OPINION
The Defendants, Jack C. Lewis, Dewey Sowders, C. Tony Williams, Michael Whis-man, Tommy Eldridge, Richard Gray and James Montgomery appeal the District Court’s denial of summary judgment on the issue of qualified immunity.
For the following reasons, the District Court’s opinion is AFFIRMED, and qualified immunity is DENIED to individually named Defendants Lewis, Sowders, Whis-man, Eldridge, Gray, Williams and Montgomery.
I. BACKGROUND
A. Facts
The facts presented are in the light most favorable to the non-movant Plaintiff, and are taken from the evidence, including the depositions, that were filed with the District Court as of January 5, 2000, the date of the District Court’s opinion and order denying summary judgment.
The Plaintiff, Edward H. Flint, brought suit on behalf of the estate of his son, Robert Flint (“Flint”). Flint was killed by James Underwood on October 5, 1995, while both individuals were inmates at LLCC. The named Defendants are as follows: Jack Lewis, Commissioner of the Kentucky Department of Corrections; Dewey Sowders, Deputy Commissioner; Tony Williams, Interim Warden of LLCC;
While at LLCC, Flint worked at the print shop. Inmates generally enjoyed working at the print shop because it was the highest-paying job available to them. Defendant Montgomery was the manager of the print shop. Montgomery, himself a former inmate, had what was characterized as a “close relationship” with several inmates, including Raymond Rust, Defendant Underwood and William Borsch.
Surmising that Flint reported Rust’s phone calls, Montgomery terminated Flint’s employment at the print shop on August 31, 1995, and in September of 1995, fabricated an incident report against Flint.
Defendant Sowders assigned Gary Beck-strom and Philip Webb, Investigators at the Department of Corrections Central Office, to look further into Montgomery’s activities at the print shop. Montgomery was transferred from LLCC pending the investigation, and Defendant Eldridge became the new temporary print shop supervisor. During the investigation, Flint was interviewed and disclosed Montgomery’s misconduct, including the illegal phone calls, illegal print jobs and the falsification of time sheets. Because of their unwillingness to cooperate with the investigation, Rust, Underwood and Borsch all lost their jobs at the print shop.
Also as a result of the investigation, Rust was placed in administrative segregation. In a letter Rust wrote to Underwood from segregation, postmarked September 21, 1995, Rust blamed Flint for his detention and stated that Flint was “at the top of my list of things to do.” Prison officials obtained the letter and provided a copy to Defendant Gray, who turned the letter over to investigators Webb and Beck-strom.
A week later Rust wrote a second letter to Underwood, stamped received on September 28, 1995, which also was intercepted by LLCC’s Internal Affairs Office. In that letter, Rust wrote:
I blame Flint + Ernie for me being in here where I cant keep up with condition, and I want to kill them so bad, I dream about it. I know they aren’t worth the time I would have to do for it, but one dark night we will meet again.
In late September, Flint called his father and told him that he was going to be killed. Edward Flint, in turn, contacted Defendants Sowders and Williams. Sow-ders and Williams both told.Edward Flint that they were familiar with the situation and that an investigation was being conducted. That fall, following a call from Edward Flint, State Representative Tom Burch telephoned Defendant Lewis to inform him of the threat against Flint’s life. Lewis initially told Burch that he would look into the matter and later informed him that the incident was under investigation.
In October of 1995, Defendant Eldridge was employed temporarily as the Operations Manager of the print shop because of the ongoing investigation. Defendant Gray called Eldridge when he first took the temporary position to tell him that Underwood would no longer be working in the print shop. On October 3, 1995, Underwood was informed that he would undergo “special reclassification.” Longtime inmates understood that “special reclassification” meant being transferred to another prison.
On October 4, 1995, Underwood arrived at the print shop just before the doors were to be unlocked for lunch. Underwood asked Defendant Whisman about getting his job back at the print shop. At that time, Whisman understood that Underwood was not permitted to enter the print shop. Defendant Whisman also knew that inmates were not allowed in the print shop if they were not employed there. Despite this knowledge, Defendant Whisman told Underwood that it would be “okay” for him to remain in the foyer of the print shop.
At 11:00 a.m., Whisman unlocked the front door of the print shop to allow the meritorious inmates to go to lunch. Defendant Eldridge recently had left the shop to escort a repairman through the service gate. When Whisman opened the door, Underwood was “looking towards the front of the institution, looking in the direction of where Mr. Eldridge would be returning.” Eldridge left the door unlocked, giving Underwood access to the print shop. Fifteen minutes later, Defendant Whisman went to the back door of the bindery, leaving the shop free from supervision. Underwood entered the print shop, walked into the tool room, grabbed a hammer and bludgeoned Flint to death.
Before the murder, Mack Beasley, a civilian supervisor at LLCC, told Eldridge that Underwood had threatened Flint’s life. Gray, the Internal Affairs Officer, eventually learned through his postmortem investigation that Eldridge and Whisman both had been informed that Underwood had lodged a death threat against Flint. After the murder, Gray also interviewed Beasley, who confirmed that Harper told him of Underwood’s death threat. Warden Barry told Gray not to write a report of the incident because it was after the fact.
The Plaintiff originally filed his complaint on September 6, 1996, in the Western District of Kentucky. The District Court had jurisdiction pursuant to 28 U.S.C. § 1381. An amended complaint was filed on June 30, 1998. Following the Plaintiffs motion, a second amended complaint was filed on October 22, 1998. The Plaintiff obtained new counsel on February 3, 1999. On May 7, 1999, the Defendants, with the exception of Defendant Underwood, filed a motion for summary judgment to which the Plaintiff responded. On January 5, 2000, the Court entered an opinion and order rejecting the Defendants’ defense of qualified immunity. The Defendants filed their notice of appeal on February 3, 2000. This Court has jurisdiction over a denial of qualified immunity as a final decision pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth,
The issues presented on appeal are: (1) whether the Plaintiffs pleadings failed to state a claim under § 1983; (2) whether the District Court improperly treated the Defendants as a single defendant in reaching the determination of whether each Defendant was entitled to qualified immunity; (3) whether the Plaintiff included additional facts in the appeal that were not before the District Court, and (4) whether the District Court properly denied the Defendants’ defense of qualified immunity.
II. STANDARD OF REVIEW
On appeal, this Court reviews the grant or denial of summary judgement de novo. Williams v. Mehra,
Qualified immunity is a question of law also to be reviewed de novo by this Court. Long v. Norris,
The affirmative defense of qualified immunity shields “government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would
The defendant bears the initial burden of coming forward with facts to suggest that he or she acted within the scope of his or her discretionary authority during the incident in question. The burden then shifts to the plaintiff to establish that the defendant’s conduct violated a right so clearly established that any official in his position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct. Rich v. City of Mayfield Heights,
The Defendants in this case have accepted the Plaintiffs facts as true for the present appeal, presenting this Court with a mixed question of law and fact as to whether the Defendants are entitled to qualified immunity as a defense to the Plaintiffs cruel and unusual punishment claim. This Court has jurisdiction over appeals either granting or denying qualified immunity that rest on a mixed question of law and fact. Williams,
III. ANALYSIS
A. Failure to State a Claim
In the Defendants’ original motion filed with the District Court, although labeled as one for summary judgment, they argued that the Plaintiff failed to state a claim upon which relief can be granted. On appeal, the Defendants again have raised the argument that the Plaintiff has failed to state a claim under § 1983.
In its opinion, the lower court addressed the Defendants’ failure to state a claim argument in a footnote:
When the plaintiff filed his complaint and first amended complaint he was proceeding pro se in this case. While he pleaded negligence as the basis for his Eighth Amendment / § 1983 claim and mere negligence is insufficient to support such a claim, the facts of the case meet the deliberate-indifference standard required for such claims. The plaintiff is now represented by counsel and the court will not read his early complaints as narrowly as the defendants insist. The defendants have had ample notice of the general nature of the plaintiffs claims and the facts underlying them, regardless of the legal terminology used in the initial pleadings.7
Just as the District Court did, this Court will treat the Defendants’ motion as one for summary judgment and not as one to dismiss. Fed.R.Civ.P. 12(b) (providing that if on a motion to dismiss under Rule 12(b)(6), “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... ”). Under Rule 56(c), the Court need not focus merely upon the pleadings to determine whether the Plaintiff has stated a claim upon which relief may be granted; the Court may rely upon “... depositions, answers to interrogatories, and admissions on file, together with the affidavits.... ” Fed.R.Civ.P. 56(c).
In their Reply Brief, the Defendants argue: “the plaintiff, even at the summary judgment stage, first alleges sufficient facts in his pleadings to establish a § 1983 claim and then must support those allegations with enough evidence to meet the required heightened burden of production.” The Defendants have misread Rule 56(c). The Defendants essentially have argued that Rule 56 tests the validity of the Plaintiffs claims retrospectively to determine whether the plaintiff stated a claim at each stage of the litigation, including at the pleading stage. But, as the pleadings were uncontested until the Defendants filed their motion for summary judgment, and as additional evidence was introduced at that time, this Court will, under Rules 56(c) and 12(b), look outside the pleadings to determine whether the Plaintiff has stated a claim upon which relief can be granted. See, e.g., 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721 (3d ed.1998) (stating that “[t]he formal issues framed by the pleadings are not controlling on a motion for summary judgment; the court must consider the issues presented by the other material offered by the parties on the motion to determine whether the Rule 56 request should be granted.”).
Since this Court is not bound by the pleadings in determining whether the Plaintiff has stated a claim for cruel and unusual punishment, the question before the Court is whether the Plaintiff has stated a claim under Federal Rule of Civil Procedure 56(c). This question is the same one this Court will consider when it examines the first prong of the test for qualified immunity, that is, whether a “constitutional violation occurred.” Williams v. Mehra,
B. District Court’s Consideration of the Evidence
The Defendants argue that the District Court improperly construed their claim of qualified immunity in that the court did not consider separately the facts relevant to each Defendant’s defense. The Defendants are incorrect in this assertion since the District Court did, in fact, consider the facts that pertained to each Defendant. The Court found:
The facts of this case make it obvious that Flint’s safety was in serious jeopardy at LLCC. The falsified incident report and the death threats in Rust’s letter essentially emblazoned on Flint’s back a big, red target mark which was ignored by prison officials. Defendants Lewis, Sowders, and Williams had direct knowledge of the death threats levied against Flint and of his fear for his personal safety, having been informed of them by Edward Flint and Tom Burch, but took no steps to protect Flint. Defendant Gray knew of Rust’s threats against Flint made to Underwood and of Underwood’s [sic] imminent reclassification, but he also took no steps to protect Flint. Defendants Eldridge and Whis-man also knew that Underwood posed a threat to Flint and yet allowed him unsupervised access to the print shop while Flint was there, which led directly to Flint’s murder.
Hence, Flint has fulfilled the second requirement of an Eighth Amendment claim, showing that defendants Lewis, Sowders, Gray, Williams, Eldridge, and Whisman acted with deliberate indifference to his safety.
The only Defendant that the District Court did not address was Defendant Montgomery. In commenting on Defendant Montgomery, the Court, however, did find:
The prison’s management of its print shop also exposed Flint to a substantial risk of serious danger, particularly after the antagonisms smoldering between Montgomery and his allies ... culminating first with Montgomery’s falsifying an incident report in order to retaliate against Flint and then with the transfer of Montgomery and firing of Underwood, Borsch, and Rust.
The Defendants’ argument, however, even if true, is without import. Because this Court is to examine the issue of qualified immunity de novo, we will review anew each Defendant’s involvement in Flint’s murder to determine whether each Defendant is entitled to qualified immunity.
C. Facts Before the District Court
The Defendants contend that the following evidence, presented by the Plaintiff in his Brief, was not before the District Court: the July 16, 1999 deposition of Mack Beasley; the July 16, 1999 deposition of Tommy Eldridge; the January 20, 2000 deposition of Tony Williams; the January 18, 2000 deposition of Dewey Sowders; and the February 4, 2000 deposition testimony of Tom Grisson. The Defendants correctly argue that this Court cannot consider deposition testimony that was not before the District Court. See, e.g., Good v. Ohio Edison Co.,
The Defendants first contend that Beasley’s deposition testimony filed with the District Court on August 13, 1999, is not properly before this Court. The deposition details Harper telling Beasley that
The disputed content of Beasley’s deposition also was presented in the deposition of Defendant Gray taken on June 11, 1999, and was detailed in Gray’s investigative notes. The Defendants were aware that multiple references to Underwood’s death threat surfaced during discovery. In their Brief, the Defendants themselves argued that the District Court had before it Gray’s investigation notes memorializing Underwood’s threat. The District Court relied upon this same threat in its opinion, where it found: “Defendants Eldridge and Whisman also knew that Underwood posed a threat to Flint and yet allowed him unsupervised access to the print shop while Flint was there, which led directly to Flint’s murder.” This Court, accordingly, will consider this evidence.
The Defendants next contest the testimony taken from Eldridge’s deposition of July 16, 1999 and filed with the District Court on August 13, 1999. Eldridge’s testimony details the fact that he knew the basis for the Montgomery investigation, and that he knew that Montgomery was removed from the print shop as a result of allegations of misconduct, including granting favors to inmate friends. The other evidence questioned by the Defendants is Eldridge’s testimony that he knew that tools in the print shop could be used as weapons. This Court finds that since El-dridge’s deposition testimony was filed on August 13, 1999, and was before the District Court prior to it rendering its January 2000 decision, this evidence is properly before this Court.
The January 20, 2000 deposition testimony of Tony Williams that the Defendants contend is not properly before this Court regards Edward Flint calling Defendant Williams to tell him that Flint’s life was in danger. Contrary to the Defendants’ argument, the record reflects that the Plaintiff cited Edward Flint’s deposition testimony of June 11, 1998, for that same proposition. The remaining January 5, 2000 deposition testimony provided by Williams will not be considered by this Court as the deposition was taken after the District Court’s January 5, 2000 opinion.
Finally, the January 18, 2000 deposition of Defendant Sowders and the February 4, 2000 deposition of Tom Grissom will not be considered by this Court in reaching the defense of qualified immunity since the depositions were taken after the District Court issued its Opinion and Order.
D. Qualified Immunity
This Circuit recently identified a three-prong test for evaluating a claim of qualified immunity:
First, we determine whether a constitutional violation occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.
The individually-named Defendants claim that they are entitled to summary judgment based on the affirmative defense of qualified immunity against Edward Flint’s Eighth Amendment claim brought under § 1983. Section 1983 provides:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere. Oklahoma City v. Tuttle,
Section 1983 has two basic requirements: (1) state action that (2) deprived an individual of federal statutory or constitutional rights. Bloch v. Ribar,
The central question to be answered in determining whether a private party is a “state actor” is whether their actions are “fairly attributable to the state.” Wolotsky v. Huhn,
It is the physician’s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State_ The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract.
Id. at 55-56,
This Court agrees with the District Court and concludes that all of the Defendants in the present appeal, including Defendant Montgomery, were state actors. The fact that Correctional Industries may have been in a contractual
1. Commission of a Constitutional Violation
Having determined that the Defendants are state actors for the purpose of § 1983, the next inquiry is whether Defendants are entitled to qualified immunity. Turning to the first prong of the test for qualified immunity, the Court must determine whether a constitutional violation occurred, that is, whether the Defendants may be held hable for subjecting Flint to cruel and unusual punishment, as proscribed by the Eighth Amendment. Williams,
In conditions of confinement litigation, the Eighth Amendment is triggered by the “unnecessary and wanton infliction of pain....” Farmer v. Brennan,
To succeed on a conditions of confinement claim, a plaintiff must show: (1) the deprivation alleged is, objectively, ‘sufficiently serious,’ and (2) the prison official had a sufficiently culpable state of mind. Farmer,
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the 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.
Id. at 837,
Undertaking the analysis set forth in Farmer, as to the objective element, it is plain that the harm caused to Flint was sufficiently serious. He was murdered. As to the state of mind element — whether there was a deliberate indifference to inmate health and safety— the court finds this requirement met. The excessive risk posed to Flint’s health and safety was that his life was in danger once he reported the illegal activities taking place in the print shop. As soon as Flint reported to prison authorities that Rust was calling Montgomery at home, Flint became a “marked man.”
a.Montgomery
The risk to Flint’s safety began when Flint first reported to prison officials that Rust was calling Montgomery at home. As a result, Defendant Montgomery threatened Flint by stating that he would “fix it so that Flint would never go home.” By leveling this slightly veiled death threat, Montgomery became the first mover in the chain of events that eventually lead to Flint’s murder. Not only did Montgomery know of the risk to Flint’s life, he essentially created it. Montgomery did not have to draw an inference based on the facts presented to him to conclude that an excessive risk to Flint’s safety existed. Farmer,
b.Gray
Defendant Gray had the following facts before him prior to Flint’s murder: a copy of Webb and Beckstrom’s investigative report detailing Flint’s role in reporting the unlawful activities taking place at the print shop; knowledge that Montgomery told Flint that he was “going to get his”; a copy of Underwood’s letters written to Rust wherein he threatened Flint’s life, and an order, issued by his office, banning Underwood and Borsh from the print shop.
Defendant Gray knew that at least two individuals, Rust and Montgomery, had threatened Flint’s safety, if not his life. Gray was deliberately indifferent to Flint’s health and safety once he learned of the threats leveled against him. Gray did not have to draw an inference to conclude that Flint was in danger-the risk was direct and concrete. This Court therefore finds that the first prong of the test for qualified immunity has been established, and that Defendant Gray violated the Cruel and Unusual Punishment Clause of the Eighth Amendment.
c.Whisman
Defendant Whisman, prior to the date of the murder, knew that Borsch and Underwood, after recently losing their jobs, had been banned from the print shop. On the date of the murder, Whisman knew that Underwood was standing outside the print shop in which Flint was working, and that the shop contained a wealth of dangerous tools. With Underwood standing outside in the foyer, and Defendant Eldridge temporarily absent, Defendant Whisman walked to the back of the shop, leaving an unlocked door and the shop unattended.
The Court concludes that these factors demonstrate that Whisman acted with deliberate indifference. He was aware of the risk presented to inmate health and safety presented by a recently terminated print shop employee standing outside of an unlocked door that led to a goldmine of dangerous tools. Under the first prong of the test for qualified immunity set forth in Williams, the Court finds that Defendant Whisman violated Flint’s Eighth Amendment rights.
Before the date of the murder, Eldridge was made aware of Underwood’s threat leveled at Flint.
e. Lewis, Sowders and Williams
Edward Flint and State Representative Burch called Defendant Lewis to tell him that Flint’s life was in danger. Defendant Lewis informed Edward Flint that the matter was under investigation.
Defendant Sowders appointed Webb and Beckstrom to the Montgomery investigation and obtained a copy of the post-investigation report. The report documented the activities of Montgomery, Rust, Underwood and Borsch and also contained a summary of Flint’s involvement in the investigation. Sowders’s investigators, Webb and Beckstrom, also received a copy of Rust’s letters threatening Flint’s life.
Defendants Williams and Sowders were contacted by Edward Flint and told that Flint feared he would be killed. Williams stated that he was aware of the situation and that an investigation was being conducted.
In their Reply Brief, the Defendants relied upon Sanderfer v. Nichols,
Here, in contrast, Defendants Lewis, Williams and Sowders all had actual knowledge that Flint’s life was in danger. Unlike the defendant in Sanderfer, the Defendants here did not have to undertake any further investigation, or draw any inferences following Edward Flint’s phone call to conclude that a risk to Flint’s health and safety existed. Based on the precedent established by Farmer, this Court concludes that Defendants Lewis, Sowders and Williams have met the first prong of the test for qualified immunity as these Defendants violated the Cruel and Unusual Punishment Clause of the Eighth Amendment.
As to Defendants Montgomery, Gray, Eldridge, Lewis, Sowders and Williams, the Supreme Court’s analysis in Farmer is instructive. The Farmer Court noted that the named-defendant need not know the actual identity of the “specific” individual who posed the risk to the plaintiff, but generally needed to be “aware of an obvious, substantial risk to inmate safety....” Id. at 843,
This Court, therefore, determines, under the first prong of the test for qualified immunity as established by Williams, that all of the Defendants committed a constitutional violation. The Defendants acted with deliberate indifference toward an excessive risk to Flint’s health and safety, thereby violating the Cruel and Unusual Punishment Clause of the Eighth Amendment. The first prong of the test for qualified immunity has therefore been met.
2. Clearly Established Right
Turning to the second prong of the test, the Court must determine whether prison officials, as reasonable persons, would have known, as of October 4, 1995, the date of Flint’s murder, that they were violating a clearly established right of Flint’s. Williams,
3. Objective Reasonableness
Under the final prong of the test, the Court must “determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” ’Williams,
After examining all three elements, this Court finds that none of the individually-named Defendants is entitled to qualified immunity from the Plaintiffs Eighth Amendment cruel and unusual punishment claim.
IV. CONCLUSION
The District Court’s denial of qualified immunity and of summary judgment is AFFIRMED and the case is REMANDED to the District Court for further proceedings.
Notes
. James Underwood, also a named Defendant and the inmate who murdered Flint, did not join in the underlying motion for summary judgment filed by the Defendants and was not named in the Notice of Appeal.
. In his response 1,o the Defendants' motion for summary judgment, the Plaintiff abandoned his equal protection claim, his claims against the Department of Corrections and his claims against the Defendants in their official capacities. In its opinion and order, the District Court dismissed the Plaintiff's official capacity and negligence claims, while his individual-capacity claims survived.
.The parties are in disagreement as to which depositions are properly before this Court, and which depositions were before the District Court when it issued its January 5, 2000 opinion. See Part III. B.
. Both Rust and Underwood had served time with Montgomery.
. At the time, Flint was scheduled to be released from prison in December of 1995. The incident report would have delayed his scheduled release date.
. Although the statements arguably constitute hearsay, at trial, they may be offered by the Plaintiff not for the truth of the matter asserted, Fed.R.Evid. 801, but to show notice.
. The Defendants argue that the District Court erred, in that the Plaintiff was not proceeding pro se at the time the complaints were filed. The Defendants are correct. The
. The Defendants contend that eighteen depositions had been taken by April 30, 1999, the date the District Court set as the discovery cut-off date on the issue of qualified immunity. The docket for the case, however, reflects several discovery deadlines, the last of which was a June 18, 1999 Order by the trial judge setting the discovery deadline for September 15, 1999.
. This evidence first was relied upon by the Defendants in their Brief filed with this Court, and then by the Plaintiff in his Brief, by citing to the Defendants' Brief.
. The exact relationship between the state of Kentucky and Correctional Industries is not clear as this issue was not briefed by the parties.
. As Flint was murdered at the hands of another inmate through the use of a hammer, it is beyond question that the deprivation itself is actionable. See Farmer,
. Defendant Eldridge also understood that Borsch and Underwood had recently lost their jobs and had been banned from the print shop.
. See Part III.D. (discussing elements of an Eighth Amendment cruel and unusual punishment claim).