[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16030 ELEVENTH CIRCUIT
APRIL 27, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-01210-CV-4-RBP-PWG
JEROME TERRY,
Plaintiff-Appellant,
versus
CHARLES BAILEY,
Correctional Officer,
BISHOP,
Correctional Officer,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 27, 2010)
Before BLACK, BARKETT and MARTIN, Circuit Judges.
PER CURIAM:
Jerome Terry, an Alabama state prisoner proceeding pro se, appeals the
district court's sua sponte dismissal, pursuant to 28 U.S.C. §1915A, of his 42
U.S.C. § 1983 civil rights action. Terry claims prison officials violated his Eighth
Amendment rights by failing to prevent an altercation between Terry and fellow
inmate, Ethan Dorsey, and by failing to intervene during the altercation.1 On
appeal, Terry primarily reiterates the arguments he made before the district court.
We address his arguments as to each claim in turn, and affirm.
Section 1915A requires a court to review a prisoner’s civil complaint against
a government entity or officer before or soon after docketing the case to determine
whether the case is frivolous, malicious, fails to state a claim, or whether it seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A (a), (b).2 This Court reviews de novo the district court’s sua sponte
1
In his report and recommendation, the magistrate judge also addresses Terry’s claim that
the guards were deliberately indifferent to his medical needs. Even liberally construing his brief,
however, Terry fails to argue this issue on appeal and we, therefore, need not discuss it. See
Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (demonstrating a party
waives issues not argued on appeal).
2
Finding Bailey and Bishop were entitled to qualified immunity, the magistrate judge
dismissed Terry’s complaint under 28 U.S.C. § 1915A(b)(2) which authorizes dismissal of a
prisoner’s claim seeking monetary relief from a defendant who is immune from such relief. Because
we find no constitutional violation, however, we need not reach the issue of qualified immunity and
affirm the dismissal under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. See Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (noting that this Court may affirm the district
court’s judgment “on any ground that finds support in the record.”).
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dismissal under § 1915A, taking as true the allegations in the complaint. Boxer X
v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
“In order to prevail on a civil rights action under § 1983, a plaintiff must
show that he or she was deprived of a federal right by a person acting under color
of state law,” that is, a person who “acts with authority possessed by virtue of his
employment with the state.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303
(11th Cir. 2001). The Eighth Amendment provides a federal right against the
infliction of cruel and unusual punishment. U.S. Const. amend. VIII.
I.
We first address Terry’s claim that prison officers Bailey and Bishop failed
to prevent his altercation with his cellmate Dorsey. Although “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners,”
not every instance of inmate on inmate violence “translates into constitutional
liability for prison officials responsible for the victim’s safety.” Farmer v.
Brennan, 511 U.S. 825, 833-34, 114 S. Ct. 1970, 1976-77 (1994) (quotations
omitted). It is “[a] prison official’s ‘deliberate indifference’ to a substantial risk of
serious harm to an inmate [that] violates the Eighth Amendment.” Id. at 828, 114
S. Ct. at 1974. In order to constitute “deliberate indifference,” the prison official
(1) must have subjective knowledge of the risk of serious harm, and (2) must
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nevertheless fail to reasonably respond to the risk. Id. at 837-38, 114 S. Ct. at
1979-80. “Merely negligent failure to protect an inmate from attack does not
justify liability under section 1983 . . . . The known risk of injury must be a strong
likelihood, rather than a mere possibility before a guard’s failure to act can
constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537 (11th
Cir. 1990) (citations and quotations omitted).
Terry fails to allege facts indicating Bailey and Bishop had any knowledge
of an impending risk of serious harm to Terry and thus fails to sufficiently plead a
basis for deliberate indifference. Terry conceded before the district court and
concedes on appeal that he could not have put the guards on notice of an
impending attack by Dorsey, because even Terry did not anticipate that Dorsey
would attack him. Without alleging facts indicating Bailey and Bishop had
subjective knowledge of the impending attack, Terry’s claim that they violated his
Eighth Amendment rights by failing to prevent the attack fails.
II.
We next address Terry’s claim that certain, unspecified prison officials
failed to intervene in Dorsey’s attack on Terry.3 Prison correctional officers may
be held directly liable under § 1983 if they fail or refuse to intervene when a
3
Although it is unclear if Terry intended to bring a failure to intervene claim, we construe
his complaint liberally and address the claim accordingly. See Boxer X v. Harris, 437 F.3d at 1110.
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constitutional violation occurs in their presence. Ensley v. Soper, 142 F.3d 1402,
1407 (11th Cir. 1998). However, in order for liability to attach, the officers must
have been in a position to intervene. See id. (citing Thompson v. Boggs, 33 F.3d
847 (7th Cir. 1994)). Terry claims that some prison officers were outside of the
cubicle area where the altercation took place and merely watched he and Dorsey
fight, but Terry does not allege facts indicating that the duration of the fight or the
position of the guards were such that the guards would have been in a “position to
intervene.” Terry similarly fails to name the officials outside the cubicle area at the
time of the fight, making it unclear if they are even parties to this suit. These
deficiencies are fatal to Terry’s claim for failure to intervene.
We affirm the district court’s dismissal of Terry’s complaint under 28
U.S.C. § 1915A for failure to state a claim.
AFFIRMED.
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