David Danser v. Patricia Stansberry

UNPUBLISHED

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

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Vacated and remanded with instructions by unpublished opinion.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.

Unpublished opinions are not binding precedent in this circuit.

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