Mario Valdes v. James v. Crosby, Jr.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2006
No. 05-13065 THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 01-00799-CV-J-32-HTS

MARIO VALDES,
individually, and as personal representative of
the estate of Joy Francis ‘Frank’ Valdes,

Plaintiff-Appellee,

versus

JAMES CROSBY,
in his individual capacity,

Defendant-Appellant,

TIM GIEBEIG, et al.,

Defendants.
________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(May 31, 2006)
Before TJOFLAT, BARKETT and GOODWIN *, Circuit Judges.

BARKETT, Circuit Judge:

This is an interlocutory appeal by James V. Crosby, former warden of

Florida State Prison (“FSP”),1 from the denial of his motion for summary judgment

based on qualified immunity. Mario Valdes sued Crosby and several other FSP

employees, alleging, inter alia, that they violated the Eighth and Fourteenth

Amendment rights of his son, Frank Valdes (“Valdes”), by subjecting him to an

excessive and unjustified use of force, which led to his death while he was

incarcerated at FSP.2

While Crosby was the warden of FSP, Valdes was a death row inmate

housed on X-wing, where inmates with the most serious disciplinary problems

were assigned. Valdes had been transferred to FSP after killing a guard at another

Florida correctional institution. On July 17, 1999, Valdes died after having

suffered extensive beating wounds all over his body. The second amended

complaint alleged that prison guards beat Valdes to death, and that Crosby knew

*
Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
1
FSP is a Florida state maximum security facility.
2
Mario Valdes filed suit in his own name and that of his son’s estate. This appeal
involves only the question of whether the district court erred in denying Crosby’s motion for
summary judgment based on qualified immunity.

2
about the general propensity for violence against inmates at FSP, especially by

certain corrections officers, some of whom were involved in the beating of Valdes,

but that Crosby was deliberately indifferent to the risk of abuse. Crosby moved for

summary judgment on the grounds that he was entitled to qualified immunity. The

district court denied the motion, and Crosby now appeals.

STANDARD OF REVIEW AND INTERLOCUTORY APPEAL

While the general rule is that a denial of summary judgment is not ordinarily

subject to immediate appellate review because it is not an appealable final

judgment under 28 U.S.C. § 1291, “[a] district court’s order denying a defense of

qualified immunity is an appealable final decision within the meaning of 28 U.S.C.

§ 1291 to the extent that it turns on a question of law.” Cook v. Gwinnet County

Sch. Dist., 414 F. 3d 1313, 1315 (11th Cir. 2005) (quoting McMillian v. Johnson,

88 F.3d 1554, 1562 (11th Cir. 1996)) (emphasis added). We may review an

interlocutory appeal “so long as the core qualified immunity issue is raised on

appeal, a final, collateral order is being appealed, and the appellate court has

jurisdiction to hear the case, including challenges to the district court’s

determination that genuine issues of fact exist as to what conduct the defendant

engaged in.” McMillian, 88 F.3d at 1563.

3
 For the purposes of an interlocutory appeal from the denial of qualified

immunity, we accept the district court’s factual determinations and recite those

facts as set forth in the district court’s order, supplementing them where necessary

with additional evidentiary findings of our own from the record. See Rayburn ex

rel. Rayburn v. Hogue, 241 F.3d 1341, 1342 (11th Cir. 2001) (citing Cottrell v.

Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996); Johnson v. Jones, 515 U.S. 304,

319, 115 S. Ct. 2151 (1995) (“[T]he court of appeals can simply take, as given, the

facts that the district court assumed when it denied summary judgment.”)). Where

we supplement the record, we construe the facts and draw all inferences in the light

most favorable to the nonmoving party. See Evans v. Stephens, 407 F.3d 1272,

1278 (11th Cir. 2005).

DISCUSSION

As we have often stated, “[q]ualified immunity offers complete protection

for government officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which a

reasonable person would have known.” Lee v. Ferraro, 284 F.3d 1188, 1193-94

(11th Cir. 2002) (internal citations and quotation marks omitted). In order to

receive the protection of qualified immunity, the government official must first

4
prove that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred. Kesinger v. Herrington, 381 F.3d 1243, 1248

(11th Cir. 2004) (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.

2002)).3

Once eligibility for qualified immunity is established, the burden shifts to

the plaintiff to show that qualified immunity is not appropriate. Lee, 284 F.3d at

1194. This step consists of a two-part inquiry, set forth in Saucier v. Katz, 533

U.S. 194 (2001). First, we ask, “do the facts alleged show the government

official’s conduct violated a constitutional right?” Id. at 201. If a constitutional

violation is established, based on the facts in the light most favorable to the

plaintiff, we then must determine whether such conduct would have violated

federal law that was clearly established at the time of the incident. Garrett v.

Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir. 2004) (citing Saucier,

533 U.S. at 201-02).

I. Violation of a Constitutional Right

We first address the question of whether Crosby violated Valdes’ Eighth

Amendment right to be free from cruel and unusual punishment. “The Constitution

3
There is no question in this case that Crosby was acting within the scope of in his
discretionary authority as warden of FSP.

5
does not mandate comfortable prisons, but neither does it permit inhumane ones,

and it is now settled that the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny under the Eighth

Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and

quotation marks omitted). “In its prohibition of ‘cruel and unusual punishments,’

the Eighth Amendment places restraints on prison officials, who may not, for

example, use excessive physical force against prisoners.” Id. “Being violently

assaulted in prison is simply not part of the penalty that criminal offenders pay for

their offenses against society.” Id. at 833 (citations and quotation marks omitted).

We have held that supervisors can be held liable for subordinates’ use of

excessive force against inmates in violation of the Eighth Amendment on the basis

of supervisory liability under 42 U.S.C. § 1983. Miller v. King, 384 F. 3d 1248,

1261 (11th Cir. 2004). Supervisory liability under § 1983 occurs “when the

supervisor personally participates in the alleged constitutional violation or when

there is a causal connection between the actions of the supervising official and the

alleged constitutional deprivation.” Id. We agree with the district court that there

is insufficient evidence that Crosby personally participated in the beating of

Valdes, or that any guards were following specific direction from Crosby in using

excessive force against Valdes. Thus, the question presented is whether there was

6
a causal connection between Crosby’s actions or inaction and the beating and death

of Valdes.

A causal connection may be established when: 1) a “history of widespread

abuse” puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he or she fails to do so; 2) a supervisor’s custom or policy results

in deliberate indifference to constitutional rights; or 3) facts support an inference

that the supervisor directed subordinates to act unlawfully or knew that

subordinates would act unlawfully and failed to stop them from doing so. Cottone

v. Jenne, 326 F. 3d 1352, 1360 (11th Cir. 2003).4

Therefore, we begin our analysis by addressing whether the district court

erred in concluding that sufficient facts were presented to support liability against

Crosby through a causal connection between his actions and the alleged

constitutional deprivation committed by Crosby’s subordinates.

A.

The facts, construed in the light most favorable to Valdes, the nonmoving

party, are as follows. Corrections Officer Raymon Hanson testified that on July

17, 1999, he was told to assist in the cell extraction of Frank Valdes, whom he

4
The district court ruled that there was a causal connection based on: 1) a “history of
widespread abuse”; and 2) a supervisor’s custom or policy. Valdes v. Crosby, 390 F. Supp. 2d
1084, 1102-03 (M.D. Fla. 2005).

7
knew was on death row for killing a guard at another facility during an escape

attempt. Hanson testified that while he was preparing for the extraction, Sergeant

Griffis told Captain Timothy Thornton that “Valdes has had this coming to him.”

Based on his past experience participating in cell extractions, Hanson took this

statement to mean that the officers “were going to go down there and teach

[Valdes] that he can’t be threatening officers and he has to comply with the rules,

that being on disciplinary confinement wasn’t enough, that some physical

punishment was going to have to be inflicted on him.”

When Valdes’ cell door was opened, Hanson, one of the first to enter,

noticed Valdes was standing in the center of the cell holding a towel to his face and

only wearing boxer shorts. Valdes then curled up on the floor in a fetal position,

with his hands covering his face and head. Valdes was not resisting or acting

aggressively, and no weapons were visible in his cell. Hanson testified that when

he moved to put his shield on the cell bunk, the other officers began punching,

striking and kicking Valdes, who remained on the ground, not resisting. Valdes

was turned onto his stomach and Hanson then stood on Valdes’ legs to prevent

Valdes from kicking anyone while the other officers continued punching him.

Hanson left the cell because he was having difficulty breathing due to gas fumes

that were released in the cell.

8
 After getting a towel to wipe his face, Hanson returned to the cell where he

saw Sergeant Brown violently kicking Valdes in the midsection, while saying to

Valdes, “[w]ho you gonna kill now, [expletive]?” Valdes was moved to the

doorway where Sergeant Brown put his boot to Valdes’ face. Captain Thornton

then directed Valdes to stand up and when he did not, Thornton put a hand-held

electronic restraint device to Valdes’ forehead and released the trigger, shocking

Valdes with an electric charge. Valdes, who was handcuffed by this point, was

then dragged out of the cell and placed on the ground. When he refused to stand,

Thornton slapped him across the face. Officers then put Valdes on a cart and

wheeled him to the medical clinic.

One of the defendant nurses, Denise McEachern, told investigators that she

observed Valdes slumped forward with blood on his face. Hanson testified that

after McEachern left, Griffis punched Valdes in the mid-section. McEachern

stated that she may have also seen Thornton slap Valdes at some point as she

passed the room. Another defendant nurse, Jimmie Burger, testified that Valdes

seemed alert, oriented and responsive and suffering from only minor injuries

typical of those sustained during a cell extraction, including an abrasion on his lip,

a recent bloody nose, some discoloration to his right shoulder and three circular red

marks down his left side, which Burger believed were marks indicating use of an

9
electronic shield. Burger testified that Valdes’ vital signs were normal. Burger

also testified that when he momentarily left the room, he heard a loud noise that

sounded like a slap, but he was not sure the sound came from the room where

Valdes was located.

Citing several examples of inmates who had been seriously injured in the

past, Burger stated that he knew that officers sometimes subjected an inmate to

minor injuries during a use of force and later, after a medical exam confirmed the

minor injuries, the officers would take the inmate back to his cell “and beat him

half to death.” Burger stated that he had a “negative feeling” about the manner in

which officers were treating Valdes. However, Burger determined that there was

not a basis to call a doctor or to keep Valdes in the medical department.

Once Valdes was released from the medical department, Hanson

accompanied officers who pushed Valdes in a wheelchair back to an empty cell on

X-wing. Hanson testified that shortly thereafter the officers involved in the cell

extraction sought to justify their actions by completing their use of force forms

based on medical reports and false information. Hanson testified that the injuries

he observed on Valdes included a small amount of blood coming out of his mouth

or nose and some abrasions to his chest or shoulder area. Hanson further testified

that officer Sauls reported that Valdes had a boot print on his neck which Sauls

10
said he had inflicted while restraining Valdes. Hanson stated that Valdes was not

having difficulty breathing and Hanson did not think Valdes’ injuries were very

significant.

Nurse McEachern testified that she was called later that day by Thornton,

who told her Valdes had sustained a facial laceration during a fall from his bunk.

Thornton advised McEachern that Valdes’ injuries were not serious. Shortly

thereafter, Officer Beck reported that Valdes again fell off his bunk, and was

“lying on the floor looking like he wasn’t breathing,” and medical attention was

necessary. When the nurses arrived, Valdes was in cardiac arrest. Rescue units

arrived shortly thereafter and took Valdes to a hospital, where he was pronounced

dead at 4:18 p.m.5

While, officers reported to McEachern that Valdes had injured himself by

repeatedly throwing himself off his bunk onto the concrete floor, Mario Valdes

presented evidence that his son’s death was due to a massive physical beating. The

medical examiner’s autopsy of the following day revealed:

[m]ultiple blunt traumatic injuries including contusions, abrasions and
lacerations of face and scalp, fracture of mandible; patterned and
unpatterned abrasions and contusions on anterior and posterior trunk,

5
Mario Valdes alleges that a few months after Valdes was killed McEachern agreed to be
wiretapped. In a conversation with Burger, McEachern and Burger discussed past incidents of
officers abusing inmates, including those incidents involving a Henry Donaldson, David Skrtich,
Mark DeFreist, and Milton Belk.

11
 multiple serial rib fractures of right and left halves of ribcage, fracture
of sternum, right and left hemothoraces, and subcutaneous
emphysema extending from lower face to scrotum; lacerations and
hemorrhage of gut mesenteries and liver capsule; hemorrhage within
and around right adrenal gland; abrasions of right and left legs from
knee to ankle level and linear abrasions on right and left wrists.

The medical examiner found these injuries to be fresh, having occurred within five

to ten minutes of Valdes’ death. The probable cause of death was listed as

“beating.” Moreover, when corrections guard Hanson viewed photographs of

Valdes taken at the time of his death, he thought that Valdes’ condition in the

photographs was significantly different from his condition following the cell

extraction.

Based on these facts, we have no difficulty ruling that Mario Valdes has

sufficiently stated a claim that guards at FSP committed a constitutional violation

and thus, we turn to the issue of whether Crosby can be held liable as a supervisor.

B.

Construed in the light most favorable to the nonmoving party, the facts

pertaining to whether Crosby was put on notice by a history of widespread abuse at

FSP, or whether he had established customs or policies resulting in deliberate

indifference to a prisoner’s constitutional rights, reflect the following. Crosby was

12
preceded as warden of FSP by Ron McAndrew.6 Warden McAndrew testified that

when Crosby succeeded him as FSP warden, the two had several phone

conversations, as Crosby declined McAndrew’s invitation to meet in person. In

those conversations, McAndrew specifically warned Crosby about certain guards,

who McAndrew believed were abusive toward inmates and needed to be kept out

of high profile areas, such as X-wing, because “[t]hey were out of hand and

[McAndrew] was afraid they would kill an inmate.” McAndrew also taped a list of

these guards to the center drawer of the warden’s desk.

One of the guards that McAndrew testified he specifically warned Crosby

about was Timothy Thornton, one of the defendant officers in this case accused of

beating Valdes to death. When McAndrew left FSP in February 1998, Timothy

Thornton (along with Griffis, another defendant guard in this case) had recently

been one of the guards involved when a prisoner was extracted from his cell in

X-wing and beaten so severely that the prisoner had to be “airlifted by helicopter to

a hospital, where he remained for nine days and was treated for extensive injuries

and spent several months recuperating.” Skrtich v. Thornton, 280 F.3d 1295, 1300

(11th Cir. 2002). The inmate’s injuries from that incident included “(1) left chest

6
McAndrew testified that he had over twenty years of experience as an officer, sergeant,
lieutenant, investigatory, deputy warden, and warden of another Florida state facility before
becoming warden of FSP.

13
trauma with multiple fractures to the left ribs and left hemopneumothorax, (2) back

injury with fractured multiple transverse processes, (3) right scalp laceration, (4)

left shoulder and right knee injury, (5) abdominal trauma, and (6) post trauma

anemia” Id. The inmate’s chest “revealed the presence of an extensive amount of

injuries with multiple abrasions and contusions and several markings of shoes on

his back and left chest,” which markings a doctor found “were probably made from

a stomping motion as opposed to merely holding [the inmate] down,” “consistent

with physical abuse.” Id. (Internal quotation marks omitted).7

McAndrew further testified that he moved Thornton off of X-wing and away

from areas where he thought Thornton would have opportunities to abuse inmates.

McAndrew testified that shortly after he became warden he wanted to terminate

Thornton. McAndrew described Thornton as “an extremely dangerous person. . . .

[T]his guy's a walking hand grenade . . . and the pin’s pulled.” McAndrew

specifically told Crosby “this guy is dangerous. . . . You need to get him off the

payroll.” However, McAndrew only reprimanded Thornton based in part on the

advice of two of his subordinates, who advised McAndrew that Crosby (who at the

time was the state corrections department Director of Security and Institutional

Management), had called them to intervene on Thornton’s behalf to ask that he be

7
In Skrtich, we held that several of the officer defendants in this action were not entitled
to qualified immunity for the alleged beating of Skrtich. Skrtich, 280 F.3d 1295.

14
given every possible consideration. Deputy Warden A.D. Thornton, no relation to

Timothy Thornton, similarly testified that both he and McAndrew had concerns

about Timothy Thornton. Notwithstanding McAndrew’s briefing on Thornton,

after Crosby became the FSP warden, Timothy Thornton was promoted to Captain,

was permitted to work on X-wing, and was personally selected by Crosby to

receive preferential staff housing. In his deposition, McAndrew summarized

Crosby’s approach to Thornton as “[Crosby was] told he has a potential killer on

his hands and he promotes the guy from lieutenant to captain.”

McAndrew further testified that he asked Crosby to sit with him for a “desk

audit” to review all issues and problems McAndrew was passing on to Crosby. He

wanted to have the “desk audit” with Crosby because FSP “had a notorious

reputation for the beating of inmates” and McAndrew was attempting to address

the problem. Crosby, however, said he did not have time or was not interested in

meeting for the “desk audit.”

A.D. Thornton also testified that Crosby was instrumental in bringing

Montrez Lucas to FSP from another correctional institution where he had worked

with Crosby. Lucas, who is also named as a defendant in this suit for allegedly

participating in the beating death of Valdes, had been disciplined before being

brought to FSP by Crosby. Lucas bragged about how he had been suspended for

15
using excessive force against an inmate but had not been terminated for it. In

addition, Lucas was investigated shortly after Valdes’ death for teaching

correctional officer trainees improper practices in June 1999, prior to Valdes’

death. The Department of Corrections investigation report stated that Lucas taught

the following techniques: taking “free shots” at inmates while they were

handcuffed, using chemical agents on inmates without the required notice and even

after inmates became compliant, reviewing medical reports before completing use

of force forms to ensure conformity between the two, instructing trainees about

which areas of the human body could be kicked without leaving bootprints, and

bringing inmates to the medical ward for treatment of minor injuries and then

beating the inmates severely after they had been returned to their cells.

McAndrew stated that while he was warden he hired an “assistant warden

who was aggressively helping fight the excessive use of force in the prison.”

McAndrew specifically hired this assistant warden because he believed the

assistant warden could be trusted and would actively pursue McAndrew’s goals of

reducing inmate abuse. When Crosby became warden, he “transfer[red] her out to

another prison.”

Additionally, evidence was presented that FSP, like most facilities, had

procedures for extracting inmates from their cells when they refused to submit to

16
being restrained by handcuffs and leg irons. On X-wing, cell extractions consisted

of four or five officers using the physical force necessary to restrain and remove an

inmate from his cell. Cell extractions and any other use of force were to be

documented by prison officials. Copies of the use of force forms were forwarded

to the warden.

Prior wardens at FSP required officials to videotape cell extractions.

Warden McAndrew testified that his predecessor at FSP suggested videotaping cell

extractions as a method to cut down on problems during uses of force. McAndrew

testified that FSP had a “notorious reputation” as an institution where guards beat

the inmates, and he continued videotaping because he felt staff were more likely to

act professionally and inmates were less likely to resist the commands of the

guards when they knew they were being videotaped. When Crosby became

warden, however, he discontinued the practice of videotaping cell extractions.

Viewing all facts and inferences in the light most favorable to Valdes, it could be

inferred that Crosby’s action in discontinuing the use of the cameras once he

became Warden, despite knowledge that specific FSP officers were suspected of

unwarranted assaults upon inmates, sent a message to corrections officers that the

administration at FSP was going to permit further abuse of inmates.8

8
In a March 25, 1999, meeting of FSP supervisory personnel allegedly attended by
Crosby, there was a discussion about the frequency with which certain officers were being

17
 Reverend Andrew MacRae, an FSP prison chaplain from 1994 until August

1999 testified about the marked difference in the culture at FSP after Crosby

became the warden. MacRae testified that although he never witnessed an inmate

being physically abused during any warden’s administration, Crosby had a more

“hands-off” approach than prior wardens had, thus permitting the “good old boys”

network of guards to mistreat inmates. MacRae testified that after Crosby became

warden, there were occasions when MacRae was prevented from seeing inmates

following uses of force – which previously had been a time that he would often

offer counsel to those inmates. MacRae was also familiar with the practice of

“touching up” an inmate, wherein an inmate would be subjected to minor injuries

during an apparently justifiable use of force and then, following corroboration of

the injuries by the medical facility, the inmate would be returned to X-wing and

beaten. MacRae testified that he believed these instances increased during

Crosby’s tenure because of Crosby’s hands-off approach.

Evidence was also provided regarding the manner in which Crosby handled

abuse of force complaints from inmates. FSP’s procedures relating to prisoners’

abuse of force complaints required inmates to report an accusation on a grievance

form that would then be forwarded to the Inspector General’s central office via an

accused of abusing inmates and what steps might be taken to remedy the situation.

18
on-site prison inspector’s report. The central office would review the reports and

respond to the on-site prison inspector regarding what further action, if any, should

be taken by the inspector. Copies of the inspector’s report to the central office and

copies of the central office’s response would be forwarded to the warden. The

central office also would receive inquiries about prison conditions from persons

outside the prison, such as an inmate’s family or government officials whom an

inmate or his family may have contacted. Copies of the documentation of such

inquiries and directions about what action would be taken were also forwarded to

the warden.

Evidence was submitted that despite having the abuse of force complaints

and use of force forms forwarded to him, Crosby did not read them. Rather,

Crosby delegated the responsibility of handling the complaints to his secretary,

who had no law enforcement background. In his deposition, McAndrew stated that

he had “reasons” to believe that the secretary was obstructing inmate abuse

investigations. McAndrew told Crosby about his concerns relating to the secretary.

Nonetheless, Crosby delegated the responsibility for reviewing and acting on

inmate complaints to the secretary. Nearly all of the inmate-related

correspondence set forth below regarding alleged abuse contained notations of an

“r” next to Crosby’s initials, which Crosby testified indicated that his secretary

19
may have handled the matter without him becoming involved or having specific

knowledge of the complaints or the secretary’s responses.

Included in the numerous complaints and inquiries sent to Crosby between

December 1998 and July 1999 were a reference to an inmate’s complaint that he

was “being maliciously harassed and threatened by staff” who “threatened to kill”

the inmate and that his efforts to remedy the issue at the institutional level had been

“to no avail”; an inmate’s complaint that officers were falsifying disciplinary

reports against him as a means to keep him in close management confinement; a

complaint from an inmate’s spouse stating that FSP staff had locked her husband in

a stripped cell, were depriving him of food and were “threatening to physically

abuse” him; an inmate’s letter “concerning drug dealing and physical abuse by

staff” which also notes that the Department of Corrections agreed to take steps to

ensure that the inmate’s safety would not be jeopardized because of his testimony

as a witness; an inquiry on behalf of an inmate’s family members who were

“concerned about the inmate’s safety since they allege he was beaten by [a sergeant

and] was taken to the hospital for sustained injuries” and had not had contact with

him since; an inmate who wrote “alleging fear for [his] life and wishing to file a

complaint against four officers” he stated were “trying to kill [him]”; a letter from

another inmate who complained of being “harassed and threatened by both staff

20
and other inmates” as a result of his status “as a witness for the State Attorney’s

Office”; an inquiry on behalf of an inmate who feared for his safety at FSP because

he had murdered a corrections officer at another Florida correctional institute more

than 15 years earlier; a letter from a death row inmate to the Florida Department of

Law Enforcement, asking it to investigate his claims that supervisory staff at FSP

failed to investigate allegations that prison officials assigned to death row

permitted a violent inmate to be out of his cell without restraints so that he could

threaten and intimidate other inmates; letters from several different inmates

claiming that corrections officers had threatened to kill them; and a letter on behalf

of an inmate discussing allegedly criminal acts committed by various guards, and

questioning the need for officers to continue to use force against an inmate once he

has already been restrained by handcuffs and shackles.

Valdes also referenced an inmate request form received by Crosby on June

16, 1999 – a month prior to Valdes’ death – which reads, in relevant part:

TO: Superintendent
FROM: Inmate Name: Seburt Connor
Inportant [sic] message to Mr. Warren [sic] James Crosby. The
Superintendent. Please remove Mr. Frank Valdez [sic] from X Wing!
His life can be in danger! I was told by one of the guards! That he is
going to die! But please don’t call my name! Cause my life can be in
danger too!! I have already seen an attemp [sic] on his life! I repeat
don’t say where you get this information! They might try to kill me
too! Please note, these are the mens [sic] that I [have] seen tortureing
[sic] Mr. Frank Valdez [sic][as] follows?

21
Connor’s letter then lists the names of four officers (none of whom are defendants

here) who allegedly kicked Valdes while he was face down with his arms

handcuffed behind his back and a chain around his waist, while they held a wet

towel over his mouth and nose and restrained his feet.

A few days before Valdes died, Crosby received notice of potential inmate

abuse involving another X-wing inmate, Willie Mathews. Mathews had arrived at

FSP on July 4, 1999 along with four other inmates from Hamilton Correctional

Institution following a riot at Hamilton in which several guards were seriously

injured. At FSP, Mathews was placed in isolation on X-wing. On or before July

13, 1999, Crosby was called by Mathews’ mother who reported that she had

received a letter from an officer working at the prison who wrote that her son,

Mathews, was in danger and was being abused by prison guards. The prison

inspector testified that he “had conversations with [Crosby] every day on

everything going on at FSP” and that, therefore, the inspector was “almost

positive” that by July 13, 1999, Crosby was aware of Mathews’ allegations that he

was being attacked on X-wing. The inspector later testified that he was “sure

somewhere between the 13th and the . . . 16th [the day before Valdes was killed]”

of July 1999, he “spoke with [Crosby] . . . concerning the Mathews allegations.”

On July 15, 1999, two days before Valdes died, Mathews filed an emergency

22
grievance stating that he was in fear for his life and was suffering from an

untreated broken jaw following repeated brutal assaults by prison guards on

X-wing. The senior officer present during one of the beatings of Mathews was

Timothy Thornton. Mathews urged authorities to send someone to come get him

and the other inmates who had come from Hamilton “before we are killed.” By

July 16, 1999, the inspector was advised by dental staff that Mathews had a

fractured jaw and the inspector apparently reported this information to the acting

warden, A.D. Thornton. No use of force form was ever filed which might have

explained Mathews’ injury.

Finally, there was evidence that wardens maintain the authority to transfer

an inmate to another prison or to another location within the prison and to reassign

an officer from one area of the prison to another. Moreover, in Florida, wardens

are charged with the duty to supervise, discipline, and enforce all orders, rules and

regulations of the corrections department. Fla. Stat. § 944.14.9 The warden also

has the authority to take measures to attempt to reduce instances of prisoner

9
As stated by the district court:

The parties failed to fully develop the record regarding the extent of the warden’s
authority in implementing these duties and there is some ambiguity in the
evidence as to whether a warden has the authority to terminate a corrections
officer.

Valdes, 390 F. Supp. 2d at 1089 n.6.

23
mistreatment, including increasing training of prison officials, videotaping cell

extractions, and rotating officers.

C.

We find that all of this evidence, when taken together, is more than adequate

to entitle Mario Valdes to proceed to trial and show that inmate abuse at the hands

of guards was not an isolated occurrence, but rather occurred with sufficient

regularity as to demonstrate a history of widespread abuse at FSP. Whether

Crosby actually drew the inference of widespread abuse and was therefore “on

notice of the need to correct or to stop” abuse by officers then becomes a factual

question for the jury. Cottone, 326 F.3d at 1362.

We also agree with the district court that this evidence, again taken together

and in the light most favorable to Valdes, is sufficient to allow a jury to consider

whether Crosby had established customs and policies that resulted in deliberate

indifference to constitutional violations and whether Crosby failed to take

reasonable measures to correct the alleged deprivations. Cottone, 326 F.3d at

1360; see Miller, 384 F.3d at 1263 (finding that plaintiff had created a triable issue

as to whether warden was liable either personally or in his supervisory capacity

based on warden’s knowledge of inmate’s conditions and his failure to exercise

authority as warden to ensure that guards corrected the conditions); Smith v.

24
Brenoettsy, 158 F.3d 908, 912-13 (5th Cir. 1998) (dismissing warden’s appeal of

denial of summary judgment in light of factual disputes as to warden’s knowledge

of substantial risk and reasonableness of warden’s response where plaintiff, who

was stabbed by a prison guard, sent letters to warden complaining of verbal abuse

and threats by guard, and warden responded that sheer volume of unsubstantiated

complaints made investigation of every complaint unreasonable).

II. Clearly Established Law

Crosby argues that even if Mario Valdes established a constitutional

violation, he is protected by qualified immunity because while it may have been

clearly established that Valdes’ constitutional rights would be violated if he were

beaten to death by guards using excessive force, it was not clearly established at

the time of Valdes’ death that a warden could face liability under § 1983 predicated

on his failure to take reasonable steps in the face of a history of widespread abuse

or his adoption of custom or policies which result in deliberate indifference. We

disagree. At the time of Valdes’ death in 1999, it was clearly established that a

warden, the person charged with directing the governance, discipline, and policy of

the prison and enforcing its orders, rules, and regulations, would bear such

liability. See, e.g., LaMarca v. Turner, 995 F.2d 1526, 1539 (11th Cir. 1993)

(holding that prison warden could face liability when his failure to take appropriate

25
measures to improve prisoner safety created a climate which preordained the

violence which ensued); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443

(11th Cir. 1985) (holding safety director whose responsibilities included

disciplining police officers and setting police department policy could be liable for

failing to take corrective steps in the face of pattern of excessive force engaged in

by officers); see also Skrtich, 280 F.3d at 1303 (stating that by 1998 “precedent

clearly established that government officials may not use gratuitous force against a

prisoner who has been already subdued or, as in this case, incapacitated”); Bruce v.

Wade, 537 F.2d 850, 853 (5th Cir. 1976) (a violation of § 1983 is clearly stated by

the unjustified beating of an inmate at the hands of prison officials).

CONCLUSION

Accordingly, the order of the district court is AFFIRMED.

26