Jerry Nelson v. Keyvon Sellers
U.S. Court of Appeals for the Eleventh Circuit
Jerry Nelson v. Keyvon Sellers, 89 F.4th 1289 (11th Cir. 2024)
Jerry Nelson v. Keyvon Sellers
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14205
____________________
JERRY NELSON,
as Personal Representative of the Estate
of deceased Eddie Lee Nelson, Jr.,
MICHELE DUSHANE,
as surviving spouse of Eddie Lee Nelson, Jr.,
Plaintiffs-Appellees,
versus
DONNA TOMPKINS,
TROY CULPEPPER,
LIEUTENANT LARRY MITCHELL,
GLENDA HALL,
SGT. ALFREDO TORRES, et al.,
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2 Opinion of the Court 22-14205
Defendants,
C.O. KEYVON SELLERS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cv-00213-CDL
____________________
Before WILLIAM PRYOR, Chief Judge, and ABUDU and ED CARNES,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This interlocutory appeal involves the constitutional obliga-
tion of jailers to protect foreseeable victims from violent detainees.
After watching news reports of white police officers shooting black
men, Jayvon Hatchett decided that “somebody has to do some-
thing.” So he walked into an AutoZone store and stabbed a white
store clerk. When he arrived at the county jail on charges of aggra-
vated assault, Hatchett told intake officer Keyvon Sellers that the
police shootings inspired him to stab a white man, but Sellers failed
to tell other officers of that confession. Classification officers, una-
ware of Hatchett’s motivation for racial violence, assigned
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Hatchett to a shared cell with a white man, Eddie Nelson, whom
Hatchett later strangled to death. Nelson’s survivors sued Sellers
for deliberate indifference to a substantial risk of serious harm in
violation of the Fourteenth Amendment. See 42 U.S.C. § 1983. The
district court denied Sellers’s motion for summary judgment based
on qualified immunity. Because a reasonable jury could find that
Sellers violated Nelson’s clearly established constitutional right by
failing to protect him from a known risk of harm, we affirm.
I. BACKGROUND
On August 25, 2020, Jayvon Hatchett, a black man, walked
into an AutoZone store in Columbus, Georgia, posing as an inter-
ested shopper. When the white store clerk turned his back, Hatch-
ett stabbed him multiple times with a knife. Columbus police offic-
ers arrested Hatchett the next day on charges of aggravated assault
and possession of a weapon during the commission of a crime.
Hatchett’s arrest warrant and arrest report stated that Hatchett
“did assault . . . with a deadly weapon one Michael Hunt” but made
no mention of the victim’s race or the motive for the assault.
After the arrest, transportation officer Antonio Burgess
drove Hatchett to the Muscogee County Jail. When they arrived at
the jail, Hatchett told Burgess that he stabbed the store clerk be-
cause he saw a video of cops killing black people. Intake officer
Keyvon Sellers was not present during that conversation and did
not overhear any of those statements. Hatchett also told the nurse
who performed his intake medical screening that he stabbed the
store clerk because he was “just upset” and felt that “somebody has
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4 Opinion of the Court 22-14205
to do something.” Sellers was not present during that conversation
either. And the nurse did not tell anyone about it because she be-
lieved intake nurses were not “supposed to know” why a detainee
was in jail.
The first time that Sellers heard anything about why Hatch-
ett had stabbed the store clerk was after the medical screening. Bur-
gess accompanied Hatchett to the booking area to meet with
Sellers for intake processing. Sellers gave Hatchett a pat down with-
out incident. Then, surveillance footage captured Burgess tell
Hatchett, “Go on, tell him what you said to me. Tell him what you
did.” Hatchett smirked and mumbled something about “see[ing] a
video” of cops killing black men and “decid[ing] [he] was gonna
stab a white guy.” Burgess jumped in and added, “So he went to
the AutoZone and stabbed a white man in the back.” Sellers said
nothing in response, but he shook his head in apparent disapproval.
Burgess removed Hatchett’s handcuffs without incident. Burgess
later told investigators that he made a point to tell Sellers what
Hatchett admitted because the information was not included in the
arrest report and he “felt that some precautions needed to be
taken.” Sellers interpreted Hatchett’s statement to him to mean
that Hatchett had “seen all the white cops killin’ black people, so
[he] wanted to stab a white guy”—“[n]o particular white guy”—
and that he stabbed the store clerk “because he was white.”
Sellers failed to tell any jail employees what he knew about
Hatchett’s racial motive. He testified that if he had thought Hatch-
ett posed a risk of harm to others, he would have notified a
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22-14205 Opinion of the Court 5
classification officer charged with inmate housing assignments.
Sellers explained that classification officers are ordinarily receptive
to these suggestions: “they’ll move” an inmate if given “a good rea-
son.” But Sellers testified that he did not view Hatchett as “a poten-
tial threat” to anyone and that Hatchett was polite and cooperative
during their interactions.
The survivors submitted an expert report disputing Sellers’s
testimony that he was unaware of Hatchett’s risk to other inmates.
The expert determined, based on the record and his own extensive
experience in police management and training, that “Sellers had di-
rect knowledge of the risk Hatchett posed to a white person” and
“should have notified someone” of that risk. The expert testified
that Sellers’s contrary assertion was “perplexing” because the facts
Sellers knew about Hatchett’s crime made it “obvious” that Hatch-
ett posed “a threat to white inmates.”
Hatchett’s last stop before detention was with the jail’s clas-
sification officers, who assigned inmates cells based on a detailed
procedure. An officer would first review the detainee’s arrest re-
port and criminal history. Then, the officer would ask the detainee
a list of standard questions, including whether the detainee was an
assault risk and whether he should be isolated from anyone. These
form questions did not inquire about the motive for the detainee’s
alleged crime or whether he had racial prejudices. Using this infor-
mation, the classification officer would designate the detainee as
requiring minimum, medium, or maximum security. Detainees
charged with aggravated assault were assigned a maximum-
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security classification. The classification officer would assign the
detainee an appropriate cell based on his security classification and
any other relevant information. After the classification process was
complete, an intake officer would escort the inmate to his assigned
cell.
Hatchett met with two classification officers on the day of
his arrest, but neither learned of the racial motive for his assault.
One officer completed a portion of Hatchett’s classification paper-
work, asked him the standard interview questions, and assigned
him a maximum-security classification because of his aggravated
assault charge. The other officer finished Hatchett’s classification
paperwork, though she never met with him. The form the officers
completed neither flagged Hatchett as an “Assault Risk” nor speci-
fied that he should be “Separated” from any other inmates. Both
classification officers testified that had someone told them the de-
tails of Hatchett’s assault, they would not have housed him with a
white cellmate.
On August 26, officers assigned Hatchett to cell 3E6, where
he joined inmate Rae Nolan, a white man. Eddie Nelson—another
white inmate and Hatchett’s victim—joined Hatchett and Nolan
the next day. Nolan told investigators after Nelson’s death that
Hatchett had told his white roommates that he was in jail because
he stabbed “the first white guy he s[aw]” after watching a “cop
shooting video[]” that “pissed him off.” But Nolan otherwise de-
scribed Hatchett as “real quiet” and said there was no tension be-
tween the three cellmates. The three men lived together without
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reported incident until August 31, when Nolan was transferred to
a different cell. The next day, inmate Clifford Sheppard, a black
man, joined Hatchett and Nelson in 3E6. The men were housed
together without incident until September 4, when Sheppard was
relocated, leaving Hatchett and Nelson alone in 3E6.
Early on the morning of September 5, an officer found
Hatchett strangling Nelson in their shared cell. The officer ordered
Hatchett to stop, but Hatchett refused, exclaiming, “He put a hair
in my sandwich.” Backup officers arrived and immediately moved
Hatchett to an isolated cell. Nelson was pronounced dead at the
scene.
Hatchett completed a psychological evaluation later that
day. The accompanying doctor’s note explained that Hatchett
“[s]tates he is here for aggravated assault. Mentioned about his
roommate talking about racial things. Vague about the sequence
of events occurred between the two. Later the incident occurred.”
The record contains no other evidence of violence or threatened
violence between Hatchett and Nelson during their eight days as
cellmates.
Nelson’s brother, as the representative of Nelson’s estate,
and Nelson’s spouse sued Sellers for deliberate indifference to a
substantial risk of serious harm to Nelson in violation of the Four-
teenth Amendment. Nelson’s survivors also asserted state and fed-
eral claims against other officials and their employers, but those de-
fendants are not parties to this appeal.
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8 Opinion of the Court 22-14205
Sellers moved for summary judgment. He argued that the
survivors’ constitutional claim failed as a matter of law and that he
was entitled to qualified immunity. The district court denied
Sellers’s motion. It determined that a reasonable jury could find
that Sellers violated Nelson’s clearly established constitutional
right.
II. STANDARDS OF REVIEW
“We review our own jurisdiction de novo.” Tillis ex rel.
Wuenschel v. Brown, 12 F.4th 1291, 1296 (11th Cir. 2021). We also
review a denial of qualified immunity de novo and, on a motion for
summary judgment, view the evidence in the light most favorable
to the nonmoving party. Id.
III. DISCUSSION
We divide our discussion into three parts. First, we explain
that we have jurisdiction to review this denial of qualified immun-
ity. Second, we explain that the evidence viewed in the light most
favorable to the survivors could lead a reasonable jury to find that
Sellers violated Nelson’s constitutional right. Third, we explain
that Nelson’s right was clearly established when Sellers’s chal-
lenged conduct occurred.
A. We Have Jurisdiction to Decide This Interlocutory Appeal.
“Whether we have interlocutory jurisdiction to review the
denial of summary judgment on qualified immunity grounds de-
pends on the type of issues involved in the appeal.” English v. City
of Gainesville, 75 F.4th 1151, 1155 (11th Cir. 2023) (citation and
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22-14205 Opinion of the Court 9
internal quotation marks omitted). We lack jurisdiction where the
only issues appealed are “evidentiary sufficiency” issues—that is,
fact-related disputes about “whether the evidence could support a
finding that particular conduct occurred.” Behrens v. Pelletier, 516
U.S. 299, 313(1996); accord Plumhoff v. Rickard,572 U.S. 765, 772
(2014) (explaining that we lack interlocutory jurisdiction if the dis-
trict court “merely decided ‘a question of “evidence sufficiency”’”
(quoting Johnson v. Jones, 515 U.S. 304, 313 (1995))); see also Behrens,
516 U.S. at 312–13 (“Denial of summary judgment often includes a
determination that there are controverted issues of material fact,
and Johnson surely does not mean that every such denial of summary
judgment is nonappealable. Johnson held, simply, that determina-
tions of evidentiary sufficiency at summary judgment are not im-
mediately appealable merely because they happen to arise in a
qualified immunity case.” (internal citation omitted)).
If, by contrast, the parties debate not only evidentiary suffi-
ciency issues but also an “abstract issue of law” related to qualified
immunity, “typically, the issue whether the federal right allegedly
infringed was ‘clearly established,’” Behrens, 516 U.S. at 313 (altera-
tion adopted) (quoting Johnson, 515 U.S. at 317), we may decide
both questions, see, e.g., Stanley v. City of Dalton, 219 F.3d 1280,
1286–87 (11th Cir. 2000) (holding that “when, as here, an interloc-
utory appeal presents both ‘evidence sufficiency’ and clearly estab-
lished law issues,” we may decide both questions because “the fac-
tual issue of what conduct the defendant engaged in . . . is a neces-
sary part of the core qualified immunity analysis of whether the
defendant’s conduct violated clearly established law.” (quoting
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10 Opinion of the Court 22-14205
McMillian v. Johnson, 88 F.3d 1554, 1563 (11th Cir.), amended on other
grounds on reh’g, 101 F.3d 1363 (11th Cir. 1996))).
When both the evidentiary sufficiency and clearly estab-
lished issues are raised on appeal, “the appellate court has two op-
tions regarding how to deal with the factual issue.” Johnson v. Clif-
ton, 74 F.3d 1087, 1091 (11th Cir. 1996). We may accept the district
court’s findings of fact “if they are adequate.” Cottrell v. Caldwell, 85
F.3d 1480, 1486 (11th Cir. 1996). “Or, we may conduct our own
analysis of the facts in the light most favorable to the plaintiff.”
Stanley, 219 F.3d at 1287. Even if we chose the latter course, “we
will not disturb a factual finding by the district court if there is any
record evidence to support that finding.” Id.
Because the parties here dispute not only whether the evi-
dence is sufficient to create a jury question about whether Sellers
violated Nelson’s constitutional right, but also whether that right
was clearly established when Nelson allegedly violated it, we have
jurisdiction over both issues. And we “choose to conduct our own
factual analysis” and review the first question anew “because ‘such
a determination is part of the core qualified immunity analysis.’”
Id. (quoting Johnson, 74 F.3d at 1091).
B. A Reasonable Jury Could Find That Sellers Violated Nelson’s Right.
Because the survivors do not dispute that Sellers acted
within his discretionary authority, they must establish that a rea-
sonable jury could find that Sellers violated Nelson’s constitutional
right, and that his right was “clearly established” when Sellers vio-
lated it. Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019)
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(citation and internal quotation marks omitted). The survivors ar-
gue that Sellers was “deliberate[ly] indifferen[t] to a known, sub-
stantial risk of serious harm to [Nelson]” by doing nothing to iso-
late Hatchett from white inmates after learning the racial motive
for his violent crime. Goodman v. Kimbrough, 718 F.3d 1325, 1331
(11th Cir. 2013) (quoting Cottone v. Jenne, 326 F.3d 1352, 1358 (11th
Cir. 2003)). “A prison official’s deliberate indifference to a known,
substantial risk of serious harm to an inmate [that causes serious
harm to that inmate] violates the Fourteenth Amendment.” Id. (ci-
tation and internal quotation marks omitted); see Cottone, 326 F.3d
at 1358 (“[A] plaintiff [claiming deliberate indifference] must show
that the constitutional violation caused the injury.”).
We first consider whether the jail detainee faced a substan-
tial risk of serious harm. We ask whether a reasonable jury could
find that the detainee encountered “a strong likelihood, rather than
a mere possibility,” of grievous injury. Brown v. Hughes, 894 F.2d
1533, 1537 (11th Cir. 1990) (citation and internal quotation marks
omitted). Proof of the attacker’s “generally problematic nature” or
“propensity to misbehave” will not suffice to prove that he posed a
substantial risk of serious harm to the detainee. Bowen v. Warden,
Baldwin State Prison, 826 F.3d 1312, 1322 (11th Cir. 2016) (citation
and internal quotation marks omitted). The evidence must estab-
lish a greater “degree of specificity in the risk of harm posed to [the
victim.]” Id. Compare Cottone, 326 F.3d at 1355–58 (detainee plausi-
bly alleged that cellmate posed substantial risk of serious harm to
all others based on cellmate’s “violent tendencies,” “history of
schizophrenia,” and prior assault on “another inmate”), and
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Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 n.12 (11th Cir.
2007) (evidence of specific death threats from other prisoners suffi-
cient to survive summary judgment), with Brown, 894 F.2d at 1537
(prisoner’s report of unspecified “racial problem” in his shared cell
insufficient).
Drawing all factual inferences in the survivors’ favor, Hatch-
ett’s underlying offense made the risk of serious harm he posed to
white detainees, including Nelson, obvious. Because Hatchett was
being detained for stabbing “the first white guy he s[aw]” based
solely on his race, a jury could reasonably find that there was a
“strong likelihood” that Hatchett would seriously injure a white
cellmate for the same reason. Brown, 894 F.2d at 1537 (citation and
internal quotation marks omitted). The survivors’ expert testified
that it was “obvious . . . that the racial motivation of [Hatchett’s]
pre-arrest assault . . . indicated a threat to white inmates.” And the
classification officers stated that they would have taken steps to iso-
late Hatchett from white inmates had the officers known of his ra-
cial motive. The record establishes more than “some unspecified
risk of harm,” Marbury v. Warden, 936 F.3d 1227, 1238 (11th Cir.
2019)—Hatchett’s unprovoked stabbing of a random white man
solely because of the man’s race evidenced the deadly risk he posed
to a white detainee.
The survivors also provided enough evidence from which a
jury could reasonably find that Sellers was deliberately indifferent
to the substantial risk of serious harm Nelson faced. This element
“has two components: one subjective and one objective.” Mosley v.
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22-14205 Opinion of the Court 13
Zachery, 966 F.3d 1265, 1270 (11th Cir. 2020) (citation and internal
quotation marks omitted). The subjective component requires ev-
idence that the defendant officer “actually (subjectively) knew” of
the risk to the plaintiff inmate. Id. at 1270–71 (alterations adopted)
(quoting Bowen, 826 F.3d at 1320). This standard is one of “subjec-
tive recklessness as used in the criminal law,” Farmer v. Brennan, 511
U.S. 825, 839–40 (1994), and it is “a difficult burden for a plaintiff to
meet,” West v. Tillman, 496 F.3d 1321, 1327 (11th Cir. 2007) (citation
and internal quotation marks omitted). The objective component
requires evidence that the officer “disregard[ed] th[e] known risk
by failing to respond to it in an (objectively) reasonable manner.”
Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir.
2014) (first alteration in original) (quoting Rodriguez, 508 F.3d at
617).
Sellers challenges only the subjective component of the de-
liberate indifference standard. That is, he does not meaningfully
dispute that if a reasonable jury could find that he knew the risk
Nelson faced, his failure to act was objectively unreasonable. He
disputes only that a reasonable jury could find that he did, in fact,
know of that risk.
To evaluate this challenge, we recount what Sellers knew,
viewing the evidence in the light most favorable to the survivors.
See id. at 1100. Sellers knew that Hatchett stabbed a white man in
the back after watching videos of white-on-black police shootings;
that Hatchett stabbed the man solely because he was white; that
classification officers assigned Hatchett to a cell with Nelson, a
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white man; that Hatchett was polite and cooperative with officers
Sellers and Burgess during the booking process; that Hatchett
never threatened anyone in the jail; and that Nelson never reported
feeling threatened.
A jury faced with this evidence could reasonably infer that
Sellers knew of the obvious risk of serious harm Hatchett posed to
Nelson. Hatchett’s composure during his interactions with Burgess
and Sellers, two police officers, reveals little about Hatchett’s risk
to white inmates. The Supreme Court also has expressly rejected
the argument that an injured inmate must have “expressed” to
prison officials a “concern for his safety.” Farmer, 511 U.S. at 848
(“[T]he failure to give advance notice [of a cellmate attack] is not
dispositive.”). And a jury would be free “to disregard” Sellers’s
“self-serving (and unsupported)” testimony that he did not per-
ceive Hatchett to pose a risk of violence to a white detainee. See
United States v. Stein, 881 F.3d 853, 858 (11th Cir. 2018) (en banc).
Indeed, a jury could reasonably discount that testimony in view of
the abundant circumstantial evidence to the contrary. See, e.g., Mar-
bury, 936 F.3d at 1237 (holding plaintiff can prove subjective com-
ponent using “circumstantial evidence” (citation and internal quo-
tation marks omitted)). But cf. Goodman, 718 F.3d at 1333–34 (sum-
mary judgment for defendants was warranted when “the only evi-
dence of what Officers . . . were actually aware of [wa]s their own
adamant denials of the fact that they ever feared for [the inmate]’s
safety in any way” (emphasis added)). Indeed, “a factfinder may
conclude that a prison official knew of a substantial risk from the
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22-14205 Opinion of the Court 15
very fact that the risk was obvious,” Farmer, 511 U.S. at 842, and a
jury could reasonably find that the risk here was.
The survivors must also prove “a causal connection be-
tween [Sellers’s] conduct and the [Fourteenth] Amendment viola-
tion.” Bowen, 826 F.3d at 1320. This causal element requires proof
that the officer “(1) had the means substantially to improve the in-
mate’s safety, (2) knew that the actions he undertook would be in-
sufficient to provide the inmate with reasonable protection from
violence, and (3) had other means available to him which he nev-
ertheless disregarded.” Rodriguez, 508 F.3d at 622 (alterations
adopted) (citation and internal quotation marks omitted).
This record would permit a reasonable jury to find the “nec-
essary causal link” between Sellers’s inaction and Nelson’s death.
Id. at 623 (internal quotation marks omitted). Sellers had the means
to protect Nelson from Hatchett: he could have told a classification
officer about the risk of harm Hatchett posed to white inmates. Alt-
hough the classification officers, not the intake officers, bore final
inmate-placement responsibility, “proof of causation . . . does not
turn on the ultimate placement or classification decision.” See id. at
624 n.20; accord Farmer, 511 U.S. at 850. It is enough to prove that
the official “had the authority to make . . . recommendations with re-
spect to placement and classification decisions.” Rodriguez, 508 F.3d
at 624 n.20 (emphasis added). Sellers admitted that he had authority
to make housing recommendations and that classification officers
were receptive to such recommendations and would move an in-
mate if given a good reason. Hatchett’s classification officers
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16 Opinion of the Court 22-14205
confirmed that they would have acted on those recommendations.
A reasonable jury could find too that Sellers knew his actions
would be insufficient to protect Nelson because, as Sellers con-
cedes, he did nothing to limit Hatchett’s exposure to white detain-
ees. See id. at 623.
C. Nelson’s Right Was Clearly Established.
All that remains is “the clearly established prong of the qual-
ified immunity inquiry.” Helm v. Rainbow City, 989 F.3d 1265, 1275
(11th Cir. 2021). A right is “clearly established” if controlling law
gave the official “fair warning” that his conduct violated that right.
Hope v. Pelzer, 536 U.S. 730, 741 (2002); accord, e.g., Wade v. United
States, 13 F.4th 1217, 1225 (11th Cir. 2021). Fair warning can be es-
tablished by identifying “a materially similar case,” Mercado v. City
of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005), appealing to “a
broader, clearly established principle [that] should control the
novel facts” at hand, id., or establishing that the challenged conduct
“so obviously violates the Constitution that prior case law is un-
necessary” to clarify its lawlessness, Waldron v. Spicher, 954 F.3d
1297, 1305 (11th Cir. 2020) (alterations adopted) (citation and inter-
nal quotation marks omitted).
The survivors rely upon only a broader, controlling princi-
ple that Nelson’s right was clearly established. For a right to be
clearly established under this method, “the principle must be estab-
lished with obvious clarity by the case law” such that it would have
been “apparent” to every reasonable officer that the defendant’s
conduct was unlawful. Terrell v. Smith, 668 F.3d 1244, 1256 (11th
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22-14205 Opinion of the Court 17
Cir. 2012) (citations and internal quotation marks omitted). We
agree with the survivors that the broad principles of our deliberate
indifference precedents clearly control the facts of this case.
When Nelson died, it was clearly established that “prison of-
ficials have a duty” under the Constitution to take reasonable ac-
tion “to protect prisoners from violence at the hands of other pris-
oners.” Bowen, 826 F.3d at 1320(quoting Farmer,511 U.S. at 833
)
(applying the Eighth Amendment to a convicted prisoner’s deliber-
ate indifference claim); see Goodman, 718 F.3d at 1331 n.1 (“[T]he
standards [for deliberate indifference claims] under the Fourteenth
Amendment [for pretrial detainees] are identical to those under the
Eighth [for convicted prisoners].” (citation and internal quotation
marks omitted)). And it was clearly established that an officer vio-
lates this duty if he “knows that one prisoner poses a substantial
risk of serious harm to another, yet fails to take any [reasonable]
action” to separate them. Caldwell, 748 F.3d at 1102 (first citing Cot-
tone, 326 F.3d at 1358–60; then citing Hale v. Tallapoosa County, 50
F.3d 1579, 1584 (11th Cir. 1995); and then citing LaMarca v. Turner,
995 F.2d 1526, 1536–38 (11th Cir. 1993)); see Cottone,326 F.3d at 1358
(“A Fourteenth Amendment violation occurs when a substan-
tial risk of serious harm, of which the official is subjectively aware,
exists and the official does not respond reasonably to the risk,”
causing serious harm to the inmate.).
Sellers had fair warning that it was unconstitutional not to
prevent the placement of a white detainee alone in a cell with an-
other detainee who, the day before, stabbed a stranger solely for
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being white. See Patel v. Lanier County Georgia, 969 F.3d 1173, 1190
(11th Cir. 2020) (holding, before Hatchett’s arrest, that “broad [de-
liberate indifference] principle[s] ha[ve] put all law-enforcement of-
ficials on notice that if they actually know about a condition that
poses a substantial risk of serious harm and yet do nothing to ad-
dress it, they violate the Constitution.”). Because controlling
caselaw placed the illegality of Sellers’s conduct “beyond debate”
by the time of Hatchett’s arrest, Sellers is not immune from suit for
that conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
IV. CONCLUSION
We AFFIRM the denial of qualified immunity.
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22-14205 Abudu, J, Concurring 1
ABUDU, Circuit Judge, Concurring:
I agree with the majority’s decision to affirm the district
court’s denial of Keyvon Sellers’s motion for summary judgment
on qualified immunity grounds. At the summary judgment stage,
there is evidence, albeit barely more than a scintilla, supporting a
reasonable jury’s determination that Eddie Lee Nelson’s killing was
racially motivated. I write separately to highlight that the evidence
of that motivation, however, is extremely thin. What the record
does show though is that jail can be a violent, dangerous place. The
majority’s decision cements the legal principle that incarcerated in-
dividuals may bring a race-based failure to protect claim even on a
record as bare bones—again as to that motivation—as Nelson’s es-
tate presented in this case. To clarify, the law that this Circuit has
now clearly established is this: “prison officials have a duty” under
the Fourteenth Amendment to take reasonable action “to protect
prisoners from violence at the hands of other prisoners” when offi-
cials have a reasonable belief that another inmate might have racial
animus and, thus, is dangerous even when that inmate is housed
with others of different races and ethnicities for several days with-
out incident. Maj. Op. at 6-7; See Bowen v. Warden Baldwin State
Prison, 826 F.3d 1312, 1320 (11th Cir. 2016).
“We review de novo a district court’s grant of summary
judgment, applying the same standard that bound the district court
and viewing the evidence and all reasonable inferences in the light
most favorable to [Nelson’s estate].” Rodriguez v. Sec’y for Dep’t of
Corr., 508 F.3d 611, 616 (11th Cir. 2007) (citing Drago v. Jenne, 453
USCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 20 of 37
2 Abudu, J., Concurring 22-14205
F.3d 1301, 1305 (11th Cir. 2006)). “[Then], [w]ith the plaintiff’s best
case in hand, the court is able to move to the question of whether
the defendant committed the constitutional violation alleged in the
complaint without having to assess any facts in dispute.” Robinson
v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005). In a Fourteenth
Amendment due process case premised on a penal institution’s fail-
ure to reasonably protect its occupants, such as the one brought
forth here, a plaintiff must show: “(1) a substantial risk of serious
harm existed; (2) the defendant[] [was] deliberately indifferent to
that risk, i.e., [he] both subjectively knew of the risk and also disre-
garded it by failing to respond in an objectively reasonable manner;
and (3) there was a causal connection between the defendant[’]s[]
conduct and the [constitutional] violation.” Bowen, 826 F.3d at 1320
(citing Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th
Cir. 2014)). The plaintiff must also show “that the constitutional
right was clearly established at the time of [the] conduct.” Id. at
1319 (alteration in original) (citing Perez v. Suszczynski, 809 F.3d
1213, 1218 (11th Cir. 2016)). This Court has identified three ways
in which a plaintiff can demonstrate that a constitutional right has
been clearly established:
First, the plaintiff can point to a materially similar case
decided at the time of the relevant conduct by the Su-
preme Court, the Eleventh Circuit, or the relevant
state supreme court. . . . The prior case law need not
be directly on point, but existing precedent must have
placed the statutory or constitutional question be-
yond debate. Second, the plaintiff can identify a
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22-14205 Abudu, J, Concurring 3
broader, clearly established principle that should gov-
ern the novel facts of the situation. Third, the plaintiff
can show that the conduct at issue so obviously vio-
lated the Constitution that prior case law is unneces-
sary.
J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259-
60 (11th Cir. 2018) (internal quotation marks and citations omit-
ted). Thus, even if a plaintiff demonstrates that a reasonable jury
could find a constitutional violation, this Court can and does deny
relief on the basis of qualified immunity. See, e.g., Youmans v. Gag-
non, 626 F.3d 557, 565-66 (11th Cir. 2010) (granting police officer
qualified immunity after ruling that pretrial detainee’s right to
medical care after being beaten and visibly bruised by other officers
was not clearly established). This Court has also historically ex-
pressed that the third method of showing a law is clearly estab-
lished—using a broader, controlling principle that applies with ob-
vious clarity—“[is] rare and [doesn’t] arise often.” King v. Pridmore,
961 F.3d 1135, 1146(11th Cir. 2020) (citing Gaines v. Wardynski,871 F.3d 1203, 1209
(11th Cir. 2017)(collecting cases)); Coffin v. Brandau,
642 F.3d 999, 1015 (11th Cir. 2011) (“Our case law has made clear
that ‘obvious clarity’ cases will be rare”) (collecting cases); Santamo-
rena v. Ga. Mil. Coll., 147 F.3d 1337, 1340 n.6 (11th Cir. 1998) (“these
exceptional cases rarely arise”).
This decision is, therefore, especially groundbreaking con-
sidering the number of qualified immunity cases in which plaintiffs
have relied on a “broader controlling legal principle,” which this
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4 Abudu, J., Concurring 22-14205
Court has rejected. See, e.g., Wade v. United States, 13 F.4th 1217,
1229 (11th Cir. 2021) (granting correctional officer qualified im-
munity in ruling that plaintiff’s right to medical attention for a bro-
ken, bleeding hand prior to being transferred to another cell was
not clearly established despite plaintiff’s argument that right was
encompassed within a broader, clearly established principle);
Gaines, 871 F.3d at 1214 (granting qualified immunity to Superin-
tendent of school district, ruling that any prohibition against de-
fendant denying teacher a promotion based on a family member’s
public criticisms of the school district was based on “First Amend-
ment principles at a high level of generality” and, thus, not clearly
established); Dukes v. Deaton, 852 F.3d 1035, 1044 (11th Cir. 2017)
(granting a defendant officer accused of excessive force qualified
immunity despite finding that a Fourth Amendment violation oc-
curred because “the contours of the right were not clearly estab-
lished”).
We have also suggested that the broader, general principle
articulated in this case was not clearly established. See, e.g., Carter v.
Galloway, 352 F.3d 1346, 1349, 1350 n.10 (11th Cir. 2003) (finding
that plaintiff failed to satisfy subjective prong of deliberate indiffer-
ence claim against officers for failure to protect him from physically
abusive cellmate, but noting that claim would have failed in any
event because right “was not clearly established in Plaintiff’s fa-
vor”).
Prisons and jails are widely known to be one of the most
dangerous housing situations in the world. See, e.g., Keri Blakinger,
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22-14205 Abudu, J, Concurring 5
Why So Many Jails Are in a ‘State of Complete Meltdown’, THE
MARSHALL PROJECT, https://www.themarshallproject.org/2022/
11/04/why-so-many-jails-are-in-a-state-of-complete-meltdown
(Nov. 4, 2022, 1:00 pm) (“[W]hile the infamous Rikers Island jail
complex in New York City has been the focus of media coverage
for its surging number of deaths, rural and urban lockups from
Tennessee to Washington to Georgia are not faring much better.”);
Matt Ford, The Everyday Brutality of America’s Prisons, NEW
REPUBLIC (Apr. 5, 2019), https://newrepublic.com/arti-
cle/153473/everyday-brutality americas-prisons (profiling a Justice
Department report regarding “inmate deaths and violence across
the country that, taken together, paint a grim picture of the brutal-
ity that occurs behind prison walls” and noting that “[j]ails hold a
far greater number of people than prisons, and often include people
who are awaiting trial and thus haven’t been found guilty of a
crime. . . . It’s no surprise that funneling at-risk individuals into a
hostile environment can have fatal consequences.”).
The Muscogee County jail created specific policies for clas-
sifying inmates who might be especially vulnerable to assault at the
hands of other inmates. While in no way minimizing Nelson’s
tragic death, the record shows that, at least on paper, and given that
Hatchett was in pretrial detention and not yet convicted of any
crime, Nelson arguably was a danger to Hatchett as well.
Muscogee’s inmate classification system categorizes inmates
as “high risk” if their current offense or previous conviction was for
a violent charge. In this case, Nelson, who was 39, was incarcerated
USCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 24 of 37
6 Abudu, J., Concurring 22-14205
based on his failure to register as a sex offender. His classification
documents noted he had a previous conviction for rape. He ulti-
mately received a classification that reflected his status as a sex of-
fender and his violent criminal history and was classified to be in
“maximum” detention. The next question that this case poses is
whether someone in Hatchett’s situation who was 19 years old and
now alone in a cell with Nelson, could defeat a qualified immunity
defense if Nelson had attacked and injured him instead. Perhaps
the answer to that question is now definitively yes, which means
victims of assault in jail are clearly entitled to heightened protec-
tions.
While the Court has adopted the race-based claim that Nel-
son’s estate proffers as the reason for Nelson’s murder, a jury could
instead find that there was another, non-racially motivated, reason
for the assault. To underscore this point, one can simply look to
Hatchett’s behavior when he was placed in a cell with two white
detainees: Rae Nolan and Nelson. Hatchett spent his first day in
detention alone with Nolan. Nelson joined their cell the next day.
Hatchett, Nolan, and Nelson were cellmates together for five days.
While Hatchett was in a cell with these two other white men, he
never expressed any hate for white people, and he never made any
racist comments to either Nolan or Nelson. In fact, Hatchett and
Nolan got along. He traded Nolan his breakfast tray for Nolan’s
cookies at night. After Nolan was moved out of their cell, Nelson
and Hatchett remained cellmates for four more days without Nel-
son ever reporting to Sellers or anyone else that he felt like he was
in danger in his cell or otherwise threatened by Hatchett.
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22-14205 Abudu, J, Concurring 7
When Hatchett did attack Nelson, the words out of his
mouth were not racial slurs or race-related comments—they were
about hair in his food. In fact, Correctional Officer Sabrina Millison
stated that, following the incident and while Hatchett was being
held behind a cell door while other officers tried to resuscitate Nel-
son, Hatchett’s comments to her were: “he [Nelson] touched my
food,” and “he [Nelson] put hair in my food.”
Based on this constellation of facts, it is not clear whether
Nelson faced “a strong likelihood,” Brown v. Hughes, 894 F.2d 1533,
1537 (11th Cir. 1990) (citation and internal quotation marks omit-
ted), of “a substantial risk of serious harm,” Bowen, 826 F.3d at 1322
(citation and internal quotation marks omitted), solely based on his
race. However, again, when we view the limited evidence in the
light most favorable to Nelson’s estate, that is a question for a jury
to decide.
Nevertheless, this Circuit has now recognized (1) the alleged
constitutional violation of Nelson’s rights has been clearly estab-
lished; and (2) any evidence of racial animus—even when there
may be other motivations behind the assailant’s actions—is suffi-
cient to overcome qualified immunity under these circumstances.
I hope these tenants remain true for subsequent cases brought by
plaintiffs regarding the threats and violence they have faced while
incarcerated
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22-14205 Ed Carnes, J, Concurring 1
ED CARNES, Circuit Judge, joined by WILLIAM PRYOR, Chief Judge,
concurring:
We concur in all of the Court’s opinion and write separately
to respond to some of the statements in the other concurring opin-
ion.
I.
This Court has often stressed that no decision can hold any-
thing that goes beyond the facts of the case. See, e.g., Edwards v.
Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed
out many times that regardless of what a court says in its opinion,
the decision can hold nothing beyond the facts of that case. All
statements that go beyond the facts of the case . . . are dicta. And
dicta is not binding on anyone for any purpose.”) (citations omit-
ted); Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th
Cir. 2006) (“The holdings of a prior decision can reach only as far
as the facts and circumstances frame the precise issue presented in
that case.”); Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207
(11th Cir. 2003) (“Whatever their opinions say, judicial decisions
cannot make law beyond the facts of the cases in which those deci-
sions are announced.”); United States v. Aguillard, 217 F.3d 1319,
1321 (11th Cir. 2000) (“The holdings of a prior decision can reach
only as far as the facts and circumstances presented to the Court in
the case which produced that decision.”) (quoting United States v.
Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J., concur-
ring)); see also Moon v. Head, 285 F.3d 1301, 1318 (11th Cir. 2002)
(Carnes, J., concurring) (“Those statements are dicta. They are
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2 Ed Carnes, J., Concurring 22-14205
dicta because they go beyond the facts of the [earlier] case it-
self . . . .”); Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1265
(11th Cir. 2007) (“Judicial opinions do not make binding prece-
dents; judicial decisions do.”) (alteration adopted) (quotation
marks omitted).
Our colleague’s separate concurring opinion would take a
more expansive approach by interpreting the Court’s decision to
“recognize[]” that “any evidence of racial animus––even when
there may be other motivations behind the assailant’s actions––is
sufficient to overcome qualified immunity under these circum-
stances.” Abudu Concurrence at 7 (emphasis added). Our decision
does not recognize or even imply that, and it certainly does not
hold that. Reframing our decision in that way would defy all of our
many precedents stressing that a holding reaches only as far as the
facts and circumstances of the case. See, e.g., Chavers, 468 F.3d at
1275.
Let’s start with the most obvious point about race. This is
not a case in which any prison guard or official is accused of racial
discrimination. Race played only one role in this tragic tale: A jury
could find that racial hatred motivated Hatchett, a black inmate, to
murder Nelson, a white inmate, solely because he was white. The
Constitution does not forbid inmates from discriminating against
other inmates based on race, and Hatchett is not a defendant in this
case. The defendant is Sellers, an intake officer at the detention
center. The claim against him is not that he discriminated against
any inmate based on race. The claim is that he was deliberately
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22-14205 Ed Carnes, J, Concurring 3
indifferent to the substantial risk that Hatchett would attack a
white inmate if he was put into a cell with one, and as a result,
Hatchett was celled with a white inmate and murdered him.
Even if we wanted to do so, we could not hold in this case
that “any evidence” of racial animus by the inmate assailant is
somehow enough to overcome an official’s qualified immunity, see
Abudu Concurrence at 7. We could not because those are not the
only facts of this case. Instead, the facts of the case include a prison
official being deliberately indifferent to a specific risk of violence
that could have been avoided with minimal effort by him, but he
did nothing to address it. A future panel cannot ignore some facts
in this case to convert it into a broader precedent. And we can’t
either. A decision in a case including facts A + B + C that concludes
those facts together amount to a constitutional violation cannot be
binding precedent for the proposition that either A alone, or A + B
without C, is a constitutional violation.
The specific facts at this stage, as the opinion of the Court
recounts them, are that Sellers was an intake officer who helped
process Hatchett into the detention center. See Maj. Op. at 4. And
Sellers knew that Hatchett had been arrested for going into a store
and stabbing a stranger in the back. See id. at 4, 13. And he knew
that Hatchett, a black man, had stabbed that stranger solely be-
cause the man was white. See id. And Hatchett told Sellers that he
had “seen a video” of cops killing black people and “decided [he]
was gonna stab a white guy” in response. See id. at 4. And Sellers
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4 Ed Carnes, J., Concurring 22-14205
knew that Hatchett had done exactly that the day before he was
being processed into the detention center. See id. at 3–4.
Not only all of that, but both classification officers testified
that had they known Hatchett’s unprovoked stabbing of a stranger
the day before he was arrested was racially motivated, they would
not have put him in a cell with a white detainee. See id. at 6. And
Sellers himself admitted that he knew classification officers would
move an inmate if “given a good reason.” See id. at 5. Yet, he “did
nothing to limit Hatchett’s exposure to white detainees.” Id. at 16.
“In deliberate-indifference cases, as in life, context matters.”
Mosley v. Zachery, 966 F.3d 1265, 1272 (11th Cir. 2020). Based on
the facts as presented at the summary judgment stage, our opinion
holds only that at the time of Nelson’s death it was clearly estab-
lished that if a prison official actually knows about a condition that
poses a substantial risk of serious harm to an inmate and does not
take any reasonable steps to prevent that harm, causing the inmate
injury, he violates the Constitution. See Maj. Op. at 17–18; Caldwell
v. Warden, FCI Talladega, 748 F.3d 1090, 1100–03 (11th Cir. 2014);
Cottone v. Jenne, 326 F.3d 1352, 1359–60 (11th Cir. 2003); Patel v. La-
nier County Georgia, 969 F.3d 1173, 1190 (11th Cir. 2020).
Our holding is not “groundbreaking,” see Abudu Concur-
rence at 3. Far from it. We’ve previously held that if a prison offi-
cial was deliberately indifferent to a serious risk of harm that could
have been (but wasn’t) avoided with a reasonable amount of effort,
the officer may be held liable. See, e.g., Bowen v. Warden, Baldwin
State Prison, 826 F.3d 1312, 1320–25 (11th Cir. 2016) (denying
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22-14205 Ed Carnes, J, Concurring 5
qualified immunity and holding that the plaintiff had plausibly al-
leged a deliberate indifference claim against two prison officials
who were aware that an inmate was “a severe paranoid schizo-
phrenic who suffered from violent delusions, auditory hallucina-
tions, and impulsive tendencies” and knew that he had committed
a “High-Assault” against his previous cellmate but took no steps to
protect the cellmate he killed); Caldwell, 748 F.3d at 1101–03 (deny-
ing qualified immunity and holding that where prison officials
knew an inmate had a history of past prison violence and had
started a fire in his cell using the plaintiff’s personal belongings, a
jury could reasonably find that the officials “actually knew of a sub-
stantial risk” that the inmate “would seriously harm” the plaintiff);
Cottone, 326 F.3d at 1358–60 (denying qualified immunity and hold-
ing that the plaintiff plausibly alleged deliberate indifference where
the prison officials failed to monitor or supervise a visibly violent
and mentally unstable inmate they knew posed a substantial risk of
serious harm to other inmates); Rodriguez v. Sec’y for Dep’t of Corr.,
508 F.3d 611, 618–24 (11th Cir. 2007) (vacating a grant of summary
judgment and judgment as a matter of law entered in favor of
prison officials on a deliberate indifference claim where the officials
were aware of specific gang-related threats against the plaintiff but
did not take available steps to protect the plaintiff, who was later
stabbed).
According to the facts as we take them at this stage, Sellers
was put on notice during Hatchett’s intake that he was especially
violent toward white people and had, only the day before, stabbed
a total stranger in the back solely for being white. It would have
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6 Ed Carnes, J., Concurring 22-14205
taken only a miniscule amount of effort for Sellers to prevent the
danger that Hatchett posed to white detainees. 1 All he had to do
was tell one of the classification officers that Hatchett’s violent
crime had been motivated by a desire to harm white people. And
a jury could reasonably find that Sellers’ failure to act caused Nel-
son, Hatchett’s second victim, to be killed. 2 . Concluding that those
facts would establish deliberate indifference breaks no new ground;
instead, the conclusion rests on well-ploughed ground and is en-
tirely in keeping with our precedents. See Bowen, 826 F.3d at 1320–
24; Caldwell, 748 F.3d at 1100–02; Cottone, 326 F.3d at 1358–60; Ro-
driguez, 508 F.3d at 618–24.
Our concurring colleague asserts that “it is not clear whether
Nelson faced ‘a strong likelihood’ of ‘a substantial risk of serious
harm’ solely based on his race.” Abudu Concurrence at 7 (internal
citations omitted) (quoting first Brown v. Hughes, 894 F.2d 1533,
1537(11th Cir. 1990), then Bowen,826 F.3d at 1322
). But drawing
1 As our colleague’s concurring opinion acknowledges, the reasonableness of
the potentially preventative action is important. See Abudu Concurrence at 1;
Caldwell, 748 F.3d at 1099 (explaining that the objective component of deliber-
ate indifference requires evidence that the officer disregarded the known risk
by “failing to respond to it in an (objectively) reasonable manner”) (quotation
marks omitted).
2 Sellers disputes only the subjective component of deliberate indifference, ar-
guing that no reasonable jury could find that he had actual, subjective
knowledge of the risk Hatchett posed to Nelson. See Mosely v. Zachery, 966
F.3d 1265, 1270–71 (11th Cir. 2020). But, as detailed in the majority opinion,
there was enough evidence that Sellers did actually, subjectively know about
it and that he disregarded that known risk. See Maj. Op. at 13–14.
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22-14205 Ed Carnes, J, Concurring 7
all reasonable inferences in the plaintiffs’ favor (as we must here),
it is clear that Nelson did face a substantial risk of serious harm. See
Maj. Op. at 11–12. Hatchett had already shown that, seeking racial
vengeance, he would violently attack someone solely because he
was white. After all, it was only the day before he was processed
into the detention center that Hatchett had been arrested for stab-
bing in the back “the first white guy he s[aw]” just because he was
white.
The two classification officers testified that had they known
the stabbing for which Hatchett was arrested was racially moti-
vated, they would not have put him in a cell with a white detainee
“for the safety” of that detainee. The plaintiffs’ expert agreed that
because of the racial motivation behind the stabbing, Hatchett “ob-
vious[ly]” posed a “threat to white inmates.” The evidence viewed
in the light most favorable to the plaintiffs shows more than “some
unspecified risk of harm to [Nelson’s] well-being,” see Marbury v.
Warden, 936 F.3d 1227, 1238 (11th Cir. 2019), and more than the
“mere possibility” of injury, see Brooks v. Warden, 800 F.3d 1295,
1301 (11th Cir. 2015); it shows that Hatchett posed a “specific[]”
and “particularized threat” to Nelson and other white inmates, see
Bowen, 826 F.3d at 1322 (quotation marks omitted).
The other concurring opinion asserts that the evidence of a
racial motivation for the murder is “extremely thin,” Abudu Con-
currence at 1. To the contrary, viewing the evidence in the light
most favorable to the plaintiff, there is plenty of it. For example,
the evidence shows that Hatchett told three different officers or jail
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8 Ed Carnes, J., Concurring 22-14205
employees that he was there because he stabbed a stranger solely
because of the stranger’s race, after watching videos about police
violence against black people. He also told two of his cellmates
that after watching “one of them cop shooting videos,” he got
“mad,” and he stabbed “the first white guy he seen.” And the day
after killing his cellmate, in talking to a psychiatrist, Hatchett
“[m]entioned about his [cellmate] talking about racial things.”
More to the point, there is enough evidence from which a
jury could reasonably find that there was a “strong likelihood” that
Hatchett would seriously harm Nelson, see Brown, 894 F.2d at 1537,
that Sellers actually knew about that substantial risk of serious
harm, see Caldwell, 748 F.3d at 1102, that Sellers knew he could do
something about it but did nothing, see Rodriguez, 508 F.3d at 622,
and that his failure to act caused Nelson’s death, see id. at 617, 622–
24, 624 n.20. As we’ve mentioned, the other concurring opinion
states that “any evidence of racial animus—even when there may
be other motivations behind the assailant’s actions—is sufficient to
overcome qualified immunity under these circumstances.” Abudu
Concurrence at 7. But “any evidence of racial animus” by a pris-
oner, regardless of whether there are other motivations, is not
enough to show a constitutional violation, much less to overcome
qualified immunity.
As the Supreme Court has stressed, “It is not . . . every injury
suffered by one prisoner at the hands of another that translates into
constitutional liability for prison officials responsible for the vic-
tim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1970). Prisons
USCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 34 of 37
22-14205 Ed Carnes, J, Concurring 9
and jails are inherently dangerous places. See id. at 858 (Thomas,
J., concurring in the judgment) (“Prisons are necessarily dangerous
places . . . .”); Kincaid v. Williams, 143 S. Ct. 2414, 2419 n.2 (2023)
(Alito, J., dissenting) (referring to “the uniquely dangerous context
of prison”); United States v. Prevo, 435 F.3d 1343, 1346 (11th Cir.
2006) (“Because of the character of prisoners and the nature of im-
prisonment, corrections facilities are volatile places, brimming
with peril, places where security is not just an operational nicety
but a matter of life or death importance.”); Florence v. Bd. of Chosen
Freeholders of Cnty. of Burlington, 566 U.S. 318, 333 (2012) (“Jails are
often crowded, unsanitary, and dangerous places.”); Ort v. White,
813 F.2d 318, 322 (11th Cir. 1987) (in a prison discipline case, ex-
plaining that “in evaluating the challenged conduct of prison offi-
cials, a court must keep in mind the paramount concerns of main-
taining order and discipline in an often dangerous and unruly envi-
ronment”); Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (en
banc) (“Prisons are dangerous and filled with law-breaking because
that is where the criminals are. Even the most secure prisons are
dangerous places for inmates, employees, and visitors.”); see also
Abudu Concurrence at 4 (“Prisons and jails are widely known to be
one of the most dangerous housing situations in the world.”).
“[T]hey house society’s most antisocial and violent people in close
proximity with one another.” Farmer, 511 U.S. at 858; see also Hud-
son v. Palmer, 468 U.S. 517, 526 (1984) (“Prisons, by definition, are
places of involuntary confinement of persons who have a demon-
strated proclivity for antisocial criminal, and often violent, con-
duct.”).
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10 Ed Carnes, J., Concurring 22-14205
Given all of those decisions, our circuit law does not suggest,
let alone establish, that any time an inmate assaults another inmate
for racial reasons some prison official has in some way violated the
Constitution. And our decision today does not suggest that either.
A prison official violates the Constitution only when the inmate
can show that he was “incarcerated under conditions posing a sub-
stantial risk of serious harm,” Farmer, 511 U.S. at 834 (majority
opinion), and that the official knew of and consciously disregarded
that substantial risk, id. at 837–38, and that the official’s action or
inaction caused injury, see Bowen, 826 F.3d at 1320; Cottone,326 F.3d at 1358
; see also Brown,894 F.2d at 1537
(“When officials become
aware of a threat to an inmate’s health and safety, the Eighth
Amendment’s proscription against cruel and unusual punishment
imposes a duty to provide reasonable protection. Merely negligent
failure to protect an inmate from attack does not justify liability
under section 1983, however. Prison officials must have been de-
liberately indifferent to a known danger before we can say that
their failure to intervene offended evolving standards of decency,
thereby rising to the level of a constitutional tort.”) (citations and
quotation marks omitted).
Despite what the other concurrence suggests, victims of as-
sault in jail are not entitled to any “heightened protections,” Abudu
Concurrence at 6. Prison officials are not required to guarantee
inmates’ safety from another inmate, regardless of the other in-
mate’s motivation for violence. See Farmer, 511 U.S. at 834; see also
Purcell ex rel. Est. of Morgan v. Toombs County, 400 F.3d 1313, 1321
(11th Cir. 2005) (“[A] prison custodian is not the guarantor of a
USCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 36 of 37
22-14205 Ed Carnes, J, Concurring 11
prisoner’s safety.”) (quotation marks omitted). As the Court’s
opinion in this case points out, “A prison official’s deliberate indif-
ference to a known, substantial risk of serious harm to an inmate”
is what violates the Constitution. See Maj. Op. at 11. It does not
matter if the substantial risk that one inmate will seriously injure
or kill another is motivated by race, religion, gang affiliation, or
something else. The decisions of the Supreme Court and this
Court draw the line based on deliberate indifference, not based on
the specific motivation that created the substantial risk of harm.
II.
One final note. To the extent that the concurring opinion’s
last paragraph implies that the qualified immunity issue is out of
this case, see Abudu Concurrence at 7, our circuit precedent estab-
lishes otherwise. At this summary judgment stage, we view the
facts and draw all reasonable inferences in the plaintiffs’ favor. See
Caldwell, 748 F.3d at 1103. But we recognize that even though a
plaintiff gets past summary judgment, he “may not be able to prove
such facts to the satisfaction of the jury” and “the jury may elect
not to draw inferences from the circumstantial evidence in [the
plaintiff’s] favor.” Id. The point is that “what we state as ‘facts’ in
this opinion for purposes of reviewing the rulings on the summary
judgment motion[] may not be the actual facts” decided at trial.
Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995); see Farrow
v. West, 320 F.3d 1235, 1239 n.2 (11th Cir. 2003) (same).
“Any qualified immunity defenses that do not result in sum-
mary judgment [for the defendant] before trial may be renewed at
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12 Ed Carnes, J., Concurring 22-14205
trial,” Swint, 51 F.3d at 992, where the jury can “find the relevant
facts bearing on the qualified immunity issue,” Simmons v. Brad-
shaw, 879 F.3d 1156, 1164–65 (11th Cir. 2018). At trial Sellers can
“urge the jury to view the record as []he has framed it, seek special
interrogatories to resolve historical facts underlying [his] immunity
argument, and then resubmit the issue to the district court for de-
cision.” Butler v. Smith, 85 F.4th 1102, 1118 n.6 (11th Cir. 2023); see
also Kelly v. Curtis, 21 F.3d 1544, 1546–47 (11th Cir. 1994) (“[A] de-
fendant who does not win summary judgment on qualified im-
munity grounds may yet prevail on those grounds at or after trial
on a motion for a judgment as a matter of law.”).
If Sellers does renew the qualified immunity defense at trial,
and if the evidence at trial could support a jury finding on the facts
that would support qualified immunity, the district court can, and
when needed should, “use special verdicts or written interrogato-
ries to the jury to resolve disputed facts before the judge rules on
the qualified-immunity question.” Cottrell v. Caldwell, 85 F.3d 1480,
1487(11th Cir. 1996) (quotation marks omitted).
Reference
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