The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13572
Non-Argument Calendar
____________________
JOHNNY GAFFNEY,
Plaintiff-Appellant,
versus
WARDEN, TAYLOR CORRECTIONAL INSTITUTION,
FRAN WOOD,
Assistant Warden of Taylor Correctional Institution in her individ-
ual and official capacity,
HILL,
Captain Officer in charge of Taylor Correctional Institution in her
individual and official capacity,
HARMON,
Sergeant Security of Taylor Correctional Institution in his individ-
ual and official capacity,
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2 Opinion of the Court 20-13572
GRUBBS,
Sergeant security of Taylor Correctional Institution in his individ-
ual and official capacity, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:18-cv-00506-RH-MAF
____________________
Before BRANCH, BRASHER, and MARCUS, Circuit Judges.
PER CURIAM:
Johnny R. Gaffney, a state prisoner proceeding pro se, ap-
peals following the district court’s grant of summary judgment to
the appellees -- Captain Rachel Hill, Sergeant Terry Harmon, Ser-
geant Gregory Grubbs, Warden Christopher Edelen and Assistant
Warden Fran Wood -- all of whom worked at the Taylor Correc-
tional Institution, where Gaffney is incarcerated. In his complaint,
Gaffney alleged that the appellees violated his rights under 42
U.S.C. § 1983 by failing to protect from being attacked by another
inmate after he specifically asked for such protection. The district
court made three rulings Gaffney challenges in this appeal. First,
after Assistant Warden Wood initially did not answer the
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20-13572 Opinion of the Court 3
complaint, Gaffney sought an entry of default, but the district court
granted Wood an extension of time within which to answer. Sec-
ond, following discovery, the district court granted summary judg-
ment to Captain Hill, Sergeant Harmon, and Sergeant Grubbs, not-
ing that there was not enough evidence to hold them individually
liable, particularly in light of our earlier decision in Marbury v.
Warden, 936 F.3d 1227 (11th Cir. 2019). Third, the court granted
summary judgment to Warden Edelen and Assistant Warden
Wood, after concluding that Gaffney had not shown that they
could be held liable in a supervisory capacity. After thorough re-
view, we affirm the district court. 1
We review excusable neglect decisions for abuse of discre-
tion. Advanced Estimating Sys. v. Riney, 77 F.3d 1322, 1325 (11th
Cir. 1996). A court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures in making the deter-
mination, or makes findings of fact that are clearly erroneous.
United States v. Harris, 989 F.3d 908, 911 (11th Cir. 2021). We
1 Gaffney also named Julie Jones, the Secretary of the Florida Department of
Corrections (“FDOC”), as a defendant in her official capacity, and he likewise
sued the other defendants in their official capacities. Although the district
court later substituted Mark Inch, Jones’s successor, as a defendant, it ulti-
mately concluded that he was immune from suit due to Eleventh Amendment
immunity, as were the other defendants in their official capacities. Because
Gaffney does not discuss these issues on appeal, he has abandoned any argu-
ments concerning the Secretary, his official capacity claims, or Eleventh
Amendment immunity. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 680 (11th Cir. 2014).
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4 Opinion of the Court 20-13572
cannot reverse the district court just because we might have come
to a different conclusion than the district court. Id. at 912.
We “review a summary judgment ruling de novo, viewing
the evidence and all factual inferences therefrom in the light most
favorable to the party opposing the motion.” Essex Ins. Co. v. Bar-
rett Moving & Storage, Inc., 885 F.3d 1292, 1299 (11th Cir. 2018)
(quotation omitted). However, we only draw inferences in favor
of the opposing party “to the extent supportable by the record”;
inferences based upon speculation are not reasonable. Garczynski
v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009); Kernel Records
Oy v. Mosley, 694 F.3d 1294, 1301 (11th Cir. 2012). Summary judg-
ment is properly granted if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A sworn complaint constitutes sum-
mary-judgment evidence, just as if the same information had been
set out in a declaration. Perry v. Thompson, 786 F.2d 1093, 1095
(11th Cir. 1986). Under our prior-panel precedent rule, a prior
panel’s holding is binding unless it has been overruled or abrogated
by the Supreme Court or by us sitting en banc. See United States
v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998).
First, we are unpersuaded by Gaffney’s claim that the district
court abused its discretion when, instead of granting Gaffney’s re-
quest for entry of default, it granted Wood’s untimely motion for
an enlargement of time to file her answer to Gaffney’s amended
complaint. The Federal Rules of Civil Procedure Rule allow a dis-
trict court to extend the time to file motions, for good cause, after
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20-13572 Opinion of the Court 5
the time for filing has elapsed if the party failed to act because of
excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). It is generally recog-
nized that “excusable neglect” may extend to inadvertent delays.
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
391–92 (1993). Inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute excusable neglect,
however, excusable neglect is an elastic concept and is not limited
strictly to omissions caused by circumstances beyond the control
of the movant. Id. at 392.
Rule 55 requires that “[w]hen a party against whom a judg-
ment for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party’s default.” Fed. R. Civ. P. 55(a). Nevertheless,
there is a “strong policy of determining cases on their merits” and,
therefore, “default judgments are generally disfavored.” Surtain v.
Hamlin Terrace Found., 789 F.3d 1239, 1244–45 (11th Cir. 2015)
(quoting In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th
Cir. 2003)).
Here, the district court did not abuse its discretion when it
granted Assistant Warden Wood’s motion for enlargement of time
to answer. The record reflects that Wood filed her motion shortly
after Gaffney asked the district court to make an entry of default.
In the motion, she explained the basis for her delay in answering.
While Gaffney had sought an entry of default, one had not yet been
entered, and he had not yet sought a default judgment.
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6 Opinion of the Court 20-13572
Although Gaffney questions Wood’s motives for filing the
motion for enlargement of time, the district court did not apply the
wrong legal standard or improper procedures when it granted the
motion, nor is there support for his allegations of bad faith. Harris,
989 F.3d at 911. Further, Gaffney has not shown how the outcome
would have been different if he had been able to respond to the
motion for enlargement of time, nor has he shown how the mag-
istrate judge’s subsequent extension of time for discovery preju-
diced him, who was incarcerated and proceeding pro se. In short,
based on Assistant Warden Wood’s showing of excusable neglect
and our disfavor for default judgments, the district court did not
abuse its discretion in granting Wood’s motion for enlargement of
time. Pioneer Inv. Servs., 507 U.S. at 391–92; Surtain, 789 F.3d at
1244–45. Accordingly, we affirm as to this issue.
We also are unconvinced by Gaffney’s argument that the
district court erred in granting summary judgment as to his delib-
erate indifference claims against Captain Hill, Sergeant Harmon,
and Sergeant Grubbs. Section 1983 creates a private cause of action
against any person who, under color of state law, deprives an indi-
vidual of federal rights. 42 U.S.C. § 1983. The Eighth Amendment,
in turn, prohibits the infliction of cruel and unusual punishment.
U.S. Const. Amend. VIII. “It is undisputed that the treatment a
prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.”
Brooks v. Warden, 800 F.3d 1295, 1300 (11th Cir. 2015) (quoting
Helling v. McKinney, 509 U.S. 25, 31 (1993)).
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20-13572 Opinion of the Court 7
While “prison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners,” not every instance
of inmate-on-inmate violence “translates into constitutional liabil-
ity for prison officials responsible for the victim’s safety.” Farmer
v. Brennan, 511 U.S. 825, 833-34 (1994). It is “[a] prison official’s
‘deliberate indifference’ to a substantial risk of serious harm to an
inmate [that] violates the Eighth Amendment.” Id. at 828.
To support an Eighth Amendment claim premised on fail-
ure to protect or prevent harm, a plaintiff must show that: (1) a
substantial risk of serious harm existed; (2) the defendants were de-
liberately indifferent to that risk; and (3) there was a causal connec-
tion between the defendants’ conduct and the Eighth Amendment
violation. Bowen v. Warden, 826 F.3d 1312, 1320 (11th Cir. 2016).
We use an objective standard to examine the first element -- a sub-
stantial risk of harm -- and the plaintiff must demonstrate “condi-
tions that were extreme and posed an unreasonable risk of serious
injury to [the plaintiff’s] future health or safety.” Marbury v. War-
den, 936 F.3d 1227, 1233 (11th Cir. 2019) (quotations omitted). The
second element -- whether the defendant was deliberately indiffer-
ent -- involves an objective and subjective component. Id. Subjec-
tively, the “official must both be aware of facts from which the in-
ference could be drawn that a substantial risk of serious harm ex-
ists, and . . . also draw the inference.” Id. (quoting Rodriguez v.
Sec. for the Dep’t of Corrections, 508 F.3d 611, 617, 620 (11th Cir.
2007)). Objectively, the official must have responded to the known
risk in an unreasonable manner, in that he or she “knew of ways to
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8 Opinion of the Court 20-13572
reduce the harm” but knowingly or recklessly declined to act. Id.
(quotations omitted).
Additionally, a prison official cannot escape liability for de-
liberate indifference by showing that he did not know that the com-
plainant was especially likely to be assaulted by the specific prisoner
who eventually committed the assault, so long as the official was
otherwise aware that the victim faced a substantial risk of serious
harm. Id. at 1236. However, officials must possess enough details
about a threat to present a strong likelihood of injury, not just a
mere possibility. Id. Successful deliberate indifference claims gen-
erally require some further reason, beyond the plaintiff informing
the defendant officers of the threat, that allowed the official to con-
clude that a particular threat evidenced a substantial threat. Id.
The Eighth Amendment also provides an inmate the right
“to be reasonably protected from constant threat of violence . . . by
his fellow inmates.” Purcell ex rel. Estate of Morgan v. Toombs
Cty., Ga, 400 F.3d 1313, 1320-21 (11th Cir. 2005) (quoting Wood-
hous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973)). We’ve recog-
nized that an excessive risk of inmate-on-inmate violence can con-
stitute a substantial risk of serious harm, but a plaintiff must show
more than occasional or isolated attack. Id. at 1320. Sworn allega-
tions of a generalized risk, by themselves, do not support the con-
clusion that serious inmate-on-inmate violence was “so pervasive
that it constitutes a substantial risk of harm to which defendants
were deliberately indifferent.” Marbury, 936 F.3d at 1234.
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In Marbury, a prisoner repeatedly attempted to be trans-
ferred to another dormitory over the course of two months, Feb-
ruary to April 2016. Id. at 1231. In a February written request to
the Warden, he stated that he witnessed over 15 inmate-on-inmate
stabbing incidents that appeared to be gang related. Id. He also
averred that he made multiple verbal requests to an officer and re-
ceived threatening responses in turn. Id. In another written re-
quest to the Warden in April, he said he saw prisoners attack secu-
rity staff and that nothing was being done to correct the problem.
Id. Later that month, he requested that an officer ask the captain
to transfer him because he’d heard that an inmate wanted to hurt
him. Id. He claimed the officer again replied with a threatening
response. Id. at 1231–32. A day later, he again requested that the
Warden move him because he was afraid of being hurt or killed,
and he reported the conversation with the officer the previous day.
Id. at 1232. The captain in charge of lock-up reported that she did
not receive any information about a request. Id.
Shortly thereafter, the prisoner was stabbed in the face in the
prison’s dayroom. Id. Prison staff were unable to identify who at-
tacked him. Id. He filed a § 1983 complaint based on deliberate
indifference by officials, among other claims; the district court ulti-
mately granted summary judgment to the defendants. Id.
On appeal, we affirmed, holding that the prisoner had not
presented enough evidence to support a deliberate indifference
claim because there was no genuine factual issue that the defend-
ants were deliberately indifferent to a substantial risk of serious
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harm to him. Id. at 1234. We concluded that while his testimony
supported a generalized risk of attack, it did not support a conclu-
sion that that serious inmate-on-inmate violence was so pervasive
that it constituted a substantial risk of serious harm to which de-
fendants were deliberately indifferent. Id. We also noted that he
had not pointed to specific features of the prison that would make
it particularly violent. Id. at 1235.
Additionally, we found that the prisoner had not provided
enough information to prison officials that the threats against him
represented a specific threat of serious harm, rather than a general-
ized threat. Id. at 1237. We added that even though the officer
made statements about the potential for violence, they only
amounted to a subjective knowledge of a general risk of harm,
which did not put her on notice that she was aware of a substantial
risk of serious harm. Id. at 1237–38. Finally, we concluded that
negligent failure to protect an inmate from attack did not justify
liability under § 1983. Id. at 1238.
Here, the district court did not err in granting summary
judgment in favor of appellees Captain Hill, Sergeant Harmon, and
Sergeant Grubbs. For starters, we agree with Gaffney that his
sworn amended complaint counted as evidence, to the extent it re-
flected facts within his personal knowledge. Perry, 786 F.2d at
1095. Likewise, the excerpts of his deposition, and his two sworn
affidavits also had to be considered, along with the affidavits sub-
mitted by the defendants.
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20-13572 Opinion of the Court 11
Nevertheless, the district court did not err in concluding that
Gaffney had not shown that there was a genuine issue of material
fact concerning his deliberate indifference claim because Marbury
was a case comparable with Gaffney’s and as in Marbury, Gaffney
did not present sufficient evidence to sustain his claim as a matter
of law. As the district court observed, both Marbury and this case
involve a prisoner going to officials about threats against them
from an unspecified inmate. Marbury, 936 F.3d at 1231, 1236. Both
involved one of the officers involved saying disparaging or mock-
ing comments toward them. Id. at 1231–32. Additionally, in both
cases, the plaintiff eventually was attacked by an unspecified indi-
vidual. Id. at 1232. Gaffney’s attempt to differentiate Marbury
from his case -- on the ground that he has not conceded that Hill,
Harmon, and Grubbs were acting in their discretionary duties --
fails since there is no genuine issue of fact about whether they were
acting in their discretionary duties. Id. at 1233.
Moreover, like the plaintiff in Marbury, Gaffney did not pre-
sent sufficient evidence to sustain his claim as a matter of law. Im-
portantly, just as in Marbury, Gaffney gave no specific information
to officials about the people who wanted to harm him. And if an-
ything, Marbury provided additional, more thorough, and more
specific evidence than Gaffney did. See id. at 1231–32. So, for ex-
ample, Gaffney complained to fewer people less times than the
plaintiff in Marbury. Further, Marbury had warned officials that he
had witnessed at least 15 gang-related incidents at the prison; in this
case, Gaffney alleged only that one gang-related riot had occurred
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12 Opinion of the Court 20-13572
two weeks before his assault. And to the extent Gaffney claims that
there was a taped interview with Gaffney and the Inspector Gen-
eral’s office after the attack that supported his claims, it is irrelevant
because Gaffney did not introduce the tape into the record as evi-
dence. Kernel Records Oy, 694 F.3d at 1301.
Based on the similarities between this case and Marbury, the
district court properly followed our precedent when it found that
Gaffney’s evidence was insufficient to withstand summary judg-
ment. Steele, 147 F.3d at 1317–18. That is to say, there is nothing
in record before us that created a genuine issue of material fact
about whether Gaffney had placed Hill, Harmon, and Grubbs on
notice that he faced “conditions that were extreme and posed an
unreasonable risk of serious injury” to his future health or safety or
about whether he gave enough details to them about a threat to
present “a strong likelihood of injury, not [just] a mere possibility.”
Marbury, 936 F.3d at 1233, 1236 (quotations omitted). Accord-
ingly, the district court did not err in granting summary judgment
to Captain Hill, Sergeant Harmon, and Sergeant Grubbs, and we
affirm as to this issue.
Finally, we find no merit to Gaffney’s claim that the district
court erred in granting summary judgment as to his claims of su-
pervisory liability against Warden Edelen and Assistant Warden
Wood. Supervisory officials cannot be held liable under § 1983 for
the unconstitutional acts of their subordinates on the basis of re-
spondent superior or vicarious liability. Hartley v. Parnell, 193 F.3d
1263, 1269 (11th Cir. 1999). Supervisory liability only occurs when
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20-13572 Opinion of the Court 13
the supervisor personally participates in the alleged unconstitu-
tional conduct or when there is a causal connection between the
actions of a supervising official and the alleged constitutional dep-
rivation. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003).
This causal connection can be established by a showing that
a supervisor’s custom or policy resulted in deliberate indifference
to constitutional rights or when facts support an inference that the
supervisor directed the subordinates to act unlawfully or knew
they would act unlawfully and failed to stop them from doing so.
Id. at 1234-35. Additionally, it can be established when a history of
widespread abuse puts the responsible supervisor on notice of the
need to correct the alleged deprivation, and he fails to do so. Id.
A party may waive an issue by first raising it late in proceed-
ings before the district court. See Thomas v. Bryant, 614 F.3d 1288,
1305-06 (11th Cir. 2010). Additionally, the general rule is that inad-
missible hearsay cannot be considered on a motion for summary
judgment. Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th
Cir. 2012). However, a district court may consider a hearsay state-
ment if the statement could be reduced to admissible evidence at
trial or reduces to admissible form, such as having the declarant
testify directly to the matter at trial. Id. at 1293–94.
Here, the district court did not err in granting summary
judgment to Warden Edelen and Assistant Warden Wood.
Gaffney’s primary evidence for his claims against them came from
statements he introduced into the record after summary judgment
was granted, and, in any event, those statements were inadmissible
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14 Opinion of the Court 20-13572
hearsay. Bryant, 614 F.3d at 1305–06; Jones, 683 F.3d at 1293–94.
Further, Gaffney’s claim that they knew of a policy that allowed
officers to deny protections to inmates was not based on his per-
sonal knowledge, and was not otherwise supported by the record.
Garczynski, 573 F.3d at 1165. As a result, Gaffney has not shown
that either Edelen or Wood knew of the false policy or a history of
widespread abuse sufficient to put them on notice, nor has he es-
tablished a causal connection by showing that they directed any of
their subordinates to enforce such a policy. Gonzalez, 325 F.3d at
1234. 2 Accordingly, we affirm the district court’s grant of summary
judgment as to Warden Edelen and Assistant Warden Wood.
AFFIRMED.
2 Finally, to the extent Gaffney complained about the prison grievance process
in the district court, he does not raise these arguments in his initial brief, thus
abandoning them on appeal. Sapuppo, 739 F.3d at 680. Regardless, because
“a prison grievance procedure does not provide an inmate with a constitution-
ally protected interest,” Gaffney could not show that Edelen or Wood denied
him due process of law merely by denying his formal grievance or otherwise
violating those procedures. See Bingham v. Thomas, 654 F.3d 1171, 1177 (11th
Cir. 2011).