“The right of an inmate to be protected from an attack by a fellow inmate was well established at the time the events in question took place.”
How later courts described this case
- “The right of an inmate to be protected from an attack by a fellow inmate was well established at the time the events in question took place.”
Written by the judges who cited it.
The opinion
McKEAGUE, District Judge,
concurring.
I agree with the majority that genuine issues of material fact exist which preclude review of the qualified immunity claims of defendants Kemp and Bowles. Johnson v. Jones, 515 U.S. 304 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). I write separately only to highlight certain matters regarding the sufficiency of the defendants’ responses prior to the second July 12, 1996, attack against plaintiff.
As explained in the majority opinion, defendants admit for purposes of this interlocutory appeal that they had knowledge of the risks .to plaintiff posed by inmate Frezzell. They argue instead that the undisputed actions they took in response show, as a matter of law, that they did not act with deliberate indifference to plaintiffs safety in violation of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994).
In his Incident Report dated July 13, 1996, Kemp noted that before he left the prison on July 12th (prior to the two attacks on plaintiff that day), he met
with C.O. Branham, and C.O. Boles [sic] and relayed to them my concerns about this situation, and told both that if they saw Frizzell [sic] attempting to get even near [plaintiff] that they should contact a shift supervisor immediantly [sic], and have Frizzell [sic] placed on Cell Isolation which would prevent any further problems until I returned on the 13th.
(J.A. 156.) At first blush, this instruction appears to be a reasonable, intermediate response to the situation. However, the prison policy outlining the requirements and procedures for “Cell Restriction” 1 (synonymous with “Cell Isolation” J.A. 524) specifically forbade its use in this type of situation: “This type of restriction [cell isolation] will not be used in instances where the inmate has acted in a violent or assaultive manner.” (J.A. 1038.)
During his deposition, then-Deputy Warden Mack 2 testified that a violent or assaultive inmate should not be placed in cell isolation, but rather segregation. (J.A. 525.) Plaintiffs counsel then specifically asked Mack about the impact, if any, on safety:
Q And it’s not safe for the other inmates and other staff to have an [as-saultive] inmate placed just in cell isolation?
A That would be my assumption, yes.
(J.A. 526.) While both Kemp and then-Warden Brigano testified in their depositions that cell isolation may have been the appropriate response, (J.A. 1009; 864-67), a genuine issue of material fact exists which precludes review of Kemp’s qualified immunity claim.
The prison policy also requires that an inmate on cell isolation “will be escorted to his pod and locked in his cell until heard by the unit hearing officer.... Each inmate placed on cell restriction will not *624 leave the cell for any reason other than” various listed activities. (J.A. 1039) (emphasis in original.) Interpreting this provision, Mack explained that this meant an inmate on cell isolation should be escorted by an officer whenever he leaves his cell. (J.A. 527.)
Bowles testified that she gave Frezzell permission to get a mop to clean his cell. (J.A. 335.) It is undisputed that she did not escort him to or from his cell. (J.A. 336.) Although Bowles testified that she had visual contact with Frezzell at all times (id.), her failure to escort him may have violated prison policy, and, arguably, exhibited a deliberate indifference to plaintiffs safety. Accordingly, I agree with the majority that we cannot hold, as a matter of law, that defendant Bowles is entitled to qualified immunity.
Lastly, I concur for the reasons provided in the majority opinion that the district court erred in not granting qualified immunity to defendant Stratton.
. Then-Deputy Warden Mack could not recall during his deposition whether the policy statement included in the Joint Appendix was in effect at the time of the attack. (J.A. 523-27.) However, then-Warden Brigano, whose signature is affixed at the end of the policy statement, testified that the policy statement appeared to be the one in effect at that time. (J.A. 849.)
. At the time of the attack, Mack was Deputy Warden of Operations at the Warren prison. He was promoted to Warden in September 1997. (J.A. 495.)