The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
No. 06-15915 AUGUST 17, 2007
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-00172-CV-DF-5
CHARLES DOE,
Plaintiff-Appellee,
versus
GEORGIA DEPARTMENT OF CORRECTIONS, et al.,
Defendants,
GENE A. SCROGGY,
Individually and in his former official capacity as Warden of Frank Scott State
Prison,
AUBREY JONES,
Individually and in his official capacity of Deputy Warden of Security for Frank
Scott State Prison,
TOM McELHENNEY,
Individually and in his official capacity as Deputy Warden of Care and Treatment
for Frank Scott State Prison,
GLORIA NICHOLSON,
Captain, Individually and in her official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison, a.k.a. Gloria Chester.
CARL EVANS,
Captain, Individually and in his official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison,
DENNIS HOLSEY,
Sergeant, Individually and in his official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison,
DENNIS KNIGHT,
Sergeant, Individually and in his official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison,
Defendants-Appellants.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 17, 2007)
Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Defendants-Appellants, seven Georgia Department of Corrections
(“GDOC”) correctional officers sued in their individual capacities,1 bring this
interlocutory appeal of the denial of their motion for summary judgment based on
1
Defendants also were sued in their official capacities. The district court granted Defendants
summary judgment on Plaintiff’s official-capacity claims. Also named in the complaint were two
investigators employed by GDOC Internal Investigations Division. The district court determined
that these two defendants were entitled to summary judgment on Plaintiff’s failure-to-protect claim.
The only order we review in this appeal is the denial of Defendants’s qualified-immunity-based
summary judgment motion.
2
qualified immunity in Plaintiff-Appellee Charles Doe’s section 1983 action for
damages, 42 U.S.C. § 1983. We reverse the denial of summary judgment.
This section 1983 civil rights action arises from a series of sexual assaults at
Scott State Prison by prison guard Nicholas Tuft during the summer of 2002. On
10 July 2002, an altercation took place between Tuft and inmate John Doe. Tuft
claimed that inmate John Doe pushed him; inmate John Doe denied the accusation
and claimed Tuft demanded sexual favors. John Doe and Tuft were each
interviewed; noting inconsistencies between the statements of inmate John Doe
and Tuft, Deputy Warden Jones referred the matter to Warden Scroggy on 12 July
2002. That same day, Warden Scroggy referred the matter to Regional Director
Jimmy Sikes, and on 17 July 2002, Sikes forwarded the allegations to the Director
of Internal Investigations who, in turn, assigned it to an investigator. No
affirmative action was taken by the investigator until 12 August 2002, when the
investigator heard that Plaintiff also accused Tuft of sexual assault.
At some point before the end of July 2002, Tuft was transferred to another
dormitory at Scott State Prison; Tuft continued to interact with inmates.
In late July and early August 2002, Plaintiff and James Doe, each inmates in
the Scott State Prison dormitory to which Tuft had been transferred, claim to have
been sexually assaulted by Tuft. In an incident on 29 July, Plaintiff claims that he
3
was touched inappropriately by Tuft. Plaintiff sent a letter complaining about
Tuft’s misconduct to Captain Gloria Nicholson via the institutional mail system.
Unknown to Plaintiff, the next day inmate James Doe also had an encounter with
Tuft; James Doe sent a letter to Warden Scroggy via the institutional mail system
asking for help. On 1 August, Tuft forced James Doe to perform oral sex on him
by threatening to accuse James Doe of assaulting an officer; James Doe sent
another letter of complaint to Warden Scroggy. James Doe retained his t-shirt
which he believed contained seminal evidence of his encounter with Tuft. And on
2 August, Plaintiff wrote to Warden Scroggy and described two more assaults by
Tuft.2 Plaintiff also believed that Tuft had ejaculated on his t-shirt and saved the
evidence.
Shortly after these incidents, Plaintiff and inmate James Doe spoke with
each other about Tuft. And Plaintiff and James Doe each related his experience
with Tuft to his respective step-father; on 12 August 2002 Plaintiff’s stepfather
2
The earliest alleged assault about which Plaintiff or James Doe complained happened on 29 July
2002; the last alleged assault on 1 August 2002. The record fails to establish if and when the letters
were received by the defendants to whom they were addressed. Notably, the attacks started and
stopped within a four-day period. An element of Plaintiff’s section 1983 claim is causation: some
evidence must exist that defendants received the letters at a point at which the complained of harm
could have been prevented. See Troupe v. Sarasota County Fla., 419 F.3d 1160, 1165 (11th Cir.
2005)(“a section 1983 claim requires proof of an affirmative causal connection between the
defendant’s acts or omissions and the alleged constitutional deprivation.”). Even if we were to infer
receipt and to infer further that the prison mail system operated with uncommon competence and
swiftness, in the light of this tight time line, these letters alone establish no constitutional violation.
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met with the director of the GDOC’s facilities division and informed the director
of Plaintiff’s allegations. About one week later, James Doe’s stepfather also
traveled to Atlanta and informed a representative of GDOC of James Doe’s
allegations. Each step-father delivered the t-shirt evidence collected by his step-
son.
On 12 August 2002, when the investigator assigned to the John Doe matter
received word that Plaintiff also accused Tuft of sexual assault and had provided
GDOC with clothing he believed to be semen-stained, he interviewed Plaintiff.
And on 16 August 2002, the investigator interviewed James Doe. Tuft was also
interviewed on 16 August; he denied all allegations made by John Doe, James Doe
and Plaintiff. Tuft opted to resign instead of submitting to a DNA test. On 19
August 2002, Warden Scroggy recommended that Tuft be ineligible for rehire
because he had resigned during the course of an investigation.
Pursuant to a search warrant, a sample of Tuft’s DNA was obtained. When
analysis confirmed that Tuft’s DNA matched the fluid found on Plaintiff’s t-shirt
(no fluid had been found on James Doe’s t-shirt), Tuft was arrested on three
charges of sexual assault against a person in custody, in violation of O.C.G.A. §
16-6-5.1. Tuft later pleaded guilty.
5
Plaintiff alleged his Eighth and Fourteenth Amendment constitutional rights
were violated by Defendants’s failure to take reasonable safety measures to protect
Plaintiff from Tuft’s sexual assault. According to Plaintiff, Tuft was a known risk
to inmate safety -- inmate John Doe’s allegations predated Tuft’s attack on
Plaintiff -- and Defendants’s failure to protect Plaintiff from this known risk
constituted deliberate indifference to Plaintiff’s clearly established Eighth
Amendment right to reasonable protection. Defendants moved for summary
judgment based on qualified immunity. The district court determined that Plaintiff
had established a constitutional deprivation and that qualified immunity was
unavailable to Defendants. We disagree.
The Eighth Amendment prohibits cruel and unusual punishment; prison
officials violate that amendment when they are deliberately indifferent to a
substantial risk of serious harm to inmates. Marsh v. Butler County, Ala., 268
F.3d 1014, 1027 (11th Cir. 2001). As we have explained, Farmer v. Brennan, 114
S.Ct. 1970, 1977; 1982-83 (1994), sets out objective and subjective elements that
must be shown to establish an Eighth Amendment violation. About the objective
elements, a prisoner must first show that an objectively substantial risk of serious
harm existed; and once it is shown that an official is aware of this objectively
substantial risk, the official must respond to this risk in an objectively
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unreasonable manner. See Marsh, 268 F.3d at 1028-29. About the subjective
elements, “the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 114 S.Ct. at 1979. As Farmer explains, “[t]he Eighth
Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and
unusual ‘punishments.’” Id. Failure to protect from an objectively significant risk
that should have been -- but was not -- perceived, is no infliction of punishment
under the Eighth Amendment. Id. So, to show an Eighth Amendment
constitutional violation, the summary judgment evidence, viewed in the light most
favorable to Plaintiff, must show (i) facts presenting an objectively substantial risk
to inmates and awareness of these facts on the part of the officials charged with
deliberate indifference; (ii) that the officials drew the subjective inference from
known facts that a substantial risk of serious harm existed; and (iii) that the
officials responded in an objectively unreasonable manner.
We have some doubt that one uncorroborated and disputed allegation of
sexual assault supports the conclusion that prisoners were exposed to an
objectively substantial risk of serious harm. When Plaintiff was assaulted by Tuft,
these officials knew only that Tuft had been accused of sexually assaulting inmate
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John Doe and that Tuft denied the allegations.3 Tuft had never before been
accused of such misconduct. As we have said, “[t]he known risk of injury must be
a strong likelihood, rather than a mere possibility before a guard’s failure to act
can constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537
(11th Cir. 1990) (citations and internal quotations omitted).
But even if we accept for summary judgment purposes that the record
supported an objectively substantial risk of serious harm, and even assuming
arguendo that the officials drew the requisite inferences -- which they deny --
from known facts, no Eighth Amendment constitutional violation is shown unless
the official’s response was objectively unreasonable. The district court concluded
that the officials response -- reporting John Doe’s allegations to respective
superiors and the commencement of an investigation by GDOC’s Internal
Investigation Division -- was an objectively unreasonable response to the danger
posed. But to reach this conclusion, one has to accept the district court’s
underlying premise: no response to John Doe’s allegations would be reasonable
3
Defendants argue that the record shows that John Doe gave inconsistent accounts of his
encounters with Tuft and some of these accounts indicated that John Doe acceded to Tuft’s persistent
requests for sexual favors in exchange for cigars. At this stage in the proceedings, we accept all
well-pleaded factual allegations (with reasonable inferences drawn therefrom) in Plaintiff’s favor.
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unless it divested Tuft of his guard duties.4 We cannot accept this premise; to do
so would empower any prisoner at any time to dictate prison staffing. Penological
interests must factor into the calculus of reasonable responses. See Chandler v.
Crosby, 379 F.3d 1278, 1290 (11th Cir. 2004) (“As judges, we lack carte blanche
to impose our own theories of penology on the nation’s prisons.” (Internal citation
and quotation omitted.)). It is true, in hindsight, that Tuft’s removal at the first
suggestion of misconduct likely would have prevented the assault Plaintiff alleges;
but “[w]e will not allow the advantage of hindsight to determine whether
conditions of confinement amounted to ‘cruel and unusual’ punishment.” Purcell
ex rel. Estate of Morgan v. Toombs County, GA, 400 F.3d 1313, 1320 (11th Cir.
2005).
The district court dismissed the adequacy of the investigatory process
because, without additional affirmative measures to ensure safety, the possibility
of another attack by a possibly predatory guard loomed pending the investigation.
We think the district court misapprehended the deliberate indifference standard;
we cannot say that the immediate commencement of an investigatory process into
4
Plaintiff argues that GDOC policy and procedure required removal of a guard accused of sexual
misconduct from contact with the inmate population. But even if Plaintiff cites correctly GDOC
policy -- a point disputed by Defendants -- “failure to follow procedures does not, by itself, rise to
the level of deliberate indifference because doing so is at most a form of negligence.” Taylor v.
Adams, 221 F.3d 1254, 1259 (11th Cir. 2000).
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unsubstantiated and contested accusations constituted an indifferent and
objectively unreasonable response to John Doe’s claims.
Because we conclude that Plaintiff failed to show a constitutional violation,
we need not proceed further to consider the applicability of the defense of
qualified immunity.
REVERSED.
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