The opinion
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12266
Non-Argument Calendar
____________________
MICHAEL D. POPE, JR.,
Plaintiff-Appellee,
versus
WARDEN ROBINSON,
Individual Capacity,
Defendant,
OFFICER DOZIER,
Individual Capacity,
OFFICER SHOULDERS,
Individual Capacity,
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 2 of 7
2 Opinion of the Court 23-12266
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:20-cv-01399-RDP
____________________
Before WILLIAM PRYOR, Chief Judge, and NEWSOM and ANDERSON,
Circuit Judges.
PER CURIAM:
Officers Shamarion Dozier and Merrill Shoulders appeal the
denial of summary judgment based on qualified immunity from
Michael Pope’s complaint that the officers failed to protect him
from an inmate attack in violation of the Eighth and Fourteenth
Amendments. 42 U.S.C. § 1983. The officers argue that Pope, an
Alabama prisoner, failed to produce sufficient evidence to establish
a constitutional violation and, alternatively, that their alleged con-
duct did not violate clearly established law. Because we lack appel-
late jurisdiction over a denial of qualified immunity that turns on
issues of evidentiary sufficiency, we dismiss this appeal for lack of
jurisdiction.
According to Pope, on the night of June 28, 2020, three in-
mates at Limestone Correctional Facility stabbed and beat him in
a cell while Dozier and Shoulders watched the attack from 10 to 15
feet away. Earlier that day, several inmates broke the sprinklers,
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 3 of 7
23-12266 Opinion of the Court 3
causing flooding in “D Dorm,” which housed maximum-security
inmates. About eight to ten inmates were allowed to leave their
cells to mop up the water. After Pope asked to help clean, Shoul-
ders let him out of his cell.
Pope further testified that before he could begin mopping,
an inmate named Satarus Smith asked Pope if they could talk in
Smith’s cell, which was about 10 to 15 feet away from a table where
Dozier and Shoulders sat. Pope was not afraid to be out of his cell
with other inmates, and he and Smith had no problem with each
other. Pope watched Smith speak to Dozier before coming back to
the cell. After Pope entered Smith’s cell, Smith and two other in-
mates entered behind him. Smith tried to stab Pope with an ice
pick, but Pope blocked the strike and tried to escape. After Smith
stabbed Pope in the back of his head, he fell to the ground and lost
consciousness but woke up moments later to being kicked and
stabbed in the back. Pope made it out of the cell and over to Shoul-
ders, who walked Pope back to his cell. Pope did not go to the in-
firmary that night.
The parties dispute whether Shoulders or Dozier saw the at-
tack. Pope testified that the officers were facing the back door next
to Smith’s cell, which meant that they had a direct line of sight into
the cell. When asked whether the officers were watching only Pope
or whether they were watching the other inmates, Pope testified
that the officers were “watching everybody” and could see every-
one from where they sat. Pope also testified that he did not say an-
ything to Shoulders immediately after the attack because Pope
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 4 of 7
4 Opinion of the Court 23-12266
“was dizzy and confused,” and Shoulders had “seen what happened
so [Pope] didn’t have to tell him anything.”
Dozier and Shoulders testified that they released two to
three inmates at a time, handcuffed only to the front, to help clean,
but they refused Pope’s requests to be let out of his cell that night.
Dozier denied letting Smith or the other two inmates who alleg-
edly attacked Pope out of their cells. Shoulders recalled seeing one
of the alleged attackers—Jaquan Fisher—out of his cell with a mop
when Shoulders started his shift. Shoulders could not recall letting
Smith out of his cell but denied letting the third alleged attacker
out of his cell. Another inmate, Michael Peeks, testified that he saw
both Pope and Smith out of their cells that night after hearing them
exchange words about the flooding causing damage to Pope’s
property. Neither officer recalled any incident besides the flooding
that night, but Shoulders noticed marks and bruises on Pope’s body
two or three days later.
About four days after the alleged attack, Pope asked Shoul-
ders to take him to the infirmary and reported that he was suicidal
only because he would need to explain his wounds and did not
want to be labeled a “rat.” Medical records and photographs rec-
orded about 20 “superficial” and “pinpoint” puncture wounds on
Pope’s body and bruising around his right eye, all of which were
beginning to heal. According to Pope’s medical expert, the wounds
were consistent with an assault and did not appear to be self-in-
flicted.
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 5 of 7
23-12266 Opinion of the Court 5
Prison officials investigated the cause of Pope’s injuries. In a
recorded prison call, Smith admitted, “Man, I shot another
one. . . . an inmate this time.” Smith explained that the inmate he
“shot,” which in prison jargon could mean stabbed, was “talking
crazy behind the doors,” and he referenced “pulling the sprinklers”
and inmates being let out of their cells. About a week later, one of
the wardens sent an email discussing Smith’s phone call and stated
that based on the investigation, the officers “appear[ed] to have lied
during an investigation” and that “Pope was assaulted by another
[close] custody inmate.”
The officers moved for summary judgment based on quali-
fied immunity. The district court granted the motion in part as to
other claims but denied the motion as to the failure-to-protect
claim. It ruled that the evidence was sufficient to permit a reasona-
ble jury to find that the officers watched and made no attempt to
stop the alleged attack, such as by requesting backup, ordering the
alleged attackers to stop, or using pepper spray to stop the attack.
It also ruled that, viewing the evidence in the light most favorable
to Pope, it was clearly established that the alleged conduct of failing
to take reasonable measures to protect Pope from an inmate-on-in-
mate attack was unconstitutional.
“We review our own jurisdiction de novo.” Nelson v. Tomp-
kins, 89 F.4th 1289, 1295 (11th Cir. 2024). The denial of qualified
immunity is an appealable “final decision,” 28 U.S.C. § 1291, when
it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). Although “a claim of immunity is conceptually distinct
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 6 of 7
6 Opinion of the Court 23-12266
from the merits of the plaintiff’s claim, purely factual questions of
whether a defendant violated the plaintiff’s rights are not separable
from the merits of his claim.” Hall v. Flournoy, 975 F.3d 1269, 1275
(11th Cir. 2020) (citation omitted). And we are barred from review-
ing “whether or not the pretrial record sets forth a ‘genuine’ issue
of fact for trial.” Id.
The officers argue that the evidence is insufficient to estab-
lish a violation of the Eighth Amendment and that the district court
erred in ruling that their alleged conduct violated clearly estab-
lished law. Pope asks us to dismiss this appeal for lack of jurisdic-
tion. We agree with Pope that we lack jurisdiction.
The officers’ argument that it was not clearly established
that they were required to endanger themselves by “leap[ing] into
the fray” to protect Pope challenges the decision by the district
court that a jury could find that the officers were able to take rea-
sonable measures to intervene, such as by calling for backup or or-
dering the attack to cease, and failed to do so. The officers ask us
to accept their version of the evidence—a chaotic scene with dan-
gerous inmates loose throughout the dorm that would have made
intervening too dangerous—instead of the evidence viewed in the
light most favorable to Pope. See Simmons v. Bradshaw, 879 F.3d
1157, 1163–64 (11th Cir. 2018) (“If a government official moves for
summary judgment asserting entitlement to qualified immunity,
then the relevant facts are construed in the light most favorable to
the non-movant—i.e., the plaintiff—and the court should decide
the issue based on those facts.” (emphasis added)). Because the
USCA11 Case: 23-12266 Document: 37-1 Date Filed: 07/08/2024 Page: 7 of 7
23-12266 Opinion of the Court 7
officers’ argument requires us to accept their version of events, we
lack jurisdiction over this interlocutory appeal. See Hall, 975 F.3d at
1277–79. The officers’ other arguments, including disputing the de-
termination that the record supports Pope’s complaint about the
officers’ subjective awareness of the attack, the duration of the at-
tack, and their ability to intervene, also raise factual issues. It is not
for us to decide, at this juncture, whose version of the facts should
prevail. A jury will need to decide.
We DISMISS this appeal for lack of jurisdiction.