Cody Walton v. Robert Dawson

receiving below-guide- after 2006), respect for the vised release “promoting] sentence). deterring future viola- Although judge a means of lines re- law” is Webb, tions, v. 738 F.3d see United States “just punishment,” his remarks ferred (4th Cir.2013); United States 641-42 in a sanc- appropriately context describe 131-32 Vargas-Davila, v. conveys importance obey- tion that of Cir.2011). (1st supervised conditions release. reimprison Clay for 24 judge’s decision to contrast, circuits bar consider- By two flagrant repeated, months for violations 3553(a)(2)(A) Congress § because ation of “fundamentally arbitrary, wrong, was relevant factors it from the list of excluded 3583(e). Miller, Paul, fanciful,” v. or States v. § States United in United (5th Cir.2011); (7th Cir.2008), F.3d United F.3d thus not Hammons, F.3d discretion, v. States abuse see an United States Cir.2009). (9th Sentencing Musso, (7th Cir.2011) But the Com- 570-71 chapter mission’s introduction to (revocation justified by repeated sentence explains that the reason courts guidelines Neal, violations); States v. United 3553(a)(2)(A) § not focus on rev- should Cir.2008) (same); F.3d 438-39 “just hearings provision’s is the ocation Salinas, United States v. clause; is a revocation sanc- punishment” (7th Cir.2004) (same). 589-90 violating supervision, tion for the terms AFFIRMED. a new crime. See punishment A, 3(b); pt. ch. United U.S.S.G. cf. 1173, 1182 Miqbel, States

Cir.2006) (“[T]he difference between sanc-

tioning supervised release violator for him in punishing of trust and order

breach respect for the law is promote subtle

indeed.”). did not its The district court abuse Cody WALTON, Plaintiff-Appellee Lee by a term of 24 imposing

discretion range rec months—-which was within policy statements

ommended DAWSON, Defendant-Appellant. Robert primarily re § 7B1.4—because the court 3553(a)(1), § factors name lied on listed Eugene Dwiggins; Nathaniel Flen Jon ly, personal the defendant’s characteristics nory; Belt; Wyatt; Alan R. Drew First, nature of and the his violations. Deputy, Unknown Defendants criminal Clay’s discussed new convic court eight violations and noted tion and other Moore, Defendant-Appellant David response supervision. Sec Clay’s poor ond, judge that this miscon explained County Shively, Deputy Macon Michael particularly egregious because duct individual in his official and Sheriff age had 21 at the time of Clay, who been County Commission, capacity; Adair original sentencing, had received a sen his capacity; in their official Unknown guidelines six months below tence County Deputy, in his Macon Sheriff him range help in order learn from his Gary capacity; individual official and § 7B1.4 cmt. n. 4 mistakes. See U.S.S.G. Jones, Adair D. Commissioner may (noting “upward departure Missouri, County, individual his super- if violates warranted” defendant capacity; official Robert T. Hard wick, County, Adair Sheriff of Mis

souri, in his individual and official

capacity, Defendants

No. 12-4000. of Appeals,

United States Court

Eighth Circuit. Sept.

Submitted: 2013. 20, 2014. May

Filed: En

Rehearing Rehearing Banc

Denied June Morthland, Hannibal, Boyd

John MO MO, Ohnemus, Hannibal, (Amy Lee brief), appellant. for MO, Columbia, Stephen Wyse, Sherman appellee. RILEY, Judge, Before Chief BYE interlocutory jurisdiction, affirming in part GRUENDER, Judges. Circuit reversing part. RILEY, Judge. Chief I. BACKGROUND1 pretrial While in detention at the Macon Walton arrived in the on August Missouri, County (jail) in Cody Jail Lee Indiana, after extradition from was the victim Walton of a sexual assault. charges face relating to the theft of an A youth troubled who bounced and out automobile and carrying gun without a care, of foster Walton years was nineteen permit charges to which Walton later — old and weighed pounds at the time of pled guilty and received a sentence of pro- thirty the assault. The year rapist, five old community bation and service. At Flennory, Nathan was a 195-pound regis- assault, time of the sexual Walton had not

tered sex offender a history of vio- yet been arraigned. assault, Before the lence: he stood convicted second-degree the individual cell doors were never locked officer, aon law enforcement do- while Walton was an inmate. assault, mestic and unlawful weap- use of a on, just days four before his assault on rape occurred in predawn hours Walton, pled guilty to rape. forcible August Flennory left his own jailer Because the did not lock the cell cell, unlocked entered Walton’s unlocked night, Flennory doors at was able to enter cell, and had follow him Walton back to his cell, Walton’s threaten to “kill [Walton] cell. Walton did not call for help because sleep,” and [his] leave Walton physically really he “was and Flennory terrified” emotionally bloodied and bruised. threatened, word, “Don’t say a or I’ll kill brought

Walton federal claims under 42 you.” Flennory sodomized Walton and § U.S.C. pendent again state law threatened to kill him. After Flen- against claims those he responsi- nory alone, considers left him used toilet ble for the assault. At issue in paper this inter- wipe himself and saw blood run- locutory appeal are Walton’s Fourteenth ning leg. down his then Walton wrote a Amendment failure against to train message claims piece on a of paper: get “Please Dawson, Robert the sheriff of Macon me out of this cell. raped. I’ve been I’m County, Moore, and David jail the bleeding---- adminis- I’m afraid that the man in officials). (collectively, trator summary On the cell next to going me is to kill me.” judgment, the district court Fearing denied both Flennory might return, Walton qualified immunity, officials concluding the hid the paper until a guard female deliv- facts showed the officials were indifferent ered breakfast. Presumably because to the known posed by leaving cell Flennory in a nearby overhear, cell could doors overnight unlocked Flennory while simply handed the paper to the was an Although inmate. guard the district and said nothing. guard The left court denied qualified Moore immunity note, reading before the quickly but re- careful, based on a individualized assess- turned and removed Walton from the cell ment, the district court particu- offered no block. Another officer took Walton to the deny larized basis to quali- Sheriff Dawson local hospital, where he received treat- fied immunity. We exercise our limited ment. appeal On this summary Fortner, from a denial moving party, of Walton. See Brown v. judgment under Fed.R.Civ.P. we recite the 557-58 light facts in the most favorable to the non- knowledge gen- cussed Sheriff Dawson’s night the of the as- jailer duty

The on “recog- eral The district court That terms. Bilinski. was not Ryszard was sault against claim Moore is nize[d] Walton’s night left the doors the first Bilinski stronger against that than Dawson.” Though jail the had unwrit- unlocked. that doors were be locked policy ten upon undisputed learning It is of the presented poli- evidence night, Walton issued writ- rape, Walton’s Sheriff Dawson routinely ignored. prior aOn occa- cy was reprimands jail ten to both the administra- sion, end of Bilinski’s Moore arrived at the tor, Moore, jailer duty, the on Bilinski. and and Bilinski left the cell night shift learned Bilinski, In his the sheriff reprimand overnight. says Moore he doors unlocked very tragic noted “was rape Walton’s Bilinski, reprimanded and Bilinski verbally event”—“one of the most serious events that he and that he “indicated understood jail during occur the time as Sher- [his] night.” down at would lock cells iff’—and fact that an- emphasized “[t]he the “almost three during may Bilinski said not employee following poli- other Moore no rape, cy months” before the “never reason for not to follow [Bilinski] not-adhering training equipment to that rule.” it.” “cited questioned Bilinski and [his] added). employ- as well fact [he was] as the new (Emphasis not fol- primary ee for [his] reason[s] rape Three months before the issue lowing policy.” Sheriff Dawson “w[ould] case, in- Flennory entered another this accept legitimate not for them as excuse night mate’s unlocked cell at while the following policy locking ... asleep was the inmate’s inmate bit inmates night.” down at penis. pushed The inmate awoke Moore, In his Daw- reprimand to Sheriff Flennory away, reported he had then explained “policy son that had the been sexually assaulted.” Moore admits “been followed[,] very may prevented it have this incident, knew about this but claims he serious The sheriff took “disci- incident.” “any suffered did not know inmate action, plinary enforcing for [Moore] injury ... inci- physical as a result pro- policy,” “plac[ed] [the] [Moore] inmate avers the assault drew dent.” days.” Daw- bation the next Sheriff Flennory temporarily placed blood. talk- noted that he had “learned from son gener- then returned to the segregation, [sexual [Moore] after population shortly rape al before Walton’s Walton], jailers ha[d] some [that] Flennory displayed after suicidal tenden- on a adhering policy not been th[e] promised to behave. cies added). (Emphasis regular basis.” Viewing light in the most evidence appeal quali- Both the denial of officials Walton, district court saw favorable to dis- immunity, fied and Walton moves enough “to refute claim” [the officials’] jurisdiction. the for lack appeal miss of “they knowledge had no the cells being at night.” locked down were II. DISCUSSION knowledge Moore’s of personal Based on A. Jurisdiction Bilinski’s failure lock the cell doors and an- relatively involving the recent assault jurisdiction, which begin with We “ inmate, court other the district found always ‘first and fundamental is our ” submissions the failure to [on “Walton’s Bet v. a question.’ Steel Co. Citizens for 94, 1003, summary Env’t, 83, to survive claim] train sufficient ter 523 U.S. 118 S.Ct. (1998) Much of the district court’s S. judgment.” (quoting 140 L.Ed.2d 210 Great Jones, v. 177 U.S. analysis focused on Moore’s Fire Hotel Co. specifically Proof (1900)). 453, 449, 690, 44 L.Ed. 842 only court dis- 20 S.Ct. culpability, the district 1116 the sum- this is qualified immunity appeal

A denial cause what the officials’ asks of do, stage immediately ap- jurisdiction we mary judgment “is us to have over this a concern- under the order pealable dispute ‘resolve[s] if it case collateral doctrine. Mitchell, 528-30, relating an of law 472 issu[e] abstract See U.S. 105 S.Ct. ” immunity.’ v. Bd. qualified Lockridge 2806. Ark., 1005, Trustees Univ. of deny therefore Walton’s We motion (8th Cir.2003) (en banc) (alterations 1008 jurisdiction lack appeal dismiss for Pelletier, original) Behrens v. (quoting proceed legal now to the merits. 834, 313, 299, 133 516 U.S. 116 S.Ct. (1996)). L.Ed.2d 773 Such a denial is not B. Merits solely if it on immediately appealable rests judgment, On summary a defen a determination of “whether or not the qualified official dant is entitled to immuni pretrial ‘genuine’ record sets forth a issue “(1) facts, ty unless viewed in the light Jones, of fact for trial.” Johnson v. 515 plaintiff, most favorable to the demon 304, 320, 2151, U.S. 115 S.Ct. 132 L.Ed.2d deprivation strate the aof constitutional or (1995). may Questions ap- 238 of law (2) statutory right; right pealed away, questions but of fact right clearly established at the time of depri See, 313-18, may e.g., id. at 115 not. S.Ct. City vation.” Kan. Howard v. Police (8th Cir.2009). 984, 570 Dep’t, F.3d 988 does not mean district may This District courts consider these two order, court guide questions any may deny can case to trial without ever but deciding “essentially question” legal qualified immunity answering without both qualified whether a questions plaintiffs defendant entitled to favor. See Callahan, 236, immunity. Forsyth, 223, Mitchell v. 472 v. U.S. Pearson 555 U.S. 2806, (2009). 105 86 L.Ed.2d 411 S.Ct. 129 S.Ct. 172 L.Ed.2d 565 (1985). “simply Where district court District courts must make reasoned “find on the qualified immunity ings d[oes] not rule of fact and conclusions law” suffi issue,” jurisdiction require permit we have meaningful appellate cient re ruling. district issue qualified immunity court to such a view decision. Craft (8th Cir.1987) Wipf Becker, v. Robbins 694 & n. curiam). (8th Cir.2013). it (per But does mean that if the parties agree disagree the law but interlocutory Faced an facts, about the there is no issue us to appeal qualified the denial of immuni decide on interlocutory appeal. ty, accept we the district true court’s Shelley, Aaron v. findings of they fact to the extent are not Cir.2010). “blatantly record,” contradicted Harris,

Applying 372, 380, these principles this Scott U.S. case, jurisdiction junc (2007), we have no at this S.Ct. 167 L.Ed.2d 686 ture to decide whether “the district court’s the district review court’s conclusions of novo, sufficiency” McNeese, determination of evidentiary law de see Jones Cir.2012). was correct. Thomas v. Talley, F.3d F.3d If the however, can, We district court fails make a factual find accept findings the court’s purely legal district factual on issue relevant our review, facts, as true and decide whether those as we what “determine facts the dis issue,” court, “purely a a legal clearly involve trict in the most light favorable to established violation of federal John nonmoving party, likely law. the assumed.” son, 313, Johnson, 319, 515 U.S. at 115 S.Ct. 2151. Be- 515 at 115 U.S. S.Ct. 2151

1117 convicted, added). raigned, much less so the Occasionally, a district Con- (emphasis only him analysis stitution shielded from “cruel scant factual provides such court Const, punishments,” and unusual U.S. impossible, and we must this task is VIII, any punishment amend. but See, explanation. for additional remand Revere, 244, 463 whatsoever. See U.S. Jones, More 1162-63. e.g., 2979; Bell, 16, 103 441 U.S. at n. S.Ct. 535 the court’s often, decipher can district we 99 S.Ct. 1861. viewing record favor- assumptions “by the sum- plaintiff any the as in other ably to To on a claim under succeed Lockridge, 315 mary judgment motion.” the Due Process Clause Fourteenth added). (emphasis at 1008 F.3d Amendment, pretrial a detainee as such assess- Undertaking an individualized show official Walton must the defendant each defendant’s entitlement ment of deliberately rights. his indifferent we the consti- immunity, applicable Fletcher, 340, review 345 See Butler v. standard, (8th Cir.2006). then in turn tutional consider indifference” “Deliberate qualified of the two officials’claims polysemous phrase. applied each is a As to a immunity. prison Eighth official Amendment

context, Supreme Court has made it 1. Constitutional Standard requires clear “deliberate indifference” subjective knowledge: liability no attaches detainee, pretrial a

As “unless the official knows and disre necessarily his to train claim rests failure gards an excessive risk inmate health against the officials the Due Process Brennan, safety.” Farmer v. U.S. 511 of the Fourteenth Amendment. Clause 825, 1970, 837, 114 S.Ct. 128 L.Ed.2d 811 City Hosp., Revere Mass. Gen. See (1994) added). However, ap as (emphasis 2979, 244, 103 U.S. S.Ct. 77 plied municipality a the Fourteenth (1983). Eighth “the Although L.Ed.2d 605 context, indiffer Amendment “deliberate until application” has no there Amendment objective: [may] purely “liability ence” is adjudication guilt,” been “formal has or premised on obviousness construc gives Fourteenth Amendment state 841, 114 tive Id. at S.Ct. notice.” just the Fifth pretrial as detainees — added); City also Canton (emphasis see federal detain gives pretrial Amendment Harris, U.S. 109 S.Ct. great rights which are “at least as ees— (1989). L.Ed.2d 412 But protections Eighth Amendment avail specified has Supreme never wheth Court (empha prisoner.” to a convicted Id. able subjective is or er “deliberate indifference” added). The Constitution affords sis objective in the context of Fourteenth pretrial to a detainee greater protection municipal against claim Amendment to a convicted inmate compared See, e.g., Spencer v. Kna official. process requires that a “[d]ue sense Co., pheide Equip. Truck punished.” detainee not be Bell v. pretrial 905-06 Wolfish, 535 n. 99 S.Ct. U.S. (1979). answering expressly ques- this L.Ed.2d When Without tion,2 occurred, subjective have used Farmer’s Walton had not been ar- we Butler, we F.3d After Butler question While whether at 345. Butler answered the appropriate yet "deliberate indifference” a clear noted "court has to establish our detainees,” test under the Fourteenth Amendment —iden- pretrial standard for Morris Zef subjective compo- tifying objective and both (8th Cir.2010) (inter feri, means, phrase whether it is nents —what omitted). quotation nal disputed. subjective objective, or was not indifference to eval- to take measure of deliberate sufficient remedial action.3 See by Farmer, uate Fourteenth Amendment claims 837-39, at 114 S.Ct. U.S. pretrial prison against detainees officials. 1970. Himer, 336,

See, e.g., Holden v. 663 F.3d Cir.2011). (8th 2. Moore recognize 341 & n. 3 We potential inconsistency approach Considering Moore’s entitlement (failure train) creates: the same claim qualified immunity, “the district court (a detainee) by plaintiff pretrial the same carefully explained the material disputed arising pro- under the same constitutional which, favorably facts viewed when most (the vision Due Process Clause of the [Walton], permit would a reasonable Amendment) Fourteenth uses the same jury to find that” Moore’s indif- deliberate (deliberate indifference) in standard differ- ference violated Walton’s constitutional ways ent depending whether the defen- Aaron, rights. 624 F.3d at 884. inter- On dant is the or municipality employee. its locutory appeal, accept we are bound to Theoretically, municipal- this could make a the accuracy findings of the district court’s should, ity liable for a it risk have known “blatantly because none is so contradicted if supervisory even all of its employees by jury the record ... that no reasonable roles did not know the risk and are thus Scott, could believe it.” 550 U.S. at Canton, Compare liable. 489 U.S. at 1769; Johnson, 127 S.Ct. see also U.S. 390 & n. 1197 (explaining 109 S.Ct. at 2151. findings S.Ct. These municipality may liable because the risk adequately support district court’s le- was “obvious” or “must have been plainly gal conclusion that presently Moore is not obvious”), and id. at 109 S.Ct. 1197 qualified entitled to immunity. (O’Connor, J., concurring and dissenting) (emphasizing that “actual or constructive a. Moore’s Failure to Train Violation Farmer, enough), notice” is 511 U.S. (“Canton’s objective S.Ct. 1970 no There is doubt the right ... appropriate standard is not an pretrial test for issue—a right pro detainee’s to be determining liability prison officials by tected from sexual assault in another Amendment.”). Eighth under the See, clearly e.g., mate—is established. (8th Crist, Curry concern, Despite this theoretical Cir.2000). equally beyond dispute It repeated practice of using our Farmer in “[r]ape or sexual assault at the hands the Fourteenth Amendment context has prisoners of other is ... ‘sufficiently seri long followed been too be reconsidered deprivation ous to amount ato of constitu See, e.g., here. Vaughn Cnty., Greene ” tional Spruce Sargent, dimension.’ Ark, We Cir.1998) Jen (quoting therefore conclude Walton’s failure to train Clarke, sen v. supervise claims must be judged by Cir.1996)). just This leaves one purely subjective Farmer’s deliberate indiffer legal question relating to claim Walton’s say, ence standard. is to Which against facts, by Moore: Do the as found prove must officials personally court, permit jury knew district of the constitutional reasonable posed by inadequate training their or to find that supervision clearly Moore violated this proximately injury him caused fail- established right? contrast, By stringent personally under Canton's less even if that defendant does not standard, objective may a defendant be liable know the risk exists. risk, receiving after notice sufficient Bilinski once for fail- may reprimanded held Moore prison

“A official be doors, if he jury the the could still Eighth ing the Amendment to lock liable under verify faces a sub that an inmate infer from Moore’s failure to wheth- or she knows and disre complied of serious harm promise stantial risk er Bilinski with his to failing take reason by risk to gards that policy purposely follow the that Moore to abate it.” Coleman able measures obtaining confirmation avoided direct Cir.1997). Rahija, 114 F.3d “strongly id. at 843 suspected,” what he n. particular knowledge This need not be subjective 1970. Farmer’s S.Ct. need know did not to Walton ized—Moore prison supervisors does not invite standard likely to assaulted “was especially bury their heads in the sand. See id. to eventually com specific prisoner the who prison “a official ... would not (explaining Farmer, 511 U.S. mitted the assault.” if liability the evidence showed that escape 843, 114 to only 1970. Moore needed S.Ct. merely verify underlying refused to he (1) being jail cells were not know the true, strongly suspected that he to be facts (2) the cells night, leaving locked at to or declined confirm inferences obvious, sub overnight was “an unlocked exist”). strongly suspected he inmate Id. The safety.” stantial risk Second, crediting jury, a reasonable tes- sat findings factual specific district court’s locked, that the never timony doors were isfy knowledge requirement at both the risk obvious could find so steps. Moore, jail, in the personally who worked step, At the first as the district that risk. id. at knew about indi emphasized, court Walton’s evidence (“[A] may S.Ct. 1970 factfinder conclude over cates the cells were never locked official of a substantial that a knew to a night though unlocked cells led even very that the risk was risk from the fact Flennory. involving incident prior assault obvious.”). personally Moore he was aware admits reject Third, could jury a reasonable lock over Bilinski’s failure to the doors testimony on the tone and Moore’s based least at least one occasion. At night on repri- Sheriff Dawson’s written content of lead a three of evidence could key pieces sheriff had reported mand. The reject jury to Moore’s testimo reasonable after talking from the [Moore] “learned ny verbally reprimanded Bilinski that he jailers some [rape that] discovered Bilinski continued never policy adhering been to th[e] [of have not un under care in leave the inmates his regular overnight] on locking cell doors at risk of assaulted being locked cells and added). The sheriffs (Emphasis basis.” they while slept. supports the reasonable infer- comment First, jury rely could a reasonable jailers were not that Moore knew ence unequivocal statement contra- Bilinski’s but adhering policy, to the locked door did testimony: peri- “For the dicting Moore’s (Sheriff superior come clean his od of almost three months [before Dawson) problem react until or officers!,] my rape,] releasing which in this assault at issue case. after the offi- case Dave Moore [ ] [another are Bilinski’s fail step, At the second cer,] my not-adhering questioned never overnight, (Em- ure to lock doors locking] cell rule.”4 overnight th[e so, added). pre- him to do failure to train jury if believed Moore’s phasis Even unlocking “releasing responsible the doors they were 4. Bilinski’s statement indicates a.m., Moore, officers,” approximately two hours after including have known at 8:00 must relieving overnight because Bilinski. were not locked doors obvious, objectively population, substantial general inmates leav- sented an safety particular non-violent inmates and detainees to risk to detainees’ jail. peace; sleep of this See id. at conduct checks fre- context quent enough nighttime are vulnerable to prevent S.Ct. 1970. Detainees most as- saults; guaran- every and the lock door to asleep, prevent when Constitution cell right sleep leaving without tees a minimum to violent inmates from their cells and by entering of a legitimate nighttime fear the cells of other detainees or See, v. e.g., coercing another detainee. Hutto Fin victims into the violent inmate’s 678, 3, cell; ney, rely 681-82 & n. 98 S.Ct. on a 437 U.S. combination these meth- 2565, (1978); ods; Harper perhaps L.Ed.2d 522 v. or a develop ap- 57 different Showers, 716, proach apparent 720 not from the record. existence, do, critical to human “[S]leep is What officials could' without prevent sleep creating safety risk, conditions that have been an unconstitutional the Eighth nothing held to violate Amendment.” to assure detainees “safe con- Schult, 119, (2d 717 126 Youngberg Walker v. F.3d ditions” confinement. v. Ro- also, Burl, Cir.2013); meo, 315-16, e.g., 307, 2452, v. 457 see Obama U.S. 102 S.Ct. (8th Cir.2012) (un- 409, also, Fed.Appx. (1982); 477 411 e.g., 73 L.Ed.2d 28 see curiam) (“[P]rison published per (finding Spruce, an inmate’s 149 F.3d at 785 officials allegation “regarding lighting,” duty constant a protect have to inmates from vio- (cit- inability which “caused emotional at the sleep, lence hands of other inmates.” headaches,” distress, Farmer, 833-34, and constant was suf- ing 511 at 114 U.S. S.Ct. 1970)). preliminarily Eighth ficient to state an claim); Schuetzle, Meloy Amendment v. Despite prison policies requiring fre- 230 2000 F.3d WL at *1 quent cell nighttime checks with lock- Cir.2000) (8th curiam) (unpublished per downs, Moore jailers actually and his did an (recognizing suffering inmate nothing. night, next to At cells were rare- sleep stated a apnea indiffer- deliberate ly checked and never locked. Bilinski’s ence claim when denied “a Continuous walkthroughs brief before assault oc- (CPAP) Positive Air Pressure machine hours, at every curred most leaving two sleeping”).

use when dangerous only inmates access but through unlocked doors also unmoni- unlocked pose Whether cell doors accessibility long tored stretches of the detainees, risk to unconstitutional such night. The risk was both obvious and that “potential sleep” victims or dare[ ] not prison officials, given do, Flennory’s known they always attack if a factual nighttime prior assault and Bilinski’s question totality first- dependent on the of the hand observations of fear. specific prison’s Walton’s Un- circumstances totality circumstances, der the prison fail- officials’ awareness of the risk. Hutto, do anything mitigate 437 U.S. 682 n. this risk— 98 S.Ct. doors, sweeping locking increasing There is no whether constitutional rule cell checks, cameras, every every installing must segregating vi- prisoners,.or locked as soon the sun Prison olent other approach— sets. some officials retain potentially wide latitude to determine fell minimum below constitu- See, Farmer, how protect e.g., best to detainees from the risk tional standards. case, 833-34, 1970; of a assault. nighttime In this al U.S. at Young- S.Ct. though 315-16, per 2452; did not have cameras berg, 457 U.S. at 102 S.Ct. mitting Hutto, monitoring, jail 2565; visual officials had 437 U.S. at 682 n. 98 S.Ct. options protect several detainees over v. 527 Fed.Appx. Blackmon Lombardi (8th Cir.2013) night. The officials could remove violent (unpublished 584-85 Kemna, curiam); 124 Fed. risk of attack —is the same as in this case. v. per Rollie Cir.2005) Indeed, Holmes, (8th Newman v. (unpub- 473-74 Appx. (8th 650, 651, Cir.1997), curiam); we found suffi- Spruce, F.3d per

lished Mueller, cient evidence that correctional officer 785; Williams Eighth by simply violated the Amendment Cir.1994); Haynes, Wade unlocking inmate, Cir.1981), the cell door of violent aff'd sub 780-81 out and committed an “unan- Wade, who rushed 461 U.S. nom. Smith (1983). ticipated” against attack in- two other 1625, 75 L.Ed.2d S.Ct. mates. Wade, case is where analogous This Other circuits have reached similar re- who, Walton, inmate much like

non-violent For example, sults. the Eleventh Circuit old, feet, five approximately years “was held “sufficiently allege[d] two inmates a weighed approximate- inches tall eight and by county [the constitutional violation re- rarely in the same ly pounds,” was left sponsible jail]” for the they after were inmate, cell as who monitored a violent by assaulted other inmates “the because sexually him.” assaulted “beat work,” locks on the doors to cells did A jury respon- at 780-81. found the F.2d “prevented which the isolation of prisoners compen- liable for sible correctional officer each gave ready from other and attackers and, denying satory punitive damages, to” v. Cnty., access victims. Marsh Butler request, immunity the officer’s we af- (11th Ala., Cir.2001) F.3d 780-81, at Although firmed. See id. 786. (en banc), by on other abrogated grounds was not in the same cell as housed Twombly, Atl. Corp. Bell v. 550 U.S. Flennory, leaving cells unlocked and 1955, 167 (2007); 127 S.Ct. L.Ed.2d 929 see overnight unmonitored created es- largely also, e.g., Mifflin, Pavlick v. sentially the same conditions unsafe as (7th Cir.1996) (affirming judgment 208-09 slight, youth a non-violent was at Wade: against prison guard who “knew he was mercy strong, experienced, of exposing to a [an inmate] substantial predator. violent See id. by sleep- “opening of serious harm” [the] In other cases decided before con door”); Riley Jeffes, cell inmate’s issue, prison that recognized duct at we (3d Cir.1985) (finding 146-47 obligation, variety have an of officials Eighth inmate Amendment claim stated circumstances, to non-violent in protect occurring allegations based on of violence by keeping from violent inmates cell mates open” because “inmate cell doors were left Dormire, In Irving locked. doors “given al- keys,” and other inmates were Cir.2008), we affirmed F.3d cell lowing “easy [the access to inmate’s] qualified immunity of to correc the denial sleeping”). while [wa]s protect who tional officers “failed [an by emphasize so Bilinski’s and opening the cell doors We inmate] disregard prison’s attack him.” Moore’s for door- inmate] could To be [another sure, Irving by locking policy policy repre intent because involved officers harm, jail’s protect sents this choice of how to present to cause which is here. nighttime ass objective But the conduct—leav detainees like Walton See id. give inmate in an unlocked at aults.5 must substantial defer- ing a weak “We concerned”), post we Contrary neighbor partial to the dissent's alarmist looks "impos[ing] argument (accusing us of a 'one- express regarding jail's choice no view this strike-you're-out’ that cell doors must rule” variety protect among ways of the wide "an inmate ... has be locked soon as merely nighttime We detainees from attack. prior committed one assault and his prison right,” regardless any officials determine the al ence of violation of “prison policy”). dealing dangerous best methods inmates in the volatile environment that is Writing for our court Martin v. Schuetzle, prison life.” Norman White, Cir.1984), Here, Judge the late Donald R. Ross called “the inability Sheriff Dawson determined the “best or unwillingness prison of some necessary administrators to take steps cameras, jail, in this old without 1” method! protect prisoners their from sexual and overnight, the cell was to lock doors physical assaults other inmates” “a na policy he concluded that this been “[h]ad disgrace.”6 tional must “not We be hesi followed!,] may prevented very it have violation, tant to find a constitutional if one serious incident.” admin- “[W]hen exists.” Id. 473. One exists here if locking istrators conclude that” the cell sure, Walton’s account is true. To be overnight necessary doors assure de- jury reject reasonable could Walton’s view safety, upon tainees’ “it would encroach accept testimony, the facts and Moore’s greater knowledge the administrators’ story plausible “[w]hich but is more we prison conditions for us hold as a matter say cannot because ‘it is not our function ” leaving dangerous law that inmates in to remove the credibility assessment from ” overnight unlocked cells “does not create a jury.’ City Atkinson v. Mountain they substantial risk that will attack View, Mo., (8th oth- 709 F.3d Cir. 2013) Newman, Hulm, (quoting ers.” 122 F.3d at Kukla v. 652. Of 310 F.3d Cir.2002)). stage, At this course, an violating policy internal does simply our role is say jury to a reasonable Constitution, ipso not violate the but facto could find in Walton’s favor. policy equates when that to the constitu- totality tional minimum under the Underlying b. Bilinski’s Failure circumstances, appropriately we focus to Protect Violation objectively the unconstitutional conduct Neither arguments Moore’s nor See, policy. e.g., which breaches the Falls partial analysis dissent’s alter our con Nesbitt, 966 F.2d clusion. Moore right is that unless his liberty Prison officials are not at to violate subordinate, Bilinski, “violated the Consti merely the Constitution because doing so tution,” Moore cannot be liable “for failure happens also to a prison policy. violate train,” Carpenter to Gage, 686 F.3d Howard, Gardner 109 F.3d (8th Cir.2012), but Moore is wrong (8th Cir.1997) (explaining liability 430-31 that necessarily joined Bilinski must be attaches for the violation of a “constitution- Although a defendant.7 Walton has not case, long-established reiterate officials’ obli 6. Similar to this Martin involved "defec- gation implement to some reasonable method tive cell [which] locks allowed violent inmates (which might might locking or not include freely enter other inmates' cells.” 742 doors, cameras, installing frequent or F.2d at 475. We reversed the trial court's walkthroughs) protecting non-violent de prison directed verdict superin- in favor of the proximity tainees housed in close to violent tendent, holding his failure to ensure mini- See, Farmer, e.g., inmates. 34, 511 U.S. at 833- mally prison clearly secure conditions "would 1970; Youngberg, 114 S.Ct. 457 U.S. at justify jury finding that he failed to rea- 315-16, 2452; Hutto, 102 S.Ct. 437 U.S. at sonably respond to the risks of inmate as- 2565; Spruce, 682 & n. 98 S.Ct. saults.” Id. at 475-76. 785; Wade, 780-81, 663 F.2d at 786. The officials, court, prison not this chose meth course, locking 7. Of Walton still doors—but Moore and his bears the burden of od—

jailers consciously implement convincing failed to jury that Bilinski committed despite method the obvious and known risks safety. to detainee act, yet noth directly, guard reviewed the Bilinski did having sued Bilinski See, enough record, has e.g., we are satisfied Walton at the time. Odom v. S.C. jury Corr., to convince potentially evidence Cir. Dep’t of failure underlying committed 2003) (“[A] Bilinski correctional who stands officer gives rise to violation which protect takes no passive as a observer and Earlier, liability. to train failure Moore’s during action whatsoever intervene pass noticed “Walton was used Bilinski the rights assault violates of the victim Flennory’s cell.... [I]t his meal [sic] Williams, (emphasis omitted)); inmate.” being like more a servant because looked (“A prison at 1216 acts with official told him to do that.” It somebody else deliberate indifference to an inmate’s safe apparent to Bilinski that Walton was also ty present when the official at the time a.m., At 3:16 Bilinski saw “scared.” of an intervene or fails to Flennory’s Flennory both Walton assault.”). to end otherwise act cell, “very con- looking and Walton was partial dissent disagrees cerned.” inference. our obli Despite reasonable ob- Despite everything Bilinski had most gation light to view facts in the requirement and the that inmates served Walton, dissent partial favorable own cells at that hour of the in their Bilinksi was to inter required insists nothing he more night, says Bilinski did “the this case are vene because facts of right.” than ask whether Walton was “all Holden,” troubling post than less Bilinski, According to Walton “said he was Cotton, n. 12. Cf. Tolan v. 572 U.S. fine,” specifically denied this but Walton -, -, -, 13-551, No. 134 S.Ct. in his to the offi- response conversation (2014) 1861, 1863, 188 L.Ed.2d 895 statement of uncontroverted facts. cials’ curiam) (summarily vacating and re (per Walton testified and Bilinski did “the Fifth failed manding because Circuit speak during the a.m. walkth- at all 3:16 on a ruling to adhere to the axiom that in account, Crediting Walton’s as we rough. summary evi judgment, motion for [t]he Atkinson, summary judgment, must on see jmovant believed, is to be non[ dence Bilin- 709 F.3d at we therefore infer justifiable all inferences are to be and disturbing noticed circum- personally ski ” (alterations origi favor’ in that should have led a reasonable drawn his stances violation, tion, by is underlying protect and the latter statement Bilinski failure to expect indisputably false—the cell doors were we the district court's eventual line, require According dur- find- to Walton’s time verdict form to that antecedent locked. allowing jury impose any ing walkthrough a.m. both he and the 3:16 before against Flennory Flennory's inter- liability Moore. were in cell. On locutory appeal, we that at 3:16 must infer (1) progress, see Mo. a.m. was point during the assault but before At some 566.010(1) (establishing § the sexu- Rev.Stat. Walton), (when Flennory penetrated a.m. 4:00 forcibly began Flennory first al assault when through walked cell This Bilinski block. Walton); (2) Flennory Walton and “fondled” walkthrough must have been 3:16 a.m. cell; (3) Flennory’s Bilinski ob- were in walkthrough at 4:54 because the next pro- enough to know needed served by which time the assault was over. a.m.— See, e.g., Byrd, Edwards v. tection. says spoke affidavit to Walton at Bilinski’s 728, 733, 13-1560, at No. 2014 WL specify a.m. but does not which 3:16 (“[T]he 2014) April guards *3 Cir. Flennory Bi- Walton or were in at the time. vigorously dispute the the district sug- facts that report vaguely to Sheriff Dawson linski’s by supported to be the record. gests court found Walton was alone in his own cell jurisdiction such factual were But Wal- But we lack to field claims “all inmates secured.” review.”). interlocutory testimony sugges- arguments former on ton’s contradicts the nal) (quoting Liberty Lobby, Anderson v. disagrees dissent with our view of the Inc., 242, 255, 477 U.S. 106 S.Ct. light record in the most favorable to Wal- (1986))). Reading L.Ed.2d 202 the record post ton. “If See 1128-29. three rea- light Walton, in the most favorable to we judges disagree sonable about the facts agree partial cannot with the In dissent. record, surely contained the factual Holden, plaintiff got the inmate into a dispute genuine enough is require reso- fight with his cellmates a prison offi Atkinson, lution jury.” reasonable cial immediately, stop intervened almost 709 F.3d at 1212 n. especially 5. This is ping fight “[approximately one minute true on an interlocutory appeal from the began.” after 663 F.3d at (empha [it] qualified denial of immunity, for we have added). plaintiffs injuries sis The Holden jurisdiction no to supplant the district were limited to “minor swelling,” “some (i.e., court’s blatantly reasonable con- and a bruising, [lip] small cut and minor tradicted) interpretation of the factual rec- abrasion.” Id. “There significant was no See, Edwards, e.g., ord. 750 F.3d at 732- case, bleeding.” by contrast, Id. In this 33 & n. 2014 WL at *3 & n. 3. death, Walton was threatened with sexual ly for over an any assaulted hour without officials, by prison

intervention and left c. Remaining Arguments Moore’s homicide, bleeding. “Short of [rape] is the The rest of pleas qualified Moore’s ultimate violation of self.” Coker v. Geor immunity First, merit little attention. gia, 584, 597, 433 U.S. 97 S.Ct. Moore’s reliance on v. Iqbal, 556 (1977) (internal L.Ed.2d 982 Ashcroft quotation U.S. 129 S.Ct. 173 L.Ed.2d 868 omitted). Comparing a one-minute cell- (2009), is misplaced because Walton’s fight, block which a official quickly premised claims are not on vicarious stopped, with a liabil one-hour sexual assault— threats, ity, involving of, death but on Moore’s genital personal knowledge forcible contact, and penetration anal in, and involvement unconstitutional acts. —which prison official stop, failed to we consider Second, Moore’s contention that Walton this case considerably more serious than has not shown training Bilinski’s was con Holden. stitutionally inadequate nothing more than dispute a factual about the district partial places dissent also court’s view of the light evidence weight on fear, Walton’s failure express most favorable to Walton. Such factual could, which is evidence a jury reasonable not, disputes are not purview but need within our post credit. 1128-29. Credibility Johnson, province interlocutory appeal. is the of jury, and See 515 after observing testimony, 313, 115 live a reason at U.S. S.Ct. 2151. jury easily able could credit Walton’s ex Third, argument Moore’s that he lacked planation that he (given was too afraid of pattern “notice a of unconstitutional acts threats) Flennory’s death express to fear by” committed his subordinates is similarly or call for help. Our careful scrutiny of unavailing because it is based on a factual the record reveals this Berry case is unlike dispute present jurisdiction. outside our Sherman, (8th

v. Cir.2004), 365 F.3d 631 Aaron, See 624 at If jury F.3d a any one, evidence indicating “no in credits Walton’s evidence and finds Moore himself, cluding” Walton “believed he was ” actually knew about his subordinate Bilin- harm,’ at ‘substantial risk of serious id. Everett, at ski’s failure to lock the (quoting overnight 634 doors Jackson v. 140 F.3d Cir.1998)), actually 1151 vigor posed is knew this failure a ously disputed. Apparently, risk, the partial jury substantial will necessarily

1125 reasons, agree suffi- For these we with the that Moore received have concluded court conclude not of the constitutional risk. district Moore is cient notice Farmer, 1970 at qualified immunity stage at S.Ct. entitled to U.S. this (“Whether requi- a official had the of the case. a knowledge a substantial risk is of

site 3. Sheriff Dawson subject of to demonstration question fact ways.”). in the usual qualified toAs Sheriff Dawson’s immuni- claim, ty agree we cannot with the district reading of our Moore’s erroneous cursory The analysis. court’s district Norman, at is decision F.3d only scrutiny of court’s individualized square Supreme to with the impossible Dawson’s to qualified Sheriff entitlement Pointing in Farmer. Court’s decision immunity a footnote vague declaring had fact that attacker Norman questions respect “fact remain with arrests before the as five administrative responded Dawson rea- [Sheriff] whether Norman, see at issue in id. sault sonably after the inmate’s earlier] [other adopt rule per would have us se Moore The incident.” rest of district court’s prison supervisor cannot be liable only in general order refers the sheriff another, despite attacks when one inmate terms, painting him with the same brush knowledge of the supervisor’s actual by assuming Sheriff Dawson as Moore risk, has more until the attacker assaulted (who many responsibilities had outside subjec five other inmates. Farmer’s than prison) knew much as Moore about the however, standard, “imposes no such tive jail’s day day operations. Farmer, 511 requirement.”9 U.S. qualified im n. 1970. Nor would such doctrine S.Ct. munity analy requirement Eighth requires consistent with the “an individualized alleged con sis of each officer’s conduct.” Rob Amendment’s “‘broad idealistic Omaha, standards, City hu dignity, civilized erts cepts ” (8th Cir.2013) added). Gamble, if manity, decency.’ (emphasis Even Estelle 97, 102, court that Sheriff Daw right 50 L.Ed.2d the district 429 U.S. S.Ct. (1976) may reasonably have (quoting Bishop, responded 404 son not Jackson Cir.1968)); Flennory’s also earlier of another in F.2d see Butler, mate, question “have that factual alone is (noting at 344 we deny qualified immuni the deliberate indiffer insufficient basis to repeatedly applied subjective under Farmer’s standard. ty ence standard of Estelle [Fourteenth claims”). enough say question a factual detainee It is pretrial Amendment] based, dispute like the factual must be both decision in Norman was exists: Our decision, “genuine” an individualized assess and “material.” Fed.R.Civ.P. on 56(a). subjec particular prison sub All of Walton’s evidence ment of official’s Norman, knowledge only to Moore’s jective tive relates knowledge. See knowledge, no Dawson’s. Con at 1105-06. There was evidence Sheriff pro court’s trary id. to the district wholesale personal knowledge Norman. See that officials have both must Here there is. nouncement subjective stringent arguably to stan- While a notice limit barrier Farmer’s 9. numerical dard, prove might already prove in the of an plaintiff decisive context a must because Canton, objective failure to train claim under supervisor of defendant knew the substan- the may a what he where defendant be liable for by posed to train. tial risk the failure known, have it adds additional should no 1126 GRUENDER, risk, undisputed concurring Judge,

known the the evidence Circuit part dissenting part. in in claim of supports quali- Sheriff Dawson’s immunity. response Dawson’s fied Sheriff I judgment concur the court’s revers- (expressing justified the sexual to qualified immunity of the denial Bilinski, outrage, reprimanding and disci- However, respectfully Sheriff Dawson. I Moore) every plining gives indication that judgment affirming dissent from the the he, Moore, not unlike did know inmates immunity denial of qualified to Moore. jeopárdy.- like Walton were in that alleges Moore is liable Having carefully reviewed record failure to train under the Fourteenth effort to deduce what facts about Sher- Amendment. Without a that showing subordinate, Bilinski, knowledge Moore’s iff Dawson’s own “the district violated Constitution, however, court, Moore cannot be light most favorable to the liable for to train. Carpenter failure assumed,” nonmoving party, likely John- (8th Cir.2012). 644, Gage, 686 F.3d 651 son, 319, 515 115 U.S. at S.Ct. we The that prove court finds Walton can nothing “speculation, have found but con- “that underlying Bilinski committed the jecture, fantasy” or to rebut Sheriff Daw- failure to protect gives violation which rise testimony he did not son’s that know of the to train liability.” Moore’s failure Ante posed substantial risk Moore’s failure I disagree. 1123. Bilinski, train City Schmidt Bella Villa, (8th Cir.2009). 571 Brennan, Farmer v. 114 U.S. guesswork enough Because to reach (1994), S.Ct. 128 L.Ed.2d 811 re jury, we conclude Sheriff Dawson is enti- quires Walton to establish that faced “a qualified immunity. tled to See id. substantial serious harm” in order prove that Bilinski violated the Consti (as jail’s tution opposed policy10)by III. CONCLUSION failing 834, 114 protect him. Id. at S.Ct. affirm qualified We the denial of immu- Farmer, 1970. deprivation Under “the al Moore, nity to reverse the denial of quali- be, leged objectively, ‘sufficiently must ser immunity Dawson, fied to Sheriff Seiter, and re- ious.’” (quoting Id. Wilson v. mand for proceedings 294, 298, further consistent U.S. 111 S.Ct. 115 L.Ed.2d (1991)). opinion. with this court The holds that Walton’s length upon department court policy). focuses Bilinski's The court itself con- .at comply jail’s nighttime failure to with the cell- “viqlating policy cedes that an internal does policy, concluding lock that the noncompli ipso violate Constitution.” Ante facto obvious, ance was "an substantial risk to in Indeed, analogous at 1122. in an case Farmer, safety." (quoting mate Ante at 1119 Amendment, brought Eighth under we 1970). However, 511 U.S. at 114 S.Ct. clarified that "a official's violation alleged "sheriff's or his subordinates’ viola regulation give an internal does not to an rise jail policies tion of does not result in section Eighth Amendment claim of ‘cruel un- Schmidt, liability.” Bailey 239 Fed. punishment,’ usual in the a con- absence of” Cir.2007) curiam) Appx. (per Nesbitt, stitutional violation. Falls v. Howard, (citing Gardner v. 430- words, In other (8th Cir.1997)); see also Hocker v. Pikeville comply jail’s Bilinski’s failure with the 150, 154, City Dep’t, Police nighttime policy § cell-lock results Cir.2013) (holding § in a 1983 action liability only officer, if it can be shown Bilinski against a law enforcement the rele protect meaning inquiry failed to Walton within the vant is whether officer violated the Constitution, not whether officer violated Farmer.

1127 concludes, analysis, little that the risk “sufficiently serious to assault was sexual by Flennory of constitutional in an cell was deprivation posed to a unlocked amount (quoting Spruce Ante at 1118 of Flennory’s single pri- dimension.” “obvious” because (8th 783, 149 785 Cir. Sargent, nighttime F.3d or assault and Bilinski’s observa- 1998)). left Undoubtedly, this attack Wal- “very expres- tion of Walton’s concerned” emotionally and “physically bloodied ton “[FJailing 1122-23. to sion. Ante at bruised,” rape prison ante at is a risk,” mitigate the anything do Detention Interna- problem, serious Just suggests, “potentially court fell below min- tional, Basics Sexual Abuse in The About imum Ante at constitutional standards.” Detention, http://www.justdetention. U.S. reasons, following 1120. For I dis- the org/en/factsheetq/basics fact_sheetNmal. agree, concluding instead that was — (last 2014). not, “It pdf May visited is posing not “incarcerated under conditions however, every by injury suffered one a substantial risk of serious harm.” another that prisoner at hands of Farmer, 511 U.S. at 114 S.Ct. 1970. liability into constitutional for translates an measuring In whether inmate faced a responsible for the prison officials victim’s substantial risk of serious harm under Farmer, at safety.” U.S. Farmer, pro- “the assailant’s can conduct Indeed, Farmer establishes S.Ct. 1970. probative vide the ‘the most evidence court including sexual that even serious harms — type that degree [the § give liability not assault —do rise ” v. Shuffman, faced.’ Nelson inmate] the inmate demonstrates that unless Cir.2010) (alteration in F.3d occurred he was “incarcerat- assault while Selk, original) Young v. (quoting a posed ed under conditions that substan- (8th Cir.2007)). Accordingly, it is sexually tial risk that he would be assault- recounting Flen- worth some details about 785-86; Spruce, 149 at see also ed.” F.3d nory’s County Macon It history at the Jail. Dormire, Irving v. in undisputed Flennory housed is was Cir.2008) (“To prove sufficiently a serious inci- jail’s population without general claims, protect an deprivation failure spread a fifteen- days dent over prove must officials inmate year period being most recent —the him to under caused be incarcerated condi days 25, 2009, May September from posing tions substantial risk serious 30, 2010, May Flennory as- 2010. On harm.”) (internal quotation marks cita May inmate. 30 inci- saulted another The omitted). concludes that tion The court rather, rape; did involve anal dent overnight” “leaving the cells unlocked cre Flennory through inmate’s groin bit obvious, “an risk to inmate ated substantial of his pants his and reached down the back linking safety,” ante unlocked 1119— pants. Flennory spent the next two right alleged to an constitutional cells from the segregated general popu- months legitimate night without fear of “sleep lation as of this infraction. a result detainee,” by time assault another ante However, was no evidence of there However, required are “[p]risons of harm any generalized substantial risk indefinitely all segregate inmates whose at night. other inmates ca original suggest they might be crimes violence!, same is pable t]he further framed, Properly question wheth- in violence engage true for inmates who Flennory single prior er had —who Schuetzle, prison.” while Norman adjacent who housed assault and (8th Cir.2009) (internal 1097, 1105 posed a substantial risk of unlocked cell— omitted). quotation marks citations and assaulting a inmate. court fellow have “substantial deference eventually question correct but We afforded reaches the the prison pervasive rape officials to determine best meth and the culture in Spruce, dangerous in dealing Flennory ods for with inmates in only prior was involved one that volatile environment is incident while incarcerated. That incident including presumably whether in occurred May on 30—three months before life”— segregation. mate must in remain Holden August on in- 30 assault Walton —and Cir.2011) Hirner, substantially volved behavior less disturb- Norman, 1105). (quoting F.3d at Be ing than his attack Walton. being general fore to the popula returned addition, In facts of this case are less tion, Flennory any told that future Holden, troubling in than which we found in being infractions would result his re no substantial of serious risk harm. Iden- turned to segregation. Flennory stated detainee, tified aas vulnerable Holden was agreed that he understood to behave. in protective custody housed with three Flennory general When returned to the cellmates. F.3d at 339. His cellmates population beginning August injured fight him in Only in a the cell. Id. well, though, behaved even ac days four fight, before the one of his cell- cording Bilinski, the cell doors remained mates fight had been involved with unlocked. The record contains no evi another detainee. Id. 341. Yet we dence of Flennory misbehavior for the discerned no substantial risk of serious August entire month of until the assault harm, because Holden was housed in pro- against August Walton on 30. For the five “designed tective custody provide great- days Flennory Walton and were housed supervision er security for inmates other, August beside each 25 until more likely to be assaulted.” Id. We ar- 30, Flennory August was friendly toward Holden, rived at despite this conclusion Walton, playing cards with him-even on detainee, being marked as a vulnerable night and morning before of the as housed the same cell as an inmate who sault. fought had just days another detainee four Compared to other cases in which we By earlier. comparison, Flennory’s single discerned a substantial risk of serious prior place incident took a full three harm, Flennory’s pre-incident conduct months his before attack on Walton. while considerably incarcerated is less dis- Therefore, I conclude that Flennory’s com- Nelson, turbing. example, For we held paratively assaultive history limited at the that an posed inmate substantial risk of probative that evidence did Walton serious harm he previously where had sex- not face a substantial risk of serious harm. males, ually assaulted two “demanded sex Additionally, Walton’s “failure to ex- from a former roommate and solicited sex press fear ... some [is] evidence that residents,” “subjected from other staff and substantial risk of serious harm did not residents to a barrage physi- relentless exist.” Young, F.3d at 872. Walton threats, cal and sexual assaultive and sexu- Moore, Bilinski, admits that he told never behavior, ally explicit and related violent or any jail staff Flennory had threat- aggressive misconduct.” 603 F.3d at any ened him in manner or that he had 447; see Spruce, also F.3d at 785-86 any other reason to fear Flennory. In (finding a substantial of serious harm fact, consciously Walton chose not to where ex- plaintiff alleged that he was press fear regarding Flennory’s presence raped by twenty more than different in- attack, day or conduct. mates in a On the before the prison where the warden ac- Flennory in a knowledged requiring a culture indicated note to inmates to fight against However, aggressors). sexual that he fellate Unlike intended to him. the repeatedly assaultive inmate Nelson Walton to tell anyone decided not about note, agree it I cannot flushing walkthrough, down his instead concern, it look of seriousfly] “didn’t take even combined Flen- toilet because he assault, nory’s single prior found no constituted a at the have substan- time.” We condition of a posing in an incarceration sub- analogous risk harm tial of serious stantial risk of Walton, particularly serious like failed plaintiff, case where the harm — light Flennory’s history in Sherman, positive with Berry v. express to fear. In they (8th Cir.2004), during played Walton which cards the plaintiff F.3d 631 together and in engaged never violence. a an who reported- shared cell with inmate Accordingly, I consider Walton’s failure to at Al- ly possessed a knife. Id. 633. express probative fear to be evidence that though Berry eventually was attacked a substantial harm did risk serious not other with a his cellmate and two inmates exist. knife, Berry failed we held that to demon- strate a risk of serious harm substantial The court that this decision claims does express not his Berry

because did fear for not create a “sweeping constitutional rule attacked, safety prior being despite to every every prison that cell in must be knowing cellmate was to reported that his locked as soon Ante as the sun sets.” at possess attempts a knife. Id. The court to rings 1120. This caveat hollow. The observing that, distinguish Berry by unlike ruling court’s if a cell apply will contains did Berry, say testified he not Walton a single an inmate who has committed Flennory anything, had threat- because while and his neigh- assault incarcerated spoke jail ened to him if to kill staff. concerned, if the bor looks even inmate distinction, Ante at 1124-25. This howev- segregation spent has substantial time er, is to responsive not Walton’s failure to behave, punishment, agreed has express Flennory’s fear when he received The court has behaved for a month. es- clear, fellatio To failure note. Walton’s sentially imposes “one-strike-you’re-out” a jail report nothing the note to staff had i.e., necessarily poses a inmate rule — being Flennory. to do with afraid of Rath- harm if he substantial risk of serious has er, repeatedly testified that he sim- Walton in-jail prior committed one his serious[ly].” it ply concerned, “didn’t take Walton is neighbor de- looks express also that he failed to fear admits liberately imple- if it does not indifferent verbally Bilinski’s during walkthrough ment one or more of the court’s recom- morning of the attack when Walton knew security response. mended measures suspectfed] Indeed, “or strongly suggests should that that the Macon [have] court going Mr. have Flennory County want to Jail had to continue “remove [wa]s Although [Flennory] general population,” anal sex him. no- with” Bilinski from door,”11 every “conduct during ticed “lock cell that looked concerned any population, suggests imposed we have al had not demonstrated be 11. The court following problems his havioral in the month past requirement in the cell-lock under simi- played segregation, and even return circumstances, citing Haynes, lar Wade v. Leaving Flennory’s with cards Walton. door (8th Cir.1981), and Newman v. general population not unlocked in the tan Holmes, 122 F.3d 650 Ante at leaving unlocked the doors of in tamount distinguishable given 1121. Those cases are mates in isolated confinement. court both Wade the assailants in and Newman Dormire, Irving also cites Cir.2008), 519 F.3d were at the housed in isolated confinement Mifflin, F.3d 205 Pavlick v. present their time of the attacks due to known 1996), Jeffes, Riley 777 F.2d Cir. (3d Wade, 781; dangerousness. at New- Cir.1985). Those Ante at 1121-22. cases man, Here, time of guards given that the distinguishable also are Bilinski, cases, attack, intentionally Flennory gener- in those unlike was housed that where Berry, (holding 365 F.3d at 635 enough prevent frequently] checks assaults,”12 “rely plaintiff on a combina- evidence does not establish that nighttime methods,” ... develop “objectively “or faced a substantial tion of these harm,” apparent failure-to-protect from the approach plaintiffs different fails). simply 1120. This can- Ante at claim It follows that Moore is enti- record.” Incarcerating must be immunity. Carpenter, institutions qualified be. tled to determine, fearing liability, reasons, without I able to at 651. For these inmate can be housed offending that an judgment from the af- respectfully dissent community other inmates without qualified immunity firming the denial monitoring locks or infallible permanent Moore. sufficiently pun-

after the inmate has been (e.g., as apparently reformed

ished

here, through segregation, con- substantial staff, jail with and a month of

versation behavior). good The court

demonstrated forgets by-product unfortunate “[a]n America, UNITED STATES system of our is the incidence Plaintiff-Appellee inmates,” and that violence between unfortunate, all such incidents of “[w]hile RENDON, Frank G. Defendant- violence do not violate” the Constitution. Appellant. Nesbitt, Falls v. Cir.1992); Siegel, see also Andrews v. No. 13-2510. (8th Cir.1991) (“[S]ome F.2d 1330-31 of Appeals, United States Court may due prisons violence be unavoidable Eighth Circuit. (ellipsis prisoners.”) to the character omitted) White, 742 (quoting Martin v. Submitted: March 2014. (8th Cir.1984)). May 2014. Filed: I Accordingly, conclude that Walton was En Rehearing Rehearing Banc that, incarcerated under conditions July Denied objectively and without the ben- measured hindsight, posed efit of a substantial risk of necessarily harm. means that

serious This protect

Bilinski did not fail to Walton. opened gave required monitoring we with the victims’ cell doors or inmates 12. Nor have keys to allow access to other inmates' cells frequency monitoring sufficient such that the knowing their actions would cause harm. necessarily prisons efficacious. Jails and 447; Pavlick, Irving, F.3d at 519 F.3d at liability subject are to strict under 208-09; Riley, Finally, 777 F.2d at 146-47. Again, Constitution. I turn to Holden as an Ala., County, the court Marsh v. Butler cites case, example. plaintiff In that was banc). (11th Cir.2001) (en 268 F.3d 1014 in the same cell an inmate who had housed Marsh, Ante at 1121. In the institution was only days violently fought another inmate four dilapidated that could fashion “so inmates However, plaintiff. attack on the before his weapons pieces building.” Id. at harm, risk of we found no substantial serious case, in a 1027. Unlike this "conditions protective was because the inmate housed facility prisoners ready that allow access to custody greater supervision and securi- weapons” finding contributed to sub- though monitoring ev- ty that increased Id. at stantial risk of serious harm existed. —even enough prevent idently frequent was not 1028. No such condition of confinement alleged in this the harm. case.

Case Details

Case Name: Cody Walton v. Robert Dawson

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 20, 2014

Citation: 752 F.3d 1109

Docket Number: 12-4000

Court Abbreviation: 8th Cir.