Académique Documents
Professionnel Documents
Culture Documents
No. 13-7606
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:11cv00262GECPMS)
Argued:
Decided:
Adib
Eddie
Ramez
Makdessi
lodged
numerous
imprisoned
facilities.
in
The
court
Virginia
Department
below
it
found
of
Corrections
clear
that
prison
of
sexual
assault.
J.A.
975.
Nevertheless,
the
simply
liability.
bury
their
heads
in
the
sand
and
thereby
skirt
Because we do not
I.
Makdessi does not dispute the facts found as a result of
the
bench
trial
below.
Makdessi
is
five-foot-four-inch,
J.A.
such abuse.
Makdessi
testified
that
Defendant
Christopher
King,
2007,
he
Id.
complained
to
the
Assistant
Warden
about
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
Michael
Smith,
who
was
an
aggressive
gang
member.
that
he
wrote
complaint
J.A. 957.
about
Makdessi also
being
housed
with
and
take
separated.
appropriate
Under
the
measures
to
policy,
prison
officials
those
offenders
protect
testified
that
he
was
physically
J.A. 962.
and
sexually
occurred.
attack,
J.A.
Makdessi
957.
wrote
Within
letter
to
day
the
of
the
Assistant
also
on
reached
December
out
20,
to
2010,
the
Federal
stating
that
Bureau
he
of
feared
prison staff and prison gang members had teamed up to end his
life.
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
following
Makdessi.
letter
day,
December
21,
2010,
Smith
attacked
Makdessi
had
sent
to
the
Assistant
Warden
about
the
December 8 attack and told him that [b]efore the day is over,
were going to kill you.
J.A. 959.
Id.
Id.
that
Smith
ejaculated
onto
the
bed,
Makdessi testified
cleaned
himself
up,
and
inmates
had
to
eat
lunch
in
their
cells.
J.A.
959.
bit
Smith.
Smith
again
beat
Makdessi.
Makdessi
testified
that
Smith
packed
his
television
and
When
the
cell
door
opened,
while
Smith
placed
Smith and
a gang associate chased and caught him, and Smith again began
punching Makdessi.
Despite
Makdessis
report
that
Smith
ejaculated
the
days
hospital,
Makdessi
health infirmary.
spent
forty-seven
in
the
mental
J.A. 961.
Soon
contradicted
much
of
Makdessis
story.
J.A. 969.
feared
Likewise,
being
Sgt.
sexually
King
assaulted
testified
he
by
was
anyone.
never
made
J.A.
970.
aware
that
J.A. 971.
Id.
various
Amendment
punishment.
prison
right
officials,
to
be
alleging
free
from
violations
cruel
and
of
his
unusual
magistrate
judge.
The
magistrate
judge
issued
report
and
injuries
and
that
the
evidence
admitted
at
trial
J.A.
964, 974-75.
Nevertheless,
the
magistrate
judge
found
that
Makdessi
of
the
Eighth
Amendment
and
recommended
Makdessi
specifically
objected
its
entirety
the
to
only
that
the
J.A. 975-
some
of
the
magistrate
judges
report
and
II.
As an initial matter, the parties dispute what claims are
actually before us.
and
report
as
adopted
by
the
district
court.
By
contrast,
magistrate
judges
determination
that
Defendants
David
Bellamy, Glen Boyd, and Thomas Hall should be dismissed from the
case.
Accordingly,
per
Defendants,
Makdessi
waived
any
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[.]
2008).
is deemed waived.
Id.
recommendation
objections
repeatedly
and
report
mention
speaks
Defendants
for
King,
itself.
Fields,
The
and
Makdessi
contention
assault
tries
that
was
to
attach
another
loud
significance
inmates
enough
that
warranted examination. 1
claim
guard
J.A. 980-81.
that
would
to
his
the
December
have
general
heard
21
it
court
on
notice
that
Makdessi
challenged
the
review.
We
therefore
do
not
review
the
waived
arguments
III.
Moving
stemming
on
from
to
a
what
bench
is
before
trial
under
us,
a
we
mixed
review
judgments
standard:
factual
11
through
circumstantial
evidence.
J.A.
1001.
for
example,
prisoners.
Amendment
use
excessive
physical
force
against
also
imposes
duties
on
these
officials,
who
The
must
Id.
at
persons
832
(citation
omitted).
Prisons
house
[with]
to
let
the
Id. at 833
of
nature
take
its
course[,
and]
serves
no
legitimate
penological
objective.
Id.
officials
are,
therefore,
obligated
to
take
In particular,
to protect 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 victims safety.
at 834.
are
met.
Id.
prison
officials
act
or
omission
must
Id.
courts
finding
here
that
13
Id.
Makdessi
clearly
suffered
serious
physical
injuries
and
thus
meets
this
first
prong.
J.A. 964.
Second,
the
prison
official
must
have
sufficiently
Id.
Farmer,
the
Supreme
Court
explained
that
deliberate
prisoners
interests
or
safety,
and
more
than
mere
even
under
this
subjective
standard,
because
even
subjective
circumstantial evidence:
14
standard
may
be
proven
This
with
the
obviousness
of
In other words,
particular
injury
is
not
proven
prison
through
officials
subjective
circumstantial
actual
evidence
knowledge
showing,
for
can
be
example,
well-documented,
or
expressly
noted
by
prison
511
the
risk
U.S.
at
and
thus
must
842
(quotation
have
marks
known
about
omitted).
it.
Direct
43.
Accordingly,
prison
officials
may
not
simply
bury
their
[E]ven a guard
sufficient
seriousness
may
not
15
escape
liability
if
it
is
that
declined
he
to
strongly
confirm
suspected
to
be
true,
inferences
of
risk
that
or
that
he
he
strongly
suspected to exist.
personal
to
him
or
because
all
prisoners
in
his
Nor is
prison
indifference
Prison
official
charge,
officials
remains
even
charged
in
free
the
with
to
face
Id. at 848-49.
rebut
of
deliberate
an
the
deliberate
obvious
risk.
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
danger,
or
that
they
knew
the
Id. at 842.
B.
We find a close reading of Farmer illuminating for how to
apply the deliberate indifference standard both generally and
16
and
unsuccessful
testical-removal
surgery.
Id.
disciplinary
reasons,
prison
officials
transferred
Id. at 830.
about
placement.
But
the
transfer
or
within
two
weeks
of
Id.
Id. at 830-31.
The
court
focused
on
Farmers
In so ruling, the
failure
to
protest
the
Id. at 831-
17
After
laying
out
Eighth
Amendment
law
and
defining
higher-security
notice
is
not
prison.
[T]he
dispositive
if
it
failure
could
to
be
give
shown
advance
that
the
the
defendants
were
aware
of
serious
risk
to
the
Id. at 848-49.
The
Id. at 849.
J.A. 956.
For years,
abuse
garnered
complaint
no
he
suffered
response,
expressly
in
and
prison.
one
responseto
mentioning
sexual
Makdessis
Those
stature,
complaints
a
often
December
assaultsimply
2009
stated
J.A. 974.
vulnerability,
and
repeated
gang
member,
Smith,
in
August
2010.
By
the
end
of
Id. 2
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
these
facts,
the
magistrate
judge
and
district
knowledge
Makdessi faced.
of
the
substantial
risk
of
serious
harm
paragraph
dealing
with
deliberate
indifference
J.A. 964.
well
as
its
application
thereof
to
the
facts,
is
the
19
evidence that the risk was so obvious that the Defendants had to
know it.
105.
Additionally,
in
rejecting
Makdessis
claims,
the
court
did
not
personally
inform[]
Capt.
Gallihar,
Lt.
reversing the lower courts, which had seized on just that, the
Supreme
notice
Court
is
made
not
plain
that
dispositive
the
if
it
failure
to
can
shown
be
give
advance
that
the
aware
of
serious
protective action.
risk
to
the
plaintiff
but
took
no
that
Makdessi
current roommate.
prison
official
had
previously
J.A. 1003.
[cannot]
been
assaulted
by
his
escape
liability
for
deliberate
was
especially
prisoner
who
likely
eventually
20
to
be
assaulted
committed
the
by
the
assault.
Farmer,
511
U.S.
described
in
liability
that
at
843.
Farmer,
the
Indeed,
it
would
officials
Furthermore,
the
court
the
obviously
could
under
be
not
circumstances
irrelevant
guess
to
beforehand
Id. at 844.
below
underscored
that
Makdessis
protection.
J.A.
1006.
Even
assuming
that
the
And regardless,
the
court
below
focused
on
the
fact
that
J.A. 1007.
it
was
so
obvious
that
they
had
to
knowthat
this
C.
In sum, the magistrate judge and then the district court,
which adopted the magistrates recommendation and report in its
entirety,
failed
to
appreciate
that
the
subjective
actual
it
had
to
have
been
known.
Further,
the
court
below
The
22
an
ongoing
each other.
constitutional
obligation
to
protect
inmates
from
J.A. 1009.
IV.
For the reasons stated above, the dismissal of Makdessis
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
On remand,
Adib Eddie Ramez Makdessi may not prevail, but the judgment of
the district court rejecting his claim in its entirety cannot
stand.
Supreme
can
Court
establish
has
painstakingly
violation
of
the
explained
Eighth
that
an
Amendment
by
Farmer v. Brennan,
And a court may
Id.
known
of
the
substantial
risk
that
Makdessi
would
be
24
The
between
district
Makdessi
physically
security
court
himself
hindered
level
expressly
3,
(5
by
back
no
gang
recognized
feet
the
inches
problems
and
affiliation,
contrasts
tall,
asthma,
two
age
49,
depressed,
minor
prison
Gangster
charges,
toward
Disciple,
including
a
disciplinary
masturbating
non-offender,
and
numerous
record
making
aggravated
J.A. 1007. 2
of
sexual
almost
30
advances
assaults,
and
Notwithstanding
and
gang
affiliation,
however,
the
district
court
and
Smith
undermined
the
magistrate
judges
added). 3
The law, of
where
the
official
had
been
exposed
to
information
concerning the risk and thus must have known about it.
Farmer,
the
district
court
also
seemed
to
believe
that
26
inmate
safety,
he
did
not
know
that
the
complainant
was
the
district
court
apparently
reasoned
that
the
that
Makdessi
was
housed
with
Smith
and
that
this
But the
they did not know that Makdessi and Smith were cellmates.
And
guard
obvious
able
to
injury
prove
of
that
he
sufficient
was
in
fact
seriousness
oblivious
may
not
to
an
escape
27
to
confirm
exist.
inferences
of
risk
that
he
strongly
suspected
to
Makdessis
many
grievances
documenting
prior
physical
and
that
he
had
been
sexually
assaulted
court
properly
recognized
that
on
multiple
J.A. 974. 6
knowledge
of
The
serious
28
would
not
(emphasis added).
that
this
is
Testimony
assigned
to
see
[them].
J.A.
1005
in
that
necessarily
fact
what
serious
other
happened
allegations
officers
does
in
of
Makdessis
assault
not
case.
might
be
that
the
establish
This
Makdessis
is
complaints
particularly
of
abuse,
so
the
given
written
the
number
policy
of
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
cell
protection.
assignment,
J.A.
1006.
rather
But
than
expressly
examination
of
the
requesting
grievances
expressions
illness
of
mental
or
single-cell
assignment;
retaliation.
assault
would
seem,
contrary
to
the
district
courts
Farmer,
omitted).
prisoner
faces
daunting
task
in
30
has
take[n]
advantage
of
internal
prison
procedures
for
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.
at 842 (internal quotation marks and citation omitted).
Id.
Thus,
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.
these
of
the
reasons,
district
join
in
court
and
further proceedings.
31
the
order
remanding
vacating
the
case
the
for
in
favor
of
defendants
Bellamy,
Boyd,
and
Hall.
Eighth
Amendment
claim
against
defendants
Fields,
purposes
of
this
appeal,
it
is
established
that
21,
2010.
inmates
The
unfortunate
convicted
of
reality
violent
crimes
is
that
are
prisons
inherently
32
(4th
Cir.
1985),
and
the
elimination
of
such
violence
is
511
suffered
by
U.S.
[an
825,
inmate]
832-33
(1994),
at
hands
the
[n]ot
of
every
another
injury
establishes
612
official
F.3d
720,
violates
723
the
(4th
Cir.
Eighth
2010).
Amendment
Rather,
only
if
a
he
prison
has
one.
2014).
Pyles
Pertinent
v.
Fahim,
here,
771
[a]
F.3d
prison
403,
408-09
officials
(7th
Cir.
deliberate
the
Eighth
official
Amendment.
demonstrates
Farmer,
deliberate
511
U.S.
at
indifference
828.
if
A
he
stated
otherwise,
the
test
is
whether
the
[prison
of
ordinary
negligence,
Correctional
Servs.
Corp.
v.
harm
exists,
and
he
must
also
draw
the
inference.
the
usual
ways,
including
inference
from
circumstantial
that
substantial
risk
of
inmate
attacks
was
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
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,
underlying
for
facts
example,
that
indicating
they
did
sufficiently
not
know
of
substantial
the
danger
the
circumstantial
inmate
may
evidence,
prove
he
deliberate
may
not
rely
indifference
on
by
unsupported
appropriate
findings
of
fact
proceedings
and
and
conclusions
preparation
of
law
of
and
proposed
recommended
Cir.
2011)).
The
majority
35
appears
to
agree
with
this
subjective
actual
knowledge
standard
required
to
find
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
events. 3
required
The
to
district
accept
judge
as
true
expressly
Makdessis
noted
that
version
of
deliberate
21,
2010,
Makdessi
on
in
which
the
they
same
must
cell
have
with
perceived
Smith
that
created
magistrate
Fields,
King,
judge
and
recognized
Gallihar
failed
that
to
Makdessi
protect
argued
him
from
that
the
37
December
21,
2010,
received
either
assault
verbally
based
directly
on
information
from
Makdessi
they
or
had
through
976.
In
light
of
these
findings,
the
magistrate
judge
objected
to
the
magistrate
judges
report
and
Makdessis
properly
1000
objections.
recognized
(noting
that
the
In
doing
controlling
deliberate
so,
legal
indifference
the
district
standard,
may
be
judge
see
shown
J.A.
by
judgment
in
Makdessis
favor
is
proper
because
the
failed
to
know
of
it,
J.A.
1007;
and
(4)
because
the
objections,
adopted
the
report
and
recommendation,
noted,
to
the
majority
appreciate
that
concludes
Makdessi
that
could
the
prove
judges
his
below
case
by
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 majoritys analysis
that further consideration is merited. However, the record makes
it
clear
below
that
this
considered
findings
by
inquiry
this
which
has
evidence
these
already
and
made
defendants
occurred:
the
appropriate
completely
judges
factual
rebutted
Makdessis claim.
To
context,
establish
a
that
plaintiff
risk
generally
is
is
obvious
required
to
in
this
show
legal
that
the
This
finding
is
not
41
clearly
erroneous,
and
the
majority
does
consideration
not
of
contend
the
otherwise.
prior
Therefore,
grievances
is
further
irrelevant
to
that
prison
official
was
exposed
to
information
of
his
physical
and
mental
problems
and
his
inmates;
Makdessis
placement
in
cell
with
known
majority
is
thus
left
with
the
fact
that
the
gang
member
Smith
before
the
assault
occurred.
This
42
fact, without more, does not suggest that the defendants were
deliberately
indifferent
to
Makdessis
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
plaintiff
of
only
an
Eighth
alleged
Amendment
that
the
complaint
prison
because
officials
the
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
that
Makdessi
alleged
facts
and
circumstances
King,
and
Gallihar
were
43
deliberately
indifferent.
as
reviewed
the
the
factfinder
objections
to
and
the
the
report
district
and
judge
who
recommendation
Makdessi
failed
to
meet
his
high
burden
of
proving
standard,
presented
and
neither
sufficient
Makdessi
reason
to
set
nor
the
aside
majority
that
has
decision. 6
44