*1 290 correctly inquiry
The district court determined had reasonable notice of the forfei- six-year of limitations in ture, i.e., that the statute “when he has become aware 2401(a) applies. Clymore § 28 U.S.C. government property had. declared the (5th States, 370, v. 217 F.3d 373 United forfeited, inquiry or when an that he could Cir.2000); see also United States v. Rodri reasonably expected have to make been 1195, guez-Aguirre, 264 F.3d 1209-10 would have made him the forfei- awarе of (10th Cir.2001), and cases cited therein. ture.” Id. at 1211. cannot We discern 2401(a), “every Under 28 civil U.S.C. Wright from the current record whether action commenced United inquiries should have made before his let- complaint States shall be barred unless the inquiries ters in 1997 or whether such years right is filed within six after the him would have made aware of the forfei- yet action first accrues.” We have judgment ture. The district court’s is VA- right 41(g) determined when Rule CATED and thе case is REMANDED for Clymore, action accrues. See 217 F.3d at such a determination. 373-74. If the district court determines that agree adopt
We with and now the rea Wright’s 41(g) Rule motion was filed with- soning of the Tenth and Fourth Circuits year period, in the six limitations the court respect with to this issue. “The accrual should then determine whether the motion date is the date on which [the claimant] may nonetheless be barred under the doc- wаs on inquiry reasonable notice about the forfeiture, i.e., Clymore, trine of laches. See 217 F.3d following: the earlier of the 376-77; Marsh, 1303, Geyen when he v. gov has become aware that the 775 F.2d (5th Cir.1985). ernment had property declared the forfeit Wright’s 1310 If Rule ed, or when an inquiry he could rea 41(g) motion is not either barred sonably expected have been to make would statute of limitations or under the doctrine have madе him aware of the forfeiture.” laches, proceed the district court should v. Rodriguez-Aguirre, United States 264 with the merits of the motion. (10th 1195, Cir.2001); 1211 F.3d United VACATED AND REMANDED. (4th Minor,
States v. 228 F.3d Cir.2000); Duke, see also United States v. (7th Cir.2000) (accrual
229 F.3d
date is when the claimant discovered or diligence
exercise due would have dis DEA, forfeiture);
covered the Polanco v. (2d Cir.1998) (accrual
date is when the claimant discovered or property reason discover that his
had been declared forfeited without suffi notice).
cient
Although the conclusion of the forfeiture
proceedings, as the date of alleged giving violation to the 41(g) rise Rule ac- GREENE, Plaintiff-Appellant, Traci tion, is the possible earliest accrual date triggering period, the limitations see Rod- v. riguez-Aguirre, 264 F.3d at the dis- Gayle BOWLES, al., Defendants, trict Wright court did not determine when et *2 Brigano, Anthony Defendant- J.
Appellee.
No. 02-3626. Appeals, Court of
United States
Sixth Circuit. 29, 2003.
Argued: Oct. Filed: March
Decided and 2004. also 254 F.3d (“Warden Brigano”) in Greene’s 1983 suit resulting out of an
other attack on Greene another inmate. Be- *3 court cause we conclude that the district fact determining erred in that no issue of to whether Warden remains as indifference acted with deliberate Greene’s we REVERSE the dis- judgment AND REMAND for trict court’s proceedings further сonsistent with this opinion.
I. BACKGROUND
a male-to-female transsexual.
Greene is
At
the time of her incarceration Warren
(“WCI”),
Institution
she was
Correctional
preoperative,
displayed
but still
female
characteristics,
including
developed
demeanor,
breasts and a feminine
and was
undergoing
therapy.
hormone
Because of
appearance,
feminine
Greene was
placed
Custody
in the
Unit
Protective
(“PCU”)
guard against
attacks from
July
other inmates.
a second
Alphonse
(argued
A. Gerhardstein
and
PCU,
in the
inmate
Hiawatha Frezzell
briefed),
(briefed),
Jennifer L. Branch
(“Frezzell”),
Greene on
assaulted
several
OH,
Gerhardstein, Cincinnati,
Laufman &
occasions, culminating in a severe attack
Appellant.
for
July
12 in which Frezzell beat Greene
briefed),
(argued
Elise
Porter
and
W.
with a mop handle and then struck her
Ohio,
Attorney
Officе of the
General of
fifty-pound
with a
extinguisher.
fire
Frez-
Columbus, OH, Appellee.
long history
zell had a
of assaults on other
inmates and was classified as a maximum-
RYAN, MOORE,
ROGERS,
Before
and
security prisoner; at the time of the at-
Judges.
Circuit
tack, Greene was classified as medium-
security. By
Brigano’s
own ad-
MOORE, J.,
opinion
delivered the
of the
mission, Frezzell
in-
“predatory
.
court,
RYAN, J., joined
in which
(“J.A.”)
Appendix
mate.”
Joint
at 408.
ROGERS, J.,
295-97),
(pp.
delivered
plaсed
Frezzell had been
the PCU at
separate dissenting opinion.
WCI, however, in order to
him
protect
repercussions
testimony
from the
of his
OPINION
against
prisoners
his fellow
the Lucas-
MOORE,
Judge.
Circuit
riot;
prison
ville
Frezzell had been himself
(“Greene”) appeals
Traci Greene
from
aggravated
beating
convicted of
assault for
grant
summary judgment
prisoners during
in favor of
that riot.
two
Nonethe-
less,
others,
Defendant-Apрellee
Anthony
protection
J.
for Frezzell’s
from
Greene,
jurisdic-
§
court
a 28 U.S.C.
1331. This
placed in PCU with
Frezzell was
§
tion under 28
inmate.
U.S.C.
medium-security and vulnerable
attack,
was trans
Frezzell
After
B.
of Review
Standard
segregation
from the PCU to
ferred
grant
We review de novo a
of sum
unit,
attempt
criminally charged with
mary judgment.
City
Darrah v.
Oak
filed suit
War
ed murder. Greene
(6th Cir.2001).
Park,
un
other
1983, alleging
deliberate
der
U.S.C.
Indifference
C. Deliberate
of the
violation
indifference
granted summary
The district court
and Fourteenth Amendments.
*4
judgment
Brigano
to
on the nar
summary judg
Brigano moved for
failed to introduce
ground
row
Greene
that Greene could not as a
arguing
ment
a
evidence from
reasonable trier of
.which
that he was
matter of law demonstrate
Brigano
fact could conclude
safety;
of a substantial risk
aware
knew of a substantial risk of serious harm
summary
the оther defendants moved for
Specifically,
to
the court held
Greene.
immuni
qualified
on the basis of
judgment
that as Frezzell’s attack on Greene
first
Summary judgment
granted
was
as to
ty.
sexual, Greene’s status was irrele
wasn’t
and denied as to the oth
Brigano
of a substantial
vant to the determination
defendants;
they
that decision
appealed
er
risk,
second, that
had not of
Greene
court,
affirmed the denial as
to this
which
from which a trier of fact
fered “evidence
as to one.
two defendants and reversed
to
Brigano]
[Warden
could conclude
(6th
Bowles,
617
Cir.
Doe v.
history
Mr.
of violence
knew of
Frezzell’s
2001).1
summary judgment was
When
and,
upon
of
other in
specifically,
attacks
Brigano,
to Warden
Greene
granted
Bowles,
C-1-98-476,
No.
mates.” Doe v.
to
pursuant
a motion
Fed.R.Civ.P.
filed
(S.D.Ohio
25, 2000),
14
J.A.
slip op. at
Jan.
54(b)
court to
a
asking the district
allow
find that
аt 242. The district court did
time
on that issue at the same
cross-appeal
a
“offered evidence from which
Greene had
appeal
defendants’
from
remaining
as
that Hia
trier of the facts could conclude
summary judgment
of
based
the denial
presence
protective
Frezzell’s
watha
motion the dis
qualified immunity, which
unit,
or other
segregation
without
followed, in
juryA
trial
trict court denied.
measures, presentеd a substan
protective
all re
a verdict was rendered for
which
in that unit.”
of inmate attacks
tial risk
entry
After the
maining defendants.
reject
court’s ultimate
Id.
the district
We
judgment,
timely appealed
final
Greene
first, evidence
conclusion for
reasons:
two
to
summary judgment
War
grant
of fact
offered from which trier
had been
Brigano.
vulnerable,
was
could conclude
Greene
assault,
just
phys
but also to
to sexual
II. ANALYSIS
inmаtes,
her fellow
such
ical assaults from
A.Jurisdiction
other
in the PCU with
presence
that her
or
segregation
protective
action was
inmates without
underlying
rights
civil
to
a substantial risk
presented
The dis- measures
under 42 U.S.C.
brought
Brigano was
her
of which
jurisdiction under
original
trict court had
W.arden
suit,
identity.
revealing
The in-
prior to trial
originally
she
1. When Greene
filed
was
terlocutory appeal that this court heard
anonymously, but that motiоn
moved to do so
styled
press reports
thus
Doe v. Bowles.
wake
was withdrawn in the
second,
record,
aware;
presented
factual
without
Greene
demonstrated
inmate). Therefore,
particular
threat to
to
of fact could
evidence from which
trier
Brigano’s summary judg-
defeat Warden
conclude that
was
fact
motion,
only point
ment
need
Greene
aware of the substantial
risk Frezzell
from
a finder of fact
evidence
which
could
posed
any
inmate with whom he was
vulnerability
conclude that her
made her
placed
the PCU.
placement
high-security
in the PCU with
liability
un
order to establish
inmates
substantial risk to her
der the
for a
Amendment
aware,
al-
which Warden
was
or
her,
protect
official’s failure to
an inmate
ternately,
from which that
evidence
finder
must demonstrate that the official was de
of fact cоuld
place-
conclude
Frezzell’s
liberately indifferent “to a substantial risk
segregation
ment in the
or
PCU without
of serious harm” to the inmate. Farmer v.
presented
other
measures
Brennan,
825, 828,
U.S.
substantial risk to other inmates in the
(1994).
1970,
295 of a clearly that Frezzell relied on the elements claim concessions Brigano’s 1) history being against a an institution: long “a institutiоnal educational 409; 2) inmate,” harassment; subject J.A. disruptive, plaintiff violent was that Frezzell a maximum- provided and the fact was that she actual notice to the insti- 3) contrary tution; corn inmate. security While the institution’s re- to the dis- presented dieting evidence sponse amounted to deliberate indiffer- must, Brigano, we trict court Warden (citing Lago ence. See id. at 510 v. Gebser summary judgment, re- reviewing Dist., Indep. when 524 Vista Sch. U.S. (1998)). in fаvor of the questions all of fact solve L.Ed.2d non-moving party. verdict, has raised Greene jury preclusive which had effect on Brigano’s of fact as to Warden subject- issue the issue of whether the coach had because knowledge harassment, risk plaintiff ed the to sexual inmate and of her status as vulnerable right to the heart of the therefore went predatory as a because of Frezzell’s status liability. IX In first element for Title inmate. against Brigano’s claim Greene’s below, subordinates that went to trial Jury D. Effect of the Verdict Below would have had to elements Greene show reject only to Finally, Briga- we to succeed related the mental state subordinates, jury’s no’s assertion that the verdict below of those and not to Warden lia finding Brigano’s that his were not mental state. Neither of the subordinates precludes Briganо’s to Greene elements Greene must show to succeed on ble liability prevail own to her. order her claim were indifference, jury, can there- claim of deliberate before the and its verdict *6 that on that preclusive Greene must show fore have no effect a to himself was aware of substantial risk claim. safety and did not take reasonable that
steps
guard against
to
risk. Neither
III. CONCLUSION
jury
of those elements was before the
be
questions
material
of fact re-
Because
low, and
verdict can therefore have no
its
Brigano’s knowledge of
main as to Warden
claim
preclusive
against
effect on Greene’s
Greene,
a substantial risk to
we conclude
Brigano.
Brigano’s reli
granting
court
in
sum-
the district
erred
ance on Klemencic v. Ohio State Universi
Brigano.
mary judgment
to Warden
We
(6th Cir.2001),
ty,
awareness of commensurate risks custody and that when he failed to
tective
he
de-
provide
protections,
additional
LLC; Bridge
Gap,
MARTINGALE
liberately indifferent. This claim must
Inc., Plaintiffs-Appellants,
fail, because Farmer makes it clear that a
v.
duty
оfficial’s
under
only
LOUISVILLE;
Amendment is
to insure “reasonable
CITY OF
Waterfront
*8
Corporation,
Development
safety,”
“incorporates
and this standard
Defendants-Appellees.
regard
due
officials’ ‘unenviable
keeping dangerous
task of
men
safe
No. 02-5895.
”
under
humane
conditions.’
Appeals,
United States Court
Farmer,
844-45,
511 U.S.
Circuit.
Sixth
1970.
Argued: Oct.
2003.
majority’s
opinion
The effect of the
Decided and Filed: March
2004.
objective
impose
this case is to
stan-
Rehearing
April
Denied
position
dard of
indifference —a
deliberate
rejected
explicitly
Supreme
Court.
Farmer,