Jerry Nelson v. Keyvon Sellers

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14205

____________________

JERRY NELSON,

as Personal Representative of the Estate

of deceased Eddie Lee Nelson, Jr.,

MICHELE DUSHANE,

as surviving spouse of Eddie Lee Nelson, Jr.,

Plaintiffs-Appellees,

versus

DONNA TOMPKINS,

TROY CULPEPPER,

LIEUTENANT LARRY MITCHELL,

GLENDA HALL,

SGT. ALFREDO TORRES, et al.,

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2 Opinion of the Court 22-14205

Defendants,

C.O. KEYVON SELLERS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 4:20-cv-00213-CDL

____________________

Before WILLIAM PRYOR, Chief Judge, and ABUDU and ED CARNES,

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This interlocutory appeal involves the constitutional obliga-

tion of jailers to protect foreseeable victims from violent detainees.

After watching news reports of white police officers shooting black

men, Jayvon Hatchett decided that “somebody has to do some-

thing.” So he walked into an AutoZone store and stabbed a white

store clerk. When he arrived at the county jail on charges of aggra-

vated assault, Hatchett told intake officer Keyvon Sellers that the

police shootings inspired him to stab a white man, but Sellers failed

to tell other officers of that confession. Classification officers, una-

ware of Hatchett’s motivation for racial violence, assigned

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22-14205 Opinion of the Court 3

Hatchett to a shared cell with a white man, Eddie Nelson, whom

Hatchett later strangled to death. Nelson’s survivors sued Sellers

for deliberate indifference to a substantial risk of serious harm in

violation of the Fourteenth Amendment. See 42 U.S.C. § 1983. The

district court denied Sellers’s motion for summary judgment based

on qualified immunity. Because a reasonable jury could find that

Sellers violated Nelson’s clearly established constitutional right by

failing to protect him from a known risk of harm, we affirm.

I. BACKGROUND

On August 25, 2020, Jayvon Hatchett, a black man, walked

into an AutoZone store in Columbus, Georgia, posing as an inter-

ested shopper. When the white store clerk turned his back, Hatch-

ett stabbed him multiple times with a knife. Columbus police offic-

ers arrested Hatchett the next day on charges of aggravated assault

and possession of a weapon during the commission of a crime.

Hatchett’s arrest warrant and arrest report stated that Hatchett

“did assault . . . with a deadly weapon one Michael Hunt” but made

no mention of the victim’s race or the motive for the assault.

After the arrest, transportation officer Antonio Burgess

drove Hatchett to the Muscogee County Jail. When they arrived at

the jail, Hatchett told Burgess that he stabbed the store clerk be-

cause he saw a video of cops killing black people. Intake officer

Keyvon Sellers was not present during that conversation and did

not overhear any of those statements. Hatchett also told the nurse

who performed his intake medical screening that he stabbed the

store clerk because he was “just upset” and felt that “somebody has

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4 Opinion of the Court 22-14205

to do something.” Sellers was not present during that conversation

either. And the nurse did not tell anyone about it because she be-

lieved intake nurses were not “supposed to know” why a detainee

was in jail.

The first time that Sellers heard anything about why Hatch-

ett had stabbed the store clerk was after the medical screening. Bur-

gess accompanied Hatchett to the booking area to meet with

Sellers for intake processing. Sellers gave Hatchett a pat down with-

out incident. Then, surveillance footage captured Burgess tell

Hatchett, “Go on, tell him what you said to me. Tell him what you

did.” Hatchett smirked and mumbled something about “see[ing] a

video” of cops killing black men and “decid[ing] [he] was gonna

stab a white guy.” Burgess jumped in and added, “So he went to

the AutoZone and stabbed a white man in the back.” Sellers said

nothing in response, but he shook his head in apparent disapproval.

Burgess removed Hatchett’s handcuffs without incident. Burgess

later told investigators that he made a point to tell Sellers what

Hatchett admitted because the information was not included in the

arrest report and he “felt that some precautions needed to be

taken.” Sellers interpreted Hatchett’s statement to him to mean

that Hatchett had “seen all the white cops killin’ black people, so

[he] wanted to stab a white guy”—“[n]o particular white guy”—

and that he stabbed the store clerk “because he was white.”

Sellers failed to tell any jail employees what he knew about

Hatchett’s racial motive. He testified that if he had thought Hatch-

ett posed a risk of harm to others, he would have notified a

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classification officer charged with inmate housing assignments.

Sellers explained that classification officers are ordinarily receptive

to these suggestions: “they’ll move” an inmate if given “a good rea-

son.” But Sellers testified that he did not view Hatchett as “a poten-

tial threat” to anyone and that Hatchett was polite and cooperative

during their interactions.

The survivors submitted an expert report disputing Sellers’s

testimony that he was unaware of Hatchett’s risk to other inmates.

The expert determined, based on the record and his own extensive

experience in police management and training, that “Sellers had di-

rect knowledge of the risk Hatchett posed to a white person” and

“should have notified someone” of that risk. The expert testified

that Sellers’s contrary assertion was “perplexing” because the facts

Sellers knew about Hatchett’s crime made it “obvious” that Hatch-

ett posed “a threat to white inmates.”

Hatchett’s last stop before detention was with the jail’s clas-

sification officers, who assigned inmates cells based on a detailed

procedure. An officer would first review the detainee’s arrest re-

port and criminal history. Then, the officer would ask the detainee

a list of standard questions, including whether the detainee was an

assault risk and whether he should be isolated from anyone. These

form questions did not inquire about the motive for the detainee’s

alleged crime or whether he had racial prejudices. Using this infor-

mation, the classification officer would designate the detainee as

requiring minimum, medium, or maximum security. Detainees

charged with aggravated assault were assigned a maximum-

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security classification. The classification officer would assign the

detainee an appropriate cell based on his security classification and

any other relevant information. After the classification process was

complete, an intake officer would escort the inmate to his assigned

cell.

Hatchett met with two classification officers on the day of

his arrest, but neither learned of the racial motive for his assault.

One officer completed a portion of Hatchett’s classification paper-

work, asked him the standard interview questions, and assigned

him a maximum-security classification because of his aggravated

assault charge. The other officer finished Hatchett’s classification

paperwork, though she never met with him. The form the officers

completed neither flagged Hatchett as an “Assault Risk” nor speci-

fied that he should be “Separated” from any other inmates. Both

classification officers testified that had someone told them the de-

tails of Hatchett’s assault, they would not have housed him with a

white cellmate.

On August 26, officers assigned Hatchett to cell 3E6, where

he joined inmate Rae Nolan, a white man. Eddie Nelson—another

white inmate and Hatchett’s victim—joined Hatchett and Nolan

the next day. Nolan told investigators after Nelson’s death that

Hatchett had told his white roommates that he was in jail because

he stabbed “the first white guy he s[aw]” after watching a “cop

shooting video[]” that “pissed him off.” But Nolan otherwise de-

scribed Hatchett as “real quiet” and said there was no tension be-

tween the three cellmates. The three men lived together without

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reported incident until August 31, when Nolan was transferred to

a different cell. The next day, inmate Clifford Sheppard, a black

man, joined Hatchett and Nelson in 3E6. The men were housed

together without incident until September 4, when Sheppard was

relocated, leaving Hatchett and Nelson alone in 3E6.

Early on the morning of September 5, an officer found

Hatchett strangling Nelson in their shared cell. The officer ordered

Hatchett to stop, but Hatchett refused, exclaiming, “He put a hair

in my sandwich.” Backup officers arrived and immediately moved

Hatchett to an isolated cell. Nelson was pronounced dead at the

scene.

Hatchett completed a psychological evaluation later that

day. The accompanying doctor’s note explained that Hatchett

“[s]tates he is here for aggravated assault. Mentioned about his

roommate talking about racial things. Vague about the sequence

of events occurred between the two. Later the incident occurred.”

The record contains no other evidence of violence or threatened

violence between Hatchett and Nelson during their eight days as

cellmates.

Nelson’s brother, as the representative of Nelson’s estate,

and Nelson’s spouse sued Sellers for deliberate indifference to a

substantial risk of serious harm to Nelson in violation of the Four-

teenth Amendment. Nelson’s survivors also asserted state and fed-

eral claims against other officials and their employers, but those de-

fendants are not parties to this appeal.

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8 Opinion of the Court 22-14205

Sellers moved for summary judgment. He argued that the

survivors’ constitutional claim failed as a matter of law and that he

was entitled to qualified immunity. The district court denied

Sellers’s motion. It determined that a reasonable jury could find

that Sellers violated Nelson’s clearly established constitutional

right.

II. STANDARDS OF REVIEW

“We review our own jurisdiction de novo.” Tillis ex rel.

Wuenschel v. Brown, 12 F.4th 1291, 1296 (11th Cir. 2021). We also

review a denial of qualified immunity de novo and, on a motion for

summary judgment, view the evidence in the light most favorable

to the nonmoving party. Id.

III. DISCUSSION

We divide our discussion into three parts. First, we explain

that we have jurisdiction to review this denial of qualified immun-

ity. Second, we explain that the evidence viewed in the light most

favorable to the survivors could lead a reasonable jury to find that

Sellers violated Nelson’s constitutional right. Third, we explain

that Nelson’s right was clearly established when Sellers’s chal-

lenged conduct occurred.

A. We Have Jurisdiction to Decide This Interlocutory Appeal.

“Whether we have interlocutory jurisdiction to review the

denial of summary judgment on qualified immunity grounds de-

pends on the type of issues involved in the appeal.” English v. City

of Gainesville, 75 F.4th 1151, 1155 (11th Cir. 2023) (citation and

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22-14205 Opinion of the Court 9

internal quotation marks omitted). We lack jurisdiction where the

only issues appealed are “evidentiary sufficiency” issues—that is,

fact-related disputes about “whether the evidence could support a

finding that particular conduct occurred.” Behrens v. Pelletier, 516

U.S. 299, 313 (1996); accord Plumhoff v. Rickard, 572 U.S. 765, 772

(2014) (explaining that we lack interlocutory jurisdiction if the dis-

trict court “merely decided ‘a question of “evidence sufficiency”’”

(quoting Johnson v. Jones, 515 U.S. 304, 313 (1995))); see also Behrens,

516 U.S. at 312–13 (“Denial of summary judgment often includes a

determination that there are controverted issues of material fact,

and Johnson surely does not mean that every such denial of summary

judgment is nonappealable. Johnson held, simply, that determina-

tions of evidentiary sufficiency at summary judgment are not im-

mediately appealable merely because they happen to arise in a

qualified immunity case.” (internal citation omitted)).

If, by contrast, the parties debate not only evidentiary suffi-

ciency issues but also an “abstract issue of law” related to qualified

immunity, “typically, the issue whether the federal right allegedly

infringed was ‘clearly established,’” Behrens, 516 U.S. at 313 (altera-

tion adopted) (quoting Johnson, 515 U.S. at 317), we may decide

both questions, see, e.g., Stanley v. City of Dalton, 219 F.3d 1280,

1286–87 (11th Cir. 2000) (holding that “when, as here, an interloc-

utory appeal presents both ‘evidence sufficiency’ and clearly estab-

lished law issues,” we may decide both questions because “the fac-

tual issue of what conduct the defendant engaged in . . . is a neces-

sary part of the core qualified immunity analysis of whether the

defendant’s conduct violated clearly established law.” (quoting

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10 Opinion of the Court 22-14205

McMillian v. Johnson, 88 F.3d 1554, 1563 (11th Cir.), amended on other

grounds on reh’g, 101 F.3d 1363 (11th Cir. 1996))).

When both the evidentiary sufficiency and clearly estab-

lished issues are raised on appeal, “the appellate court has two op-

tions regarding how to deal with the factual issue.” Johnson v. Clif-

ton, 74 F.3d 1087, 1091 (11th Cir. 1996). We may accept the district

court’s findings of fact “if they are adequate.” Cottrell v. Caldwell, 85

F.3d 1480, 1486 (11th Cir. 1996). “Or, we may conduct our own

analysis of the facts in the light most favorable to the plaintiff.”

Stanley, 219 F.3d at 1287. Even if we chose the latter course, “we

will not disturb a factual finding by the district court if there is any

record evidence to support that finding.” Id.

Because the parties here dispute not only whether the evi-

dence is sufficient to create a jury question about whether Sellers

violated Nelson’s constitutional right, but also whether that right

was clearly established when Nelson allegedly violated it, we have

jurisdiction over both issues. And we “choose to conduct our own

factual analysis” and review the first question anew “because ‘such

a determination is part of the core qualified immunity analysis.’”

Id. (quoting Johnson, 74 F.3d at 1091).

B. A Reasonable Jury Could Find That Sellers Violated Nelson’s Right.

Because the survivors do not dispute that Sellers acted

within his discretionary authority, they must establish that a rea-

sonable jury could find that Sellers violated Nelson’s constitutional

right, and that his right was “clearly established” when Sellers vio-

lated it. Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019)

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(citation and internal quotation marks omitted). The survivors ar-

gue that Sellers was “deliberate[ly] indifferen[t] to a known, sub-

stantial risk of serious harm to [Nelson]” by doing nothing to iso-

late Hatchett from white inmates after learning the racial motive

for his violent crime. Goodman v. Kimbrough, 718 F.3d 1325, 1331

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

Cir. 2003)). “A prison official’s deliberate indifference to a known,

substantial risk of serious harm to an inmate [that causes serious

harm to that inmate] violates the Fourteenth Amendment.” Id. (ci-

tation and internal quotation marks omitted); see Cottone, 326 F.3d

at 1358 (“[A] plaintiff [claiming deliberate indifference] must show

that the constitutional violation caused the injury.”).

We first consider whether the jail detainee faced a substan-

tial risk of serious harm. We ask whether a reasonable jury could

find that the detainee encountered “a strong likelihood, rather than

a mere possibility,” of grievous injury. Brown v. Hughes, 894 F.2d

1533, 1537 (11th Cir. 1990) (citation and internal quotation marks

omitted). Proof of the attacker’s “generally problematic nature” or

“propensity to misbehave” will not suffice to prove that he posed a

substantial risk of serious harm to the detainee. Bowen v. Warden,

Baldwin State Prison, 826 F.3d 1312, 1322 (11th Cir. 2016) (citation

and internal quotation marks omitted). The evidence must estab-

lish a greater “degree of specificity in the risk of harm posed to [the

victim.]” Id. Compare Cottone, 326 F.3d at 1355–58 (detainee plausi-

bly alleged that cellmate posed substantial risk of serious harm to

all others based on cellmate’s “violent tendencies,” “history of

schizophrenia,” and prior assault on “another inmate”), and

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Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 n.12 (11th Cir.

2007) (evidence of specific death threats from other prisoners suffi-

cient to survive summary judgment), with Brown, 894 F.2d at 1537

(prisoner’s report of unspecified “racial problem” in his shared cell

insufficient).

Drawing all factual inferences in the survivors’ favor, Hatch-

ett’s underlying offense made the risk of serious harm he posed to

white detainees, including Nelson, obvious. Because Hatchett was

being detained for stabbing “the first white guy he s[aw]” based

solely on his race, a jury could reasonably find that there was a

“strong likelihood” that Hatchett would seriously injure a white

cellmate for the same reason. Brown, 894 F.2d at 1537 (citation and

internal quotation marks omitted). The survivors’ expert testified

that it was “obvious . . . that the racial motivation of [Hatchett’s]

pre-arrest assault . . . indicated a threat to white inmates.” And the

classification officers stated that they would have taken steps to iso-

late Hatchett from white inmates had the officers known of his ra-

cial motive. The record establishes more than “some unspecified

risk of harm,” Marbury v. Warden, 936 F.3d 1227, 1238 (11th Cir.

2019)—Hatchett’s unprovoked stabbing of a random white man

solely because of the man’s race evidenced the deadly risk he posed

to a white detainee.

The survivors also provided enough evidence from which a

jury could reasonably find that Sellers was deliberately indifferent

to the substantial risk of serious harm Nelson faced. This element

“has two components: one subjective and one objective.” Mosley v.

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22-14205 Opinion of the Court 13

Zachery, 966 F.3d 1265, 1270 (11th Cir. 2020) (citation and internal

quotation marks omitted). The subjective component requires ev-

idence that the defendant officer “actually (subjectively) knew” of

the risk to the plaintiff inmate. Id. at 1270–71 (alterations adopted)

(quoting Bowen, 826 F.3d at 1320). This standard is one of “subjec-

tive recklessness as used in the criminal law,” Farmer v. Brennan, 511

U.S. 825, 839–40 (1994), and it is “a difficult burden for a plaintiff to

meet,” West v. Tillman, 496 F.3d 1321, 1327 (11th Cir. 2007) (citation

and internal quotation marks omitted). The objective component

requires evidence that the officer “disregard[ed] th[e] known risk

by failing to respond to it in an (objectively) reasonable manner.”

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir.

2014) (first alteration in original) (quoting Rodriguez, 508 F.3d at

617).

Sellers challenges only the subjective component of the de-

liberate indifference standard. That is, he does not meaningfully

dispute that if a reasonable jury could find that he knew the risk

Nelson faced, his failure to act was objectively unreasonable. He

disputes only that a reasonable jury could find that he did, in fact,

know of that risk.

To evaluate this challenge, we recount what Sellers knew,

viewing the evidence in the light most favorable to the survivors.

See id. at 1100. Sellers knew that Hatchett stabbed a white man in

the back after watching videos of white-on-black police shootings;

that Hatchett stabbed the man solely because he was white; that

classification officers assigned Hatchett to a cell with Nelson, a

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14 Opinion of the Court 22-14205

white man; that Hatchett was polite and cooperative with officers

Sellers and Burgess during the booking process; that Hatchett

never threatened anyone in the jail; and that Nelson never reported

feeling threatened.

A jury faced with this evidence could reasonably infer that

Sellers knew of the obvious risk of serious harm Hatchett posed to

Nelson. Hatchett’s composure during his interactions with Burgess

and Sellers, two police officers, reveals little about Hatchett’s risk

to white inmates. The Supreme Court also has expressly rejected

the argument that an injured inmate must have “expressed” to

prison officials a “concern for his safety.” Farmer, 511 U.S. at 848

(“[T]he failure to give advance notice [of a cellmate attack] is not

dispositive.”). And a jury would be free “to disregard” Sellers’s

“self-serving (and unsupported)” testimony that he did not per-

ceive Hatchett to pose a risk of violence to a white detainee. See

United States v. Stein, 881 F.3d 853, 858 (11th Cir. 2018) (en banc).

Indeed, a jury could reasonably discount that testimony in view of

the abundant circumstantial evidence to the contrary. See, e.g., Mar-

bury, 936 F.3d at 1237 (holding plaintiff can prove subjective com-

ponent using “circumstantial evidence” (citation and internal quo-

tation marks omitted)). But cf. Goodman, 718 F.3d at 1333–34 (sum-

mary judgment for defendants was warranted when “the only evi-

dence of what Officers . . . were actually aware of [wa]s their own

adamant denials of the fact that they ever feared for [the inmate]’s

safety in any way” (emphasis added)). Indeed, “a factfinder may

conclude that a prison official knew of a substantial risk from the

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22-14205 Opinion of the Court 15

very fact that the risk was obvious,” Farmer, 511 U.S. at 842, and a

jury could reasonably find that the risk here was.

The survivors must also prove “a causal connection be-

tween [Sellers’s] conduct and the [Fourteenth] Amendment viola-

tion.” Bowen, 826 F.3d at 1320. This causal element requires proof

that the officer “(1) had the means substantially to improve the in-

mate’s safety, (2) knew that the actions he undertook would be in-

sufficient to provide the inmate with reasonable protection from

violence, and (3) had other means available to him which he nev-

ertheless disregarded.” Rodriguez, 508 F.3d at 622 (alterations

adopted) (citation and internal quotation marks omitted).

This record would permit a reasonable jury to find the “nec-

essary causal link” between Sellers’s inaction and Nelson’s death.

Id. at 623 (internal quotation marks omitted). Sellers had the means

to protect Nelson from Hatchett: he could have told a classification

officer about the risk of harm Hatchett posed to white inmates. Alt-

hough the classification officers, not the intake officers, bore final

inmate-placement responsibility, “proof of causation . . . does not

turn on the ultimate placement or classification decision.” See id. at

624 n.20; accord Farmer, 511 U.S. at 850. It is enough to prove that

the official “had the authority to make . . . recommendations with re-

spect to placement and classification decisions.” Rodriguez, 508 F.3d

at 624 n.20 (emphasis added). Sellers admitted that he had authority

to make housing recommendations and that classification officers

were receptive to such recommendations and would move an in-

mate if given a good reason. Hatchett’s classification officers

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16 Opinion of the Court 22-14205

confirmed that they would have acted on those recommendations.

A reasonable jury could find too that Sellers knew his actions

would be insufficient to protect Nelson because, as Sellers con-

cedes, he did nothing to limit Hatchett’s exposure to white detain-

ees. See id. at 623.

C. Nelson’s Right Was Clearly Established.

All that remains is “the clearly established prong of the qual-

ified immunity inquiry.” Helm v. Rainbow City, 989 F.3d 1265, 1275

(11th Cir. 2021). A right is “clearly established” if controlling law

gave the official “fair warning” that his conduct violated that right.

Hope v. Pelzer, 536 U.S. 730, 741 (2002); accord, e.g., Wade v. United

States, 13 F.4th 1217, 1225 (11th Cir. 2021). Fair warning can be es-

tablished by identifying “a materially similar case,” Mercado v. City

of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005), appealing to “a

broader, clearly established principle [that] should control the

novel facts” at hand, id., or establishing that the challenged conduct

“so obviously violates the Constitution that prior case law is un-

necessary” to clarify its lawlessness, Waldron v. Spicher, 954 F.3d

1297, 1305 (11th Cir. 2020) (alterations adopted) (citation and inter-

nal quotation marks omitted).

The survivors rely upon only a broader, controlling princi-

ple that Nelson’s right was clearly established. For a right to be

clearly established under this method, “the principle must be estab-

lished with obvious clarity by the case law” such that it would have

been “apparent” to every reasonable officer that the defendant’s

conduct was unlawful. Terrell v. Smith, 668 F.3d 1244, 1256 (11th

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22-14205 Opinion of the Court 17

Cir. 2012) (citations and internal quotation marks omitted). We

agree with the survivors that the broad principles of our deliberate

indifference precedents clearly control the facts of this case.

When Nelson died, it was clearly established that “prison of-

ficials have a duty” under the Constitution to take reasonable ac-

tion “to protect prisoners from violence at the hands of other pris-

oners.” Bowen, 826 F.3d at 1320 (quoting Farmer, 511 U.S. at 833)

(applying the Eighth Amendment to a convicted prisoner’s deliber-

ate indifference claim); see Goodman, 718 F.3d at 1331 n.1 (“[T]he

standards [for deliberate indifference claims] under the Fourteenth

Amendment [for pretrial detainees] are identical to those under the

Eighth [for convicted prisoners].” (citation and internal quotation

marks omitted)). And it was clearly established that an officer vio-

lates this duty if he “knows that one prisoner poses a substantial

risk of serious harm to another, yet fails to take any [reasonable]

action” to separate them. Caldwell, 748 F.3d at 1102 (first citing Cot-

tone, 326 F.3d at 1358–60; then citing Hale v. Tallapoosa County, 50

F.3d 1579, 1584 (11th Cir. 1995); and then citing LaMarca v. Turner,

995 F.2d 1526, 1536–38 (11th Cir. 1993)); see Cottone, 326 F.3d at

1358 (“A Fourteenth Amendment violation occurs when a substan-

tial risk of serious harm, of which the official is subjectively aware,

exists and the official does not respond reasonably to the risk,”

causing serious harm to the inmate.).

Sellers had fair warning that it was unconstitutional not to

prevent the placement of a white detainee alone in a cell with an-

other detainee who, the day before, stabbed a stranger solely for

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18 Opinion of the Court 22-14205

being white. See Patel v. Lanier County Georgia, 969 F.3d 1173, 1190

(11th Cir. 2020) (holding, before Hatchett’s arrest, that “broad [de-

liberate indifference] principle[s] ha[ve] put all law-enforcement of-

ficials on notice that if they actually know about a condition that

poses a substantial risk of serious harm and yet do nothing to ad-

dress it, they violate the Constitution.”). Because controlling

caselaw placed the illegality of Sellers’s conduct “beyond debate”

by the time of Hatchett’s arrest, Sellers is not immune from suit for

that conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

IV. CONCLUSION

We AFFIRM the denial of qualified immunity.

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22-14205 Abudu, J, Concurring 1

ABUDU, Circuit Judge, Concurring:

I agree with the majority’s decision to affirm the district

court’s denial of Keyvon Sellers’s motion for summary judgment

on qualified immunity grounds. At the summary judgment stage,

there is evidence, albeit barely more than a scintilla, supporting a

reasonable jury’s determination that Eddie Lee Nelson’s killing was

racially motivated. I write separately to highlight that the evidence

of that motivation, however, is extremely thin. What the record

does show though is that jail can be a violent, dangerous place. The

majority’s decision cements the legal principle that incarcerated in-

dividuals may bring a race-based failure to protect claim even on a

record as bare bones—again as to that motivation—as Nelson’s es-

tate presented in this case. To clarify, the law that this Circuit has

now clearly established is this: “prison officials have a duty” under

the Fourteenth Amendment to take reasonable action “to protect

prisoners from violence at the hands of other prisoners” when offi-

cials have a reasonable belief that another inmate might have racial

animus and, thus, is dangerous even when that inmate is housed

with others of different races and ethnicities for several days with-

out incident. Maj. Op. at 6-7; See Bowen v. Warden Baldwin State

Prison, 826 F.3d 1312, 1320 (11th Cir. 2016).

“We review de novo a district court’s grant of summary

judgment, applying the same standard that bound the district court

and viewing the evidence and all reasonable inferences in the light

most favorable to [Nelson’s estate].” Rodriguez v. Sec’y for Dep’t of

Corr., 508 F.3d 611, 616 (11th Cir. 2007) (citing Drago v. Jenne, 453

USCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 20 of 37

2 Abudu, J., Concurring 22-14205

F.3d 1301, 1305 (11th Cir. 2006)). “[Then], [w]ith the plaintiff’s best

case in hand, the court is able to move to the question of whether

the defendant committed the constitutional violation alleged in the

complaint without having to assess any facts in dispute.” Robinson

v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005). In a Fourteenth

Amendment due process case premised on a penal institution’s fail-

ure to reasonably protect its occupants, such as the one brought

forth here, a plaintiff must show: “(1) a substantial risk of serious

harm existed; (2) the defendant[] [was] deliberately indifferent to

that risk, i.e., [he] both subjectively knew of the risk and also disre-

garded it by failing to respond in an objectively reasonable manner;

and (3) there was a causal connection between the defendant[’]s[]

conduct and the [constitutional] violation.” Bowen, 826 F.3d at 1320

(citing Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th

Cir. 2014)). The plaintiff must also show “that the constitutional

right was clearly established at the time of [the] conduct.” Id. at

1319 (alteration in original) (citing Perez v. Suszczynski, 809 F.3d

1213, 1218 (11th Cir. 2016)). This Court has identified three ways

in which a plaintiff can demonstrate that a constitutional right has

been clearly established:

First, the plaintiff can point to a materially similar case

decided at the time of the relevant conduct by the Su-

preme Court, the Eleventh Circuit, or the relevant

state supreme court. . . . The prior case law need not

be directly on point, but existing precedent must have

placed the statutory or constitutional question be-

yond debate. Second, the plaintiff can identify a

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22-14205 Abudu, J, Concurring 3

broader, clearly established principle that should gov-

ern the novel facts of the situation. Third, the plaintiff

can show that the conduct at issue so obviously vio-

lated the Constitution that prior case law is unneces-

sary.

J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259-

60 (11th Cir. 2018) (internal quotation marks and citations omit-

ted). Thus, even if a plaintiff demonstrates that a reasonable jury

could find a constitutional violation, this Court can and does deny

relief on the basis of qualified immunity. See, e.g., Youmans v. Gag-

non, 626 F.3d 557, 565-66 (11th Cir. 2010) (granting police officer

qualified immunity after ruling that pretrial detainee’s right to

medical care after being beaten and visibly bruised by other officers

was not clearly established). This Court has also historically ex-

pressed that the third method of showing a law is clearly estab-

lished—using a broader, controlling principle that applies with ob-

vious clarity—“[is] rare and [doesn’t] arise often.” King v. Pridmore,

961 F.3d 1135, 1146 (11th Cir. 2020) (citing Gaines v. Wardynski, 871

F.3d 1203, 1209 (11th Cir. 2017)(collecting cases)); Coffin v. Brandau,

642 F.3d 999, 1015 (11th Cir. 2011) (“Our case law has made clear

that ‘obvious clarity’ cases will be rare”) (collecting cases); Santamo-

rena v. Ga. Mil. Coll., 147 F.3d 1337, 1340 n.6 (11th Cir. 1998) (“these

exceptional cases rarely arise”).

This decision is, therefore, especially groundbreaking con-

sidering the number of qualified immunity cases in which plaintiffs

have relied on a “broader controlling legal principle,” which this

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4 Abudu, J., Concurring 22-14205

Court has rejected. See, e.g., Wade v. United States, 13 F.4th 1217,

1229 (11th Cir. 2021) (granting correctional officer qualified im-

munity in ruling that plaintiff’s right to medical attention for a bro-

ken, bleeding hand prior to being transferred to another cell was

not clearly established despite plaintiff’s argument that right was

encompassed within a broader, clearly established principle);

Gaines, 871 F.3d at 1214 (granting qualified immunity to Superin-

tendent of school district, ruling that any prohibition against de-

fendant denying teacher a promotion based on a family member’s

public criticisms of the school district was based on “First Amend-

ment principles at a high level of generality” and, thus, not clearly

established); Dukes v. Deaton, 852 F.3d 1035, 1044 (11th Cir. 2017)

(granting a defendant officer accused of excessive force qualified

immunity despite finding that a Fourth Amendment violation oc-

curred because “the contours of the right were not clearly estab-

lished”).

We have also suggested that the broader, general principle

articulated in this case was not clearly established. See, e.g., Carter v.

Galloway, 352 F.3d 1346, 1349, 1350 n.10 (11th Cir. 2003) (finding

that plaintiff failed to satisfy subjective prong of deliberate indiffer-

ence claim against officers for failure to protect him from physically

abusive cellmate, but noting that claim would have failed in any

event because right “was not clearly established in Plaintiff’s fa-

vor”).

Prisons and jails are widely known to be one of the most

dangerous housing situations in the world. See, e.g., Keri Blakinger,

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22-14205 Abudu, J, Concurring 5

Why So Many Jails Are in a ‘State of Complete Meltdown’, THE

MARSHALL PROJECT, https://www.themarshallproject.org/2022/

11/04/why-so-many-jails-are-in-a-state-of-complete-meltdown

(Nov. 4, 2022, 1:00 pm) (“[W]hile the infamous Rikers Island jail

complex in New York City has been the focus of media coverage

for its surging number of deaths, rural and urban lockups from

Tennessee to Washington to Georgia are not faring much better.”);

Matt Ford, The Everyday Brutality of America’s Prisons, NEW

REPUBLIC (Apr. 5, 2019), https://newrepublic.com/arti-

cle/153473/everyday-brutality americas-prisons (profiling a Justice

Department report regarding “inmate deaths and violence across

the country that, taken together, paint a grim picture of the brutal-

ity that occurs behind prison walls” and noting that “[j]ails hold a

far greater number of people than prisons, and often include people

who are awaiting trial and thus haven’t been found guilty of a

crime. . . . It’s no surprise that funneling at-risk individuals into a

hostile environment can have fatal consequences.”).

The Muscogee County jail created specific policies for clas-

sifying inmates who might be especially vulnerable to assault at the

hands of other inmates. While in no way minimizing Nelson’s

tragic death, the record shows that, at least on paper, and given that

Hatchett was in pretrial detention and not yet convicted of any

crime, Nelson arguably was a danger to Hatchett as well.

Muscogee’s inmate classification system categorizes inmates

as “high risk” if their current offense or previous conviction was for

a violent charge. In this case, Nelson, who was 39, was incarcerated

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6 Abudu, J., Concurring 22-14205

based on his failure to register as a sex offender. His classification

documents noted he had a previous conviction for rape. He ulti-

mately received a classification that reflected his status as a sex of-

fender and his violent criminal history and was classified to be in

“maximum” detention. The next question that this case poses is

whether someone in Hatchett’s situation who was 19 years old and

now alone in a cell with Nelson, could defeat a qualified immunity

defense if Nelson had attacked and injured him instead. Perhaps

the answer to that question is now definitively yes, which means

victims of assault in jail are clearly entitled to heightened protec-

tions.

While the Court has adopted the race-based claim that Nel-

son’s estate proffers as the reason for Nelson’s murder, a jury could

instead find that there was another, non-racially motivated, reason

for the assault. To underscore this point, one can simply look to

Hatchett’s behavior when he was placed in a cell with two white

detainees: Rae Nolan and Nelson. Hatchett spent his first day in

detention alone with Nolan. Nelson joined their cell the next day.

Hatchett, Nolan, and Nelson were cellmates together for five days.

While Hatchett was in a cell with these two other white men, he

never expressed any hate for white people, and he never made any

racist comments to either Nolan or Nelson. In fact, Hatchett and

Nolan got along. He traded Nolan his breakfast tray for Nolan’s

cookies at night. After Nolan was moved out of their cell, Nelson

and Hatchett remained cellmates for four more days without Nel-

son ever reporting to Sellers or anyone else that he felt like he was

in danger in his cell or otherwise threatened by Hatchett.

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22-14205 Abudu, J, Concurring 7

When Hatchett did attack Nelson, the words out of his

mouth were not racial slurs or race-related comments—they were

about hair in his food. In fact, Correctional Officer Sabrina Millison

stated that, following the incident and while Hatchett was being

held behind a cell door while other officers tried to resuscitate Nel-

son, Hatchett’s comments to her were: “he [Nelson] touched my

food,” and “he [Nelson] put hair in my food.”

Based on this constellation of facts, it is not clear whether

Nelson faced “a strong likelihood,” Brown v. Hughes, 894 F.2d 1533,

1537 (11th Cir. 1990) (citation and internal quotation marks omit-

ted), of “a substantial risk of serious harm,” Bowen, 826 F.3d at 1322

(citation and internal quotation marks omitted), solely based on his

race. However, again, when we view the limited evidence in the

light most favorable to Nelson’s estate, that is a question for a jury

to decide.

Nevertheless, this Circuit has now recognized (1) the alleged

constitutional violation of Nelson’s rights has been clearly estab-

lished; and (2) any evidence of racial animus—even when there

may be other motivations behind the assailant’s actions—is suffi-

cient to overcome qualified immunity under these circumstances.

I hope these tenets remain true for subsequent cases brought by

plaintiffs regarding the threats and violence they have faced while

incarcerated.

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22-14205 Ed Carnes, J, Concurring 1

ED CARNES, Circuit Judge, joined by WILLIAM PRYOR, Chief Judge,

concurring:

We concur in all of the Court’s opinion and write separately

to respond to some of the statements in the other concurring opin-

ion.

I.

This Court has often stressed that no decision can hold any-

thing that goes beyond the facts of the case. See, e.g., Edwards v.

Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed

out many times that regardless of what a court says in its opinion,

the decision can hold nothing beyond the facts of that case. All

statements that go beyond the facts of the case . . . are dicta. And

dicta is not binding on anyone for any purpose.”) (citations omit-

ted); Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th

Cir. 2006) (“The holdings of a prior decision can reach only as far

as the facts and circumstances frame the precise issue presented in

that case.”); Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207

(11th Cir. 2003) (“Whatever their opinions say, judicial decisions

cannot make law beyond the facts of the cases in which those deci-

sions are announced.”); United States v. Aguillard, 217 F.3d 1319,

1321 (11th Cir. 2000) (“The holdings of a prior decision can reach

only as far as the facts and circumstances presented to the Court in

the case which produced that decision.”) (quoting United States v.

Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J., concur-

ring)); see also Moon v. Head, 285 F.3d 1301, 1318 (11th Cir. 2002)

(Carnes, J., concurring) (“Those statements are dicta. They are

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2 Ed Carnes, J., Concurring 22-14205

dicta because they go beyond the facts of the [earlier] case it-

self . . . .”); Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1265

(11th Cir. 2007) (“Judicial opinions do not make binding prece-

dents; judicial decisions do.”) (alteration adopted) (quotation

marks omitted).

Our colleague’s separate concurring opinion would take a

more expansive approach by interpreting the Court’s decision to

“recognize[]” that “any evidence of racial animus––even when

there may be other motivations behind the assailant’s actions––is

sufficient to overcome qualified immunity under these circum-

stances.” Abudu Concurrence at 7 (emphasis added). Our decision

does not recognize or even imply that, and it certainly does not

hold that. Reframing our decision in that way would defy all of our

many precedents stressing that a holding reaches only as far as the

facts and circumstances of the case. See, e.g., Chavers, 468 F.3d at

1275.

Let’s start with the most obvious point about race. This is

not a case in which any prison guard or official is accused of racial

discrimination. Race played only one role in this tragic tale: A jury

could find that racial hatred motivated Hatchett, a black inmate, to

murder Nelson, a white inmate, solely because he was white. The

Constitution does not forbid inmates from discriminating against

other inmates based on race, and Hatchett is not a defendant in this

case. The defendant is Sellers, an intake officer at the detention

center. The claim against him is not that he discriminated against

any inmate based on race. The claim is that he was deliberately

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22-14205 Ed Carnes, J, Concurring 3

indifferent to the substantial risk that Hatchett would attack a

white inmate if he was put into a cell with one, and as a result,

Hatchett was celled with a white inmate and murdered him.

Even if we wanted to do so, we could not hold in this case

that “any evidence” of racial animus by the inmate assailant is

somehow enough to overcome an official’s qualified immunity, see

Abudu Concurrence at 7. We could not because those are not the

only facts of this case. Instead, the facts of the case include a prison

official being deliberately indifferent to a specific risk of violence

that could have been avoided with minimal effort by him, but he

did nothing to address it. A future panel cannot ignore some facts

in this case to convert it into a broader precedent. And we can’t

either. A decision in a case including facts A + B + C that concludes

those facts together amount to a constitutional violation cannot be

binding precedent for the proposition that either A alone, or A + B

without C, is a constitutional violation.

The specific facts at this stage, as the opinion of the Court

recounts them, are that Sellers was an intake officer who helped

process Hatchett into the detention center. See Maj. Op. at 4. And

Sellers knew that Hatchett had been arrested for going into a store

and stabbing a stranger in the back. See id. at 4, 13. And he knew

that Hatchett, a black man, had stabbed that stranger solely be-

cause the man was white. See id. And Hatchett told Sellers that he

had “seen a video” of cops killing black people and “decided [he]

was gonna stab a white guy” in response. See id. at 4. And Sellers

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4 Ed Carnes, J., Concurring 22-14205

knew that Hatchett had done exactly that the day before he was

being processed into the detention center. See id. at 3–4.

Not only all of that, but both classification officers testified

that had they known Hatchett’s unprovoked stabbing of a stranger

the day before he was arrested was racially motivated, they would

not have put him in a cell with a white detainee. See id. at 6. And

Sellers himself admitted that he knew classification officers would

move an inmate if “given a good reason.” See id. at 5. Yet, he “did

nothing to limit Hatchett’s exposure to white detainees.” Id. at 16.

“In deliberate-indifference cases, as in life, context matters.”

Mosley v. Zachery, 966 F.3d 1265, 1272 (11th Cir. 2020). Based on

the facts as presented at the summary judgment stage, our opinion

holds only that at the time of Nelson’s death it was clearly estab-

lished that if a prison official actually knows about a condition that

poses a substantial risk of serious harm to an inmate and does not

take any reasonable steps to prevent that harm, causing the inmate

injury, he violates the Constitution. See Maj. Op. at 17–18; Caldwell

v. Warden, FCI Talladega, 748 F.3d 1090, 1100–03 (11th Cir. 2014);

Cottone v. Jenne, 326 F.3d 1352, 1359–60 (11th Cir. 2003); Patel v. La-

nier County Georgia, 969 F.3d 1173, 1190 (11th Cir. 2020).

Our holding is not “groundbreaking,” see Abudu Concur-

rence at 3. Far from it. We’ve previously held that if a prison offi-

cial was deliberately indifferent to a serious risk of harm that could

have been (but wasn’t) avoided with a reasonable amount of effort,

the officer may be held liable. See, e.g., Bowen v. Warden, Baldwin

State Prison, 826 F.3d 1312, 1320–25 (11th Cir. 2016) (denying

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22-14205 Ed Carnes, J, Concurring 5

qualified immunity and holding that the plaintiff had plausibly al-

leged a deliberate indifference claim against two prison officials

who were aware that an inmate was “a severe paranoid schizo-

phrenic who suffered from violent delusions, auditory hallucina-

tions, and impulsive tendencies” and knew that he had committed

a “High-Assault” against his previous cellmate but took no steps to

protect the cellmate he killed); Caldwell, 748 F.3d at 1101–03 (deny-

ing qualified immunity and holding that where prison officials

knew an inmate had a history of past prison violence and had

started a fire in his cell using the plaintiff’s personal belongings, a

jury could reasonably find that the officials “actually knew of a sub-

stantial risk” that the inmate “would seriously harm” the plaintiff);

Cottone, 326 F.3d at 1358–60 (denying qualified immunity and hold-

ing that the plaintiff plausibly alleged deliberate indifference where

the prison officials failed to monitor or supervise a visibly violent

and mentally unstable inmate they knew posed a substantial risk of

serious harm to other inmates); Rodriguez v. Sec’y for Dep’t of Corr.,

508 F.3d 611, 618–24 (11th Cir. 2007) (vacating a grant of summary

judgment and judgment as a matter of law entered in favor of

prison officials on a deliberate indifference claim where the officials

were aware of specific gang-related threats against the plaintiff but

did not take available steps to protect the plaintiff, who was later

stabbed).

According to the facts as we take them at this stage, Sellers

was put on notice during Hatchett’s intake that he was especially

violent toward white people and had, only the day before, stabbed

a total stranger in the back solely for being white. It would have

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6 Ed Carnes, J., Concurring 22-14205

taken only a miniscule amount of effort for Sellers to prevent the

danger that Hatchett posed to white detainees. 1 All he had to do

was tell one of the classification officers that Hatchett’s violent

crime had been motivated by a desire to harm white people. And

a jury could reasonably find that Sellers’ failure to act caused Nel-

son, Hatchett’s second victim, to be killed. 2 . Concluding that those

facts would establish deliberate indifference breaks no new ground;

instead, the conclusion rests on well-ploughed ground and is en-

tirely in keeping with our precedents. See Bowen, 826 F.3d at 1320–

24; Caldwell, 748 F.3d at 1100–02; Cottone, 326 F.3d at 1358–60; Ro-

driguez, 508 F.3d at 618–24.

Our concurring colleague asserts that “it is not clear whether

Nelson faced ‘a strong likelihood’ of ‘a substantial risk of serious

harm’ solely based on his race.” Abudu Concurrence at 7 (internal

citations omitted) (quoting first Brown v. Hughes, 894 F.2d 1533,

1537 (11th Cir. 1990), then Bowen, 826 F.3d at 1322). But drawing

1 As our colleague’s concurring opinion acknowledges, the reasonableness of

the potentially preventative action is important. See Abudu Concurrence at 1;

Caldwell, 748 F.3d at 1099 (explaining that the objective component of deliber-

ate indifference requires evidence that the officer disregarded the known risk

by “failing to respond to it in an (objectively) reasonable manner”) (quotation

marks omitted).

2 Sellers disputes only the subjective component of deliberate indifference, ar-

guing that no reasonable jury could find that he had actual, subjective

knowledge of the risk Hatchett posed to Nelson. See Mosely v. Zachery, 966

F.3d 1265, 1270–71 (11th Cir. 2020). But, as detailed in the majority opinion,

there was enough evidence that Sellers did actually, subjectively know about

it and that he disregarded that known risk. See Maj. Op. at 13–14.

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22-14205 Ed Carnes, J, Concurring 7

all reasonable inferences in the plaintiffs’ favor (as we must here),

it is clear that Nelson did face a substantial risk of serious harm. See

Maj. Op. at 11–12. Hatchett had already shown that, seeking racial

vengeance, he would violently attack someone solely because he

was white. After all, it was only the day before he was processed

into the detention center that Hatchett had been arrested for stab-

bing in the back “the first white guy he s[aw]” just because he was

white.

The two classification officers testified that had they known

the stabbing for which Hatchett was arrested was racially moti-

vated, they would not have put him in a cell with a white detainee

“for the safety” of that detainee. The plaintiffs’ expert agreed that

because of the racial motivation behind the stabbing, Hatchett “ob-

vious[ly]” posed a “threat to white inmates.” The evidence viewed

in the light most favorable to the plaintiffs shows more than “some

unspecified risk of harm to [Nelson’s] well-being,” see Marbury v.

Warden, 936 F.3d 1227, 1238 (11th Cir. 2019), and more than the

“mere possibility” of injury, see Brooks v. Warden, 800 F.3d 1295,

1301 (11th Cir. 2015); it shows that Hatchett posed a “specific[]”

and “particularized threat” to Nelson and other white inmates, see

Bowen, 826 F.3d at 1322 (quotation marks omitted).

The other concurring opinion asserts that the evidence of a

racial motivation for the murder is “extremely thin,” Abudu Con-

currence at 1. To the contrary, viewing the evidence in the light

most favorable to the plaintiff, there is plenty of it. For example,

the evidence shows that Hatchett told three different officers or jail

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8 Ed Carnes, J., Concurring 22-14205

employees that he was there because he stabbed a stranger solely

because of the stranger’s race, after watching videos about police

violence against black people. He also told two of his cellmates

that after watching “one of them cop shooting videos,” he got

“mad,” and he stabbed “the first white guy he seen.” And the day

after killing his cellmate, in talking to a psychiatrist, Hatchett

“[m]entioned about his [cellmate] talking about racial things.”

More to the point, there is enough evidence from which a

jury could reasonably find that there was a “strong likelihood” that

Hatchett would seriously harm Nelson, see Brown, 894 F.2d at 1537,

that Sellers actually knew about that substantial risk of serious

harm, see Caldwell, 748 F.3d at 1102, that Sellers knew he could do

something about it but did nothing, see Rodriguez, 508 F.3d at 622,

and that his failure to act caused Nelson’s death, see id. at 617, 622–

24, 624 n.20. As we’ve mentioned, the other concurring opinion

states that “any evidence of racial animus—even when there may

be other motivations behind the assailant’s actions—is sufficient to

overcome qualified immunity under these circumstances.” Abudu

Concurrence at 7. But “any evidence of racial animus” by a pris-

oner, regardless of whether there are other motivations, is not

enough to show a constitutional violation, much less to overcome

qualified immunity.

As the Supreme Court has stressed, “It is not . . . every injury

suffered by one prisoner at the hands of another that translates into

constitutional liability for prison officials responsible for the vic-

tim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1970). Prisons

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22-14205 Ed Carnes, J, Concurring 9

and jails are inherently dangerous places. See id. at 858 (Thomas,

J., concurring in the judgment) (“Prisons are necessarily dangerous

places . . . .”); Kincaid v. Williams, 143 S. Ct. 2414, 2419 n.2 (2023)

(Alito, J., dissenting) (referring to “the uniquely dangerous context

of prison”); United States v. Prevo, 435 F.3d 1343, 1346 (11th Cir.

2006) (“Because of the character of prisoners and the nature of im-

prisonment, corrections facilities are volatile places, brimming

with peril, places where security is not just an operational nicety

but a matter of life or death importance.”); Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington, 566 U.S. 318, 333 (2012) (“Jails are

often crowded, unsanitary, and dangerous places.”); Ort v. White,

813 F.2d 318, 322 (11th Cir. 1987) (in a prison discipline case, ex-

plaining that “in evaluating the challenged conduct of prison offi-

cials, a court must keep in mind the paramount concerns of main-

taining order and discipline in an often dangerous and unruly envi-

ronment”); Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (en

banc) (“Prisons are dangerous and filled with law-breaking because

that is where the criminals are. Even the most secure prisons are

dangerous places for inmates, employees, and visitors.”); see also

Abudu Concurrence at 4 (“Prisons and jails are widely known to be

one of the most dangerous housing situations in the world.”).

“[T]hey house society’s most antisocial and violent people in close

proximity with one another.” Farmer, 511 U.S. at 858; see also Hud-

son v. Palmer, 468 U.S. 517, 526 (1984) (“Prisons, by definition, are

places of involuntary confinement of persons who have a demon-

strated proclivity for antisocial criminal, and often violent, con-

duct.”).

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10 Ed Carnes, J., Concurring 22-14205

Given all of those decisions, our circuit law does not suggest,

let alone establish, that any time an inmate assaults another inmate

for racial reasons some prison official has in some way violated the

Constitution. And our decision today does not suggest that either.

A prison official violates the Constitution only when the inmate

can show that he was “incarcerated under conditions posing a sub-

stantial risk of serious harm,” Farmer, 511 U.S. at 834 (majority

opinion), and that the official knew of and consciously disregarded

that substantial risk, id. at 837–38, and that the official’s action or

inaction caused injury, see Bowen, 826 F.3d at 1320; Cottone, 326 F.3d

at 1358; see also Brown, 894 F.2d at 1537 (“When officials become

aware of a threat to an inmate’s health and safety, the Eighth

Amendment’s proscription against cruel and unusual punishment

imposes a duty to provide reasonable protection. Merely negligent

failure to protect an inmate from attack does not justify liability

under section 1983, however. Prison officials must have been de-

liberately indifferent to a known danger before we can say that

their failure to intervene offended evolving standards of decency,

thereby rising to the level of a constitutional tort.”) (citations and

quotation marks omitted).

Despite what the other concurrence suggests, victims of as-

sault in jail are not entitled to any “heightened protections,” Abudu

Concurrence at 6. Prison officials are not required to guarantee

inmates’ safety from another inmate, regardless of the other in-

mate’s motivation for violence. See Farmer, 511 U.S. at 834; see also

Purcell ex rel. Est. of Morgan v. Toombs County, 400 F.3d 1313, 1321

(11th Cir. 2005) (“[A] prison custodian is not the guarantor of a

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22-14205 Ed Carnes, J, Concurring 11

prisoner’s safety.”) (quotation marks omitted). As the Court’s

opinion in this case points out, “A prison official’s deliberate indif-

ference to a known, substantial risk of serious harm to an inmate”

is what violates the Constitution. See Maj. Op. at 11. It does not

matter if the substantial risk that one inmate will seriously injure

or kill another is motivated by race, religion, gang affiliation, or

something else. The decisions of the Supreme Court and this

Court draw the line based on deliberate indifference, not based on

the specific motivation that created the substantial risk of harm.

II.

One final note. To the extent that the concurring opinion’s

last paragraph implies that the qualified immunity issue is out of

this case, see Abudu Concurrence at 7, our circuit precedent estab-

lishes otherwise. At this summary judgment stage, we view the

facts and draw all reasonable inferences in the plaintiffs’ favor. See

Caldwell, 748 F.3d at 1103. But we recognize that even though a

plaintiff gets past summary judgment, he “may not be able to prove

such facts to the satisfaction of the jury” and “the jury may elect

not to draw inferences from the circumstantial evidence in [the

plaintiff’s] favor.” Id. The point is that “what we state as ‘facts’ in

this opinion for purposes of reviewing the rulings on the summary

judgment motion[] may not be the actual facts” decided at trial.

Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995); see Farrow

v. West, 320 F.3d 1235, 1239 n.2 (11th Cir. 2003) (same).

“Any qualified immunity defenses that do not result in sum-

mary judgment [for the defendant] before trial may be renewed at

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12 Ed Carnes, J., Concurring 22-14205

trial,” Swint, 51 F.3d at 992, where the jury can “find the relevant

facts bearing on the qualified immunity issue,” Simmons v. Brad-

shaw, 879 F.3d 1156, 1164–65 (11th Cir. 2018). At trial Sellers can

“urge the jury to view the record as []he has framed it, seek special

interrogatories to resolve historical facts underlying [his] immunity

argument, and then resubmit the issue to the district court for de-

cision.” Butler v. Smith, 85 F.4th 1102, 1118 n.6 (11th Cir. 2023); see

also Kelly v. Curtis, 21 F.3d 1544, 1546–47 (11th Cir. 1994) (“[A] de-

fendant who does not win summary judgment on qualified im-

munity grounds may yet prevail on those grounds at or after trial

on a motion for a judgment as a matter of law.”).

If Sellers does renew the qualified immunity defense at trial,

and if the evidence at trial could support a jury finding on the facts

that would support qualified immunity, the district court can, and

when needed should, “use special verdicts or written interrogato-

ries to the jury to resolve disputed facts before the judge rules on

the qualified-immunity question.” Cottrell v. Caldwell, 85 F.3d 1480,

1487 (11th Cir. 1996) (quotation marks omitted).