Adib Eddie Ramez Makdessi v. Lt. Field

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 7:11-cv-00262-GEC-PMS. [999544316]. [13-7606]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7606

ADIB EDDIE RAMEZ MAKDESSI,
Plaintiff – Appellant,
v.
LT. FIELDS; SGT. KING; CAPT. GALLIHAR; DAVID BELLAMY; GLEN
BOYD; JANE DOE; THOMAS HALL,
Defendants – Appellees,
and
HAROLD W. CLARKE, Director of Virginia Corrections; TIMOTHY
SUMPTER; BRANDON WOODWARD; CLARENCE SHUPE; DENNIS SLUSS,
Defendants.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:11−cv−00262−GEC−PMS)

Argued:

October 28, 2014

Decided:

March 12, 2015

Before MOTZ, SHEDD, and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge Wynn wrote the
majority opinion, in which Judge Motz joined. Judge Motz wrote
a separate concurring opinion.
Judge Shedd wrote a separate
opinion concurring in part and dissenting in part.

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ARGUED: Stephen William Kiehl, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant. Trevor Stephen Cox, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Daniel Suleiman, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant.
Mark R. Herring, Attorney
General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney
General, Stuart A. Raphael, Solicitor General of Virginia, Linda
L. Bryant, Deputy Attorney General, Richard C. Vorhis, Senior
Assistant Attorney General, Kate E. Dwyre, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.

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WYNN, Circuit Judge:
Plaintiff

Adib

Eddie

Ramez

Makdessi

lodged

numerous

complaints about repeated physical and sexual abuse he suffered
while

imprisoned

facilities.

in

The

court

Virginia

Department

below

it

found

of

Corrections

“clear”

that

prison

officials “should have been more diligent in handling Makdessi’s
claims

of

sexual

assault.”

J.A.

975.

Nevertheless,

the

magistrate judge recommended, and the district court adopted,
the view that because the prison officials named as defendants
in Makdessi’s suit did not actually know of the substantial risk
of harm Makdessi faced, his claims must fail.
The Supreme Court has stated, however, that the subjective
“actual knowledge” standard required to find prison officials
deliberately indifferent to a substantial risk of serious injury
may be proven by circumstantial evidence.
not

simply

liability.

bury

their

heads

in

the

Prison officials may

sand

and

thereby

skirt

Rather, they may be held accountable when a risk is

so obvious that it had to have been known.

Because we do not

believe that the court below appreciated this nuance, we vacate
the dismissal of Makdessi’s claims against Defendants Fields,
King, and Gallihar.

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I.
Makdessi does not dispute the facts found as a result of
the

bench

trial

below.

Makdessi

is

a

five-foot-four-inch,

forty-nine-year-old man with physical and mental ailments that
make him “vulnerable to harassment and attacks” in prison.
956.

J.A.

Thus, Makdessi has been forced to pay for protection from

such abuse.
Makdessi

testified

that

Defendant

Christopher

King,

a

prison official at Wallens Ridge State Prison, where Makdessi
was incarcerated, repeatedly called him names including “sand
nigger” and “bitch.”
as

2007,

he

Id.

Makdessi testified that as far back

complained

to

the

Assistant

Warden

about

mistreatment by his cellmate, that King accused him of being a
“snitch,”

and

that

no

one

ever

investigated

and

nothing

was

done.
In 2010, Makdessi sent another complaint to the Assistant
Warden, stating that King hated him, refused to listen to him,
and

retaliated

against

him

when

he

complained.

Makdessi

testified that this complaint, too, garnered no response.
In August 2010, Makdessi was moved to a cell with a new
cellmate,

Michael

Smith,

who

was

an

aggressive

gang

member.

“Although Makdessi went to the floor correctional officer to
request that he be placed in a different cell or protective
custody, and the officer said he would advise Sgt. King, he
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remained in the same cell with Smith.”
testified

that

he

wrote

a

complaint

J.A. 957.
about

Makdessi also

being

housed

with

Smith, which Smith destroyed.
Per prison operating policy, offender enemies are to be
identified
“shall

and

take

separated.

appropriate

Under

the

measures

to

policy,

prison

officials

those

offenders

protect

involved,” and an enemy is defined as an offender who “pose[s] a
significant threat to the life of another offender.”
Makdessi

testified

that

he

was

physically

J.A. 962.
and

sexually

assaulted by Smith and his Gangster Disciple associates numerous
times.

On one such occasion, December 8, 2010, Smith beat and

raped Makdessi, Makdessi “tried to report this incident to Sgt.
King, but King told him to ‘get the hell away’ from him, and no
investigation
December

8

occurred.”

attack,

J.A.

Makdessi

957.

wrote

a

Within
letter

a

to

day
the

of

the

Assistant

Warden about it but received no response.
Makdessi
Investigation

also
on

reached

December

out
20,

to

2010,

the

Federal

stating

that

Bureau
he

of

feared

prison staff and prison gang members had teamed up to end his
life.

In the letter to the FBI, Makdessi also underscored that

despite the multiple attacks and his telling Defendant Tracy
Fields and others that he was in danger and needed to be placed
in protective custody, he remained unprotected in the cell with
Smith.
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Makdessi testified that on December 20, 2010, he met with
Defendant Fields regarding an informal complaint he had filed.
During

that

meeting,

Makdessi

told

Defendant

Fields

that

he

feared for his life due to his cellmate Smith, a gang leader,
and that he wanted to be placed in protective custody.

Makdessi

testified that Defendant Fields said he would advise Defendant
King.
The

following

Makdessi.
letter

day,

December

21,

2010,

Smith

attacked

According to Makdessi, Smith confronted him with the

Makdessi

had

sent

to

the

Assistant

Warden

about

the

December 8 attack and told him that “[b]efore the day is over,
we’re going to kill you.”

J.A. 959.

Smith punched and beat

Makdessi, called him a “snitch,” flushed the letter down the
toilet, and then raped Makdessi.

Id.

Makdessi testified that

he screamed loudly, yelled for help, and tried—but failed—to
push the emergency button in his room.

“Makdessi testified that

his screams could have been heard.”

Id.

that

Smith

ejaculated

onto

the

bed,

Makdessi testified

cleaned

himself

up,

and

ordered Makdessi to clean himself.
The prison was on “restricted movement” that day, meaning
that

inmates

had

to

eat

lunch

in

their

cells.

J.A.

959.

Nevertheless, inmates were allowed out, four cells at a time, to
retrieve lunch trays.

Makdessi testified that Smith refused to

let him leave the cell when the doors opened.
6

And when they

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shut, Smith forced Makdessi to perform oral sex, during which
Makdessi

bit

Smith.

Smith

again

beat

Makdessi.

Makdessi

testified that Smith’s gang associates came by the cell, and
prison guards performed their rounds, but no one intervened.
Makdessi

testified

that

Smith

packed

his

television

and

other personal items in a laundry bag for a gang associate to
retrieve.

When

the

cell

door

opened,

while

Smith

Makdessi’s things outside the cell, Makdessi escaped.

placed

Smith and

a gang associate chased and caught him, and Smith again began
punching Makdessi.

A warning shot was fired, Smith and his gang

associates hit the floor, but Makdessi continued to run away.
Makdessi was taken to medical, where he required stitches
to his face and an x-ray of his ribs.

Blood was also found in

Makdessi’s anorectal sample and inside the back of Makdessi’s
underpants.

Despite

Makdessi’s

report

that

Smith

into the bed sheets, those were never analyzed.

ejaculated

Neither was the

blood found under Makdessi’s fingernails.

After discharge from

the

days

hospital,

Makdessi

health infirmary.

spent

forty-seven

in

the

mental

Smith refused medical treatment after the

December 21 altercation and denied the rape allegation.
Makdessi testified that while he was in the mental health
infirmary, Defendant King came by and said “‘I told these guys
to go ahead and kill you’” and that “‘[y]ou need to stop filing
all these grievances because what happened to you is nothing
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compared to what’s going to happen to you.’”

J.A. 961.

Soon

thereafter, Makdessi was transferred to another prison, where he
was placed in protective custody.
Defendants

contradicted

much

of

Makdessi’s

story.

Defendant King, for example, testified that he “never threatened
Makdessi.”

J.A. 969.

Defendant Fields testified that Makdessi

did not complain of problems with his cellmate on December 20,
2010, nor did Makdessi “indicate[] that he was in fear for his
life from anyone, that he was being sexually assaulted or that
he

feared

“Likewise,

being
Sgt.

sexually
King

assaulted

testified

he

by

was

anyone.”
never

made

J.A.

970.

aware

that

Makdessi feared for his life or that he feared being sexually
assaulted.”

J.A. 971.

Defendant Arvil Gallihar, whose duties

included being responsible for the overall operations of all the
prison buildings, testified that “Makdessi never informed him
that he feared for his life, and he never made any allegations
of being raped to him.”

Id.

And Defendants King and Gallihar

both denied having seen any grievances Makdessi made involving
sexual assault.
A half year later, in June 2011, Makdessi brought this suit
against
Eighth

various
Amendment

punishment.

prison
right

officials,
to

be

alleging

free

from

violations
cruel

and

of

his

unusual

After Makdessi amended his complaint and some named

defendants were dismissed, the case proceeded to trial before a
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magistrate

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judge.

The

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magistrate

judge

issued

a

report

and

recommendation finding that “Makdessi clearly suffered serious
physical

injuries”

and

that

“the

evidence

admitted

at

trial

undoubtedly shows that Makdessi filed numerous grievances and
complaints to various departments, and he wrote letters to the
Assistant Warden and the Director of the [Virginia Department of
Corrections], alleging that he had been sexually assaulted on
multiple occasions while incarcerated . . . . [I]t is clear to
the undersigned that the staff . . . should have been more
diligent in handling Makdessi’s claims of sexual assault.”

J.A.

964, 974-75.
Nevertheless,

the

magistrate

judge

found

that

“Makdessi

cannot show that defendants failed to protect him . . . in
violation

of

the

Eighth

Amendment”

and

recommended

district court enter judgment in Defendants’ favor.
76.

Makdessi

specifically

objected

magistrate judge’s determinations.
in

its

entirety

the

to

only

that

the

J.A. 975-

some

of

the

The district court adopted

magistrate

judge’s

report

and

recommendation, and Makdessi appealed.

II.
As an initial matter, the parties dispute what claims are
actually before us.

Makdessi contends that he has challenged

all claims dismissed per the magistrate judge’s recommendation
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and

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report

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as

adopted

by

the

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district

court.

By

contrast,

Defendants argue that Makdessi failed to specifically object to
the

magistrate

judge’s

determination

that

Defendants

David

Bellamy, Glen Boyd, and Thomas Hall should be dismissed from the
case.

Accordingly,

per

Defendants,

Makdessi

waived

any

challenge to Bellamy’s, Boyd’s, and Hall’s dismissal.
“[T]o preserve for appeal an issue in a magistrate judge’s
report, a party must object to the finding or recommendation on
that issue with sufficient specificity so as reasonably to alert
the

district

court

of

the

true

ground

for

the

objection.”

United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
This preservation requirement conserves “judicial resources and
makes certain that appellate courts have well-formed records to
review[.]”
2008).

United States v. Benton, 523 F.3d 424, 428 (4th Cir.

Where an appellant has failed to preserve an issue, it

is deemed waived.

Id.

Here, the face of Makdessi’s objections to the magistrate
judge’s

recommendation

objections

repeatedly

and

report

mention

speaks

Defendants

for
King,

itself.
Fields,

The
and

Gallihar—each of those names appears in Makdessi’s objections
more than twenty times.

By contrast, Bellamy’s and Hall’s names

appear in the entirety of the objections only once each, and
Boyd’s name appears only twice.
from the objections.
10

In essence, they are absent

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Makdessi
contention
assault

tries

that

was

to

attach

another

loud

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significance

inmate’s

enough

that

warranted “examination.” 1

claim

a

guard

J.A. 980-81.

to
the

that
would

his

December

have

general

heard

21
it

But that contention,

included in a list of “undisputed facts that were absent from
the Report and Recommendation,” understandably did not put the
district

court

on

notice

that

Makdessi

challenged

the

recommended dismissal of Defendants Bellamy, Boyd, and Hall.
Accordingly, Makdessi failed to preserve any objection to
the dismissal of his claims against Defendants Bellamy, Boyd,
and Hall.

And Makdessi does not argue, e.g., for plain error

review.

We

therefore

do

not

review

the

waived

arguments

regarding the claims against Defendants Bellamy, Boyd, and Hall.
In re Under Seal, 749 F.3d 276, 292 (4th Cir. 2014) (refusing to
undertake plain error review in a civil case where appellant
failed to argue that the elements for plain error review had
been satisfied).

III.
Moving
stemming

on

from

to
a

what

bench

is

before

trial

under

1

us,
a

we

mixed

review

“judgments

standard:

factual

Makdessi’s claims against Bellamy, Boyd, and Hall related
specifically to the December 21, 2010 attack and not to earlier
events such as Makdessi’s prior complaints and grievances.

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findings are reviewed for clear error, whereas conclusions of
law are reviewed de novo.”

Helton v. AT&T, Inc., 709 F.3d 343,

350 (4th Cir. 2013).
As the district court noted, “Makdessi complains that the
magistrate judge’s report [which the district court adopted in
its entirety] offers only two paragraphs about the applicable
legal standard and fails to discuss the nuanced legal theories
under which he believes he has proved defendants’ subjective
knowledge

through

circumstantial

evidence.”

J.A.

1001.

Makdessi contends that “[n]o direct evidence of an official’s
knowledge of the risk is necessary when a risk is obvious . . .
.”

Appellant’s Br. at 32.

Upon careful consideration of the

controlling law, we agree.
A.
“In its prohibition of ‘cruel and unusual punishments,’ the
Eighth Amendment places restraints on prison officials, who may
not,

for

example,

prisoners.”
Amendment

use

excessive

physical

force

against

Farmer v. Brennan, 511 U.S. 825, 832 (1994).

also

imposes

duties

on

these

provide humane conditions of confinement.

officials,

who

The
must

Id.

“The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones . . . .”

Farmer, 511 U.S.

at

“persons

832

(citation

omitted).

Prisons

house

[with]

demonstrated proclivit[ies] for antisocial criminal, and often
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violent, conduct[,]” and at the same time “strip[s]” inmates “of
virtually every means of self-protection . . . .”
(citation omitted).
free

to

let

the

Id. at 833

“[T]he government and its officials are not
state

of

nature

take

its

course[,

and]

gratuitously allowing the beating or rape of one prisoner by
another

serves

no

legitimate

penological

objective.”

Id.

(citations and alteration omitted).
Prison

officials

are,

therefore,

obligated

reasonable measures to guarantee inmate safety.
. . . prison officials have a duty . . .

to

take

“In particular,

to protect prisoners

from violence at the hands of other prisoners.”

Id. (quotation

marks omitted).
That being said, not every injury suffered by a prisoner at
the hands of another “translates into constitutional liability
for prison officials responsible for the victim’s safety.”
at 834.
are

met.

Id.

Rather, liability attaches only when two requirements
First,

“a

prison

official’s

act

or

omission

must

result in the denial of the minimal civilized measure of life’s
necessities.”

Id.

(quotation marks and citations omitted).

For a claim based on a failure to prevent harm, the plaintiff
must show that he was “incarcerated under conditions posing a
substantial risk of serious harm.”
lower

court’s

finding

here

that

13

Id.

No one disputes the

“Makdessi

clearly

suffered

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serious

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physical

injuries”

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and

thus

meets

this

first

prong.

J.A. 964.
Second,

the

prison

official

must

have

culpable state of mind” to be held liable.
834 (citations omitted).

a

“sufficiently

Farmer, 511 U.S. at

“In prison-conditions cases that state

of mind is one of ‘deliberate indifference’ to inmate health or
safety . . . .”

Id.

It is this second deliberate indifference

prong that is at the heart of Makdessi’s appeal.
In

Farmer,

the

Supreme

Court

explained

that

“deliberate

indifference” entails “more than ordinary lack of due care for
the

prisoner’s

interests

or

safety,”

and

“more

than

mere

negligence,” but “less than acts or omissions [done] for the
very purpose of causing harm or with knowledge that harm will
result.”

Id. at 835 (citation omitted).

“The Court held that

deliberate indifference in this context lies somewhere between
negligence and purpose or knowledge: namely, recklessness of the
subjective type used in criminal law.”

Brice v. Virginia Beach

Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995).
“Nevertheless,

even

under

this

subjective

standard,

a

prison official cannot hide behind an excuse that he was unaware
of a risk, no matter how obvious.”
is

because

even

a

subjective

circumstantial evidence:

14

Brice, 58 F.3d at 105.

standard

may

be

proven

This
with

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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 may
conclude that a prison official knew of a substantial
risk from the very fact that a risk was obvious.
Farmer, 511 U.S. at 842 (citations omitted).
although

the

obviousness

of

a

“In other words,

particular

injury

is

not

conclusive of an official’s awareness of the injury, an injury
might be so obvious that the factfinder could conclude that the
guard did know of it because he could not have failed to know of
it.”

Brice, 58 F.3d at 105 (citations omitted).
A

proven

prison
through

official’s

subjective

circumstantial

actual

evidence

knowledge

showing,

for

can

be

example,

that the “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
Farmer,

511

the

risk

U.S.

at

and

thus

‘must

842

(quotation

have
marks

known’

about

omitted).

evidence of actual knowledge is not required.

it.”

Direct

See id. at 842-

43.
Accordingly,

prison

officials

may

not

simply

heads in the sand and thereby skirt liability.

bury

their

“[E]ven a guard

able to prove that he was in fact oblivious to an obvious injury
of

sufficient

seriousness

may

not

15

escape

liability

if

it

is

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shown, for example, that he merely refused to verify ‘underlying
facts

that

“‘declined

he
to

strongly

to

be

inferences

confirm

suspected

true,’”

of

risk

that

or

that

he

he

strongly

suspected to exist.’”

Brice, 58 F.3d at 105 (quoting Farmer,

511 U.S. at 843 n.8).

And “it does not matter whether the risk

comes from a single source or multiple sources, any more than it
matters whether a prisoner faces an excessive risk of attack for
reasons

personal

to

him

or

situation face such a risk.”

because

all

prisoners

in

Farmer, 511 U.S. at 843.

his

Nor is

it dispositive that the prisoner did not give advance warning of
the risk or protest his exposure to the risk.
A

prison

indifference
“Prison

official
charge,

officials

remains

even

charged

in

free
the

with

to

face

Id. at 848-49.

rebut
of

deliberate

obvious

risk.

indifference

deliberate

an

the

might

show, for example, that they did not know of the underlying
facts indicating a sufficiently substantial danger and that they
were

therefore

unaware

of

a

danger,

or

that

they

knew

the

underlying facts but believed (albeit unsoundly) that the risk
to which the facts gave rise was insubstantial or nonexistent.”
Id. at 844.

But absent successful rebuttal, they may be held

liable for obvious risks they must have known.

Id. at 842.

B.
We find a close reading of Farmer illuminating for how to
apply the deliberate indifference standard both generally and
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specifically to Makdessi’s case.

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In Farmer, the plaintiff was a

young transsexual serving a twenty-year sentence for credit card
fraud.

511 U.S. at 829.

Although a biological male, Farmer had

undergone some sex change treatments, including silicone breast
implants

and

unsuccessful

testical-removal

surgery.

Id.

Despite a feminine appearance, Farmer was incarcerated in male
prisons.
For

disciplinary

reasons,

prison

officials

transferred

Farmer to a higher-security facility, where Farmer was housed in
the general population.

Id. at 830.

Farmer voiced no objection

about

placement.

But

the

transfer

or

within

arrival, Farmer was beaten and raped by a cellmate.

two

weeks

of

Id.

Farmer sued, alleging that the transfer of a transsexual
with feminine characteristics to a high-security prison with a
history of inmate assaults amounted to deliberate indifference
in violation of the Eighth Amendment.

Id. at 830-31.

The

district court ruled in favor of the prison officials, holding
that there could be no constitutional violation in the absence
of actual knowledge of a potential danger.
district

court

focused

on

Farmer’s

In so ruling, the

failure

to

transfer or alert prison officials to any danger.
32.

protest

the

Id. at 831-

The Seventh Circuit affirmed, but the Supreme Court granted

certiorari and unanimously reversed.

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After

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laying

out

Pg: 18 of 44

Eighth

Amendment

law

and

defining

deliberate indifference, the Supreme Court explained that the
lower courts had placed undue weight on the fact that Farmer had
not complained about the transfer to the general population at
the

higher-security

notice

is

not

prison.

“[T]he

dispositive”

if

it

failure
could

to

be

give

shown

advance

that

the

plaintiff’s condition and appearance, coupled with the knowledge
of violent assaults in the prison, made it reasonable to believe
that

the

defendants

were

aware

of

a

serious

plaintiff but took no protective action.

risk

to

the

Id. at 848-49.

case, therefore, was remanded for reconsideration.

The

Id. at 849.

In this case, Makdessi is a short, middle-aged prisoner
with physical and mental problems that make him “vulnerable to
harassment and attacks by other inmates.”

J.A. 956.

For years,

Makdessi complained to prison officials, including in the form
of numerous written letters and grievances, about physical and
sexual

abuse

garnered
complaint

no

he

suffered

response,

expressly

in

and

prison.
one

response—to

mentioning

sexual

“Hopefully you will be well soon.”
Despite

Makdessi’s

Those

stature,

complaints
a

often

December

assault—simply

2009

stated

J.A. 974.
vulnerability,

and

repeated

complaints, Makdessi was placed in a cell with an aggressive
prison

gang

member,

Smith,

in

August

2010.

By

the

end

of

October 2010, Makdessi filed a report “stating that he had been
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sexually assaulted by his cellmate.”

Id. 2

Yet “the standard

protocol of separating inmates alleging sexual assault was not
followed when Makdessi filed” the October 2010 report.

Id.

He

was left in the cell with Smith until his physical and mental
injuries

from

the

December

21,

2010

attack

prison infirmary for a month and a half.

sent

him

to

the

Makdessi was then

transferred to another prison and placed in protective custody.
Despite

these

facts,

the

magistrate

judge

and

district

court determined that Makdessi had failed to meet the subjective
standard for deliberate indifference, i.e., that Makdessi had
failed to show that Defendants King, Fields, and Gallihar had
actual

knowledge

Makdessi faced.

of

the

substantial

risk

of

serious

harm

The report and recommendation so concluding

contained a total of two paragraphs setting forth the applicable
law.
The

paragraph

dealing

with

deliberate

indifference

correctly recognized that to be liable, a prison official “must
actually have perceived” the risk to the prisoner.

J.A. 964.

But absent from the court’s abbreviated discussion of the law,
as

well

as

its

application

thereof

to

the

facts,

is

the

recognition that actual knowledge can be shown by circumstantial

2

Defendants disputed that the report as originally filed
stated that Smith had sexually assaulted Makdessi.

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evidence that the risk was so obvious that the Defendants had to
know it.

See, e.g., Farmer, 511 U.S. at 842; Brice, 58 F.3d at

105.
Additionally,

in

rejecting

Makdessi’s

claims,

the

court

below focused on some factors that, in light of Farmer, may be
irrelevant.
Makdessi

For example, the court seized on the fact that

did

not

“‘personally

inform[]

Capt.

Gallihar,

Lt.

Fields or Sgt. King that he feared for his life or safety.’”
J.A. 1003 (quoting J.A. 976).

Neither did Farmer—and yet, in

reversing the lower courts, which had seized on just that, the
Supreme
notice

Court
is

made

not

plain

that

dispositive”

“the

if

failure
can

it

to

shown

be

give

advance

that

the

circumstances made it reasonable to believe that the defendants
were

aware

of

a

serious

protective action.

risk

to

the

plaintiff

but

took

no

Farmer, 511 U.S. at 848-49.

Similarly, the court below focused on the fact that “only
one of the documents filed before [the] December 21 [attack]
stated

that

Makdessi

current roommate.”
prison

official

had

previously

J.A. 1003.
[cannot]

been

assaulted

by

his

Yet Farmer makes clear that “a

escape

liability

for

deliberate

indifference by showing that, while he was aware of an obvious,
substantial risk to inmate safety, he did not know that the
complainant
specific

was

especially

prisoner

who

likely

eventually
20

to

be

assaulted

committed

the

by

the

assault.”

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Farmer,

Doc: 47

511

Filed: 03/12/2015

U.S.

described

in

liability

that

at

843.

Farmer,
the

Pg: 21 of 44

Indeed,

“it

would

officials

Furthermore,

the

court

the

obviously
could

precisely who would attack whom.”

under

be

not

circumstances
irrelevant

guess

to

beforehand

Id. at 844.

below

underscored

that

Makdessi’s

“written complaints and grievances often sought mental health
treatment or a single cell assignment, rather than expressly
requesting

protection.”

J.A.

1006.

Even

assuming

that

the

court’s characterization of Makdessi’s complaints and grievances
is accurate, it seems apparent that both of those requests can
be construed as forms of seeking protection.

And regardless,

Farmer makes plain that whether a prisoner protests or complains
before he is injured may be irrelevant.
Finally,

the

court

below

511 U.S. at 848-49.

focused

on

the

fact

that

Defendants played no role in “assigning” cellmates, suggesting
that Defendants therefore could not be liable for any risk to
Makdessi arising from his being housed with Smith.

J.A. 1007.

That Defendants did not initially assign Smith to Makdessi’s
cell, however, does not necessarily shield them from liability
if they knew that the undisputedly vulnerable Makdessi shared a
cell with an undisputedly aggressive gang member, knew—perhaps
because

it

was

so

obvious

that

they

had

to

know—that

this

continued arrangement constituted a substantial risk of serious
harm to Makdessi, yet did nothing.
21

Farmer, 511 U.S. at 842.

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C.
In sum, the magistrate judge and then the district court,
which adopted the magistrate’s recommendation and report in its
entirety,

failed

to

appreciate

that

the

subjective

“actual

knowledge” standard required to find deliberate indifference may
be proven by circumstantial evidence that a risk was so obvious
that

it

had

to

have

been

known.

Further,

the

court

focused on factors that, under Farmer, may be irrelevant.

below
The

dismissal of Makdessi’s claims against Defendants Fields, King,
and Gallihar, is thus vacated, and the case is remanded for
reconsideration using the proper legal framework.
Whether Makdessi succeeds with his claims remains an open
question.

And even if Makdessi shows that the risk of serious

harm he faced was so obvious that Defendants Fields, King, and
Gallihar must have known it, Defendants may still be able to
successfully rebut the charge.

But regardless of the outcome,

the proper legal framework must be applied to address Makdessi’s
claims.
Finally, we echo the district court that “[n]o matter what
an inmate’s crime, his prison sentence should not include the
sort of victimization described in Makdessi’s many complaints
and grievances.

Prison officials, from the security officers to

the mental health professionals and grievance coordinators, have

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an

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ongoing

each other.”

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constitutional

Pg: 23 of 44

obligation

to

protect

inmates

from

J.A. 1009.

IV.
For the reasons stated above, the dismissal of Makdessi’s
claims against Defendants Fields, King, and Gallihar is vacated,
and the matter is remanded for reconsideration in light of this
opinion.
VACATED AND REMANDED

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DIANA GRIBBON MOTZ, Circuit Judge, concurring:
I concur in Judge Wynn’s opinion for the court.

On remand,

Adib Eddie Ramez Makdessi may not prevail, but the judgment of
the district court rejecting his claim in its entirety cannot
stand.

I write separately to explain why I believe governing

legal principles require this relief.
The
inmate

Supreme

can

Court

establish

a

has

painstakingly

violation

of

the

explained
Eighth

that

an

Amendment

by

offering evidence that a prison official “knew of a substantial
risk” that the inmate would suffer “serious harm” or that the
official “must have known” about this risk.
511 U.S. 825, 842 (1994) (emphasis added).

Farmer v. Brennan,
And a court may

conclude that the official must have known of that substantial
risk based on “the very fact that the risk was obvious.”

Id.

Here, Makdessi undoubtedly suffered serious harm when he was
assaulted by his cellmate. 1

The remaining question is whether

Defendants Fields, King, and Gallihar (“the Defendants”) must
have

known

of

the

substantial

risk

that

Makdessi

would

be

assaulted by a fellow prisoner.

1

The Defendants offer no argument that Makdessi failed to
demonstrate that he suffered “serious harm,” and, given the
prison’s own medical records, such an argument would be
frivolous.

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The
between

Filed: 03/12/2015

district
Makdessi

physically
security

court

level

expressly

himself

hindered
3,

Pg: 25 of 44

(5

by

back

no

gang

recognized

feet

4

the

inches

problems

and

affiliation,

“contrasts

tall,

asthma,
two

age

49,

depressed,

minor

prison

infractions)” and the prisoner who beat Makdessi, Michael Smith
“(a

‘Gangster

charges,
toward

Disciple,’

including
a

disciplinary

masturbating

non-offender,

and

numerous

record
making

aggravated
J.A. 1007. 2

fighting with another inmate).”

of
sexual

almost

30

advances

assaults,

and

Notwithstanding

these significant differences in age, size, health, disciplinary
record,

and

gang

affiliation,

however,

the

district

court

rejected Makdessi’s contention that in permitting Makdessi to
reside in the same cell as Smith, the Defendants ignored an
obvious risk of serious harm to Makdessi.
The district court offered a very limited rationale for so
holding.

The court simply stated that because the Defendants

testified that they did not “assign[] cellmates,” it could not
“find that the physical and disciplinary differences” between
Makdessi

and

Smith

undermined

the

magistrate

judge’s

determination that the Defendants lacked “prior knowledge that
Smith would likely victimize Makdessi.”

2

J.A. 1007-08 (emphasis

Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.
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added). 3

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For the following reasons, I cannot conclude that this

rationale provides an adequate basis for rejection of Makdessi’s
obvious risk claim.
First, the district court’s explanation evidences a belief
that Makdessi had to prove that the Defendants had actual “prior
knowledge” of the risk that he would be assaulted.
course, is quite different.

The law, of

The Supreme Court has clearly held

that “a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious,”
as

where

the

official

“had

been

exposed

to

information

concerning the risk and thus must have known about it.”

Farmer,

511 U.S. at 842 (internal quotation marks and citation omitted).
Second,

the

district

court

also

seemed

to

believe

that

Makdessi had to prove that the Defendants knew of a substantial
risk that Smith, in particular, rather than any other inmate,
might assault Makdessi. 4

But Farmer also forecloses a specific

risk requirement of this sort.

See id. at 843 (“Nor may a

3

The magistrate judge herself offered no rationale for
recommending
rejection of
Makdessi’s
obvious
risk
claim.
Indeed, the magistrate judge failed to address Makdessi’s
obvious risk claim at all.
4

Further indicating that the district court held this
erroneous view is the significance it attached to the fact that
in Makdessi’s “dozens” of written “complaints and grievances”
only once prior to December 21 did he state that he had
“previously been assaulted by his current roommate,” Smith. See
J.A. 1003.

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prison official escape liability for deliberate indifference by
showing that, while he was aware of an obvious, substantial risk
to

inmate

safety,

he

did

not

know

that

the

complainant

was

especially likely to be assaulted by the specific prisoner who
eventually committed the assault.”).
Third,

the

district

court

apparently

reasoned

that

the

Defendants’ testimony that they had no role in cell assignment
absolved them from liability even if they knew (or should have
known)

that

Makdessi

was

housed

with

Smith

and

that

subjected Makdessi to an obvious risk of serious harm.

this

But the

Defendants testified only that they played no role in assigning
cellmates.

They offered no testimony or other evidence that

they did not know that Makdessi and Smith were cellmates.

And

evidence in the record suggests that the Defendants did indeed
know of this. 5

As we explained in reversing the judgment after

trial for a prison guard in another Eighth Amendment case, “even
a

guard

obvious

able

to

injury

prove
of

that

he

sufficient

was

in

fact

seriousness

oblivious
may

not

to

an

escape

liability if it is shown, for example, that he . . . ‘declined
5

Fields testified that he remembered when Makdessi and
Smith were celled together.
J.A. 778.
Moreover, as the
district court noted, Gallihar testified that he, Fields, and
King, were “the officers responsible for the safety of inmates
in Makdessi’s pod,” J.A. 1005; this suggests that all three
Defendants knew that Makdessi and Smith were celled together –and would have been aware of the dangerous mismatch.

27

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to

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confirm

exist.’”

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inferences

of

risk

Pg: 28 of 44

that

he

strongly

suspected

to

Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th

Cir. 1995) (quoting Farmer, 511 U.S. at 843 n.8).
Finally, the district court appears not to have considered
the obvious risk in housing Makdessi with Smith in the context
of

Makdessi’s

many

grievances

sexual assault at the prison.

documenting

prior

physical

and

The magistrate judge found (and

the district court agreed) that “the evidence admitted at trial
undoubtedly shows that Makdessi filed numerous grievances and
complaints to various departments, and he wrote letters . . .
alleging

that

he

had

been

sexually

assaulted

occasions while incarcerated at Wallens Ridge.”
district

court

properly

recognized

that

on

multiple

J.A. 974. 6

knowledge

of

The

serious

risk of harm could be inferred by demonstrating a “longstanding,
pervasive, [and] well-documented” risk, Farmer, 511 U.S. at 842
(internal quotation marks and citation omitted).

But the court

discounted Makdessi’s evidence of exactly such “well-documented”
risk for two, equally unpersuasive, reasons.

6

The magistrate judge also found Makdessi’s credibility
undermined by the attendance records that contradicted his
testimony that he spoke with defendant Boyd on a particular
date.
J.A. 971.
Of course, we defer to credibility
determinations of a trial court.
But this finding does not
undermine Makdessi’s credibility as to his “numerous grievances
and complaints” to prison officials, which the magistrate judge
expressly found believable. J.A. 974.

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Initially, the court relied on the Defendants’ testimony
that “[s]ecurity matters or sexual assault allegations might be
directly assigned to . . . a higher-ranking officer” and so the
Defendants

“would

not

(emphasis added).
that

this

is

Testimony
assigned

to

see

[them].”

J.A.

1005

The Defendants, however, offered no evidence

in

that

necessarily

fact

what

serious

other

happened

allegations

officers

does

in

of

Makdessi’s

assault

not

case.

“might

be”

that

the

establish

Defendants had no knowledge of the risk of substantial harm to
Makdessi.

This

Makdessi’s

is

complaints

particularly
of

abuse,

so

the

given

written

the

number

policy

of

requiring

notification of all such abuse, see J.A. 494-501, and the fact
that the face of some of the complaints expressly state that
they were forwarded directly to one or more of the Defendants.
See, e.g., J.A. 246; J.A. 517.
The

other

reason

that

the

district

court

offered

for

discounting Makdessi’s multiple written grievances was that they
were “general” and “often sought mental health treatment or a
single

cell

protection.”

assignment,
J.A.

1006.

rather
But

than

expressly

examination

themselves belies this conclusion.

of

the

requesting
grievances

See, e.g., J.A. 256, 259-60,

263, 266, 274, 276, 277.

Many are specific; few are limited to

expressions

illness

of

mental

or

single-cell

assignment;

crucially, nearly all express ongoing fear of physical harm or
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retaliation.

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Moreover, those instances in which Makdessi did

simply plead to be assigned to a single cell to avoid further
sexual

assault

would

seem,

contrary

to

the

district

court’s

conclusion, to qualify as “expressly requesting protection.”
On remand, the district court will have an opportunity to
apply these governing principles.

The court will be able to

determine, in light of Makdessi’s undisputed vulnerability and
his multiple written complaints of abuse at the hands of other
prisoners, if the risk of serious harm to Makdessi in housing
him with an aggressive gang member who had committed numerous
assaults while imprisoned was so obvious that the Defendants
must have known of the risk, appreciated its seriousness, and
yet failed “to take reasonable measures to abate it.”

Farmer,

511 U.S. at 847. 7
“The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones,” no matter how abhorrent a
prisoner’s crimes.
citation

omitted).

Id. at 832 (internal quotation marks and
A

prisoner

faces

a

establishing an Eighth Amendment violation.
7

daunting

task

in

But when an inmate

Of course, “it remains open to the officials to prove that
they were unaware even of an obvious risk to inmate health or
safety.”
Farmer, 511 U.S. at 844.
But when the risk is
obvious, the burden shifts to the prison official to rebut the
inference that he must have known about it.
Id.
Naked
assertions of ignorance that defy prison procedure and logic
cannot satisfy this burden.

30

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has

Doc: 47

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“take[n]

advantage

of

Pg: 31 of 44

internal

prison

procedures

for

resolving inmate grievances” and these actions “do not bring
constitutionally required changes, the inmate’s task in court
will obviously be much easier.”

Id. at 847.

Most importantly,

the Supreme Court has been clear that the Eighth Amendment does
not allow prison officials “to take refuge in the zone between
ignorance of obvious risks and actual knowledge of risks.”
at 842 (internal quotation marks and citation omitted).

Id.
Thus,

prison officials may not escape liability simply by offering a
blanket denial of any knowledge of an obvious risk.

They “are

not free to let the state of nature take its course” within
their prisons but rather “have a duty to protect prisoners from
violence at the hands of other prisoners.”

Id. at 833 (internal

quotation marks and citation omitted).
For
judgment

these
of

the

reasons,
district

I

join

in

court

and

further proceedings.

31

the

order

remanding

vacating
the

case

the
for

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SHEDD, Circuit Judge, concurring in part and dissenting in part:
I agree that Makdessi waived his appellate challenge to the
judgment

in

favor

of

defendants

Bellamy,

Boyd,

and

Hall.

However, I disagree that the judges below improperly analyzed
Makdessi’s

Eighth

Amendment

claim

against

defendants

Fields,

King, and Gallihar. In my view, the majority’s consideration of
the judgment in favor of the latter three defendants is more
akin to a summary judgment review than a bench trial review, and
it fails to adequately account for the factual findings made by
the magistrate judge and reviewed de novo by the district judge. 1
I
For

purposes

of

this

appeal,

it

is

established

that

Makdessi was assaulted and injured by his cellmate, Smith, on
December
housing

21,

2010.

inmates

The

unfortunate

convicted

of

reality

violent

crimes

is

that

are

prisons

“inherently

dangerous places,” United States v. Tokash, 282 F.3d 962, 970
(7th Cir. 2002), 2 where “acts of violence by inmates against
inmates are inevitable,” Shrader v. White, 761 F.2d 975, 980
1

I disagree with much of my colleague’s separate concurring
opinion. However, because she has joined the majority opinion,
which speaks for the Court, I will limit my comments to that
opinion.
2
Makdessi is certainly an inmate convicted of violent
crimes. He is serving two life sentences for the murders of his
wife and a third-party. See Makdessi v. Watson, 682 F.Supp.2d
633 (E.D.Va. 2010). Before being prosecuted, he collected
$700,000 from his wife’s life insurance policies. See J.A. 658.

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(4th

Doc: 47

Cir.

Filed: 03/12/2015

1985),

and

the

Pg: 33 of 44

elimination

of

such

violence

is

“virtually impossible,” Taylor v. Freeman, 34 F.3d 266, 273 n.6
(4th Cir. 1994). Although the Eighth Amendment imposes a duty on
prison officials to protect inmates from violence, Farmer v.
Brennan,

511

suffered

by

U.S.
[an

825,

inmate]

832-33

(1994),

at

hands

the

“[n]ot

of

every

another

injury

establishes

liability against a prison official,” Brown v. N.C. Dept. of
Corr.,

612

official

F.3d

720,

violates

723

the

(4th

Cir.

Eighth

2010).

Amendment

Rather,

only

if

a
he

prison
has

a

“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834
(internal punctuation and citation omitted).
“The burden is on the [inmate] to demonstrate that prison
officials violated the Eighth Amendment, and that burden is a
heavy

one.”

2014).

Pyles

Pertinent

v.

Fahim,

here,

771

“[a]

F.3d

prison

403,

408-09

official’s

(7th

Cir.

‘deliberate

indifference’ to a substantial risk of serious harm to an inmate
violates
prison

the

Eighth

official

Amendment.”

“demonstrates

Farmer,

deliberate

511

U.S.

at

indifference

828.
if

A
he

knows of and disregards an excessive risk to inmate health or
safety;”

stated

otherwise,

“the

test

is

whether

the

[prison

official knows] the plaintiff inmate faces a serious danger to
his safety and . . . could avert the danger easily yet . . .
fail[s] to do so.” Brown, 612 F.3d at 723 (internal punctuation
and citations omitted).
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Deliberate indifference “is a very high standard,” Grayson
v. Peed, 195 F.3d 692, 695 (4th Cir. 1999), which “make[s] it
considerably more difficult for [an inmate] to prevail than on a
theory

of

ordinary

negligence,”

Correctional

Servs.

Corp.

v.

Malesko, 534 U.S. 61, 73 (2001). It is a subjective standard,
Farmer, 511 U.S. at 829, that requires an inmate to prove “that
the prison official had actual knowledge of an excessive risk to
[his] safety,” Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir.
2014). The prison official “must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious

harm

exists,

and

he

must

also

draw

the

inference.”

Farmer, 511 U.S. at 837.
“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 may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious.” Id. at 842. Thus, if a prisoner “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
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fact to find that the defendant-official had actual knowledge of
the

risk.”

Id.

at

842-43

(internal

punctuation

and

citation

omitted).
However, “[t]hat a trier of fact may infer knowledge from
the obvious . . . does not mean that it must do so.” Id. at 844.
Therefore, prison officials may defeat an Eighth Amendment claim
by

showing,

underlying

“for

facts

example,

that

indicating

a

they

did

sufficiently

not

know

of

substantial

the

danger

and that they were therefore unaware of a danger. . . .” Id.
This is true even “if the risk was obvious and a reasonable
prison official would have noticed it.” Id. at 842. Moreover,
although

the

circumstantial

inmate

may

evidence,

prove
he

deliberate

may

not

rely

indifference
on

by

“unsupported

speculation.” Danser, 772 F.3d at 348 n.10.
II
Makdessi did not invoke his jury trial right; therefore,
the district judge referred this case to the magistrate judge
“for

appropriate

findings

of

fact

proceedings
and

and

conclusions

preparation
of

law

of

and

proposed

recommended

disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).” J.A. 997. As
Makdessi notes, the evidentiary hearing before the magistrate
judge was “‘the equivalent of a bench trial.’” Opening Brief for
Makdessi, at 28 (quoting Hicks v. Norwood, 640 F.3d 839, 842
(8th

Cir.

2011)).

The

majority
35

appears

to

agree

with

this

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characterization. See Majority Op., at 12 (noting standard of
review from a bench trial judgment).
In this posture, we must accept the trial judge’s factual
findings unless they are clearly erroneous, but we review the
judge’s legal determinations de novo. F.T.C. v. Ross, 743 F.3d
886, 894 (4th Cir.), cert. denied, 135 S.Ct. 92 (2014). The
majority primarily bases its decision to vacate the judgment on
its conclusion that the judges below “failed to appreciate that
the

subjective

‘actual

knowledge’

standard

required

to

find

deliberate indifference may be proven by circumstantial evidence
that a risk was so obvious that it had to have been known.”
Majority Op., at 22. The record belies this conclusion.
A.
Prior to the bench trial, the district judge denied these
defendants’

summary

judgment

motion.

At

the

summary

judgment

stage, the district judge was required to view the facts in the
light most favorable to Makdessi, the nonmoving party. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009). In essence, the district
judge

was

events. 3

required

The

to

district

accept
judge

as

true

expressly

3

Makdessi’s
noted

that

version

of

deliberate

The majority recounts Makdessi’s testimony in detail, see
Majority Op., at 4-8, but devotes only one paragraph to the
defendants’ version of events, see id. at 8. Notably, much of
Makdessi’s self-serving testimony was not credited by the judges
below and does not constitute the “facts” of the case. For
(Continued)
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indifference may be proven by circumstantial evidence, J.A. 226,
and he concluded that “Makdessi’s allegations and evidence are
sufficient to present disputed issues of material fact as to
whether each of these defendants must have known facts before
December
housing

21,

2010,

Makdessi

on

in

which

the

they

same

must

cell

have

with

perceived

Smith

that

created

a

substantial and imminent risk that Smith would cause Makdessi
serious harm,” J.A. 229. The summary judgment ruling faithfully
applied the Farmer deliberate indifference standard.
This case thereafter proceeded to the bench trial before
the magistrate judge, and Makdessi bore the burden of proving
his Eighth Amendment claim. The magistrate judge made specific
and detailed factual findings based on the evidence presented.
The

magistrate

Fields,

King,

judge
and

recognized

Gallihar

failed

that
to

Makdessi
protect

argued
him

from

that
the

example, the majority notes that Makdessi testified that on the
day before Smith assaulted him, he told defendant Fields “that
he feared for his life due to his cellmate Smith, a gang leader,
and that he wanted to be placed in protective custody.” Majority
Op., at 6. However, the magistrate judge specifically rejected
this testimony, finding it to be “incredible.” J.A. 972. The
majority also states that Makdessi testified that Smith raped
him on December 21, 2010. See Majority Op., at 6. However, one
witness (Dr. Thompson) testified that Makdessi expressly denied
that Smith raped him. See J.A. 731-32, 738-39. Ultimately, the
magistrate judge made no finding that Makdessi was raped.

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December

21,

2010,

received

either

assault

verbally

Pg: 38 of 44

“based

directly

on

information

from

Makdessi

they
or

had

through

grievances Makdessi had filed prior to that time, from which
they learned Smith posed a substantial risk to his safety.” J.A.
969. Addressing these arguments, the magistrate judge found that
(1) Makdessi did not personally inform Fields, King, or Gallihar
before December 21, 2010, that he feared for his safety, J.A.
972, 976; and (2) Makdessi failed to prove that these defendants
knew of his prior grievances before December 21, 2010, J.A. 97374,

976.

In

light

of

these

findings,

the

magistrate

judge

recommended that judgment be entered in these defendants’ favor.
Makdessi

objected

to

the

magistrate

judge’s

report

and

recommendation, and the district judge extensively reviewed de
novo

Makdessi’s

properly
1000

objections.

recognized

(noting

that

the

In

doing

controlling

deliberate

so,

legal

indifference

the

district

standard,
may

be

judge

see
shown

J.A.
by

circumstantial evidence), and he thoroughly detailed his bases
for overruling Makdessi’s objections.
The district judge first explained that Makdessi failed to
object to the magistrate judge’s specific factual finding that
he did not personally inform Fields, King, or Gallihar before
December 21, 2010, that he feared for his safety. J.A. 1003. The
district judge then examined Makdessi’s objections regarding the
magistrate judge’s consideration of “other evidence that Smith
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posed a risk to Makdessi.” J.A. 1003. Pointing directly to the
magistrate judge’s factual findings and other evidence in the
record, the district judge specifically considered and rejected
Makdessi’s arguments that (1) he proved deliberate indifference
by showing that the risk of harm was longstanding and welldocumented, and the circumstances suggest that the defendants
had been exposed to information concerning the risk, J.A. 1004;
(2)

judgment

in

Makdessi’s

favor

is

proper

because

the

defendants’ response was so patently inadequate that they must
have known of the risk, J.A. 1006; (3) the risk to Makdessi was
so obvious that the defendants knew of it because they could not
have

failed

to

know

of

it,

J.A.

1007;

and

(4)

because

the

defendants knew Makdessi had been labeled as a snitch, they must
have known how that the label exposed him to retaliation or risk
of assault, J.A. 1008. Accordingly, the district judge overruled
Makdessi’s

objections,

adopted

the

report

and

recommendation,

and entered judgment against Makdessi.
B.
As
failed

noted,
to

the

majority

appreciate

that

concludes

Makdessi

that

could

the

prove

judges
his

below

case

by

circumstantial evidence. Explaining its decision, the majority
identifies several “facts” that it believes are sufficient for a
factfinder to find that the risk of harm Smith posed to Makdessi
was so obvious that defendants Fields, King, and Gallihar must
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have known of it. See Majority Op., at 18-19. Specifically, the
majority states:
(1) “Makdessi is a short, middle-aged prisoner with
physical and mental problems that make him ‘vulnerable
to harassment and attacks by other inmates;’” 4
(2)
“For
years,
Makdessi
complained
to
prison
officials, including in the form of numerous written
letters and grievances, about physical and sexual
abuse he suffered in prison;”
(3) “Those complaints often garnered no response, and
one response – to a December 2009 complaint expressly
mentioning sexual assault – simply stated ‘Hopefully
you will be well soon;’”
(4) “Despite Makdessi’s stature, vulnerability, and
repeated complaints, Makdessi was placed in a cell
with an aggressive prison gang member, Smith, in
August 2010;”
(5) “By the end of October 2010, Makdessi filed a
report ‘stating that he had been sexually assaulted by
his cellmate;’”
(6) “Yet ‘the standard protocol of separating inmates
alleging sexual assault was not followed when Makdessi
filed’ the October 2010 report;” and
(7) Makdessi “was left in the cell with Smith until
his physical and mental injuries from the December 21,
2010 attack sent him to the prison infirmary for a
month and a half.”
The majority then acknowledges that even if Makdessi shows on
remand “that the risk of serious harm he faced was so obvious

4

The magistrate judge actually stated that Makdessi
"described himself as a 5’4”, 49-year-old man with both physical
and mental ailments rendering him vulnerable to harassment and
attacks by other inmates.” J.A. 956 (emphasis added).

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that [the defendants] must have known it, [the defendants] may
still be able to successfully rebut the charge.” Majority Op.,
at 22.
If this was an appeal from the grant of summary judgment
(like Farmer), then I might agree with the majority’s analysis
that further consideration is merited. However, the record makes
it

clear

below

that

this

considered

findings

by

inquiry

this

which

has

evidence
these

already
and

made

defendants

occurred:

the

appropriate
completely

judges
factual

rebutted

Makdessi’s claim.
“To
context,

establish
a

that

plaintiff

a

risk

generally

is
is

‘obvious’

required

to

in

this

show

legal

that

the

defendant ‘had been exposed to information concerning the risk
and thus must have known about it.’” Danser, 772 F.3d at 348
(quoting Farmer, 511 U.S. at 842). Most of the facts identified
by the majority involve the grievances and complaints Makdessi
filed before December 21, 2010. As the district judge implicitly
recognized in denying summary judgment, the number of Makdessi’s
prior grievances might well be sufficient to permit a factfinder
to conclude that the defendants knew of a substantial risk to
him. However, based on the trial evidence presented (both direct
and circumstantial), the magistrate judge and the district judge
found that the defendants did not have actual knowledge of the
grievances.

This

finding

is

not
41

clearly

erroneous,

and

the

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does

consideration

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not
of

contend

the

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otherwise.

prior

Therefore,

grievances

is

further

irrelevant

to

Makdessi’s claim against these defendants. See Danser, 772 F.3d
at 348-49 (rejecting Eighth Amendment claim because there was no
evidence

that

prison

official

was

exposed

to

information

concerning risk to the inmate). 5
Removing the prior grievances from the analysis leaves only
the following facts identified by the majority: Makdessi’s selfdescription

of

his

physical

and

mental

problems

and

his

assertion that he was vulnerable to harassment and attacks by
other

inmates;

Makdessi’s

placement

in

a

cell

with

a

known

prison gang member, Smith, in August 2010; and Smith’s December
21, 2010, assault on Makdessi. Of course, it should be selfevident that the fact that Smith assaulted Makdessi on December
21, 2010, does nothing to suggest that any defendant knew (or
should have known) before that day that Smith posed a risk of
serious harm to Makdessi.
The

majority

is

thus

left

with

the

fact

that

the

“vulnerable” Makdessi was housed in a cell with the “aggressive
prison

gang

member”

Smith

before

5

the

assault

occurred.

This

The majority does not point to any evidence tending to
establish that these defendants deliberately blinded themselves
to Makdessi’s grievances. Moreover, as I have noted, Makdessi
cannot rely on unsupported speculation to establish deliberate
indifference. Danser, 772 F.3d at 348 n.10.

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fact, without more, does not suggest that the defendants were
deliberately

indifferent

to

Makdessi’s

safety.

See,

e.g.,

Shields v. Dart, 664 F.3d 178, 181 (7th Cir. 2011) (explaining
that “a general risk of violence in a maximum security unit does
not by itself establish knowledge of a substantial risk of harm”
for purposes of the Eighth Amendment); Ruefly v. Landon, 825
F.2d 792, 794 (4th Cir. 1987) (affirming in a pre-Farmer case
the

dismissal

plaintiff

of

only

an

Eighth

alleged

Amendment

that

the

complaint

prison

because

officials

the

“generally

knew” that the inmate who assaulted him was a violent person).
In any event, the district judge explained that “[e]ach of the
defendants testified that he had no involvement in assigning
cellmates.” J.A. 1007. Therefore, the decision to house Makdessi
and Smith together has no bearing as to whether these defendants
violated the Eighth Amendment. See Wright v. Collins, 766 F.2d
841, 850 (4th Cir. 1985) (“In order for an individual to be
liable under § 1983, it must be affirmatively shown that the
official

charged

acted

personally

in

the

deprivation

of

the

plaintiff’s rights.” (internal punctuation omitted)).
C.
In denying the summary judgment motion, the district judge
recognized

that

Makdessi

alleged

facts

and

circumstances

sufficient to permit a trier of fact to find that defendants
Fields,

King,

and

Gallihar

were
43

deliberately

indifferent.

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However, at the subsequent bench trial, the magistrate judge –
sitting

as

reviewed

the

the

factfinder

objections

–

to

and

the

the

report

district
and

judge

–

who

recommendation

-

carefully considered the evidence presented, and they concluded
that

Makdessi

failed

to

meet

his

high

burden

of

proving

deliberate indifference. The decision is amply supported by the
evidence presented, the factual findings, and the controlling
legal

standard,

presented

a

and

neither

sufficient

Makdessi

reason

to

set

nor

the

aside

majority

that

has

decision. 6

Accordingly, the judgment in favor of Fields, King, and Gallihar
should be affirmed.
III
Based on the foregoing, I concur in Part II of the majority
opinion, but I dissent from the remainder.

6

As a second reason for vacating the judgment, the majority
states that “the court below focused on factors that, under
Farmer, may be irrelevant.” Majority Op., at 22. When the
decision below is viewed in its entirety and in its proper
context, it is clear that the judges fairly considered, and
decided the case on, all of the evidence presented.

44