its entirety the magistrate judge’s report and
recommendation, and Makdessi appealed.
II.
As an initial matter, the parties dispute what claims are
actually before us. Makdessi contends that he has challenged
all claims dismissed per the magistrate judge’s recommendation
9
and report as adopted by the district court. By contrast,
Defendants argue that Makdessi failed to specifically object to
the magistrate judge’s determination that Defendants David
Bellamy, Glen Boyd, and Thomas Hall should be dismissed from the
case. Accordingly, per Defendants, Makdessi waived any
challenge to Bellamy’s, Boyd’s, and Hall’s dismissal.
“[T]o preserve for appeal an issue in a magistrate judge’s
report, a party must object to the finding or recommendation on
that issue with sufficient specificity so as reasonably to alert
the district court of the true ground for the objection.”
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
This preservation requirement conserves “judicial resources and
makes certain that appellate courts have well-formed records to
review[.]” United States v. Benton,
523 F.3d 424, 428 (4th Cir.
2008). Where an appellant has failed to preserve an issue, it
is deemed waived.
Id.
Here, the face of Makdessi’s objections to the magistrate
judge’s recommendation and report speaks for itself. The
objections repeatedly mention Defendants King, Fields, and
Gallihar—each of those names appears in Makdessi’s objections
more than twenty times. By contrast, Bellamy’s and Hall’s names
appear in the entirety of the objections only once each, and
Boyd’s name appears only twice. In essence, they are absent
from the objections.
10
Makdessi tries to attach significance to his general
contention that another inmate’s claim that the December 21
assault was loud enough that a guard would have heard it
warranted “examination.” 1 J.A. 980-81. But that contention,
included in a list of “undisputed facts that were absent from
the Report and Recommendation,” understandably did not put the
district court on notice that Makdessi challenged the
recommended dismissal of Defendants Bellamy, Boyd, and Hall.
Accordingly, Makdessi failed to preserve any objection to
the dismissal of his claims against Defendants Bellamy, Boyd,
and Hall. And Makdessi does not argue, e.g., for plain error
review. We therefore do not review the waived arguments
regarding the claims against Defendants Bellamy, Boyd, and Hall.
In re Under Seal, 749 F.3d 276, 292 (4th Cir. 2014) (refusing to
undertake plain error review in a civil case where appellant
failed to argue that the elements for plain error review had
been satisfied).
III.
Moving on to what is before us, we review “judgments
stemming from a bench trial under a mixed standard: factual
1
Makdessi’s claims against Bellamy, Boyd, and Hall related
specifically to the December 21, 2010 attack and not to earlier
events such as Makdessi’s prior complaints and grievances.
11
findings are reviewed for clear error, whereas conclusions of
law are reviewed de novo.” Helton v. AT&T, Inc., 709 F.3d 343,
350 (4th Cir. 2013).
As the district court noted, “Makdessi complains that the
magistrate judge’s report [which the district court adopted in
its entirety] offers only two paragraphs about the applicable
legal standard and fails to discuss the nuanced legal theories
under which he believes he has proved defendants’ subjective
knowledge through circumstantial evidence.” J.A. 1001.
Makdessi contends that “[n]o direct evidence of an official’s
knowledge of the risk is necessary when a risk is obvious . . .
.” Appellant’s Br. at 32. Upon careful consideration of the
controlling law, we agree.
A.
“In its prohibition of ‘cruel and unusual punishments,’ the
Eighth Amendment places restraints on prison officials, who may
not, for example, use excessive physical force against
prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). The
Amendment also imposes duties on these officials, who must
provide humane conditions of confinement.
Id.
“The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones . . . .”
Farmer, 511 U.S.
at 832 (citation omitted). Prisons house “persons [with]
demonstrated proclivit[ies] for antisocial criminal, and often
12
violent, conduct[,]” and at the same time “strip[s]” inmates “of
virtually every means of self-protection . . . .” Id. at 833
(citation omitted). “[T]he government and its officials are not
free to let the state of nature take its course[, and]
gratuitously allowing the beating or rape of one prisoner by
another serves no legitimate penological objective.”
Id.
(citations and alteration omitted).
Prison officials are, therefore, obligated to take
reasonable measures to guarantee inmate safety. “In particular,
. . . prison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” Id. (quotation
marks omitted).
That being said, not every injury suffered by a prisoner at
the hands of another “translates into constitutional liability
for prison officials responsible for the victim’s safety.” Id.
at 834. Rather, liability attaches only when two requirements
are met. First, “a prison official’s act or omission must
result in the denial of the minimal civilized measure of life’s
necessities.”
Id. (quotation marks and citations omitted).
For a claim based on a failure to prevent harm, the plaintiff
must show that he was “incarcerated under conditions posing a
substantial risk of serious harm.”
Id. No one disputes the
lower court’s finding here that “Makdessi clearly suffered
13
serious physical injuries” and thus meets this first prong.
J.A. 964.
Second, the prison official must have a “sufficiently
culpable state of mind” to be held liable. Farmer, 511 U.S. at
834 (citations omitted). “In prison-conditions cases that state
of mind is one of ‘deliberate indifference’ to inmate health or
safety . . . .”
Id. It is this second deliberate indifference
prong that is at the heart of Makdessi’s appeal.
In Farmer, the Supreme Court explained that “deliberate
indifference” entails “more than ordinary lack of due care for
the prisoner’s interests or safety,” and “more than mere
negligence,” but “less than acts or omissions [done] for the
very purpose of causing harm or with knowledge that harm will
result.” Id. at 835 (citation omitted). “The Court held that
deliberate indifference in this context lies somewhere between
negligence and purpose or knowledge: namely, recklessness of the
subjective type used in criminal law.” Brice v. Virginia Beach
Corr. Ctr.,
58 F.3d 101, 105 (4th Cir. 1995).
“Nevertheless, even under this subjective standard, a
prison official cannot hide behind an excuse that he was unaware
of a risk, no matter how obvious.” Brice, 58 F.3d at 105. This
is because even a subjective standard may be proven with
circumstantial evidence:
14
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, and a factfinder may
conclude that a prison official knew of a substantial
risk from the very fact that a risk was obvious.
Farmer, 511 U.S. at 842 (citations omitted). “In other words,
although the obviousness of a particular injury is not
conclusive of an official’s awareness of the injury, an injury
might be so obvious that the factfinder could conclude that the
guard did know of it because he could not have failed to know of
it.”
Brice, 58 F.3d at 105 (citations omitted).
A prison official’s subjective actual knowledge can be
proven through circumstantial evidence showing, for example,
that the “substantial risk of inmate attacks was longstanding,
pervasive, well-documented, or 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.”
Farmer, 511 U.S. at 842 (quotation marks omitted). Direct
evidence of actual knowledge is not required. See
id. at 842-
43.
Accordingly, prison officials may not simply bury their
heads in the sand and thereby skirt liability. “[E]ven a guard
able to prove that he was in fact oblivious to an obvious injury
of sufficient seriousness may not escape liability if it is
15
shown, for example, that he merely refused to verify ‘underlying
facts that he strongly suspected to be true,’” or that he
“‘declined to confirm inferences of risk that he strongly
suspected to exist.’” Brice, 58 F.3d at 105 (quoting
Farmer,
511 U.S. at 843 n.8). And “it does not matter whether the risk
comes from a single source or multiple sources, any more than it
matters whether a prisoner faces an excessive risk of attack for
reasons personal to him or because all prisoners in his
situation face such a risk.”
Farmer, 511 U.S. at 843. Nor is
it dispositive that the prisoner did not give advance warning of
the risk or protest his exposure to the risk.
Id. at 848-49.
A prison official remains free to rebut the deliberate
indifference charge, even in the face of an obvious risk.
“Prison officials charged with deliberate indifference might
show, for example, that they did not know of the underlying
facts indicating a sufficiently substantial danger and that they
were therefore unaware of a danger, or that they knew the
underlying facts but believed (albeit unsoundly) that the risk
to which the facts gave rise was insubstantial or nonexistent.”
Id. at 844. But absent successful rebuttal, they may be held
liable for obvious risks they must have known.
Id. at 842.
B.
We find a close reading of Farmer illuminating for how to
apply the deliberate indifference standard both generally and
16
specifically to Makdessi’s case. In Farmer, the plaintiff was a
young transsexual serving a twenty-year sentence for credit card
fraud. 511 U.S. at 829. Although a biological male, Farmer had
undergone some sex change treatments, including silicone breast
implants and unsuccessful testical-removal surgery.
Id.
Despite a feminine appearance, Farmer was incarcerated in male
prisons.
For disciplinary reasons, prison officials transferred
Farmer to a higher-security facility, where Farmer was housed in
the general population. Id. at 830. Farmer voiced no objection
about the transfer or placement. But within two weeks of
arrival, Farmer was beaten and raped by a cellmate.
Id.
Farmer sued, alleging that the transfer of a transsexual
with feminine characteristics to a high-security prison with a
history of inmate assaults amounted to deliberate indifference
in violation of the Eighth Amendment.
Id. at 830-31. The
district court ruled in favor of the prison officials, holding
that there could be no constitutional violation in the absence
of actual knowledge of a potential danger. In so ruling, the
district court focused on Farmer’s failure to protest the
transfer or alert prison officials to any danger.
Id. at 831-
32. The Seventh Circuit affirmed, but the Supreme Court granted
certiorari and unanimously reversed.
17
After laying out Eighth Amendment law and defining
deliberate indifference, the Supreme Court explained that the
lower courts had placed undue weight on the fact that Farmer had
not complained about the transfer to the general population at
the higher-security prison. “[T]he failure to give advance
notice is not dispositive” if it could be shown that the
plaintiff’s condition and appearance, coupled with the knowledge
of violent assaults in the prison, made it reasonable to believe
that the defendants were aware of a serious risk to the
plaintiff but took no protective action. Id. at 848-49. The
case, therefore, was remanded for reconsideration.
Id. at 849.
In this case, Makdessi is a short, middle-aged prisoner
with physical and mental problems that make him “vulnerable to
harassment and attacks by other inmates.” J.A. 956. For years,
Makdessi complained to prison officials, including in the form
of numerous written letters and grievances, about physical and
sexual abuse he suffered in prison. Those complaints often
garnered no response, and one response—to a December 2009
complaint expressly mentioning sexual assault—simply stated
“Hopefully you will be well soon.” J.A. 974.
Despite Makdessi’s stature, vulnerability, and repeated
complaints, Makdessi was placed in a cell with an aggressive
prison gang member, Smith, in August 2010. By the end of
October 2010, Makdessi filed a report “stating that he had been
18
sexually assaulted by his cellmate.” Id. 2 Yet “the standard
protocol of separating inmates alleging sexual assault was not
followed when Makdessi filed” the October 2010 report.
Id. He
was left in the cell with Smith until his physical and mental
injuries from the December 21, 2010 attack sent him to the
prison infirmary for a month and a half. Makdessi was then
transferred to another prison and placed in protective custody.
Despite these facts, the magistrate judge and district
court determined that Makdessi had failed to meet the subjective
standard for deliberate indifference, i.e., that Makdessi had
failed to show that Defendants King, Fields, and Gallihar had
actual knowledge of the substantial risk of serious harm
Makdessi faced. The report and recommendation so concluding
contained a total of two paragraphs setting forth the applicable
law.
The paragraph dealing with deliberate indifference
correctly recognized that to be liable, a prison official “must
actually have perceived” the risk to the prisoner. J.A. 964.
But absent from the court’s abbreviated discussion of the law,
as well as its application thereof to the facts, is the
recognition that actual knowledge can be shown by circumstantial
2
Defendants disputed that the report as originally filed
stated that Smith had sexually assaulted Makdessi.
19
evidence that the risk was so obvious that the Defendants had to
know it. See, e.g., Farmer, 511 U.S. at 842;
Brice, 58 F.3d at
105.
Additionally, in rejecting Makdessi’s claims, the court
below focused on some factors that, in light of Farmer, may be
irrelevant. For example, the court seized on the fact that
Makdessi did not “‘personally inform[] Capt. Gallihar, Lt.
Fields or Sgt. King that he feared for his life or safety.’”
J.A. 1003 (quoting J.A. 976). Neither did Farmer—and yet, in
reversing the lower courts, which had seized on just that, the
Supreme Court made plain that “the failure to give advance
notice is not dispositive” if it can be shown that the
circumstances made it reasonable to believe that the defendants
were aware of a serious risk to the plaintiff but took no
protective action. Farmer, 511 U.S. at 848-49.
Similarly, the court below focused on the fact that “only
one of the documents filed before [the] December 21 [attack]
stated that Makdessi had previously been assaulted by his
current roommate.” J.A. 1003. Yet Farmer makes clear that “a
prison official [cannot] escape liability for deliberate
indifference by showing that, while he was aware of an obvious,
substantial risk to inmate safety, he did not know that the
complainant was especially likely to be assaulted by the
specific prisoner who eventually committed the assault.”
20
Farmer, 511 U.S. at 843. Indeed, under the circumstances
described in Farmer, “it would obviously be irrelevant to
liability that the officials could not guess beforehand
precisely who would attack whom.”
Id. at 844.
Furthermore, the court below underscored that Makdessi’s
“written complaints and grievances often sought mental health
treatment or a single cell assignment, rather than expressly
requesting protection.” J.A. 1006. Even assuming that the
court’s characterization of Makdessi’s complaints and grievances
is accurate, it seems apparent that both of those requests can
be construed as forms of seeking protection. And regardless,
Farmer makes plain that whether a prisoner protests or complains
before he is injured may be irrelevant. 511 U.S. at 848-49.
Finally, the court below focused on the fact that
Defendants played no role in “assigning” cellmates, suggesting
that Defendants therefore could not be liable for any risk to
Makdessi arising from his being housed with Smith. J.A. 1007.
That Defendants did not initially assign Smith to Makdessi’s
cell, however, does not necessarily shield them from liability
if they knew that the undisputedly vulnerable Makdessi shared a
cell with an undisputedly aggressive gang member, knew—perhaps
because it was so obvious that they had to know—that this
continued arrangement constituted a substantial risk of serious
harm to Makdessi, yet did nothing. Farmer, 511 U.S. at 842.
21
C.
In sum, the magistrate judge and then the district court,
which adopted the magistrate’s recommendation and report in its
entirety, failed to appreciate that the subjective “actual
knowledge” standard required to find deliberate indifference may
be proven by circumstantial evidence that a risk was so obvious
that it had to have been known. Further, the court below
focused on factors that, under Farmer, may be irrelevant. The
dismissal of Makdessi’s claims against Defendants Fields, King,
and Gallihar, is thus vacated, and the case is remanded for
reconsideration using the proper legal framework.
Whether Makdessi succeeds with his claims remains an open
question. And even if Makdessi shows that the risk of serious
harm he faced was so obvious that Defendants Fields, King, and
Gallihar must have known it, Defendants may still be able to
successfully rebut the charge. But regardless of the outcome,
the proper legal framework must be applied to address Makdessi’s
claims.
Finally, we echo the district court that “[n]o matter what
an inmate’s crime, his prison sentence should not include the
sort of victimization described in Makdessi’s many complaints
and grievances. Prison officials, from the security officers to
the mental health professionals and grievance coordinators, have
22
an ongoing constitutional obligation to protect inmates from
each other.” J.A. 1009.
IV.
For the reasons stated above, the dismissal of Makdessi’s
claims against Defendants Fields, King, and Gallihar is vacated,
and the matter is remanded for reconsideration in light of this
opinion.
VACATED AND REMANDED
23
DIANA GRIBBON MOTZ, Circuit Judge, concurring:
I concur in Judge Wynn’s opinion for the court. On remand,
Adib Eddie Ramez Makdessi may not prevail, but the judgment of
the district court rejecting his claim in its entirety cannot
stand. I write separately to explain why I believe governing
legal principles require this relief.
The Supreme Court has painstakingly explained that an
inmate can establish a violation of the Eighth Amendment by
offering evidence that a prison official “knew of a substantial
risk” that the inmate would suffer “serious harm” or that the
official “must have known” about this risk. Farmer v. Brennan,
511 U.S. 825, 842 (1994) (emphasis added). And a court may
conclude that the official must have known of that substantial
risk based on “the very fact that the risk was obvious.”
Id.
Here, Makdessi undoubtedly suffered serious harm when he was
assaulted by his cellmate. 1 The remaining question is whether
Defendants Fields, King, and Gallihar (“the Defendants”) must
have known of the substantial risk that Makdessi would be
assaulted by a fellow prisoner.
1
The Defendants offer no argument that Makdessi failed to
demonstrate that he suffered “serious harm,” and, given the
prison’s own medical records, such an argument would be
frivolous.
24
The district court expressly recognized the “contrasts
between Makdessi himself (5 feet 4 inches tall, age 49,
physically hindered by back problems and asthma, depressed,
security level 3, no gang affiliation, two minor prison
infractions)” and the prisoner who beat Makdessi, Michael Smith
“(a ‘Gangster Disciple,’ disciplinary record of almost 30
charges, including masturbating and making sexual advances
toward a non-offender, numerous aggravated assaults, and
fighting with another inmate).” J.A. 1007. 2 Notwithstanding
these significant differences in age, size, health, disciplinary
record, and gang affiliation, however, the district court
rejected Makdessi’s contention that in permitting Makdessi to
reside in the same cell as Smith, the Defendants ignored an
obvious risk of serious harm to Makdessi.
The district court offered a very limited rationale for so
holding. The court simply stated that because the Defendants
testified that they did not “assign[] cellmates,” it could not
“find that the physical and disciplinary differences” between
Makdessi and Smith undermined the magistrate judge’s
determination that the Defendants lacked “prior knowledge that
Smith would likely victimize Makdessi.” J.A. 1007-08 (emphasis
2
Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.
25
added). 3 For the following reasons, I cannot conclude that this
rationale provides an adequate basis for rejection of Makdessi’s
obvious risk claim.
First, the district court’s explanation evidences a belief
that Makdessi had to prove that the Defendants had actual “prior
knowledge” of the risk that he would be assaulted. The law, of
course, is quite different. The Supreme Court has clearly held
that “a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious,”
as where the official “had been exposed to information
concerning the risk and thus must have known about it.” Farmer,
511 U.S. at 842 (internal quotation marks and citation omitted).
Second, the district court also seemed to believe that
Makdessi had to prove that the Defendants knew of a substantial
risk that Smith, in particular, rather than any other inmate,
might assault Makdessi. 4 But Farmer also forecloses a specific
risk requirement of this sort. See id. at 843 (“Nor may a
3
The magistrate judge herself offered no rationale for
recommending rejection of Makdessi’s obvious risk claim.
Indeed, the magistrate judge failed to address Makdessi’s
obvious risk claim at all.
4
Further indicating that the district court held this
erroneous view is the significance it attached to the fact that
in Makdessi’s “dozens” of written “complaints and grievances”
only once prior to December 21 did he state that he had
“previously been assaulted by his current roommate,” Smith. See
J.A. 1003.
26
prison official escape liability for deliberate indifference by
showing that, while he was aware of an obvious, substantial risk
to inmate safety, he did not know that the complainant was
especially likely to be assaulted by the specific prisoner who
eventually committed the assault.”).
Third, the district court apparently reasoned that the
Defendants’ testimony that they had no role in cell assignment
absolved them from liability even if they knew (or should have
known) that Makdessi was housed with Smith and that this
subjected Makdessi to an obvious risk of serious harm. But the
Defendants testified only that they played no role in assigning
cellmates. They offered no testimony or other evidence that
they did not know that Makdessi and Smith were cellmates. And
evidence in the record suggests that the Defendants did indeed
know of this. 5 As we explained in reversing the judgment after
trial for a prison guard in another Eighth Amendment case, “even
a guard able to prove that he was in fact oblivious to an
obvious injury of sufficient seriousness may not escape
liability if it is shown, for example, that he . . . ‘declined
5
Fields testified that he remembered when Makdessi and
Smith were celled together. J.A. 778. Moreover, as the
district court noted, Gallihar testified that he, Fields, and
King, were “the officers responsible for the safety of inmates
in Makdessi’s pod,” J.A. 1005; this suggests that all three
Defendants knew that Makdessi and Smith were celled together –-
and would have been aware of the dangerous mismatch.
27
to confirm inferences of risk that he strongly suspected to
exist.’” Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th
Cir. 1995) (quoting
Farmer, 511 U.S. at 843 n.8).
Finally, the district court appears not to have considered
the obvious risk in housing Makdessi with Smith in the context
of Makdessi’s many grievances documenting prior physical and
sexual assault at the prison. The magistrate judge found (and
the district court agreed) that “the evidence admitted at trial
undoubtedly shows that Makdessi filed numerous grievances and
complaints to various departments, and he wrote letters . . .
alleging that he had been sexually assaulted on multiple
occasions while incarcerated at Wallens Ridge.” J.A. 974. 6 The
district court properly recognized that knowledge of serious
risk of harm could be inferred by demonstrating a “longstanding,
pervasive, [and] well-documented” risk, Farmer, 511 U.S. at 842
(internal quotation marks and citation omitted). But the court
discounted Makdessi’s evidence of exactly such “well-documented”
risk for two, equally unpersuasive, reasons.
6
The magistrate judge also found Makdessi’s credibility
undermined by the attendance records that contradicted his
testimony that he spoke with defendant Boyd on a particular
date. J.A. 971. Of course, we defer to credibility
determinations of a trial court. But this finding does not
undermine Makdessi’s credibility as to his “numerous grievances
and complaints” to prison officials, which the magistrate judge
expressly found believable. J.A. 974.
28
Initially, the court relied on the Defendants’ testimony
that “[s]ecurity matters or sexual assault allegations might be
directly assigned to . . . a higher-ranking officer” and so the
Defendants “would not necessarily see [them].” J.A. 1005
(emphasis added). The Defendants, however, offered no evidence
that this is in fact what happened in Makdessi’s case.
Testimony that serious allegations of assault “might be”
assigned to other officers does not establish that the
Defendants had no knowledge of the risk of substantial harm to
Makdessi. This is particularly so given the number of
Makdessi’s complaints of abuse, the written policy requiring
notification of all such abuse, see J.A. 494-501, and the fact
that the face of some of the complaints expressly state that
they were forwarded directly to one or more of the Defendants.
See, e.g., J.A. 246; J.A. 517.
The other reason that the district court offered for
discounting Makdessi’s multiple written grievances was that they
were “general” and “often sought mental health treatment or a
single cell assignment, rather than expressly requesting
protection.” J.A. 1006. But examination of the grievances
themselves belies this conclusion. See, e.g., J.A. 256, 259-60,
263, 266, 274, 276, 277. Many are specific; few are limited to
expressions of mental illness or single-cell assignment;
crucially, nearly all express ongoing fear of physical harm or
29
retaliation. Moreover, those instances in which Makdessi did
simply plead to be assigned to a single cell to avoid further
sexual assault would seem, contrary to the district court’s
conclusion, to qualify as “expressly requesting protection.”
On remand, the district court will have an opportunity to
apply these governing principles. The court will be able to
determine, in light of Makdessi’s undisputed vulnerability and
his multiple written complaints of abuse at the hands of other
prisoners, if the risk of serious harm to Makdessi in housing
him with an aggressive gang member who had committed numerous
assaults while imprisoned was so obvious that the Defendants
must have known of the risk, appreciated its seriousness, and
yet failed “to take reasonable measures to abate it.” Farmer,
511 U.S. at 847. 7
“The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones,” no matter how abhorrent a
prisoner’s crimes. Id. at 832 (internal quotation marks and
citation omitted). A prisoner faces a daunting task in
establishing an Eighth Amendment violation. But when an inmate
7
Of course, “it remains open to the officials to prove that
they were unaware even of an obvious risk to inmate health or
safety.” Farmer, 511 U.S. at 844. But when the risk is
obvious, the burden shifts to the prison official to rebut the
inference that he must have known about it.
Id. Naked
assertions of ignorance that defy prison procedure and logic
cannot satisfy this burden.
30
has “take[n] advantage of internal prison procedures for
resolving inmate grievances” and these actions “do not bring
constitutionally required changes, the inmate’s task in court
will obviously be much easier.” Id. at 847. Most importantly,
the Supreme Court has been clear that the Eighth Amendment does
not allow prison officials “to take refuge in the zone between
ignorance of obvious risks and actual knowledge of risks.”
Id.
at 842 (internal quotation marks and citation omitted). Thus,
prison officials may not escape liability simply by offering a
blanket denial of any knowledge of an obvious risk. They “are
not free to let the state of nature take its course” within
their prisons but rather “have a duty to protect prisoners from
violence at the hands of other prisoners.”
Id. at 833 (internal
quotation marks and citation omitted).
For these reasons, I join in the order vacating the
judgment of the district court and remanding the case for
further proceedings.
31
SHEDD, Circuit Judge, concurring in part and dissenting in part:
I agree that Makdessi waived his appellate challenge to the
judgment in favor of defendants Bellamy, Boyd, and Hall.
However, I disagree that the judges below improperly analyzed
Makdessi’s Eighth Amendment claim against defendants Fields,
King, and Gallihar. In my view, the majority’s consideration of
the judgment in favor of the latter three defendants is more
akin to a summary judgment review than a bench trial review, and
it fails to adequately account for the factual findings made by
the magistrate judge and reviewed de novo by the district judge. 1
I
For purposes of this appeal, it is established that
Makdessi was assaulted and injured by his cellmate, Smith, on
December 21, 2010. The unfortunate reality is that prisons
housing inmates convicted of violent crimes are “inherently
dangerous places,” United States v. Tokash, 282 F.3d 962, 970
(7th Cir. 2002), 2 where “acts of violence by inmates against
inmates are inevitable,” Shrader v. White,
761 F.2d 975, 980
1
I disagree with much of my colleague’s separate concurring
opinion. However, because she has joined the majority opinion,
which speaks for the Court, I will limit my comments to that
opinion.
2
Makdessi is certainly an inmate convicted of violent
crimes. He is serving two life sentences for the murders of his
wife and a third-party. See Makdessi v. Watson, 682 F. Supp. 2d
633 (E.D.Va. 2010). Before being prosecuted, he collected
$700,000 from his wife’s life insurance policies. See J.A. 658.
32
(4th Cir. 1985), and the elimination of such violence is
“virtually impossible,” Taylor v. Freeman, 34 F.3d 266, 273 n.6
(4th Cir. 1994). Although the Eighth Amendment imposes a duty on
prison officials to protect inmates from violence, Farmer v.
Brennan,
511 U.S. 825, 832-33 (1994), “[n]ot every injury
suffered by [an inmate] at the hands of another establishes
liability against a prison official,” Brown v. N.C. Dept. of
Corr.,
612 F.3d 720, 723 (4th Cir. 2010). Rather, a prison
official violates the Eighth Amendment only if he has a
“sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834
(internal punctuation and citation omitted).
“The burden is on the [inmate] to demonstrate that prison
officials violated the Eighth Amendment, and that burden is a
heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir.
2014). Pertinent here, “[a] prison official’s ‘deliberate
indifference’ to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.”
Farmer, 511 U.S. at 828. A
prison official “demonstrates deliberate indifference if he
knows of and disregards an excessive risk to inmate health or
safety;” stated otherwise, “the test is whether the [prison
official knows] the plaintiff inmate faces a serious danger to
his safety and . . . could avert the danger easily yet . . .
fail[s] to do so.”
Brown, 612 F.3d at 723 (internal punctuation
and citations omitted).
33
Deliberate indifference “is a very high standard,” Grayson
v. Peed, 195 F.3d 692, 695 (4th Cir. 1999), which “make[s] it
considerably more difficult for [an inmate] to prevail than on a
theory of ordinary negligence,” Correctional Servs. Corp. v.
Malesko,
534 U.S. 61, 73 (2001). It is a subjective standard,
Farmer, 511 U.S. at 829, that requires an inmate to prove “that
the prison official had actual knowledge of an excessive risk to
[his] safety,” Danser v. Stansberry,
772 F.3d 340, 347 (4th Cir.
2014). The prison official “must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837.
“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, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious.” Id. at 842. Thus, if a prisoner “presents evidence
showing that a substantial risk of inmate attacks was
longstanding, pervasive, well-documented, or 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, then such evidence could be sufficient to permit a trier of
34
fact to find that the defendant-official had actual knowledge of
the risk.” Id. at 842-43 (internal punctuation and citation
omitted).
However, “[t]hat a trier of fact may infer knowledge from
the obvious . . . does not mean that it must do so.” Id. at 844.
Therefore, prison officials may defeat an Eighth Amendment claim
by showing, “for example, that they did not know of the
underlying facts indicating a sufficiently substantial danger
and that they were therefore unaware of a danger. . . .”
Id.
This is true even “if the risk was obvious and a reasonable
prison official would have noticed it.”
Id. at 842. Moreover,
although the inmate may prove deliberate indifference by
circumstantial evidence, he may not rely on “unsupported
speculation.”
Danser, 772 F.3d at 348 n.10.
II
Makdessi did not invoke his jury trial right; therefore,
the district judge referred this case to the magistrate judge
“for appropriate proceedings and preparation of proposed
findings of fact and conclusions of law and recommended
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).” J.A. 997. As
Makdessi notes, the evidentiary hearing before the magistrate
judge was “‘the equivalent of a bench trial.’” Opening Brief for
Makdessi, at 28 (quoting Hicks v. Norwood, 640 F.3d 839, 842
(8th Cir. 2011)). The majority appears to agree with this
35
characterization. See Majority Op., at 12 (noting standard of
review from a bench trial judgment).
In this posture, we must accept the trial judge’s factual
findings unless they are clearly erroneous, but we review the
judge’s legal determinations de novo. F.T.C. v. Ross, 743 F.3d
886, 894 (4th Cir.), cert. denied,
135 S. Ct. 92 (2014). The
majority primarily bases its decision to vacate the judgment on
its conclusion that the judges below “failed to appreciate that
the subjective ‘actual knowledge’ standard required to find
deliberate indifference may be proven by circumstantial evidence
that a risk was so obvious that it had to have been known.”
Majority Op., at 22. The record belies this conclusion.
A.
Prior to the bench trial, the district judge denied these
defendants’ summary judgment motion. At the summary judgment
stage, the district judge was required to view the facts in the
light most favorable to Makdessi, the nonmoving party. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009). In essence, the district
judge was required to accept as true Makdessi’s version of
events. 3 The district judge expressly noted that deliberate
3
The majority recounts Makdessi’s testimony in detail, see
Majority Op., at 4-8, but devotes only one paragraph to the
defendants’ version of events, see id. at 8. Notably, much of
Makdessi’s self-serving testimony was not credited by the judges
below and does not constitute the “facts” of the case. For
(Continued)
36
indifference may be proven by circumstantial evidence, J.A. 226,
and he concluded that “Makdessi’s allegations and evidence are
sufficient to present disputed issues of material fact as to
whether each of these defendants must have known facts before
December 21, 2010, on which they must have perceived that
housing Makdessi in the same cell with Smith created a
substantial and imminent risk that Smith would cause Makdessi
serious harm,” J.A. 229. The summary judgment ruling faithfully
applied the Farmer deliberate indifference standard.
This case thereafter proceeded to the bench trial before
the magistrate judge, and Makdessi bore the burden of proving
his Eighth Amendment claim. The magistrate judge made specific
and detailed factual findings based on the evidence presented.
The magistrate judge recognized that Makdessi argued that
Fields, King, and Gallihar failed to protect him from the
example, the majority notes that Makdessi testified that on the
day before Smith assaulted him, he told defendant Fields “that
he feared for his life due to his cellmate Smith, a gang leader,
and that he wanted to be placed in protective custody.” Majority
Op., at 6. However, the magistrate judge specifically rejected
this testimony, finding it to be “incredible.” J.A. 972. The
majority also states that Makdessi testified that Smith raped
him on December 21, 2010. See Majority Op., at 6. However, one
witness (Dr. Thompson) testified that Makdessi expressly denied
that Smith raped him. See J.A. 731-32, 738-39. Ultimately, the
magistrate judge made no finding that Makdessi was raped.
37
December 21, 2010, assault “based on information they had
received either verbally directly from Makdessi or through
grievances Makdessi had filed prior to that time, from which
they learned Smith posed a substantial risk to his safety.” J.A.
969. Addressing these arguments, the magistrate judge found that
(1) Makdessi did not personally inform Fields, King, or Gallihar
before December 21, 2010, that he feared for his safety, J.A.
972, 976; and (2) Makdessi failed to prove that these defendants
knew of his prior grievances before December 21, 2010, J.A. 973-
74, 976. In light of these findings, the magistrate judge
recommended that judgment be entered in these defendants’ favor.
Makdessi objected to the magistrate judge’s report and
recommendation, and the district judge extensively reviewed de
novo Makdessi’s objections. In doing so, the district judge
properly recognized the controlling legal standard, see J.A.
1000 (noting that deliberate indifference may be shown by
circumstantial evidence), and he thoroughly detailed his bases
for overruling Makdessi’s objections.
The district judge first explained that Makdessi failed to
object to the magistrate judge’s specific factual finding that
he did not personally inform Fields, King, or Gallihar before
December 21, 2010, that he feared for his safety. J.A. 1003. The
district judge then examined Makdessi’s objections regarding the
magistrate judge’s consideration of “other evidence that Smith
38
posed a risk to Makdessi.” J.A. 1003. Pointing directly to the
magistrate judge’s factual findings and other evidence in the
record, the district judge specifically considered and rejected
Makdessi’s arguments that (1) he proved deliberate indifference
by showing that the risk of harm was longstanding and well-
documented, and the circumstances suggest that the defendants
had been exposed to information concerning the risk, J.A. 1004;
(2) judgment in Makdessi’s favor is proper because the
defendants’ response was so patently inadequate that they must
have known of the risk, J.A. 1006; (3) the risk to Makdessi was
so obvious that the defendants knew of it because they could not
have failed to know of it, J.A. 1007; and (4) because the
defendants knew Makdessi had been labeled as a snitch, they must
have known how that the label exposed him to retaliation or risk
of assault, J.A. 1008. Accordingly, the district judge overruled
Makdessi’s objections, adopted the report and recommendation,
and entered judgment against Makdessi.
B.
As noted, the majority concludes that the judges below
failed to appreciate that Makdessi could prove his case by
circumstantial evidence. Explaining its decision, the majority
identifies several “facts” that it believes are sufficient for a
factfinder to find that the risk of harm Smith posed to Makdessi
was so obvious that defendants Fields, King, and Gallihar must
39
have known of it. See Majority Op., at 18-19. Specifically, the
majority states:
(1) “Makdessi is a short, middle-aged prisoner with
physical and mental problems that make him ‘vulnerable
to harassment and attacks by other inmates;’” 4
(2) “For years, Makdessi complained to prison
officials, including in the form of numerous written
letters and grievances, about physical and sexual
abuse he suffered in prison;”
(3) “Those complaints often garnered no response, and
one response – to a December 2009 complaint expressly
mentioning sexual assault – simply stated ‘Hopefully
you will be well soon;’”
(4) “Despite Makdessi’s stature, vulnerability, and
repeated complaints, Makdessi was placed in a cell
with an aggressive prison gang member, Smith, in
August 2010;”
(5) “By the end of October 2010, Makdessi filed a
report ‘stating that he had been sexually assaulted by
his cellmate;’”
(6) “Yet ‘the standard protocol of separating inmates
alleging sexual assault was not followed when Makdessi
filed’ the October 2010 report;” and
(7) Makdessi “was left in the cell with Smith until
his physical and mental injuries from the December 21,
2010 attack sent him to the prison infirmary for a
month and a half.”
The majority then acknowledges that even if Makdessi shows on
remand “that the risk of serious harm he faced was so obvious
4
The magistrate judge actually stated that Makdessi
"described himself as a 5’4”, 49-year-old man with both physical
and mental ailments rendering him vulnerable to harassment and
attacks by other inmates.” J.A. 956 (emphasis added).
40
that [the defendants] must have known it, [the defendants] may
still be able to successfully rebut the charge.” Majority Op.,
at 22.
If this was an appeal from the grant of summary judgment
(like Farmer), then I might agree with the majority’s analysis
that further consideration is merited. However, the record makes
it clear that this inquiry has already occurred: the judges
below considered this evidence and made appropriate factual
findings by which these defendants completely rebutted
Makdessi’s claim.
“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.’” Danser, 772 F.3d at 348
(quoting
Farmer, 511 U.S. at 842). Most of the facts identified
by the majority involve the grievances and complaints Makdessi
filed before December 21, 2010. As the district judge implicitly
recognized in denying summary judgment, the number of Makdessi’s
prior grievances might well be sufficient to permit a factfinder
to conclude that the defendants knew of a substantial risk to
him. However, based on the trial evidence presented (both direct
and circumstantial), the magistrate judge and the district judge
found that the defendants did not have actual knowledge of the
grievances. This finding is not clearly erroneous, and the
41
majority does not contend otherwise. Therefore, further
consideration of the prior grievances is irrelevant to
Makdessi’s claim against these defendants. See Danser, 772 F.3d
at 348-49 (rejecting Eighth Amendment claim because there was no
evidence that prison official was exposed to information
concerning risk to the inmate). 5
Removing the prior grievances from the analysis leaves only
the following facts identified by the majority: Makdessi’s self-
description of his physical and mental problems and his
assertion that he was vulnerable to harassment and attacks by
other inmates; Makdessi’s placement in a cell with a known
prison gang member, Smith, in August 2010; and Smith’s December
21, 2010, assault on Makdessi. Of course, it should be self-
evident that the fact that Smith assaulted Makdessi on December
21, 2010, does nothing to suggest that any defendant knew (or
should have known) before that day that Smith posed a risk of
serious harm to Makdessi.
The majority is thus left with the fact that the
“vulnerable” Makdessi was housed in a cell with the “aggressive
prison gang member” Smith before the assault occurred. This
5
The majority does not point to any evidence tending to
establish that these defendants deliberately blinded themselves
to Makdessi’s grievances. Moreover, as I have noted, Makdessi
cannot rely on unsupported speculation to establish deliberate
indifference. Danser, 772 F.3d at 348 n.10.
42
fact, without more, does not suggest that the defendants were
deliberately indifferent to Makdessi’s safety. See, e.g.,
Shields v. Dart, 664 F.3d 178, 181 (7th Cir. 2011) (explaining
that “a general risk of violence in a maximum security unit does
not by itself establish knowledge of a substantial risk of harm”
for purposes of the Eighth Amendment); Ruefly v. Landon,
825
F.2d 792, 794 (4th Cir. 1987) (affirming in a pre-Farmer case
the dismissal of an Eighth Amendment complaint because the
plaintiff only alleged that the prison officials “generally
knew” that the inmate who assaulted him was a violent person).
In any event, the district judge explained that “[e]ach of the
defendants testified that he had no involvement in assigning
cellmates.” J.A. 1007. Therefore, the decision to house Makdessi
and Smith together has no bearing as to whether these defendants
violated the Eighth Amendment. See Wright v. Collins,
766 F.2d
841, 850 (4th Cir. 1985) (“In order for an individual to be
liable under § 1983, it must be affirmatively shown that the
official charged acted personally in the deprivation of the
plaintiff’s rights.” (internal punctuation omitted)).
C.
In denying the summary judgment motion, the district judge
recognized that Makdessi alleged facts and circumstances
sufficient to permit a trier of fact to find that defendants
Fields, King, and Gallihar were deliberately indifferent.
43
However, at the subsequent bench trial, the magistrate judge –
sitting as the factfinder – and the district judge – who
reviewed the objections to the report and recommendation -
carefully considered the evidence presented, and they concluded
that Makdessi failed to meet his high burden of proving
deliberate indifference. The decision is amply supported by the
evidence presented, the factual findings, and the controlling
legal standard, and neither Makdessi nor the majority has
presented a sufficient reason to set aside that decision. 6
Accordingly, the judgment in favor of Fields, King, and Gallihar
should be affirmed.
III
Based on the foregoing, I concur in Part II of the majority
opinion, but I dissent from the remainder.
6
As a second reason for vacating the judgment, the majority
states that “the court below focused on factors that, under
Farmer, may be irrelevant.” Majority Op., at 22. When the
decision below is viewed in its entirety and in its proper
context, it is clear that the judges fairly considered, and
decided the case on, all of the evidence presented.
44
