Bishop v. Hackel

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0025p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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RUSSELL A. BISHOP,
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Plaintiff-Appellee,
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No. 09-1791
v.
,
>
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MARK A. HACKEL, Sheriff; JAMES STANLEY,
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Deputy; JOHN CANTEA, Deputy; S.
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ANDERMAN, Deputy; HARRELL, Deputy,
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Jointly and Severally,

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Defendants-Appellants,
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KEVIN HARTLEY, Sgt.; ROBERTS, Captain;
MOORE, Lt.; SANBORN, J/A; LAURA HOGAN, -
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N
Deputy,
Defendants.

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-14259—Marianne O. Battani, District Judge.
Argued: December 2, 2010
Decided and Filed: February 1, 2011
Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.

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COUNSEL
ARGUED: Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for
Appellants. Heather Anne Glazer, FIEGER, FIEGER, KENNEY, JOHNSON &
GIROUX, P.C., Southfield, Michigan, for Appellee. ON BRIEF: Mary Massaron Ross,
PLUNKETT COONEY, Detroit, Michigan, for Appellants. Heather Anne Glazer,
FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, P.C., Southfield, Michigan, for
Appellee.

1
No. 09-1791 Bishop v. Hackel, et al. Page 2

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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff-appellee Russell A. Bishop
filed a claim under 42 U.S.C. § 1983 against various personnel at the Macomb County
Jail, alleging that he suffered sexual abuse by another inmate as a result of their
deliberate indifference to his safety needs in violation of the Eighth Amendment. The
jail personnel sought summary judgment on the basis of qualified immunity. The district
court denied the motion as to defendants-appellants Deputy James Stanley, Deputy John
Cantea, Deputy Scott Anderman, and Deputy Harrell. The Deputies filed this
interlocutory appeal. We REVERSE the district court’s denial of qualified immunity
to Cantea, Anderman, and Harrell, and AFFIRM the district court’s denial of qualified
immunity to Stanley.

I. BACKGROUND

The upper D-Block of the Macomb County Jail holds approximately seventy-six
inmates. It includes the Mental Health Unit and the Mental Health Step-Down Unit.
The Mental Health Step-Down Unit holds up to twelve inmates with mental health
problems who have been stabilized. On every shift, three corrections officers monitor
the upper D-Block. One corrections officer, assigned to Mental Health Control, is
responsible for maintaining a log book. The other two corrections officers are runners,
one for the Mental Health Unit and one for the D-Block. Runners spend approximately
sixty percent of their time making rounds.

On December 1, 2004, Bishop entered the Macomb County Jail on a charge of
assault with intent to murder. Harrell processed Bishop through booking and filled out
a form entitled “Initial Classification/Temporary Cell Assignment.” The form described
Bishop’s physical build as small. It indicated that he had been in a number of mental
institutions and had attempted suicide. The form also stated that Bishop was unable to
understand questions; exhibited angry or hostile and bizarre behavior; and appeared
No. 09-1791 Bishop v. Hackel, et al. Page 3

anxious or afraid, depressed, confused, and unusually embarrassed. Harrell completed
a referral form that scheduled Bishop for a mental health assessment by Correctional
Medical Services, which provided mental health services for the inmates.

Bishop was placed in the Mental Health Unit’s high observation cell. Later that
day, Bishop was moved to the general Mental Health Unit on the recommendation of
Scott Webster, a limited license psychologist with Correctional Medical Services.

On December 10, Laura Hogan, a limited license psychologist with Correctional
Medical Services, conducted a mental health assessment of Bishop and recommended
that he be placed in the Mental Health Step-Down Unit. Bishop was housed in the
Mental Health Step-Down Unit from December 10 through December 25.

On December 10, inmate Charlie Floyd was placed in the Mental Health Step-
Down Unit on the recommendation of Webster. Floyd had been charged with multiple
counts of criminal sexual conduct. On December 13, Floyd was accused of a major rule
violation when he was seen throwing food trays at a jail trustee. He was found guilty of
horseplay and placed in administrative segregation from December 14 through
December 19. Thus, Bishop was housed with Floyd in the Mental Health Step-Down
Unit from December 10 through December 13, and December 19 through December 25.
At the time of the alleged assaults, Floyd was forty-four years old, five feet and nine
inches tall, and 160 pounds. Bishop was nineteen years old, five feet and five inches tall,
and 160 pounds.

On December 25, Bishop met with Hogan for a mental health visit. Hogan
testified about her shorthand notes from the meeting. She stated that Bishop reported
feeling upset because Floyd wanted to touch his penis. Bishop was not able to identify
the date of the alleged incident and he said that he had not reported the abuse to
corrections officers. Hogan told Bishop that he could prosecute Floyd for inappropriate
sexual behavior, and Bishop said that he wanted to talk to a corrections officer. Hogan
advised Stanley about Bishop’s allegation.
No. 09-1791 Bishop v. Hackel, et al. Page 4

On December 25 Stanley was working in the Mental Health Step-Down Unit
with Anderman and Cantea. Stanley was working as the D-Block runner, Anderman was
working as the Mental Health Unit runner, and Cantea was assigned to Mental Health
Control. Stanley and Anderman spoke with Bishop, and he informed them that Floyd
had been sexually assaulting him. Stanley filled out an Incident Report that stated that
he had been informed by the Mental Health staff that Floyd had made sexual advances
toward inmates. Stanley handed out witness statement forms to the inmates in the
Mental Health Step-Down Unit who were residing there when Floyd was present. All
the forms he received back stated that Floyd was physically and sexually abusive to
several inmates. Stanley interviewed Bishop and Floyd, as well as inmates Kevin
Bradford and Raymond Huffman.

Bishop told Stanley that Floyd started out by stealing his food trays and only
allowing him to eat the bread. Then Floyd began to sexually abuse Bishop by forcing
him to touch Floyd’s penis, laying in bed with him, forcing his pants down, trying to
have sex with him, masturbating on him, attempting to have him perform oral sex, and
threatening to kill him if he told any officers. Bishop also stated that Floyd hit him,
causing Bishop to hit his head on the bed.

Two other inmates also reported inappropriate behavior or abuse by Floyd.
Huffman, who was bunked with Floyd in the Mental Health Unit, reported that Floyd
said he liked Bishop and thought Bishop was cute. Bradford stated that Floyd stole his
food trays and other items, threatened him, forced Bradford to masturbate him, and
punched him in the face and pushed him around the unit.

Floyd denied having anything to do with any inmates. He was not questioned for
specifics because of the possibility of criminal charges.

Stanley submitted paperwork concerning the allegations against Floyd to his
supervisor, Kevin Hartley. A protective order was put in place to keep Floyd and Bishop
from having any contact with each other. Floyd was moved from the Mental Health
Step-Down Unit. From December 25 through Bishop’s January 3, 2005 release, Floyd
No. 09-1791 Bishop v. Hackel, et al. Page 5

was kept in lock-down in the Mental Health Unit and Bishop remained in the Mental
Health Step-Down Unit.

In his deposition, Bishop provided testimony concerning Floyd’s physical and
sexual abuse that was consistent with the statement he initially made to Stanley. He said
that upon first meeting Floyd in the Mental Health Step-Down Unit, Floyd threw his
head against the bed. He claimed that Floyd stole his food, and when Bishop told
corrections officers, they did not do anything. Bishop did not remember how many days
later it was that Floyd began sexually assaulting him. Bishop testified that he repeatedly
told corrections officers about Floyd sexually assaulting him but they did nothing to stop
it. Bishop did not remember the names of the corrections officers he made reports to,
could not describe them, and did not remember when he told them or how many times
he told them. Bishop said that his December 25 statement constituted his only written
statement concerning the incidents of sexual assault by Floyd.

On October 5, 2007, Bishop filed a complaint against a number of Macomb
County Jail personnel. In Count I, he made a claim under 42 U.S.C. § 1983, asserting
that a number of jail personnel violated his rights under the Eighth Amendment by
keeping him housed in a unit where he would be subjected to sexual abuse. In Count II,
he sued Macomb County Sheriff Hackel in his official capacity under section 1983 for
failing to train employees on how to handle complaints of inmate assault. In Count III,
he brought a state law claim for gross negligence and negligence against a number of jail
personnel. All defendants moved for summary judgment.

Only a small number of those claims are before us on appeal. The district court
granted summary judgment for all defendants on the negligence claims, and for a number
of defendants on the section 1983 claims. However, the district court denied summary
judgment to Hackel1 and the Deputies on the section 1983 claims. The district court

1
Although Hackel joined the Notice of Appeal filed by the Deputies, he concedes that under
Johnson v. Jones, 515 U.S. 304 (1995), he is precluded from immediately appealing the trial court’s
finding that a genuine issue of material fact exists as to whether the need for training to prevent sexual
predators from sexually assaulting other inmates was so obvious that not providing it constituted deliberate
indifference. Thus, Hackel’s arguments are not presented in the brief of the defendants, and we do not
address his appeal.
No. 09-1791 Bishop v. Hackel, et al. Page 6

found that the Deputies were not entitled to qualified immunity from Bishop’s Eighth
Amendment claims. The district court noted that the doctrine of qualified immunity
calls for a two-step analysis: a court must determine (1) whether the facts that the
plaintiff alleges make out a violation of a constitutional right; and (2) whether the right
at issue was clearly established at the time of the defendant’s misconduct. The district
court found as an initial matter that an inmate’s right to be protected from harm by other
inmates is clearly established. Furthermore, the district court found that there was
evidence based upon which a jury could find that Bishop’s constitutional rights were
violated when he was put in the same cell as Floyd. The district court did not analyze
the conduct of each Deputy individually, but rather made findings regarding all four
Deputies collectively. The district court found that the Deputies were aware that Floyd
was incarcerated for several violent felonies, including sexual assault; the Deputies were
aware that Bishop was young, small, suffering from severe mental illness, and exhibiting
a lack of full mental functioning; and Bishop testified that he told the Deputies before
December 25 that Floyd was sexually assaulting him and they ignored his complaints.
The district court noted that although the Deputies dispute Bishop’s claim that he
reported abuse before December 25, it had to construe the evidence in Bishop’s favor.
The district court found that a jury could conclude that the Deputies were aware of a
substantial risk of harm to Bishop and chose to ignore it, thereby violating Bishop’s
constitutional rights. Thus, the district court denied the Deputies’ motion for summary
judgment on the ground of qualified immunity. The Deputies filed this interlocutory
appeal.

II. JURISDICTION

Bishop claims that we lack jurisdiction to consider the Deputies’ interlocutory
appeal from the district court’s denial of their motion for summary judgment based on
qualified immunity. Under 28 U.S.C. § 1291 (2006), we have jurisdiction to hear an
appeal only from a “final decision” of the district court. Denial of summary judgment
is usually considered an interlocutory order, not a final judgment, and thus not
appealable to this court. See, e.g., Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002)
No. 09-1791 Bishop v. Hackel, et al. Page 7

(citing Johnson v. Jones, 515 U.S. 304, 309 (1995)). However, denial of a motion for
summary judgment on the ground of qualified immunity may be deemed a final,
appealable order because the qualified immunity doctrine exists partly to protect officials
from having to stand trial, and a defendant wrongly forced to go to trial loses the benefit
of the immunity even if exonerated after trial. See id. (citing Johnson, 515 U.S. at 311-
12). Thus, a party may immediately appeal a denial of summary judgment if “(1) the
defendant is a public official asserting qualified immunity, and (2) the issue on appeal
is not what facts the parties may be able to prove, but whether the plaintiff’s facts, taken
at their best, show a violation of clearly established law.” Williams v. Mehra, 186 F.3d
685, 689 (6th Cir. 1999) (citing Johnson, 515 U.S. at 311).

A denial of a claim of qualified immunity is immediately appealable only if the
appeal is premised not on a factual dispute, but rather on “neat abstract issues of law.”
Johnson, 515 U.S. at 317 (citation omitted); see Ortiz v. Jordan, No. 09-737, 2011 WL
197801, at *5 (Jan. 24, 2011). The key issue in this case is whether the Deputies were
deliberately indifferent to Bishop’s safety needs. The legal standard for deliberate
indifference is a question of law, and the Deputies’ knowledge and conduct are questions
of fact. Thus, the question in this case—whether the Deputies’ conduct, as alleged by
Bishop, could constitute deliberate indifference—is a mixed question of law and fact.

We have held that we have jurisdiction to consider an appeal from a denial of
qualified immunity if the defendant does not dispute the facts alleged by the plaintiff for
purposes of the appeal. Alternatively, “[i]f, instead, the defendant disputes the plaintiff’s
version of the story, the defendant must nonetheless be willing to concede the most
favorable view of the facts to the plaintiff for purposes of the appeal.” Berryman v.
Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (internal quotation marks and citation
omitted). In their briefs, the Deputies state that they concede Bishop’s version of the
facts for purposes of this appeal. See Reply Brief on Appeal of Defendants-Appellants
at 2-3 (“[D]efendants do not contest the facts or invite the Court to re-examine and
decide disputed fact questions. . . . Defendants predicate their position, as they must
under Johnson v. Jones, on Bishop’s version of the facts.”).
No. 09-1791 Bishop v. Hackel, et al. Page 8

Because the Deputies do not dispute the basic facts for purposes of this appeal,
the case turns on a question of law: whether, interpreting the facts as alleged by Bishop,
defendants are entitled to qualified immunity from Bishop’s Eighth Amendment claims.
Cf. Williams, 186 F.3d at 690. We have jurisdiction to consider whether Bishop’s facts,
admitted by the Deputies for purposes of this appeal, show a violation of clearly
established law. See, e.g., Leary v. Livingston Cnty., 528 F.3d 438, 441 (6th Cir. 2008);
Williams, 186 F.3d at 690; Berryman, 150 F.3d at 563. Therefore, the district court’s
denial of qualified immunity is a “final order” under 28 U.S.C. § 1291, and we have
jurisdiction to decide the case on the merits. See Williams, 186 F.3d at 690. Thus, we
must analyze whether, viewing the evidence in the light most favorable to Bishop, the
district court’s legal determination that the defendants could have acted with deliberate
indifference was correct.

III. QUALIFIED IMMUNITY

Under the doctrine of qualified immunity, government officials performing
discretionary functions are shielded from civil liability unless their conduct violates
clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Thus, a defendant is entitled to qualified immunity on summary judgment unless
the facts, when viewed in the light most favorable to the plaintiff, would permit a
reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the
right was clearly established. Pearson v. Callahan, 129 S. Ct. 808, 816 (2009). A court
of appeals may exercise its discretion to decide which prong of the test to address first
in light of the circumstances of the case. Id. at 818. Furthermore, “prison officials who
actually knew of a substantial risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk, even if the harm ultimately was not
averted.” Farmer v. Brennan, 511 U.S. 825, 844 (1994).

We review a district court’s denial of summary judgment on the grounds of
qualified immunity de novo. See Williams, 186 F.3d at 689. Summary judgment is
appropriate where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
No. 09-1791 Bishop v. Hackel, et al. Page 9

issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The court views the factual evidence and draws
all reasonable inferences in favor of the non-moving party. Nat’l Enters. v. Smith, 114
F.3d 561, 563 (6th Cir. 1997). The moving party bears the burden of proving that there
are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).

A. Whether the constitutional right was clearly established

The Supreme Court has held that for a constitutional right to be clearly
established, “[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). The Supreme Court has held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.”
Farmer, 511 U.S. at 833 (internal quotation marks and citation omitted). Furthermore,
on several occasions we have recognized an inmate’s right to be free from prison
violence as clearly established. See, e.g., Leary, 528 F.3d at 442 (noting that the right
to be free from violence at the hands of other prisoners is clearly established); Doe v.
Bowles, 254 F.3d 617, 620 (6th Cir. 2001) (“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.”); Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990) (“On several occasions,
we have held that ‘deliberate indifference’ of constitutional magnitude may occur when
prison guards fail to protect one inmate from an attack by another . . . .”). Thus, the
constitutional right to be free from deliberate indifference to assault and sexual abuse
was clearly established at the time of the alleged constitutional violation.

B. Whether the defendants violated a constitutional right

To raise a cognizable constitutional claim for deliberate indifference to an
inmate’s safety, an inmate must make a two-part showing: (1) the alleged mistreatment
was objectively serious; and (2) the defendant subjectively ignored the risk to the
inmate’s safety. Farmer, 511 U.S. at 834. Bishop raises an issue of fact as to whether
No. 09-1791 Bishop v. Hackel, et al. Page 10

the alleged mistreatment was objectively serious, and as to whether Stanley subjectively
ignored the risk to his safety. However, Bishop fails to raise an issue of fact as to
whether Harrell, Anderman, or Cantea subjectively ignored a risk to his safety.

1. The objective component

To establish a constitutional violation based on failure to protect, a prison inmate
first must show that the failure to protect from risk of harm is objectively “sufficiently
serious.” Id. at 833 (citation omitted). The inmate must show that “he is incarcerated
under conditions posing a substantial risk of serious harm.” Id. The district court found
that Bishop was young, small, suffering from severe mental illness, and exhibiting a lack
of full mental functioning; and Floyd was incarcerated for violent felonies including
sexual assault. Bishop presented a report from Michael Hackett, a criminal justice
consultant, that stated that Bishop was vulnerable because he was young, small,
apparently mentally “slow,” and did not have experience in jail. He stated that these
qualities would put a reasonable corrections officer on notice that Bishop required close
supervision. Hackett opined that placing Bishop in a cell with an older, stronger, and
predatory inmate like Floyd put Bishop in grave danger. Viewing the evidence in the
light most favorable to Bishop, he has raised an issue of fact as to whether the failure to
protect him from risk of harm was sufficiently serious.

2. The subjective component

To establish a constitutional violation based on failure to protect, a plaintiff also
must show that prison officials acted with “deliberate indifference” to inmate health or
safety. Id. at 834. An official is deliberately indifferent if he or she “knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware
of the facts from which the inference could be drawn that a substantial risk of harm
exists, and he must also draw the inference.” Id. at 837. The Supreme Court has held
that:

Whether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence . . . and a factfinder
No. 09-1791 Bishop v. Hackel, et al. Page 11

may conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.

Id. at 842. However, a prison official who was unaware of a substantial risk of harm to
an inmate may not be held liable under the Eighth Amendment even if the risk was
obvious and a reasonable prison official would have noticed it. See id. at 841-42.

The district court erred in this case by failing to evaluate the liability of each
Deputy individually. See, e.g., Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 542 (6th
Cir. 2008) (“Where . . . the district court is faced with multiple defendants asserting
qualified immunity defenses, the court should consider whether each individual
defendant had a sufficiently culpable state of mind.”); Garretson v. City of Madison
Heights, 407 F.3d 789, 797 (6th Cir. 2005) (“[The] subjective component must be
addressed for each officer individually.”). Furthermore, the Supreme Court has stated
that if the district court does not indicate what facts it assumed when it denied summary
judgment, then “a court of appeals may have to undertake a cumbersome review of the
record to determine which facts the district court, in the light most favorable to the
nonmoving party, likely assumed.” Johnson, 515 U.S. at 319. Thus, we must make an
individualized assessment of each Deputy, based on Bishop’s version of the facts.

Bishop alleges two main theories on which liability for the Deputies could be
based. First, he claims that the Deputies were aware that due to his personal
characteristics, Bishop was vulnerable in a jail setting, and particularly vulnerable to
attack by Floyd. The district court found that three factors might have indicated that
Bishop was at risk of sexual assault by Floyd: (1) Floyd was four inches taller than
Bishop; (2) Floyd was charged with various sex-based offenses; and (3) Bishop was
young, had a history of mental illness, appeared to be confused during his intake
evaluation, and was thought to be mentally “slow.” In addition, Hackett’s report stated
that Bishop’s personal characteristics would put a reasonable corrections officer on
notice that Bishop required close supervision, and that placing Bishop in a cell with a
predatory inmate such as Floyd put Bishop in grave danger. Finally, Stanley testified
that there have been numerous sexual predators in the Mental Health Unit.
No. 09-1791 Bishop v. Hackel, et al. Page 12

We have recognized that a prison official may be held to be deliberately
indifferent to a substantial risk to inmate safety if he is aware that an inmate is
vulnerable to assault and fails to protect him. See Greene v. Bowles, 361 F.3d 290, 294
(6th Cir. 2004) (noting that plaintiff could defeat defendant’s motion for summary
judgment by “point[ing] to evidence from which a finder of fact could conclude that her
vulnerability made her placement in [a unit] with high-security inmates a substantial risk
to her safety, of which [defendant] was aware”); see also Taylor v. Mich. Dep’t of Corr.,
69 F.3d 76, 81 (6th Cir. 1995) (rejecting defendant’s argument that he could not be liable
because he had no personal knowledge of plaintiff’s particular vulnerabilities to sexual
assault because “Farmer makes it clear that the correct inquiry is whether [an official]
had knowledge about the substantial risk of serious harm to a particular class of persons,
not whether he knew who the particular victim turned out to be”); Roland v. Johnson,
856 F.2d 764, 770 (6th Cir. 1988) (denying summary judgment when the jury could find
that an administrative assistant to a warden had been shown a picture of an inmate that
would suggest that he fit the known profile of prison rape victims). Thus, Bishop may
defeat the Deputies’ motion for summary judgment based on qualified immunity if he
can raise an issue of fact as to their knowledge of a risk to his safety because of his status
as a vulnerable inmate and Floyd’s status as a predatory inmate. Cf. Greene, 361 F.3d
at 295.

Bishop’s second theory of liability is that the physical structure of the jail was
such that the Deputies would have been able to hear the abuse that he alleges that Floyd
committed. Stanley and Anderman both testified that corrections officers working D-
Block are among the inmates about sixty percent of the time. Stanley testified that
guards assigned to the Mental Health Step-Down Unit can hear everything the inmates
say, and he admitted that if Floyd was aggressing on other inmates as alleged by Bishop,
then it would have been overheard by the guards. Anderman testified that a corrections
officer would have heard what was going on in the Mental Health Step-Down Unit if
there were a “ruckus.”
No. 09-1791 Bishop v. Hackel, et al. Page 13

In Phillips, this Court found that “given the modest size of the jail and the
obvious nature of [the victim’s] symptoms, we find unpersuasive the claim that the
officers were unaware of her condition.” Phillips, 534 F.3d at 542 n.1. In that case,
eighteen jailers and one captain were responsible for a facility with an inmate capacity
of fifty-seven. Id. Here, three corrections officers were responsible for the upper D-
Block, which housed seventy-six inmates. Although the ratio of prison officials to
inmates is much lower in this case, Bishop could raise a question of fact as to whether
Floyd’s aggressions would have been obvious to any corrections officer working in D-
Block.

However, under either theory of liability, Bishop must prove that each Deputy
had enough personal contact with him to be subjectively aware of his vulnerability to
attacks or the abuse that he alleges he was suffering. We have held that there is no “rule
that plaintiffs cannot present general allegations to prove that each individual defendant
has the requisite knowledge for deliberate indifference.” Id. at 542. In Phillips, the
Court concluded that there was sufficient evidence from which a trier of fact could infer
that each individual corrections officer was aware of the seriousness of an inmate’s
ailment, based in part on the fact that the inmate’s deteriorating physical condition was
obvious. Id. However, we must focus on whether each individual Deputy had the
personal involvement necessary to permit a finding of subjective knowledge. See, e.g.,
Clark-Murphy, 439 F.3d at 291 (“Given the brief exposures of these two defendants to
[plaintiff] and given the resulting absence of evidence regarding their purposeful
indifference to his health and safety needs, the claims against these defendants must be
dismissed as a matter of law.”); Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991)
(“[P]ersonal liability on any of the defendants . . . must be based on the actions of that
defendant in the situation that the defendant faced, and not based on any problems
caused by the errors of others . . . .”).

It is important to note that Bishop was unable to identify any of the corrections
officers to whom he claimed that he reported abuse. The district court found that:
No. 09-1791 Bishop v. Hackel, et al. Page 14

Bishop testified that he told the corrections officers before December 25,
2004, that Floyd was sexually assaulting him, and they ignored his
complaints. Although the corrections officers and Hogan dispute
Bishop’s claim that he told the officers before December 25, 2004, about
the sexual assaults, the Court must construe the evidence in Bishop’s
favor.

Bishop v. Hackel, No. 07-14259, 2009 WL 1470035, at *6 (E.D. Mich. May 26, 2009).
Thus, the district court appears to have found that there was an issue of fact as to
whether Bishop reported abuse to the Deputies. In his deposition, however, Bishop
states that he does not recall which corrections officers he complained to, he is unable
to describe the corrections officers that he complained to, and he does not remember
when or how many times he complained. Bishop offers no evidence that he complained
to any of the Deputies, or that the Deputies had any knowledge of his alleged complaints.
As discussed above, typically a court of appeals, when hearing a qualified immunity case
on interlocutory review, does not have jurisdiction to disagree with a district court’s
decision that the record contains a factual dispute that must be resolved at trial. See
Johnson, 515 U.S. at 320. In Scott v. Harris, 550 U.S. 372 (2007), however, the
Supreme Court rejected both the plaintiff’s version of the facts and the district court’s
determination that a genuine factual dispute existed. The Third Circuit has reconciled
Scott and Johnson by saying that Scott represents “the outer limit of the principle of
Johnson v. Jones—where the trial court’s determination that a fact is subject to
reasonable dispute is blatantly and demonstrably false, a court of appeals may say so,
even on interlocutory review.” Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d
Cir. 2007). This Court has agreed in an unpublished decision. See Wysong v. City of
Heath, 260 F. App’x 848, 853 (6th Cir. 2008).

The district court was simply incorrect in its conclusion that Bishop’s testimony
about complaints to unidentified corrections officers created a genuine issue of material
fact as to whether Bishop reported abuse to the defendants in this case. Such an
inference is unsupported by the record and thus demonstrably false. Determining
whether a defendant is entitled to qualified immunity requires an individual assessment
of the knowledge of that defendant. We now turn to that task.
No. 09-1791 Bishop v. Hackel, et al. Page 15

a. Harrell

Harrell processed Bishop through booking when he entered the Macomb County
Jail on December 1, and he completed a referral form that scheduled Bishop for a mental
health assessment. There is no evidence that he had any contact with Bishop after that
date.

As noted above, the Supreme Court has held that “prison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 830. In Clark-Murphy, this Court found that the fact that
defendants had completed psychological-referral forms was relevant to whether they
responded reasonably to a risk of harm to the victim, but this fact did not suffice to
establish that they were entitled to qualified immunity as a matter of law because they
had repeated interactions with the victim and repeated opportunities to assess the
seriousness of the situation. Clark-Murphy, 439 F.3d at 290. Here, in contrast, there is
no evidence that Harrell had any further contact with Bishop after he completed the
referral form. In addition, there is no evidence that Harrell knew that Bishop would be
housed in the Mental Health Step-Down Unit or that he would be housed with Floyd.
Responding to a risk to an inmate by referring the matter for further investigation or
taking other appropriate administrative action may in some cases fulfill an official’s
protective duties under the Eighth Amendment. In this case, completing the referral
form was a reasonable discharge of Harrell’s duty to protect Bishop. Taking all of
Bishop’s facts at their best, he has not raised a triable issue of fact as to whether Harrell
exhibited deliberate indifference to his safety needs. Thus, the district court’s denial of
qualified immunity to Harrell is REVERSED.

b. Anderman

Anderman testified that he was assigned to the road patrol as a road patrol deputy
in December 2004, and he worked road patrol eighty-five to ninety percent of the time.
He stated that he was assigned to the jail on December 25, and his best estimate is that
No. 09-1791 Bishop v. Hackel, et al. Page 16

he worked in the jail only on that day. He testified that he did not know Bishop or
Floyd prior to December 25. On December 25, Anderman provided security to Stanley
while he ran the investigation, posed a few questions to Floyd or Bishop, and assisted
the team in moving Floyd from the Mental Health Step-Down Unit into lock-down.

In Clark-Murphy, this Court granted summary judgment to two defendants who
worked just one eight-hour shift between a plaintiff’s seizure and his death several days
later. The Court stated that “[w]hile a prison employee doubtlessly could exhibit
deliberate indifference toward an inmate in the course of one shift, neither [defendant]
had sufficient exposure to [plaintiff] to make out a triable issue of fact that any such
wantonness occurred on their part.” Id. Here, Anderman’s single shift where he had
contact with Bishop and Floyd was insufficient to raise an issue of fact as to whether he
knew of and disregarded an excessive risk to inmate health or safety. Bishop does not
allege that he had sufficient contact with Anderman to permit Anderman to perceive his
asserted status as a vulnerable inmate, or to observe his alleged altercations with Floyd.
Taking all of Bishop’s facts at their best, he has not made out a triable issue of fact as
to whether Anderman exhibited deliberate indifference to his safety needs. Thus, the
district court’s denial of qualified immunity to Anderman is REVERSED.

c. Cantea

Cantea testified that in December 2004 he worked “some time” in Mental Health.
He said that he worked in Mental Health “here and there” in the weeks before December
25, but he could not say whether he worked in Mental Health in the days prior to
December 25. Cantea testified that he did not remember Bishop from before December
25, he did not have any contact with him before that, and he did not work in D-Block
such that he would have been around to hear any complaints or conversations or
arguments. Cantea also testified that he did not remember Floyd prior to December 25,
he did not know anything about any complaints regarding Floyd prior to December 25,
and he did not have any contact with anybody who complained about or discussed Floyd
prior to December 25. On December 25, Cantea observed Stanley take Bishop into a
No. 09-1791 Bishop v. Hackel, et al. Page 17

classroom to speak with him. Cantea walked Floyd from the classroom where Stanley
questioned him to his room in the Mental Health Unit.

Cantea’s intermittent work in Mental Health during the month of December is
insufficient to raise an issue of fact as to whether he knew of and disregarded an
excessive risk to inmate health or safety. Bishop offers no evidence to contradict
Cantea’s testimony that he had no contact with Bishop or Floyd prior to December 25,
and did not work in D-Block enough to hear complaints, conversations, or arguments.
Taking all of Bishop’s facts at their best, he has not made out a triable issue of fact as
to whether Cantea exhibited deliberate indifference to his safety needs. Thus, the district
court’s denial of qualified immunity to Cantea is REVERSED.

d. Stanley

Stanley had substantially more interaction with Bishop and Floyd than the other
Deputies. In his deposition, Stanley stated that he was assigned to Mental Health in
December 2004. He admitted that he was familiar with both Floyd and Bishop. He
stated that he was aware that Floyd had been charged with criminal sexual conduct and
that the police had to call a S.W.A.T. team on him on Thanksgiving. Furthermore, he
testified that Floyd seemed to get along with the other inmates, interacted with them, and
talked to them. In addition, Stanley stated that he talked to Bishop quite often on his
rounds.

Taking all of Bishop’s facts at their best, a reasonable jury could find that Stanley
acted with deliberate indifference under either of Bishop’s two theories. First, Bishop
has raised an issue of fact as to Stanley’s knowledge of a risk to his safety because of
Bishop’s status as a vulnerable inmate and Floyd’s status as a predatory inmate. Cf.
Greene, 361 F.3d at 294. Bishop defeats Stanley’s summary judgment motion because
he points to evidence from which a finder of fact could conclude that Stanley was aware
that Bishop’s vulnerability made his placement in the Mental Health Step-Down Unit
with more aggressive inmates such as Floyd a substantial risk to Bishop’s safety. Cf. id.
at 295. Bishop presents evidence from which a fact-finder could conclude that Stanley
No. 09-1791 Bishop v. Hackel, et al. Page 18

was aware of Bishop’s characteristics, and aware that prisoners with these characteristics
are vulnerable to attack.

In Taylor, this Court found it probative that the plaintiff contended that the
defendant actually knew him. Taylor, 69 F.3d at 82. The Court stated that “[d]rawing
all inferences in favor of the plaintiff, as we must on this motion for summary judgment,
the jury could find that [defendant] had direct knowledge of plaintiff’s characteristics
because he personally reviewed [plaintiff’s] file.” Id. Here, a jury could find that
Stanley was aware of Bishop’s personal characteristics because he testified that he talked
to Bishop quite often on his rounds.

Furthermore, Bishop presents evidence from which a fact finder could conclude
that Stanley was aware that Bishop belongs to a class of prisoners particularly vulnerable
to sexual assault. We have favorably cited a case from the Eighth Circuit in which “[t]he
court found persuasive that [the defendant] had signed an affidavit that acknowledged
that there is a particular type of inmate who is vulnerable to attack.” Id. (citing Butler
v. Dowd, 979 F.2d 661, 667 (8th Cir. 1992)). This Court noted that the defendant in that
case had testified that “small, youthful prisoners are especially vulnerable to sexual
pressure.” Id. Here, Stanley testified that there had been many sexual predators in the
Mental Health Step-Down Unit, it was not uncommon to have four or five sexual
predators there at a time, and other inmates complained about sexual pressure.

In Taylor, this Court denied summary judgment to a warden because he
“arguably knew about the problem of widespread sexual assaults and knew that smaller,
youthful prisoners were more vulnerable to attack than others.” Id. at 84. Thus, whether
the warden knew of a substantial risk of sexual assault was a question of fact for the jury.
See id. Because a reasonable jury could conclude that Stanley was aware of a substantial
risk of Bishop being sexually assaulted, summary judgment is not appropriate.

In addition, viewing the facts in the light most favorable to Bishop, a reasonable
jury could find that Stanley exhibited deliberate indifference based on Bishop’s second
theory of liability grounded on the noise generated by the alleged assaults. Stanley
testified that guards spend sixty percent of their shifts in D-Block in close proximity to
No. 09-1791 Bishop v. Hackel, et al. Page 19

the inmates, and guards assigned to the Mental Health Step-Down Unit can hear
everything the inmates say. Stanley acknowledged that if Floyd had been aggressing
on other inmates as alleged by Bishop, then he would have been aware of the situation.
He had no explanation for why he did not hear the aggression other than speculation that
it might not have occurred. Taking all of Bishop’s facts at their best, he has made out
a triable issue of fact as to whether Stanley exhibited deliberate indifference to his safety
needs. Thus, the district court’s denial of qualified immunity to Stanley is AFFIRMED.

IV. CONCLUSION

A government official performing a discretionary function is entitled to qualified
immunity on summary judgment unless the facts, when viewed in the light most
favorable to the plaintiff, would permit a reasonable juror to find that: (1) the defendant
violated a constitutional right; and (2) the right was clearly established. Pearson, 129 S.
Ct. at 816 (2009). An inmate’s right to be free from violence at the hands of other
prisoners was clearly established at the time of the alleged constitutional violation. See,
e.g., Farmer, 511 U.S. at 833. Thus, the main issue in this case is whether any of the
Deputies violated Bishop’s constitutional rights. To raise a cognizable constitutional
claim for deliberate indifference to an inmate’s safety, an inmate must make a two-part
showing: (1) the alleged mistreatment was objectively serious; and (2) the defendant
subjectively ignored the risk to the inmate’s safety. See id. at 834. Bishop was young,
small, and mentally ill; and he was incarcerated with Floyd, who was jailed for violent
felonies including sexual assault. Viewing the facts in the light most favorable to
Bishop, he raises an issue of fact as to whether the alleged mistreatment was objectively
serious. Because Bishop raises an issue of fact as to whether Stanley subjectively
ignored a risk to his safety, the district court’s denial of qualified immunity to him is
AFFIRMED. However, because Bishop fails to raise an issue of fact as to whether
Harrell, Anderman, or Cantea subjectively ignored a risk to his safety, the district court’s
denial of qualified immunity to them is REVERSED.