United States Court of Appeals For the First Circuit

No. 18-1784

TYLER RAYMOND NORTON,

Plaintiff-Appellee,

v.

MICHAEL RODRIGUES, SBCC Deputy Superintendent,

Defendant-Appellant,

OSVALDO VIDAL, SBCC Superintendent; BRIAN MCDONALD, SBCC Director of Security; STEVEN SILVA, SBCC Director of Operations; CHRISTOPHER PHELPS, SBCC Lt. Correction Officer of Inner Perimeter Security; BRIAN WOZNIAK, SBCC Correction Officer of Inner Perimeter Security; JEFFREY ALTERI, SBCC Sgt. Correction Officer of Assignments; GREGORY BEDARD, SBCC Lt. Correction Officer of Discipline; JOHN DOE-1, SBCC employee in charge of the Department Disciplinary Unit,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

Stephen G. Dietrick, Deputy General Counsel, with whom Nancy Ankers White, Special Assistant Attorney General, and the Department of Correction Legal Division were on brief, for appellant. John McKirachan Pavlos, with whom Law Office of John McKirachan Pavlos were on brief, for appellee.

April 7, 2020 THOMPSON, Circuit Judge. This case was brought by Tyler

Raymond Norton, who was living in a quasi-protective custody unit

in Souza Baranowski Correctional Center ("SBCC") in March 2015

when he was jumped by three fellow inmates. Prior to the attack,

Norton told SBCC prison officials, including Appellant Michael

Rodrigues, that the leader of a notorious prison gang had

threatened his life while robbing him at knife point and that, as

a result, he feared for his safety. At the summary judgment stage,

the district court held that Rodrigues was not entitled to

qualified immunity from the instant lawsuit, which alleges that

Rodrigues and other SBCC officials (to whom the district court

granted immunity and summary judgment) failed to protect Norton

from a substantial risk of serious harm in violation of Norton's

constitutional rights. Rodrigues challenges that ruling. Because

we find that Rodrigues' challenge rests on factual, rather than

legal grounds, we dismiss this interlocutory appeal for lack of

appellate jurisdiction. See Johnson v. Jones,

(1995) (holding that a district court's denial of summary judgment

in a qualified immunity case is not a final, appealable order

where, as here, the summary judgment record raises a genuine issue

of fact).

A. BACKGROUND

Before turning to the jurisdictional framework that is

dispositive here, we take a detour to rehearse pertinent facts

- 3 - from the summary judgment record in the light most favorable to

Norton, the nonmovant. See Galloza v. Foy,

(1st

Cir. 2004).

At all times relevant to this litigation, Appellant

Michael Rodrigues served as the Deputy Superintendent for

Classification and Treatment at SBCC, a maximum-security prison in

Shirley, Massachusetts that houses approximately 1200 incarcerated

men at any given time. From August 2012 to May 2013 and from

November 2013 until late August 2015,1 Appellee Norton resided at

SBCC under Rodrigues' care and supervision.

1. SBCC's Housing Classification System

As is relevant to Norton's claims and our review of this

interlocutory appeal, members of SBCC's incarcerated population

are regularly screened for and assigned a "security level," which

in turn determines where they can live, work, eat, and exercise

within the institution. Security levels (and, by extension,

housing, work, and other assignments) are determined by SBCC's

classification committee based on certain objective criteria.2 The

1 Norton did a short stint at MCI-Norfolk between May 15, 2013 and November 15, 2013. 2 The following information may be used when evaluating an incarcerated person's classification status: disciplinary reports; work and unit evaluations; compliance with assessed need areas; length of time served; escape history (if any); prior history of positive or negative adjustment in maximum, medium, and lower security; degree of responsibility taken for one's actions; nature of the offense and criminal history; the "Objective Point Base Score" ("OBPS") (which is not further defined in SBCC's

- 4 - committee "consists of [either] one member or [a] three member

board," including a chair person, a correction officer, and an

assigned correction program officer. Before the committee reaches

a classification decision, the incarcerated person at issue is

interviewed by the correction program officer assigned to his case.

During the interview, he is encouraged to share any pertinent

information that might assist with his classification, including

health, family, resolved legal issues, program or educational

participation, and known enemies. The committee's classification

recommendations are subject to review and approval by the Director

of Classification (here, Rodrigues). Incarcerated people have the

option to appeal their classification.3

Based on their classification, SBCC residents are then

assigned to one of sixteen housing units. Those units fall into

the following five categories:

 General Population - Most of SBCC's incarcerated community

reside in "General Population" units, where they can leave

booklet); and review of active enemies at the institution and departmentally. 3 The record does not provide additional information regarding the procedure for appealing classification decisions, which is distinct from the formal grievance and appeals process that incarcerated people may utilize to challenge other decisions related to their incarceration at SBCC. As a result, we do not know, for example, who is tasked with reviewing an incarcerated person's appeal or what occurs after an appeal is granted or denied.

- 5 - their cells and travel to work, to the dining hall, and to

the gym elsewhere in the facility in accordance with a daily

movement schedule.

 Special Housing Unit - The Special Housing Unit is SBCC's

protective custody unit, which is a secure location for

incarcerated people facing a risk to their health or safety

(as determined by prison officials).

 G1 Unit ("G1") - G1 is a 64-cell, quasi-protection housing

unit that SBCC describes as "functioning between general

population and the Special Housing Unit, SBCC's protective

custody unit (SHU)." G1 is reserved for incarcerated people

who would have difficulty in General Population for a variety

of reasons, including the unpopular nature of the offense

that landed them in prison (e.g., sex offenders), "physical

weakness," documented conflicts with gang members on the

outside or within the facility, drug or other debts, or other

safety issues. Individuals housed in G1 are, for the most

part, separated from the majority of SBCC's population at

meal and recreational time. G1 residents also have the

"option" to remain locked in their cells or otherwise limit

their range of movement within the Unit. SBCC classification

committee members screen incarcerated individuals to

determine if G1 is a reasonable alternative to the Special

Housing Unit or a prison transfer.

- 6 -  Health Services Unit - The Health Services Unit provides

infirmary care as well as outpatient services. The Unit's

staff handle medical screening, physical examinations, lab

work, daily sick calls, and emergencies. Incarcerated people

must complete a form to request health-care services, except

in the case of emergencies.

 Special Management Unit - The Special Management Unit is set

apart from the rest of the institution and is used primarily

for incarcerated individuals who are awaiting classification

(or reclassification) into other units, including

"administrative segregation," "protective custody," or

"disciplinary detention."

2. Norton's Safety Concerns in General Population

When Norton first arrived at SBCC to serve time for armed

robbery, he was housed in General Population. While there, on

more than one occasion prior to the assault central to Norton's

claims, Norton was threatened by other folks incarcerated at SBCC.

On May 15, 2013, for example, Norton refused to "lock into his

general population cell" due to what SBCC described as "protection

issues" with one or more unspecified incarcerated people to whom

he allegedly owed money. Over a year later, on December 22, 2014,

Norton was robbed at knife point by three documented gang members,

including at least one member of the Gangster Disciples (also known

as "GD"), which is a subset of the notorious street and prison

- 7 - gang, Folk Nation. During the armed robbery, Louis Luiz, one of

the SBCC Gangster Disciples' leaders, threatened to kill Norton if

he ever told anyone about what happened that day.

As Rodrigues tells it, at some point after being robbed

and threatened with a deadly weapon in his cell, Norton "feigned

a mental health crisis to get himself pulled out of his housing

unit and sent to the Health Services Unit." (emphasis added).

Norton reported the attack to a mental health professional in the

Health Services Unit and, later, to Inner Perimeter Security

Officer, Bryan Wozniak. Norton allegedly told Wozniak that he

feared for his safety and wanted to be placed in protective

custody.4 After Norton expressed his safety concern, he was

transferred to a temporary protective custody cell in SBCC's

Special Management Unit to enable prison officials to determine an

appropriate permanent placement for him.

After the attack on December 22, 2014, Norton penned the

following letter from his Special Management Unit "To whom it may

concern":

Due to my enemy issues with the Boyos and the Folk/GD (I don't know the difference) [t]here is definitely a major issue with placing me on a unit. I would like to know if I could be sent back to my County Jail (Plymouth) to finish the rest of my time. I have no problems with the gangs in my county, and have about 1 year and a half

4 Wozniak has no memory of Norton requesting protective custody. Wozniak nonetheless states (and Rodrigues avers in his statement of material facts) that he "never told Norton that he could not be moved [to protective custody]."

- 8 - left on my sentence and believe this would be the best way to resolve my situation.

The document was date-stamped by SBCC "December 29, 2014," but

it's not clear from the record whether that date reflects when

Norton actually sent the letter or when prison officials received

it. We do know that Norton remained in temporary protective

custody from December 22, 2014 until January 5, 2015.

Crucial to our review, Rodrigues acknowledges receipt of

this letter and states that he did not receive any other

correspondence from Norton after the events of December 22, 2014.

Norton's account, of course, is quite different. Norton claims

via an affidavit, dated September 9, 2016 and attached to his

opposition to defendants' motion to dismiss or (in the alternative)

for summary judgment, that he sent "numerous" letters to SBCC

officials, including Inner Perimeter Security Officer Christopher

Phelps and Brian McDonald (SBCC's Director of Security),5 regarding

his safety concerns while he was in the Special Management Unit.

In a supplemental affidavit, dated September 17, 2017 and attached

to Norton's opposition to defendants' renewed dispositive motions,

Norton asserts that he expressed ongoing safety concerns in "at

least five (5) letters" addressed to Rodrigues, the Inner Perimeter

5 Phelps and McDonald are named defendants who were granted qualified immunity by the district court. Norton has not challenged the grant of summary judgment on qualified immunity grounds as to Phelps, McDonald, or the other prison officials named as defendants in this litigation.

- 9 - Security team, and others after he was transferred from temporary

protective custody in the Special Management Unit to G1, a quasi-

protective custody unit, on January 5, 2015. Regardless of how

many letters Norton sent and when he sent them, we know that he

did not receive a response from any SBCC official regarding his

safety concerns until January 7, 2015 (i.e., two days after he was

transferred from temporary protective custody to quasi-protective

custody in G1). Specifically, Rodrigues stated in a letter

addressed to Norton (in relevant part): "In reviewing your status

in IMS I find that you were moved to the G1 housing unit on

01/05/15. If you encounter safety concerns, notify your Unit Team

and or the IPS Department."

As the "sole decisionmaker concerning Norton's G1

placement,"6 Rodrigues believed that Norton's transfer to G1 would

adequately address the "perceived" risk of harm to Norton stemming

from the encounter with Gangster Disciples in December 2014. When

asked whether he considered the risk of subjecting Norton to gang

retaliation by placing him in a quasi-protective custody unit (as

opposed to relocating Norton to permanent protective custody in

SBCC's Special Housing Unit or transferring Norton to a different

6 Classification recommendations at SBCC during the relevant time were subject to review and approval by Rodrigues in his capacity as SBCC's Director of Classification. As is relevant here, Rodrigues acknowledges that he ordered Norton's transfer from the Special Management Unit to G1.

- 10 - prison as he had requested in the December 2014 letter), Rodrigues

explained that, in his experience, G1 was a safe place for

incarcerated people who had issues with SBCC's various prison

gangs. In addition, according to Rodrigues, any gang members

residing in G1 likely required quasi-protective custody to be safe

from their gangs. For this reason, as Rodrigues tells it, gang

members in G1 did not tend to be "active" or "affiliated" with

their organizations and thus Norton would be safe from gang

violence while there.

Around the time Norton was relocated to G1, two

documented, but allegedly inactive, members of Gangster Disciples

(the organization whose leadership robbed and threatened to kill

Norton) were living there. They are identified in the record as

Larry Pack and Dana Bain-Simon. Another incarcerated person by

the name of Gary Burke, who had no known gang affiliation but had

incurred more than one disciplinary report for violence, also lived

in G1 at the time of Norton's transfer. Pack, Bain-Simon, and

Burke together assaulted Norton on March 21, 2015, placing him in

the hospital for nearly ten days. What transpired between Norton

and his fellow G1 residents is described in detail below.

3. The Assault

On March 21, 2015, at approximately 7:00 pm, Burke called

Norton into his cell in G1, where Burke and Pack were hanging out.

Immediately prior to the assault, Bain-Simon entered Burke's cell,

- 11 - blocking the doorway in the process. At some point, according to

Norton, Burke punched and kicked him multiple times while Bain-

Simon and Pack prevented Norton from leaving Burke's cell. Norton

escaped in due course and took off down the hallway, darting into

another cell and later walking back out into the hallway, where

video footage of the altercation shows that Norton is eventually

pursued by Bain-Simon. Bain-Simon (who was later joined by Pack

in conducting the assault) caught up with Norton in the hallway,

punching and hitting Norton in the head and abdomen several times

before guards could intervene. The entire ordeal lasted less than

five minutes. But afterwards, Norton was hospitalized for nearly

ten days with internal bleeding, a broken nose, and injuries to

his intestine. He underwent at least two surgeries as a result.

4. The Aftermath

Norton instituted the instant litigation against

Rodrigues and other prison officials roughly six months after the

assault. The defendants filed for summary judgment, which the

court granted as to all SBCC officials except Rodrigues. The

district court's pithy two-paragraph order states, in relevant

part: "[t]here are material facts in genuine dispute as to key

issues in the case, particularly with respect to whether Rodrigues

knew of and disregarded a substantial risk of serious harm to

Norton from gang retaliation."

- 12 - Rodrigues filed a timely interlocutory appeal on August

16, 2018, alleging the district court erred because the undisputed

material facts indicate that Rodrigues was not deliberately

indifferent to a substantial risk of serious harm to Norton and,

even if he was, the violation was not at odds with clearly

established law. On October 23, 2018, this Court directed

Rodrigues to show cause as to why his appeal should not be

dismissed for lack of jurisdiction. After considering Rodrigues'

response filed on November 6, 2018, this Court allowed the matter

to proceed to oral argument, citing Mlodzinski v. Lewis,

(1st Cir. 2011) (exercising interlocutory jurisdiction over

district court's rejection of a qualified immunity claim where the

defendants "accept[ed] [the] plaintiffs' version [of the facts] in

order to test the immunity issue").

B. OUR TAKE

That brings us to the present. This Court reviews

district court rulings on summary judgment motions de novo.

McKenney v. Mangino,

(1st Cir. 2017). However,

for the reasons explained below, our authority to review summary

judgment orders that do not fully dispose of the case, including

the order at issue here, is very limited. Rodrigues nevertheless

urges us to consider his interlocutory appeal because (in his view)

his arguments are purely legal challenges to the district court's

denial of qualified immunity. To help the reader understand why

- 13 - Rodrigues is wrong, we'll begin by discussing the limited

circumstances under which appellate jurisdiction is appropriate in

this unique procedural context, and we'll end by explaining why

Rodrigues' qualified immunity challenge does not fall within that

limited set of circumstances.

1. Jurisdictional Framework

"Subject to only a handful of carefully circumscribed

exceptions, our appellate jurisdiction is restricted to review of

final orders and judgments."

(emphasis added). Because an

order denying summary judgment allows the litigation to proceed,

such orders are not considered final and thus are not typically

appealable when first entered. See

In play here, however, is

a potentially applicable exception to that general rule requiring

finality before our review. Specifically, this Court has

recognized that questions regarding a government official's

entitlement to qualified immunity, a doctrine which protects

certain government actors from being liable for certain conduct

under certain circumstances, ought to be resolved as soon as

possible in litigation.

(noting that because "qualified

immunity consists of both an immunity from suit and an immunity

from damages" such claims "ought to be resolved at the earliest

practicable time" (citing Mitchell v. Forsyth,

(1985) and Anderson v. Creighton,

, 646 n.6 (1987)));

see Ortiz v. Jordan,

(2011) ("Because a plea of

- 14 - qualified immunity can spare an official not only from liability

but from trial, we have recognized a limited exception to the

categorization of summary-judgment denials as nonappealable

orders." (citing Mitchell, 472 U.S. at 525–26)). Consistent with

this principle and notwithstanding the lack of finality, "where,

as here, a denial of summary judgment implicates a claim of

qualified immunity, the dividing line between appealable and non-

appealable denials of summary judgment is blurred." Morse v.

Cloutier,

(1st Cir. 2017) (quotations and internal

citations omitted).

The crucial distinction between appealable and non-

appealable summary judgment orders denying qualified immunity is

this: "[p]urely legal rulings implicating qualified immunity are

normally reviewable on an interlocutory appeal,"

but rulings

"turn[ing] on either an issue of fact or an issue perceived by the

trial court to be an issue of fact" are not. Stella v. Kelley,

(1st Cir. 1995) (citing Johnson,

).

Therefore, "defendants who invoke our limited power of

interlocutory review . . . must be prepared to accept the facts in

the light most favorable to the plaintiff and 'develop the argument

that, even drawing all the inferences as the district court

concluded a jury permissibly could, they are entitled to judgment

- 15 - as a matter of law.'"7 McKenney,

(quoting Cady v.

Walsh,

(1st Cir. 2014)). "In applying these

principles, the devil is in the details." Morse,

.

2. Qualified Immunity

With our jurisdictional limitations in mind, we next

turn to the qualified immunity standard. "When a defendant invokes

qualified immunity, an inquiring court typically engages in a 'two-

step pavane.'" McKenney,

. First, "the court must

determine whether the plaintiff's version of the facts makes out

a violation of a protected right."

(quotations and citations

omitted). Second, the court must determine "whether the right at

issue was 'clearly established' at the time of defendant's alleged

misconduct."

(quotations and citations omitted). The second

step itself has two sub-parts. Sub-part one requires the plaintiff

to "identify either 'controlling authority' or a 'consensus of

cases of pervasive authority' sufficient to signal to a reasonable

[official] that particular conduct would violate a constitutional

right." Morse,

(quoting Wilson v. Layne,

(1999)). Sub-part two requires us to consider "whether

7 The Supreme Court has carved out a narrow exception to this rule, which requires courts to disregard the nonmovant's version of the facts if that version is "blatantly contradicted by the record, so that no reasonable jury could believe it." Scott v. Harris,

(2007). Rodrigues does not argue that this exception applies and, even if he did, he would find no support in the summary judgment record.

- 16 - a reasonable [official] in the defendant's position would have

known that his conduct violated the established rule."

"These

inquiries are carried out with the understanding that qualified

immunity is meant to shield 'all but the plainly incompetent or

those who knowingly violate the law.'" McKenney,

(quoting White v. Pauly,

(2017) (per curiam)).

We consider here whether the qualified immunity doctrine shields

Rodrigues from liability for failing to protect Norton from a

serious risk of harm in violation of the Eighth Amendment.

Accordingly, the Eighth Amendment provides the legal backdrop for

our evaluation of Rodrigues' quest for qualified immunity (here,

for example, the operative questions include whether Rodrigues

violated a right protected by the Eighth Amendment and whether

that right was clearly established at the relevant time).

The Eighth Amendment protects the incarcerated community

from "cruel and unusual punishment." U.S. Const. amend. VIII. In

so doing, the Amendment imposes a duty on prison officials to "take

reasonable measures to guarantee the safety of the inmates."

Farmer v. Brennan,

(1994) (quoting Hudson v.

Palmer,

(1984)). Prison officials, therefore,

"have a responsibility not to be deliberately indifferent to the

risk to prisoners of violence at the hands of other prisoners."

Burrell v. Hampshire Cty.,

(1st Cir. 2002) (citing

Farmer,

("Having incarcerated persons with

- 17 - demonstrated proclivities for antisocial criminal, and often

violent, conduct, having stripped them of virtually every means of

self-protection and foreclosed their access to outside aid, the

government and its officials are not free to let the state of

nature take its course." (quotations omitted))).

Nevertheless, "[n]ot every injury suffered by a prisoner

at the hands of another results in constitutional liability on the

part of prison officials." Burrell,

-8 (citing

Farmer,

). Instead, two requirements must be met

for a prison official to have violated an incarcerated person's

Eighth Amendment rights in the context of inmate-on-inmate

violence. First, an incarcerated person, like Norton, must be

"incarcerated under conditions imposing a substantial risk of

serious harm," and, second, a prison official, like Rodrigues,

must "possess[] a sufficiently culpable state of mind, namely one

of 'deliberate indifference' to an inmate's health or safety."

Id. at 8.

Demonstrating deliberate indifference requires an

additional two-part showing. At the first step, satisfying the

"'deliberate' part of 'deliberate indifference' . . . requi[res]

that a prison official subjectively '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.

(quoting Farmer,

); see also Farmer, 511 U.S. at

- 18 - 842 (acknowledging that "a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that [the

risk] was obvious"). At the next step, when considering what

constitutes "indifference," this Court has explained that

"[p]rison officials cannot be indifferent . . . if they are unaware

of the risk" of harm and, if they are aware, they still may not be

considered indifferent if "they responded reasonably to the risk"

even though harm ultimately was not avoided. Burrell,

. In sum, deliberate indifference requires knowledge of a

substantial risk of serious harm and an unreasonable response to

the same.

3. Application

Having erected the jurisdictional framework and

summarized the two-part test for qualified immunity (and its many

relevant subparts), we make our way back to Norton's claims and

Rodrigues' assertion that he is immune from them. Here, Norton

alleges that Rodrigues, by placing him in G1 and failing to keep

him safe from G1's residents, violated his clearly established

Eighth Amendment rights and is therefore liable under

. Rodrigues, in turn, contends that he is immune from

Norton's Section 1983 claims because he reasonably understood that

his decision to house Norton in G1 eliminated any substantial risk

of serious harm to Norton and adequately addressed Norton's

perceived risk of harm based on the information available to

- 19 - Rodrigues at the time. In denying Rodrigues' motion for summary

judgment, the district court concluded there were genuine disputes

of material fact as to "whether Rodrigues knew of and disregarded

a substantial risk of serious harm to Norton from gang

retaliation." Norton v. Rodrigues, No. 15-cv-13216-GAO (D. Mass.

July 13, 2018). Accordingly, to determine whether Rodrigues may

have violated a clearly-established right and therefore may not be

entitled to qualified immunity, we focus on the portions of the

record that could reasonably be read to support the conclusion

that Rodrigues knew about Norton's safety concerns but failed to

take reasonable steps to address them.

Taking the facts in the light favorable to Norton, it

is undisputed that in making the decision to transfer Norton to G1

instead of to protective custody or another prison, Rodrigues knew

about Norton's run-in with the Gangster Disciples while living in

General Population in December 2014; Rodrigues understood from his

years of experience as a prison official that the Gangster

Disciples are a violent prison gang known for targeting other

incarcerated people; and he also knew that Norton asked via letter,

date-stamped December 29, 2014, to be transferred out of SBCC

because of his issues with the Gangster Disciples.

From Rodrigues' vantage, these facts, at most, indicate

that there was a serious risk of substantial harm to Norton in

General Population and that he took reasonable steps to address

- 20 - that harm by transferring Norton to G1's quasi-protective custody.

Continuing, Rodrigues says that G1 was a reasonable alternative to

permanent protective custody or a prison transfer even though known

members of Gangster Disciples were living in G1 because, among

other things, these members were "inactive." At bottom, Rodrigues

insists he was unaware of any additional information from Norton

or anyone else from which he could have reasonably concluded that

the decision to house Norton in G1 was "unsound." In support of

this conclusion, Rodrigues tells us it is "undisputed" that Norton

"submitted no correspondence that Rodrigues ever received, saw, or

became aware of, challenging his placement in G1 or identifying an

inmate in G1 as an enemy of conflict."

But here's the rub: Rodrigues' characterization of the

facts regarding what he did and didn't know about Norton's safety

concerns as to G1 directly conflicts with Norton's take. As

mentioned earlier, the parties dispute whether Norton circulated

and Rodrigues (or a subordinate) received other correspondence,

including correspondence post-dating Norton's December 2014 letter

written from temporary protective custody. Crucially, Norton, who

at this stage enjoys the benefit of having the facts viewed in the

light most favorable to his claims, contends that he sent at least

five letters to Rodrigues and prison officials under Rodrigues'

authority after he was transferred to G1. Whether Rodrigues (as

the Deputy Superintendent for Classification and Treatment at

- 21 - SBCC) or a subordinate knew of these purported letters and whether

Rodrigues knew the content of these letters8 would be directly

relevant to the jury's consideration of the reasonableness of

Rodrigues' decision to transfer and keep Norton in G1 despite the

documented gang presence there. Rodrigues' account also collides

head-on with the district court's account of the facts, which led

the district court to conclude that there are genuine disputes as

to what Rodrigues did or did not know about the risk of harm to

Norton in the form of gang retaliation. In particular, Rodrigues'

account depends on us accepting that the known gang members housed

in G1 did not pose a risk because they were inactive. But the

district court did not view as settled the question of whether

gang members residing in G1 were inactive.

Where, as here, the interlocutory challenge to a ruling

denying qualified immunity invites us to "choos[e] among

conflicting facts," Bergeron v. Cabral,

(1st Cir.

2009), abrogated on other grounds by Reyes-Orta v. P.R. Hwy. and

Transp. Authority,

(1st Cir. 2016), or "to adopt a

spin on the summary judgment record different from that taken by

8 Norton claims that in these letters he raised his ongoing concern about the Gangster Disciples, including while he was incarcerated in G1 along with its so-called inactive membership. These letters are not in the record. However, since Rodrigues has not challenged the admissibility of Norton's sworn statements regarding the existence of these letters or their content, we need not opine on the issue today.

- 22 - the district court," McKenney,

, we lack jurisdiction

to accept the invitation. See Cady,

(declining to

exercise jurisdiction over interlocutory appeal concerning denial

of qualified immunity where, as here, "the defendants brief so

clearly does not 'accept[] as true all facts and inferences

proffered' by the plaintiff" (alteration in original) (quoting

Mlodzinski,

)); see also Ortiz, 562 U.S. at 190–91

(holding that the qualified immunity defense asserted was not

reviewable on interlocutory appeal because it did not present "neat

abstract issues of law" (quoting Johnson,

)).

Because Rodrigues fails to pose the qualified immunity question

"in a manner that would permit us to conclude that 'the answer to

it does not depend on whose account of the facts is

correct' . . . we lack the authority to provide an answer."

Cady,

(quoting Stella,

). We therefore

conclude that Rodrigues' discontentment with the district court is

not reviewable by this Court at this juncture.

C. WRAP UP

Given our lack of jurisdiction over the instant

interlocutory appeal, we remand this matter back into the capable

hands of the district court.

Costs awarded to Norton.

- 23 -