Adib Makdessi v. Lt. Fields

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.

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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.

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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:

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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.

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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

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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