Traci Greene v. Gayle Bowles, Anthony J. Brigano

ROGERS, Circuit Judge,

dissenting.

Although the Eighth Amendment requires prison officials to maintain humane conditions of confinement, a prison official’s actions do not violate the Eighth Amendment unless they are shown to be deliberately indifferent. Deliberate indif*296ference means that the prison official had actual knowledge of a substantial risk to inmate health or safety and ignored that risk or proceeded in the face of it. Because Greene has failed to show that Warden Brigano was deliberately indifferent to the risk posed to her by Frezzell’s presence in the protective custody unit, I respectfully dissent.

The Eighth Amendment’s prohibition on cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement and to take reasonable measures to guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). As the Supreme Court has explained, however, a prison official’s actions or omissions do not trigger liability under the Eighth Amendment without a finding of deliberate indifference, which is the equivalent of “recklessly disregarding” a risk. Id. at 835, 114 S.Ct. 1970. Under the Supreme Court’s clear instruction in Farmer, Greene must establish not only that Warden Brigano was aware of facts from which one could raise the inference of a substantial risk of harm to her safety, but also that Warden Brigano, in fact, drew that inference. Id. at 837, 114 S.Ct. 1970. This requirement exists because the Eighth Amendment does not extend liability to a prison official’s failure to exercise due care, but only extends liability to such willful disregard as can be considered the infliction of punishment.

The only evidence cited by Greene that suggests that Warden Brigano actually drew the inference that Greene faced a substantial risk of harm in the protective custody unit is Warden Brigano’s admission that harms may befall protective custody inmates. Such a statement can hardly be enough to create a triable issue of fact as to Warden Brigano’s awareness of the risks facing Greene. At most, this admission is a concession that prison life is inherently dangerous, and particularly so for transgendered inmates. The fact that Warden Brigano recognized the existence of certain risks attendant with the placement of certain categories of inmates in protective custody, however, does not amount to an awareness of a significant risk of harm to Greene’s health or safety. The Eighth Amendment requires, instead, that a warden actually recognize a significant risk of harm arising from particular facts. While the majority properly states that, in some contexts, a particular victim, or a particular perpetrator, need not be known, general recognition of some risks is not enough.

This is borne out by the very example given by the Supreme Court as sufficient to raise a triable issue of fact:

For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.

Id. at 842-43, 114 S.Ct. 1970 (internal quotations omitted). The evidence in this case cannot fairly be characterized as comparable to the Supreme Court’s example.

Greene first contends that her feminine appearance made it obvious that she was vulnerable to attack by other inmates. Warden Brigano was aware of this risk, and that was the reason that Greene was assigned to protective custody. Greene then alleges that Hiawatha Frizzell’s prior conduct and sexual advances in her direction made it obvious that she was at a *297substantial risk to her health and safety. While Greene has adduced facts indicating the existence of the risk, she certainly has failed to show that Warden Brigano ever drew the inference that these facts constituted such a risk. As to Frizzell’s conduct, although Warden Brigano was aware that Frizzell had a disciplinary record indicating some predatory conduct, Warden Bri-gano also indicated that his impression of Frizzell’s demeanor was “nothing out of the ordinary.” As to Greene’s allegations of Frizzell’s sexual advances, she has not indicated that Brigano was ever even aware of Frizzell’s conduct in that regard. Without showing some particular facts that should have triggered alarm bells in Warden Brigano’s mind, based on his knowledge and experience, Greene has not raised a material issue of fact as to Warden Brigano’s awareness of the risk to her safety.

Moreover, although the majority does not reach the issue, Greene’s claim should fail if she cannot show that Warden Briga-no actually disregarded the risk. Greene maintains that Warden Brigano’s recognition of the risks she faced in the general population should have triggered an awareness of commensurate risks in protective custody and that when he failed to provide additional protections, he was deliberately indifferent. This claim must fail, because Farmer makes it clear that a prison official’s duty under the Eighth Amendment is only to insure “reasonable safety,” and this standard “incorporates due regard for prison officials’ ‘unenviable task of keeping dangerous men in safe custody under humane conditions.’ ” Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970.

The effect of the majority’s opinion in this case is to impose an objective standard of deliberate indifference — a position explicitly rejected by the Supreme Court. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Although a reasonable person may well have reached the conclusion based on this body of facts that Greene was in danger, the appropriate test is whether Warden Brigano reached the conclusion that Greene was in particular danger. Greene has clearly failed to establish a triable issue as to Warden Brigano’s awareness in this case.

Moreover, the majority takes a position that will make it more difficult for prison officials to deal with the complicated issues involved in incarcerating pre-operative transsexual inmates. These inmates may not be well-suited to the general populations of either men’s or women’s institutions, and protective custody may be a warden’s best alternative to provide for the safety and security of transsexual inmates. The majority’s broad position that protective custody poses obvious harms to transsexual inmates could impel correctional officials to avoid liability for harms to these inmates by either placing all transsexual inmates in individual isolation or by building prisons solely for transsexuals. The Eighth Amendment cannot be read to compel such a result.