Scott v. Miami Dade County

Case: 15-13610 Date Filed: 08/01/2016 Page: 1 of 19

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-13610

Non-Argument Calendar

________________________

D.C. Docket No. 1:13-cv-23013-DPG

PLEADRO J. SCOTT,

Plaintiff–Appellee,

versus

MIAMI DADE COUNTY, et al.

Defendants,

R. GOMEZ,

C. WESTON,

Defendants–Appellants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(August 1, 2016)

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Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Plaintiff Pleandro Scott, a pre-trial inmate in the custody of the Miami–Dade

County Department of Corrections, filed a pro se § 1983 action 1 against

Defendants Corporal Rolando Gomez and Lieutenant Constantina Weston.

Plaintiff’s complaint alleges that Defendants were deliberately indifferent to his

safety in violation of the Fourteenth Amendment. Defendants moved to dismiss

Plaintiff’s complaint on qualified immunity grounds. The district court denied

Defendants’ motion to dismiss. Defendants appealed, and we now affirm.

I. BACKGROUND

A. Facts 2

At all relevant times, Plaintiff was an inmate in the custody of the Miami–

Dade County Department of Corrections awaiting trial for various charges,

including sexual battery with a weapon. On June 20, 2011, Plaintiff was assaulted

by a group of gang members at Turner Guilford Knight Detention Center. Later

that day, Corporal Tompkins, who is not a party here, placed Plaintiff in a single-

man cell and listed the names of the inmates involved in the assault on Plaintiff’s

1

See 42 U.S.C. § 1983; see also Brooks v. Warden, 800 F.3d 1295, 1300 (11th Cir. 2015)

(“Section 1983 creates a private civil rights cause of action for the deprivation of federal rights

by persons acting under color of state law.”).

2

At this stage, “we accept all factual allegations as true and consider them in the light most

favorable to [] [P]laintiff.” Brooks, 800 F.3d at 1300.

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jail card so that prison officials would know to keep Plaintiff separate from these

gang-affiliated inmates. However, the violent threats persisted. Plaintiff notified

correctional officers of the continued threats, filed a grievance, and wrote to a state

judge to apprise him of the threats. On December 18, 2012, the judge

recommended that Plaintiff be transferred to a different facility.

Plaintiff was transferred to Metro West Detention Center in January 2013.

Unfortunately, gang members from the same gang that had given Plaintiff trouble

at Turner Guilford were housed at Metro West, in the same unit that Plaintiff had

been assigned to. The gang members at Metro West threatened Plaintiff and told

other inmates that Plaintiff was a rapist and a snitch.

On March 5, 2013, Plaintiff filed a grievance requesting to be separated

“from all inmates at all times.” Around the same time, Plaintiff notified Corporal

Gomez of his concerns, and Corporal Gomez “informed [Plaintiff] that he w[ould]

make sure that nothing happen[ed] to [Plaintiff].” Plaintiff received a response to

his grievance on March 13, 2013. The response asked Plaintiff to identify by name

the inmates that were threatening him. Notwithstanding Corporal Gomez’s

assurances and Plaintiff’s grievance, Plaintiff continued to be placed with other

inmates during recreation. These inmates continued to threaten Plaintiff, so he

stopped partaking in recreation time.

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On March 15, Plaintiff alerted Sergeant Jefferson 3 that other inmates had

threatened Plaintiff and that he was concerned for his safety. In response, Sergeant

Jefferson and Corporal Gomez interviewed Plaintiff to find out more information.

During the interview, Plaintiff explained that he “[had been] assaulted a number of

times throughout [his] stay in Miami Dade County Department of Corrections” and

that he had been placed in protective custody after the June 20 assault. Plaintiff

further explained that members of the gang that had attacked him on June 20 were

housed in his unit and continued to threaten him. He requested that he be “kept

separate from all inmates at all times.” Sergeant Jefferson and Corporal Gomez

assured Plaintiff that he would “not [e]ncounter contac[t] with any other inmates.”

Yet Plaintiff continued to have to take recreation time with other inmates.

Thus, on March 25, 2013, Plaintiff filed another written grievance, identifying the

inmates who had threatened him, including Anterell Dean. Plaintiff’s grievance

referred back to his original grievance and again requested that he be kept separate

from all inmates. Thereafter, Lieutenant Weston went to Plaintiff’s cell with

Corporal Gomez, asked Plaintiff what more could be done given that he was

already in a single-man cell, and requested that Plaintiff sign a grievance response

form. Plaintiff explained that he had been assured more than once that he would

not come into contact with other inmates but that officers continued to try to move

3

The district court granted Sergeant Jefferson’s motion to dismiss. Plaintiff does not challenge

that ruling on appeal.

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him to cells with other inmates and that he was being forced to take recreation at

the same time as other inmates. Lieutenant Weston “explained that she [would]

make sure that the proper steps [were] tak[e]n to [e]nsure that [Plaintiff] [did] not

have contac[t] with other inmates.” Accordingly, Plaintiff checked the “resolved”

box on the grievance response form.

On May 15, 2013, Plaintiff was transported from Metro West to the

courthouse for a court appearance. There, he was placed in a holding cell with

inmate Anterell Dean. Plaintiff told an officer that he could not be in the same cell

as Dean. Plaintiff explained that he had to be housed separately from all inmates at

all times. The officer stated that this instruction did not appear on Plaintiff’s jail

card and, accordingly, Plaintiff would have to remain in the cell with Dean. As the

officer locked the door to the cell, Plaintiff asked her to call Metro West to verify

that Plaintiff was to be kept separate from Dean. As she walked away, the officer

told Plaintiff that she would place the call.

When Plaintiff and Dean were alone in the cell, Dean “struck [Plaintiff] with

his fist in [Plaintiff’s] face and [the] top of [Plaintiff’s] head and proceeded to

punch [Plaintiff].” When Plaintiff tried to get up, Dean slammed him against the

toilet and the wall, and continued to punch him. Plaintiff swung back. An officer

passed by the cell and broke up the fight.

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Plaintiff completed an incident report documenting the encounter. He woke

up the following day with “sever[e] pain in [his] jaw, head, neck, back and

shoulder.” A nurse administered Advil to ease the pain. Back at Metro West,

Plaintiff was transferred out of Dean’s unit. He submitted a grievance concerning

the incident with Dean on May 20, 2013. The response to Plaintiff’s grievance

stated the facility “had never [] approved for [Plaintiff] an[d] [] Dean to be kept

separate.”

B. Procedural History

Plaintiff filed a complaint on August 21, 2013, alleging that his

constitutional rights had been violated by Defendants’ failure to ensure his safety

while incarcerated. The district judge referred the case to a magistrate judge.

Plaintiff amended his complaint on July 8, 2014, and again on January 15, 2015.

The operative complaint lists as defendants the Miami–Dade Department of

Corrections, Lieutenant Weston, Sergeant Jefferson, Corporal Gomez, and “Officer

Jane Doe” (the officer who placed Plaintiff in the cell with Dean at the

courthouse). Corporal Gomez and Lieutenant Weston moved to dismiss Plaintiff’s

second amended complaint on qualified immunity grounds. The magistrate judge

issued an R&R recommending that the motion to dismiss be denied. The district

court adopted the R&R and denied Defendants’ motion to dismiss. This

interlocutory appeal followed.

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II. DISCUSSION

“We have jurisdiction to review the denial of the defense of qualified

immunity on interlocutory appeal pursuant to 28 U.S.C. § 1291.” Gonzalez v.

Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (citation omitted). A district court’s

order denying a motion to dismiss on qualified immunity grounds is reviewed de

novo. Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013). In determining

whether a complaint survives a motion to dismiss, “we ask whether the complaint

contains ‘enough facts to state a claim to relief that is plausible on its face.’”

Brooks v. Warden, 800 F.3d 1295, 1300 (11th Cir. 2015) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “We accept all factual allegations as true

and consider them in the light most favorable to the plaintiff.” Id. at 1300.

“Qualified immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their conduct violates

‘clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)

(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Plaintiff does not dispute that

Defendants were acting within the scope of their discretionary authority at all

relevant times. Thus, to analyze whether Defendants are entitled to qualified

immunity, we ask whether Plaintiff has alleged a violation of a constitutional right,

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and, if so, whether that constitutional right was clearly established when the

violation occurred. Franklin, 738 F.3d at 1249.

A. Violation of a Constitutional Right

Our first task is to determine whether the facts alleged in Plaintiff’s second

amended complaint make out a violation of the Fourteenth Amendment. “A prison

official’s deliberate indifference to a known, substantial risk of serious harm to an

inmate violates the Fourteenth Amendment.” 4 Goodman v. Kimbrough, 718 F.3d

1325, 1331 (11th Cir. 2013) (quoting Cottone v. Jenne, 326 F.3d 1352, 1358 (11th

Cir. 2003)); accord Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“[P]rison

officials must . . . ‘take reasonable measures to guarantee the safety of the

inmates.’” (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984))). A

deliberate indifference claim thus consists of three elements: “(1) a substantial risk

of serious harm; (2) the defendants’ deliberate indifference to that risk; and

(3) causation.” Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995).

1. Substantial Risk of Serious Harm

The district court adopted the magistrate judge’s R&R, which concluded that

Plaintiff had alleged facts that satisfy all three elements of a deliberate indifference

4

“Where, as here, the plaintiff is a pretrial detainee . . . , the Due Process Clause of the

Fourteenth Amendment, not the Eighth Amendment’s prohibition against cruel and unusual

punishment, governs our analysis.” Goodman, 718 F.3d at 1331 n.1. Because the standard is the

same in both contexts, we apply decisional law involving Eighth Amendment deliberate

indifference claims. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).

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claim. Regarding the first element, the magistrate judge stated that “[t]here is no

dispute that plaintiff plead[ed] the existence of a substantial risk of serious harm.”

We conclude that Plaintiff has alleged facts that, if true, demonstrate that he faced

a substantial risk of serious harm.

This Court has previously recognized that inmate-on-inmate violence can

amount to serious harm. See, e.g., Purcell ex rel. Estate of Morgan v. Toombs

Cty., Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (“We accept that an excessive risk

of inmate-on-inmate violence at a jail creates a substantial risk of serious harm.”);

Hale, 50 F.3d at 1583 (“Hale produced evidence that inmate-on-inmate violence

occurred regularly when the jail was overcrowded . . . . Moreover, the evidence

indicated that the violence was severe enough to require medical attention and

even hospitalization on occasion. A jury viewing this evidence . . . reasonably

could find that a substantial risk of serious harm existed at the jail.”). The

question, then, is whether the risk of serious harm to Plaintiff was “substantial.”

Plaintiff alleges that he had previously been attacked by members of a prison

gang, and members of that gang continued to threaten him. The fact of an earlier

attack made the ongoing threats credible. And the threats were at least credible

enough to cause Plaintiff to forgo his recreation time to avoid being around other

inmates. On these facts, a jury could conclude that the risk of an attack by gang

members was substantial.

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On appeal, Defendants rely heavily on our recent decision in Brooks v.

Warden, 800 F.3d 1295 (2015), which was issued two months after the district

court entered its order denying Defendants’ motion to dismiss. Brooks was an

inmate in the special management (SMU) at a Georgia prison. Brooks alleged that

another prisoner had threatened him with physical and sexual assault. Id. at 1298.

Brooks reported these threats, but no action was taken. Id. Moreover, the

responsible prison officials were aware that the cell doors in the SMU would

occasionally open unintentionally. Id. One day, all the cell doors in the SMU

opened simultaneously, causing a riot. Id. During the riot, Brooks was “brutally

attacked by the inmate who had threatened him.” Id.

Brooks sued the responsible prison officials under § 1983. The district court

granted the officials’ motion to dismiss. This Court affirmed, holding that Brooks

“ha[d] failed to plausibly allege that a substantial risk of serious harm existed prior

to the prison riot.” Id. at 1301. Defendants argue that the facts here are materially

similar to the facts in Brooks, and thus Plaintiff has not adequately pleaded a

substantial risk of serious harm. Brooks, however, is distinguishable: “For Brooks

to [have] face[d] serious harm, he and [his attacker] both needed to be released

from their cells simultaneously in an unsupervised situation.” Id. Critically,

Brooks had failed to allege that he and his attacker had “ever been let out of their

cells at the same time.” Id. Here, Plaintiff alleges that he repeatedly made clear, in

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both his grievances and his conversations with Corporal Gomez and Lieutenant

Weston, that he was continuing to encounter other inmates, in particular during

recreation time. And, here, far from a chance run-in during a prison riot, Plaintiff

and Dean were intentionally placed in the same cell, uncuffed, and apparently

without direct supervision. 5 Thus, accepting Plaintiff’s allegations as true, Dean’s

attack on Plaintiff was not a “freak accident” of the sort at issue in Brooks. Id. at

1302.

Defendants also seem to argue that Plaintiff did not face a substantial risk of

serious harm because he was already housed in a single-man cell and was in

protective custody. 6 The problem with this argument is that, even after Plaintiff

was housed in a single-man cell and in protective custody, officers allegedly tried

to move Plaintiff to shared cells and to force him to take his recreation time with

other inmates. And Plaintiff was still receiving threats from gang members. So

Plaintiff has adequately alleged that even though he had been placed in a single-

man cell, he still faced a substantial risk of serious harm.

5

Although neither Defendant was the officer who actually placed Plaintiff and Dean in the same

cell, as will be discussed below, Plaintiff alleges that neither Defendant took measures necessary

to ensure that Plaintiff would be kept separate from other inmates. That is, Defendants could

have, but did not, take steps to ensure that another officer would not place Plaintiff in the same

cell as Dean.

6

It is not clear whether Plaintiff remained in protective custody after he was transferred from

Turner Guilford Knight to Metro West. Plaintiff’s brief states that after he was transferred, he

“requested to be placed into protective custody even though he was suppose[d] to [have] already

been assigned to be housed under protective custody.”

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Defendants also note that Plaintiff indicated on a grievance response form

that the issue was “resolved.” But Plaintiff alleges that he checked that box only

after Lieutenant Weston assured him that she would make sure he was kept

separate from other inmates. So the fact that Plaintiff checked the “resolved” box

does not indicate that there was no risk of harm; it shows only that Lieutenant

Weston promised him that she would promptly address the then-extant risk.

2. Deliberate Indifference

The second element of a deliberate indifference claim has both a subjective

and an objective component. To satisfy the subjective component, a plaintiff must

allege facts that would allow a jury to conclude that the defendant actually knew

that the plaintiff faced a substantial risk of serious harm. See Caldwell v. Warden,

FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2015). To satisfy the objective

component, a plaintiff must allege facts showing that the defendant disregarded

that known risk by failing to respond to it in an objectively reasonable manner.

See id.

Our decision in Caldwell v. Warden, FCI Talladega, 748 F.3d 1090 (11th

Cir. 2014), makes clear that Plaintiff’s complaint adequately alleges that both

Corporal Gomez and Lieutenant Weston were subjectively aware that Plaintiff

faced a substantial risk of serious harm. Caldwell also involved an inmate-on-

inmate attack. The defendant–officials argued that Caldwell had not adduced

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enough evidence to create a genuine issue of material fact with respect to the

defendants’ subjective awareness of a substantial risk of serious harm to Caldwell.

We disagreed. In pertinent part, we explained that the evidence showed that

Caldwell told the defendants that he “feared for his life if he was returned to a cell

with [his cellmate]” and that a jury could reasonably infer that Caldwell had a

well-founded basis for his fear because Caldwell’s cellmate had previously used

Caldwell’s personal belongings to start a fire in their cell, and the officers were

aware of this fire. Id. at 1101.

The allegations in Plaintiff’s complaint here follow a similar path. Plaintiff

alleged that he informed Defendants, verbally and in writing, that he feared for his

safety if he was not kept separate from other inmates, including members of the

prison gang and Dean in particular. Plaintiff’s allegations make clear that this fear

was well-founded given that members of the gang had targeted Plaintiff, had

previously assaulted him, and continued to threaten Plaintiff. Accordingly,

Plaintiff adequately alleged that Defendants were subjectively aware of a

substantial risk of serious harm to Plaintiff.

To establish the second prong of the deliberate indifference element, a

plaintiff must show that the officer responded in an objectively unreasonable

manner to the substantial risk of serious harm. “An official responds to a known

risk in an objectively unreasonable manner if he knew of ways to reduce the harm

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but knowingly [or] recklessly declined to act.” Rodriguez v. Sec’y for Dep’t of

Corr., 508 F.3d 611, 620 (11th Cir. 2007) (quotation marks and citation omitted);

accord LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993) (explaining that

the proper inquiry is whether a prison official “knowingly or recklessly disregarded

solutions within his means”).

Plaintiff alleges facts from which a jury could conclude that Defendants

responded to Plaintiff’s complaints of a substantial risk of serious harm in an

objectively unreasonable manner. In short, Plaintiff asserts that although

Defendants paid his concerns lip service, repeatedly assuring him that they would

take the necessary steps to ensure that he would not encounter other inmates,

Defendants failed to take any action. Plaintiff argues that it was objectively

unreasonable for Defendants to do nothing in response to the risk he faced from

gang members, and that it was especially unreasonable to have failed to follow

standard operating procedure by indicating on Plaintiff’s jail card that he had to be

kept separate from all other inmates at all times.7 Assuming that Defendants did

nothing, or next to nothing, in response to the threats that Plaintiff had received, a

jury could find that Defendants did not respond reasonably to the substantial risk of

serious harm Plaintiff faced. See Hale, 50 F.3d at 1584 (“A jury could find that

7

We held in Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000), that a firemedic’s “failure

to follow procedures does not, by itself, rise to the level of deliberate indifference.” But as

noted, Plaintiff asserts that Defendants failed to take any action to protect him from Dean and

other gang members. He simply cites the jail card notation as one measure Defendants could

have taken.

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despite any efforts [the sheriff] made . . . , [he] was deliberately indifferent by

disregarding ‘alternative means’ or interim measures for reducing the risk of

violence such as those advanced by Hale.” (quoting LaMarca v. Turner, 995 F.2d

1526, 1536 (11th Cir. 1993))).

Defendants argue that Plaintiff does not claim to have encountered any other

inmates from the time he conferred with Defendants in March until the attack in

May. The implication, we take it, is that either the situation self-corrected or

Defendants took action to correct it. If the former, then Defendants were under no

duty to act, and if the latter, then Defendants were not deliberately indifferent.

Although it is true that Plaintiff did not allege that he encountered other inmates at

Metro West after his final discussion with Defendants, at this stage, we simply do

not know what steps Defendants took in response to Plaintiff’s complaints, if any.

Plaintiff alleges that they did nothing and specifically cites their failure to indicate

on his jail card that he could not be placed with any other inmate under any

circumstances. Thus, Plaintiff has adequately alleged that Defendants “knew of

ways to reduce the harm but knowingly [or] recklessly declined to act.”

Rodriguez, 508 F.3d at 620 (quotation marks and citation omitted). Of course,

discovery may reveal that Defendants did take some measures in response to

Plaintiff’s concerns, and Defendants are “not precluded from asserting the

qualified immunity defense throughout the proceedings as the facts develop[].”

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Oladeinde v. City of Birmingham, 230 F.3d 1275, 1289 (11th Cir. 2000); Bowen v.

Warden, __ F.3d __, 2016 WL 3435501, at *9 (11th Cir. June 22, 2016) (“This

case may look very different as it moves beyond the pleadings and the record is

more fully developed.”).

3. Causation

Defendants do not dispute that Plaintiff adequately pleaded the causation

element of his Fourteenth Amendment claim. Accordingly, we need not address

causation at this juncture. See Bowen, __ F.3d __, 2016 WL 3435501, at *5 n.21

(collecting cases). But Defendants are not precluded from raising issues

concerning causation as the facts develop. Id. at *9.

B. Clearly Established Constitutional Right

Because Plaintiff’s second amended complaint sufficiently alleges a

constitutional violation, “we next determine whether preexisting law clearly

established that [] [D]efendants’ conduct amounted to a constitutional violation.”

Cottone v. Jenne, 326 F.3d 1352, 1359 (11th Cir. 2003). “For a constitutional right

to be clearly established, its contours ‘must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). We look to the law “as interpreted at the time by the United States

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Supreme Court, the Eleventh Circuit, or the Florida Supreme Court.” Terrell v.

Smith, 668 F.3d 1244, 1255 (11th Cir. 2012).

This Court has held that a plaintiff can demonstrate that the contours of the

allegedly violated constitutional right were clearly established in at least two ways.

Id. at 1255. First, a plaintiff “may show that ‘a materially similar case has already

been decided.’” Id. (quoting Mercado v. City of Orlando, 407 F.3d 1152, 1159

(11th Cir. 2005)). Second, a plaintiff “can point to a ‘broader, clearly established

principle [that] should control the novel facts [of the] situation.’” Id. (quoting

Mercado, 407 F.3d at 1159); accord United States v. Lanier, 520 U.S. 259, 271

(1997) (“[G]eneral statements of the law are not inherently incapable of giving fair

and clear warning, and in other instances a general constitutional rule already

identified in the decisional law may apply with obvious clarity to the specific

conduct in question.”); Hope, 536 U.S. at 739 (stating that a violation can be

clearly established even absent a case “involving the [] action in question”). Here,

the broader principle laid down in Farmer v. Brennan, 511 U.S. 825 (1994),

“control[s] the novel facts” pleaded in Plaintiff’s complaint.8 See Castro v. Cty. of

Los Angeles, 797 F.3d 654, 664 (9th Cir. 2015) (“Farmer sets forth the contours of

the right to be free from violence at the hands of other inmates with sufficient

8

Farmer, a transsexual inmate, was brutally beaten and raped by a cellmate. Farmer sued

various prison officials under § 1983 alleging that the officials were deliberately indifferent to

Farmer’s safety in violation of the Eighth Amendment. Id. at 829.

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clarity to guide a reasonable officer.”); Young v. Selk, 508 F.3d 868, 975 (8th Cir.

2007) (same). In short, the Supreme Court made clear in Farmer that prison

officials have a duty “to protect prisoners from violence at the hands of other

prisoners,” Farmer, 511 U.S. at 833, and that an official may be liable if he knows

of and disregards a substantial risk of an inmate-on-inmate attack “by failing to

take reasonable measures to abate [the risk].” Id. at 847; see also id. at 837.

Plaintiff’s complaint alleges that Defendants took no measures to prevent

Dean’s attack even though Plaintiff had repeatedly warned Defendants that he was

being threatened by Dean and other members of the gang that had previously

assaulted him. In 2013, no reasonable officer could have believed that doing

nothing in the face of these circumstances was constitutional. See Marsh v. Butler

Cty., Ala., 268 F.3d 1014, 1034 (11th Cir. 2001) (en banc) (“[A]t the time of the

assaults in this case, it was clearly established in this Circuit that it is an

unreasonable response for an official to do nothing when confronted with prison

conditions—like the conditions alleged in this case—that pose a risk of serious

physical harm to inmates.”), abrogated on other grounds by Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 561–63 (2007). Accordingly, at this stage, Defendants are

not entitled to qualified immunity.

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III. CONCLUSION

Plaintiff’s complaint sufficiently alleged that Defendants violated his

Fourteenth Amendment rights. At the time of the events underlying this suit, it

was clearly established that a prison official violates an inmate’s constitutional

rights where the official is aware of a substantial risk of serious harm to an inmate,

including an inmate-on-inmate attack, and takes no action. Accordingly,

Defendants are not entitled to qualified immunity at this juncture, and the district

court’s denial of Defendants’ motion to dismiss Plaintiff’s § 1983 complaint is

AFFIRMED.

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