United States Court of Appeals Fifth Circuit F I L E D REVISED OCTOBER 13, 2004 IN THE UNITED STATES COURT OF APPEALS September 8, 2004

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________

No. 03-10455 c/w No. 03-10505 c/w No. 03-10722 _____________________

RODERICK KEITH JOHNSON

Plaintiff - Appellee

v.

GARY JOHNSON; ET AL

Defendants

GARY JOHNSON; ROBERT R TREON, Senior Warden Allred Unit; RICHARD E WATHEN; JAMES D MOONEYHAM, Assistant Warden Allred Unit; TOMMY NORWOOD, Major; KENNETH BRIGHT, Major; TRACY KUYAVA, Administrative Technician Unit Classification Committee; TINA VITOLO, Administrative Technician Unit Classification Committee; VIKKI D WRIGHT, Director, Classification; JOSEPH BOYLE, Captain; JIMMY BOWMAN, Major; KENNETH WILLINGHAM, Sergeant; OSCAR PAUL, Lieutenant; ONESSIMO RANJEL, Lieutenant; DAVID TAYLOR, Lieutenant

Defendants - Appellants _________________________________________________________________

Appeals from the United States District Court for the Northern District of Texas _________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit Judges.

KING, Chief Judge:

This is a § 1983 suit brought by a former Texas prisoner

against fifteen prison officials. According to the plaintiff’s version of events, which is disputed by the defendants, he

suffered through a horrific eighteen-month period of

incarceration during which the defendant prison officials failed

to protect him from prison gangs who repeatedly raped him and

bought and sold him as a sexual slave. His complaint asserted

violations of the Eighth Amendment and the Equal Protection

Clause. The district court denied the defendants’ motions for

judgment on the pleadings and for summary judgment, and they now

bring these interlocutory appeals. The defendants argue that the

plaintiff largely failed to exhaust his administrative remedies

and that any exhausted claims are barred by qualified immunity.

We conclude that the majority, but not all, of the plaintiff’s

claims must be dismissed on grounds of failure to exhaust or

qualified immunity. We therefore affirm in part, reverse in

part, and remand.

I. GENERAL BACKGROUND

Roderick Johnson entered the Texas prison system in January

2000 after the revocation of a sentence of probation that he had

received for a nonviolent burglary. He was transferred to the

system’s Allred Unit on September 6, 2000. Upon arriving at

Allred, Johnson met with a three-person Unit Classification

Committee (UCC) for a determination of his initial housing

status. Prison officials knew that Johnson was homosexual and

possessed an effeminate manner. Johnson told the UCC that he had

2 been housed in “safekeeping” before his transfer.1 Safekeeping

is a housing status that separates vulnerable individuals from

more aggressive offenders. According to Texas Department of

Criminal Justice (TDCJ) regulations, safekeeping is indicated

when an inmate is at risk of victimization, has enemies in the

population, has a history of homosexuality, or possesses other

characteristics that mark the offender as vulnerable to

predation. But according to Johnson, one of the members of the

UCC told him that “[w]e don’t protect punks on this farm”--“punk”

being prison slang for a homosexual man. Johnson was put in the

general population. He was raped by other inmates almost

immediately.

Johnson’s complaint and affidavit describe a horrific series

of events that allegedly occurred over the next eighteen months

at Allred. In October 2000, not long after his arrival in the

general population, a prison gang member named Hernandez asserted

“ownership” over Johnson, forcing Johnson to become his sexual

servant. Johnson informed Assistant Warden Mooneyham and

Sergeant Willingham of the rapes and requested medical attention,

1 The parties’ briefs take apparently conflicting positions on whether Johnson was housed in safekeeping before his transfer. Johnson’s brief says that “he had been housed in safekeeping just before he was transferred to Allred Unit.” But the defendants say that “Johnson was not classified ‘safekeeping’ prior to the his arrival at the Allred Unit.” It appears that both sides are technically correct: Johnson was housed in transient safekeeping shortly before his transfer, but he was not officially classified to that status.

3 but they told him that care was available only for emergencies

and that he should file a written request for medical attention.

By November, Hernandez began to rent Johnson out to perform

coerced sexual favors for other inmates. Johnson believed that

he would be severely beaten or killed if he refused. Hernandez

beat Johnson on November 30, and medical personnel documented

bruising and swelling on Johnson’s face. At several times over

the following months, Johnson was moved to different buildings at

Allred and was raped and owned by different prison gangs.

Johnson sought help from guards, filed numerous “life-

endangerment” forms, and wrote letters to prison administrators.

Prison officers who investigated Johnson’s complaints generally

determined that they could not be corroborated; the officers

usually did not interview any of the inmates mentioned in

Johnson’s complaints, purportedly out of a concern to protect the

“integrity of the investigation” or to protect Johnson.

Johnson’s life-endangerment forms triggered a number of

appearances before UCCs composed of various prison officials and

employees. Johnson asked the UCCs to place him in safekeeping

status, place him in protective custody (which entails a

significant loss of privileges), or transfer him to a different

prison on multiple occasions: December 13, 2000; February 14,

2001; February 21, 2001; March 16, 2001; September 5, 2001;

December 13, 2001; and January 17, 2002. Each time the committee

refused Johnson’s requests, ostensibly because there was no

4 concrete evidence of victimization. According to Johnson, the

members of the committees repeatedly told him that he either had

to fight off his attackers or submit to being used for sex. The

comments allegedly made by the UCC members, which they dispute,

include statements such as: “You need to get down there and fight

or get you a man,” “There’s no reason why Black punks can’t fight

and survive in general population if they don’t want to f***,”

and remarks to the effect that, since Johnson was homosexual, he

probably liked the sexual assaults he was experiencing.

In addition to writing letters to administrators and filing

life-endangerment notices, Johnson also used the TDCJ’s formal

two-step administrative grievance process on several occasions.

The grievances described his victimization and his repeated

unsuccessful requests for protection or a transfer to

safekeeping. The grievances were denied, generally on the basis

that unit officials or UCC committees had already conducted

proper investigations and had found no substantiating evidence.2

Johnson eventually contacted the American Civil Liberties

Union. Shortly thereafter, Johnson went before the UCC again, on

April 1, 2002, and was approved for a transfer to TDCJ’s Michael

Unit. During his December 2002 deposition, Johnson testified

2 Additional details regarding Johnson’s grievances are provided later, in conjunction with our analysis of the exhaustion issue.

5 that he had not suffered attacks at the Michael Unit, where he

was housed in safekeeping.

Johnson filed suit in the district court in April 2002

against over a dozen TDCJ officials and employees. The

defendants comprise supervisory officials such as TDCJ Executive

Director Gary Johnson,3 Senior Warden Treon, Assistant Warden

Wathen, Assistant Warden Mooneyham, and Director of

Classification Wright; guards who failed to protect Johnson on

discrete occasions (namely, Lieutenant Paul4 and Sergeant

Willingham); and many of the members of the various UCCs that had

denied Johnson protection (namely, Major Norwood, Major Bright,

UCC Administrative Technician Kuyava, UCC Administrative

Technician Vitolo, Captain Boyle, Major Bowman, Lieutenant

Ranjel, and Lieutenant Taylor).5 The lengthy complaint asserted

three causes of action: (1) failure to protect Johnson from harm,

in violation of the Eighth Amendment, (2) a race-based Equal

3 This defendant is referred to in this opinion as “Executive Director Johnson.” The name “Johnson” refers to the plaintiff, Roderick Johnson. 4 The incident involving Paul occurred in March 2002. According to Johnson, a group of inmates molested him and a mentally ill inmate in the showers. Afterward, Johnson told Paul, who offered no assistance and instead made menacing comments to Johnson. 5 There is some overlap among these general categories of defendants. For instance, Wathen sometimes sat on the UCC; Mooneyham sat once on the UCC and (with Willingham) was involved in the October 2000 incident described earlier, in addition to carrying out his supervisory responsibilities.

6 Protection claim charging that officials denied him protection

because he is black, and (3) a sexual-orientation-based Equal

Protection claim predicated on the allegation that the defendants

denied Johnson protection out of anti-homosexual animus. The

suit sought injunctive relief and damages. The defendants

answered Johnson’s complaint with a blanket denial of almost all

of its allegations.

In July 2002, Executive Director Johnson, Treon, and Wright

moved for judgment on the pleadings on Johnson’s Equal Protection

claims (but not the Eighth Amendment claim). The plaintiff did

not oppose this motion, and the district court later granted it.

In November 2002, all of the defendants filed a motion to

dismiss the case for failure to exhaust administrative remedies,

and, at the same time, all of the defendants who were still

facing Equal Protection claims (i.e., all defendants but

Executive Director Johnson, Treon, and Wright) filed a motion for

judgment on the pleadings with regard to the Equal Protection

claims.6 The motion for judgment on the pleadings asserted,

inter alia, an entitlement to qualified immunity on the ground

that Johnson had not alleged violations of rights that were

clearly established.

6 At the same time, two of the defendants (Executive Director Johnson and Paul) also sought judgment on the pleadings with regard to Johnson’s Eighth Amendment claim. The other defendants, however, did not challenge the Eighth Amendment theory at the pleadings stage.

7 While those motions were still pending, the defendants also

filed, in January 2003, a motion for summary judgment on the

Eighth Amendment claims, again asserting qualified immunity among

other grounds. The motion also reasserted the defendants’

arguments concerning Johnson’s Equal Protection claims.

On April 9, 2003, the district court denied the defendants’

January 2003 motion for summary judgment in an order stating that

fact issues remained regarding whether the defendants acted with

deliberate indifference to a substantial risk to Johnson’s

safety; the court further held that the factual disputes

precluded a ruling on qualified immunity on the current record.

The court’s order also rejected the defendants’ exhaustion

argument, which they had re-urged in their motion for summary

judgment.

The defendants then requested a ruling on the still-pending

November 2002 motion for judgment on the pleadings, which largely

concerned the Equal Protection claims. On April 17, 2003, the

court denied the motion for judgment on the pleadings, concluding

that Johnson’s pleadings adequately stated a claim. The order

also denied as moot the motion to dismiss for failure to exhaust,

as the court’s previous order had rejected that argument.

Finally, the order denied as moot the request for qualified

immunity, the court having already determined that material fact

issues required trial.

8 The defendants filed a notice of appeal from the April 9

order denying summary judgment, and this became appeal No. 03-

10455. Later, they filed a notice of appeal from the April 17

order denying the motion for judgment on the pleadings--docketed

as appeal No. 03-10505. Both interlocutory appeals are

predicated on the rule that denials of qualified immunity based

on issues of law are immediately appealable under the collateral

order doctrine. See Mitchell v. Forsyth,

(1985). The district court later certified, and this court

granted leave to pursue, an interlocutory appeal of the district

court’s ruling that Johnson had exhausted his administrative

remedies--appeal No. 03-10722. See

(b).

Johnson has filed motions to dismiss Nos. 03-10505 and 03-

10455 for want of appellate jurisdiction.

On December 19, 2003, Johnson was released from prison into

mandatory supervision at a halfway house. The defendants have

argued, and the plaintiff conceded at oral argument, that

Johnson’s claims for injunctive relief and his claims against the

defendants in their official capacities have been rendered moot,

leaving only his claims against the defendants in their

individual capacities for damages.

II. EXHAUSTION

Under the Prison Litigation Reform Act (PLRA), prisoners are

required to exhaust administrative remedies before filing suit:

9 “No action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a) (2000). The defendants argue

that Johnson’s grievances were insufficiently detailed, untimely,

or both, thus failing to exhaust his administrative remedies. We

review de novo the district court’s denial of the motion to

dismiss for failure to exhaust. Richardson v. Spurlock,

(5th Cir. 2001).

The Texas prison system has developed a two-step formal

grievance process. The Step 1 grievance, which must be filed

within fifteen days of the complained-of incident, is handled

within the prisoner’s facility. After an adverse decision at

Step 1, the prisoner has ten days to file a Step 2 grievance,

which is handled at the state level. This court has previously

held that a prisoner must pursue a grievance through both steps

for it to be considered exhausted. See Wright v. Hollingsworth,

(5th Cir. 2001).

The record in this case includes portions of the guidelines

that TDCJ provides prisoners regarding how to file grievances.

Among other things, the rules direct inmates to write “briefly

and clearly” but also to “be very specific about your grievance

or your problem.” They state that a grievance should contain

facts, not legal words or conclusions. They further direct the

10 prisoner to “[t]ell us what action you want us to take to resolve

your grievance or problem,” but they specifically state that a

prisoner should “not ask us to take disciplinary action against

employees.” The guidelines state that an inmate should not

“submit repetitive grievances on the same issue.” Finally, they

warn that an inmate is subject to sanctions for abusing the

grievance process, such as by making “excessive, frivolous and

vexatious use of the procedure.”

In addition to writing many administrative life-

endangerment notices and letters, Johnson twice filed formal

grievances on TDCJ-provided standard forms and pursued them

through the two-step process just described. In particular, he

filed Step 1 grievances on March 18, 2001 and December 30, 2001,

both times appealing the matter to Step 2 after being denied at

Step 1. (He filed Step 1 grievances on a few other occasions as

well, but he did not fully exhaust them by proceeding through

Step 2.) Johnson’s complaint included an allegation that he had

exhausted available administrative remedies.7

7 Before turning to the substance of the exhaustion requirement, we observe that there is a threshold issue regarding whether the defendants properly raised the exhaustion issue. Though the defendants raised exhaustion in their motions for judgment on the pleadings and for summary judgment, their answer to Johnson’s complaint did not raise the issue. Johnson argues that exhaustion is an affirmative defense and points to the general rule, see Giles v. Gen. Elec. Co.,

(5th Cir. 2001), that affirmative defenses not raised in the answer are ordinarily deemed waived. The defendants contend that exhaustion is not an affirmative defense but is instead part of the plaintiff’s cause of action.

11 Section 1997e(a) does not say how specific a prisoner’s

administrative grievances must be, and this court has so far

given relatively little guidance regarding what a prisoner must

say in his grievances to exhaust his claims properly. As a

general matter, courts typically use a standard according to

which a grievance should give prison officials “fair notice” of

the problem that will form the basis of the prisoner’s suit.

See, e.g., Burton v. Jones,

(6th Cir. 2003).

The parties agree on that generalized formulation but,

As Johnson accurately points out, the substantial majority of courts of appeals that have considered the question hold that exhaustion is an affirmative defense, generally reasoning that it is similar to a statute-of-limitations defense. See, e.g., Casanova v. Dubois,

, 77 n.3 (1st Cir. 2002) (citing cases). But see Steele v. Fed. Bureau of Prisons,

(10th Cir. 2003) (taking the contrary view and requiring prisoners to allege and show exhaustion of administrative remedies). Some prior decisions of this court seem to imply or assume that exhaustion is a component of the plaintiff’s claim, not an affirmative defense that must be raised and proved by the defendants. See, e.g., Days v. Johnson,

(5th Cir. 2003); Wendell v. Asher,

(5th Cir. 1998); Underwood v. Wilson,

(5th Cir. 1998). But, arguably, these cases have not directly decided the question. Assuming arguendo that the question is as-yet undecided, we have no occasion to decide it here. While failure to raise an affirmative defense in the answer generally results in a waiver, noncompliance can be excused if the defendant raises the issue at a “pragmatically sufficient” time and there is no prejudice to the plaintiff. See Giles,

. The defendants raised the exhaustion issue in their motion for judgment on the pleadings, and here it does not appear that Johnson was surprised in any way, as might happen when a party waits until shortly before trial to raise a new defense. Moreover, failure to plead exhaustion in the answer is especially excusable here given that the law on the topic is not clearly settled. See Foulk v. Charrier,

(8th Cir. 2001) (excusing defendant’s failure to raise exhaustion in a timely manner because circuit law regarding PLRA exhaustion was unsettled at the time).

12 unsurprisingly, they differ on how much detail is required in

order to provide notice of the prisoner’s problem.

In deciding how much detail is required in a given case, we

believe that a court must interpret the exhaustion requirement in

light of its purposes, which include the goal of giving officials

“time and opportunity to address complaints internally,” Porter

v. Nussle,

(2002). Thus, a grievance should be

considered sufficient to the extent that the grievance gives

officials a fair opportunity to address the problem that will

later form the basis of the lawsuit. Further, as a practical

matter, the amount of information necessary will likely depend to

some degree on the type of problem about which the inmate is

complaining. If an inmate claims that a guard acted improperly,

we can assume that the administrators responding to the grievance

would want to know--and a prisoner could ordinarily be expected

to provide--details regarding who was involved and when the

incident occurred, or at least other available information about

the incident that would permit an investigation of the matter.

In contrast, a grievance in which an inmate says that his cell is

habitually infested with vermin, or that the prices in the

commissary are too high, could adequately alert administrators to

the problem whether or not the grievance names anyone. Compare

Curry v. Scott,

(6th Cir. 2001) (holding that a

grievance specifically complaining of a beating at the hands of

one guard did not suffice to exhaust a failure-to-protect claim

13 against another guard, not mentioned in the grievance, who stood

by and watched), with Brown v. Sikes,

(11th Cir. 2000) (holding that a prisoner who knew only that he

had not received prescribed medical equipment had exhausted his

claim, notwithstanding that his grievance did not name anyone).

Beyond those general practical considerations, the prison

system’s own rules regarding grievances provide both inmates and

the courts with more specific guidance. Since prisoners are

generally required to follow the procedures adopted by the state

prison system, the specificity requirement should be interpreted

in light of the grievance rules of the particular prison system,

here the TDCJ. See Strong v. David,

(7th Cir.

2002) (“[G]rievances must contain the sort of information that

the administrative system requires.”).8 Thus, in deciding

whether the grievance gives officials an opportunity to address

the problem, we should consider whether the grievance provides

the type of information that the TDCJ rules request.

The defendants raise three distinct types of exhaustion

arguments on appeal: They argue that Johnson did not exhaust (1)

certain of his legal theories (2) regarding certain episodes (3)

8 The Strong opinion qualified its holding by noting that a state’s procedures would be invalid if they established requirements inconsistent with the federal policies behind § 1983 and § 1997e(a).

. In other words, a state could not make grievance rules that prevented the vindication of substantive rights.

14 against certain defendants. We consider each in turn, and we

conclude that many of Johnson’s claims are unexhausted.

A. Which theories?

Johnson’s suit contains Eighth Amendment claims, race-based

Equal Protection claims, and claims for failure to protect

because of sexual orientation under the Equal Protection Clause.

We begin with the question of which of those three categories of

claims were exhausted.

As a general matter, there is authority from several courts

to the effect that a prisoner, who is of course typically

uncounseled, need not present legal theories in his grievances.

See, e.g., Burton,

(“[W]e would not require a

prisoner’s grievance to allege a specific legal theory or facts

that correspond to all the required elements of a particular

legal theory.”); see also Strong,

(concluding

that a prisoner need not present legal theories, at least as long

as prison rules do not require that). We agree. As we discussed

above, the purpose of the exhaustion requirement is to give

prison administrators an opportunity to address a problem, and

they can do this whether or not the prisoner tells them the

constitutional provisions that the problem implicates. Further,

TDCJ rules specifically instruct inmates to provide facts, not

legal terminology.

15 Johnson’s grievances repeatedly refer to the defendants’

failure to protect him from assaults and (though this was

unnecessary) specifically name the Eighth Amendment. The

defendants admit that the grievances exhausted Eighth Amendment

claims, at least against a few defendants regarding a few

instances--matters that we will discuss later. They also argue,

however, that the grievances do not exhaust any of Johnson’s two

types of Equal Protection claims against any defendant.

Race. As to race discrimination, the defendants correctly

observe that Johnson’s grievances nowhere state that he was

suffering racial discrimination. Indeed, his grievances do not

mention his race at all. Even though Johnson need not present a

full-fledged legal theory in his grievance, his grievances must

alert prison officials to a problem and give them an opportunity

to address it. His grievances gave them notice that there was a

problem with protection from sexual assaults, but we do not think

that they can be read to give notice that there was a race-

related problem. See Medera v. Griffin, No. 02 C 1064,

, at *11 (N.D. Ill. Jan. 14, 2003) (holding that grievances

regarding prison conditions that allegedly violated the Eighth

Amendment did not exhaust an Equal Protection claim where the

grievances contained “no mention whatsoever of the plaintiff’s

heritage, nor any references to racial slurs”).9

9 To be sure, Johnson’s Eighth Amendment and Equal Protection claims are not wholly unrelated: His race, he claims,

16 Sexual orientation. Johnson’s grievances mention his sexual

orientation many times. For the most part, the references to

Johnson’s sexuality are intertwined with Johnson’s complaints

about the officials’ failure to protect him from assaults. The

defendants contend that this does not necessarily indicate that

Johnson was complaining that the officials were purposefully

discriminating against him, by refusing to protect him, because

of his homosexuality. The grievances are certainly not as

explicit as one would expect from a lawyer, but as we stated

above a prisoner need not provide all of the elements of a

constitutional claim as long as the grievance at least reasonably

indicates a problem. Further, Johnson’s grievances do also

suggest a complaint that the officials considered Johnson’s

sexuality: Johnson writes that members of the UCC responded to

his requests for protection from rape by saying “that they feel

that because I’m a homosexual I’m enticing [illegible].” In

addition, a reasonable reader could infer that the officials

would not tell a heterosexual inmate that, instead of getting

is part of the reason why the defendants failed to protect him. Cf. Burton,

. Nonetheless, these claims reflect distinct problems with prison staff, and a grievance that suggested a racial component to Johnson’s situation could be expected to produce a different type of administrative response. Cf. Porter,

(explaining that one purpose of the exhaustion requirement is the creation of an “administrative record that clarifies the contours of the controversy”). We do not believe that it is too much to ask that a prisoner at least suggest a racial component if he is later going to sue on that ground.

17 protection from victimization, he should “choose someone to be

with.” Under the circumstances, we conclude that Johnson’s

grievances were sufficient to give prison officials fair notice

that there might have been a sexual-orientation-related aspect to

Johnson’s problem.

B. Which incidents?

Having decided which general theories Johnson may pursue, we

turn next to examining which events he has exhausted.

Johnson’s claim is that prison officials failed to protect

him, over the course of some eighteen months, from near-constant

sexual assault. Johnson’s complaint, and his summary-judgment

evidence, covers the repeated abuses in uncomfortable detail and

lists many unsuccessful encounters with prison officials. These

include face-to-face encounters with several guards who allegedly

failed to take steps to protect Johnson on various occasions,

correspondence with supervisory officials, and meetings with UCC

committees. The defendants contend that the only exhausted

claims in this case are those against two defendants, Wathen and

Kuyava, as regards their involvement in the March 16, 2001 UCC.

They reason that since TDCJ rules require that a Step 1 grievance

be filed within fifteen days of the complained-of event, a

grievance can only exhaust claims that relate to matters that

occurred within the preceding fifteen days. Therefore, Johnson’s

March 18 Step 1 grievance could exhaust claims arising from the

18 March 16, 2001 UCC, but it could not exhaust any claims that

arise from conduct before March 2001. Johnson’s December 2001

Step 1 grievance, which was also appealed through Step 2, failed

to exhaust any claims, continue the defendants, because no UCC

meeting occurred in the fifteen days preceding the filing of that

Step 1 grievance.

Johnson did not use the formal grievance process--or,

rather, he did not properly use it by both filing a Step 1

grievance and appealing the grievance to Step 2--until his March

18, 2001 Step 1 grievance. We agree with the defendants that

Johnson has not exhausted any claims that arise from events that

occurred more than fifteen days before this grievance. While it

is true that the conditions that Johnson suffered both before and

after the grievance were of the same general character, to permit

the March 2001 grievance to reach back to events that transpired

up to six months earlier would effectively negate the state’s

fifteen-day rule and frustrate the prison system’s legitimate

interest in investigating complaints while they are still fresh.

That a condition continues does not excuse the failure to file a

grievance earlier. Accordingly, we hold that Johnson’s

grievances do not permit him to pursue claims regarding conduct

that occurred before March 2001; in particular, this means that

he has not exhausted claims related to the UCC meetings of

September 6, 2000, December 13, 2000, February 14, 2001, and

February 21, 2001; nor has he exhausted claims regarding his

19 encounters with Willingham, which all occurred before March

2001.10

Having concluded that Johnson’s March 2001 grievance did not

exhaust claims that involve events before the March 2001 UCC

meeting, we next consider whether Johnson has exhausted claims

related to conduct that occurred after the March 2001 grievance.

The defendants contend that no such claims were exhausted because

none of the three subsequent UCC meetings at which Johnson was

denied protection--which occurred in September 2001, December

2001, and January 2002--was followed within fifteen days by a

Step 1 grievance. In particular, Johnson’s December 30, 2001

Step 1 grievance was a few days too late to reach the December

2001 UCC meeting, which was held on the 13th.

We do not agree with the defendants’ argument that Johnson

has not exhausted any claims that arise from events later than

the March 16, 2001 UCC meeting. The March 2001 grievance alerted

prison officials to the fact that Johnson was being subjected to

repeated assaults and was not receiving any protection from the

system, in particular a transfer to safekeeping status:

I am writing to state that I am a homosexual who and [sic] is still being assaulted sexually, physically, mentally. I have brought this issue up to unit administration a number of times and have failed to be

10 We pause to note that our holding does not mean that information regarding unexhausted events cannot be used as evidence, if relevant and otherwise admissible, in proving claims that are exhausted. Cf. United States v. Ashdown,

(5th Cir. 1975).

20 moved to a safe location that houses other homosexuals. . . . Get me off this building or this unit before I am assaulted again. . . . I have used all the proper channels to resolve this problem but they simply refuse to listen. Please get the warden or U.C.C. to move me off this building . . . . They have failed to provide me safety.

The grievance investigation worksheet corresponding to this Step

1 grievance summarizes the issue as “being assaulted,” and the

administration responded to Johnson’s grievance by writing that a

UCC had already been convened in response to Johnson’s life-

endangerment notices and had found his claims insufficient.

(That is, administrators did not take Johnson’s grievance as a

complaint about only the prior UCC per se,11 but rather they

viewed the UCC as part of their response to the problem of being

attacked.) After the officials rejected Johnson’s grievance, the

same condition of confinement of which he had been complaining

continued.

After one full trip through the two-step review process,

Johnson later filed the December 30, 2001 Step 1 grievance,

which, according to the defendants, exhausted nothing because the

most recent prior UCC was on December 13, more than fifteen days

earlier. In this grievance Johnson reports that he is still

“constantly” being threatened and harassed, that he is “subject

11 By way of comparison, inmates sometimes do claim that the procedures or outcome of a particular administrative hearing violated their rights. See, e.g., Black v. Warren,

(5th Cir. 1998); Banuelos v. McFarland,

(5th Cir. 1995).

21 to being bought and sold by gang members,” and that he has not

been moved despite asking the staff and the UCCs for help

“numerous times.” Notably, the prison administration did not

reject this grievance as being an untimely attempt to grieve the

results of the December 13 UCC. Cf. Gates v. Cook, __ F.3d __,

, at *5 & n.6 (5th Cir. June 28, 2004) (holding

that prison officials could not argue that a prisoner’s grievance

failed to comply with procedural rules when the officials had

looked past the purported technical defect and rejected the

grievance for substantive reasons); accord Riccardo v. Rausch,

(7th Cir. 2004). Rather, their internal

documents portrayed this grievance as another complaint about

being attacked, and the administration rejected it on the ground

that they had already answered Johnson’s complaints about safety

in their response to a prior Step 1 grievance that was filed

shortly before the December 13 UCC meeting. Thus, the prison

administration itself evidently did not understand Johnson’s

grievance as a complaint about the December 13 UCC meeting in

particular, but instead as a complaint about a continued lack of

protection.12

12 The grievance investigation form corresponding to the December 30 Step 1 grievance states, in the “Summary of Issue” section, “Dupl. 2002058973.” This presumably means that administrators understood it to duplicate grievance # 2002058973, which was filed on December 5 and which, in turn, was summarized by administrators as “[inmate] wants protection.” The grievance investigation form corresponding to the Step 2 appeal describes the issue as a complaint about being threatened and harassed.

22 As a practical matter, Johnson could not have been expected

to file a new grievance every fifteen days, or each time he was

assaulted (which, according to him, was virtually every day), for

the entire period during which he remained unprotected in the

general population. Persuasive authority holds that, in such

circumstances, prisoners need not continue to file grievances

about the same issue. See Sulton v. Wright,

(S.D.N.Y. 2003) (holding that two grievances filed during

the course of a several-year period of repeated delays in

treating an inmate’s injured knee sufficed to exhaust the entire

course of conduct, despite the prison system’s rule that

grievances must be filed within fourteen days of an occurrence);

Aiello v. Litscher,

(W.D. Wis. 2000)

(holding that when inmates have filed a grievance regarding a

prison policy, they need not file grievances regarding subsequent

incidents in which the policy is applied); cf. Lewis v.

Washington,

(N.D. Ill. 2000) (holding that

inmates complaining about various aspects of the conditions in

their housing unit need only grieve their placement in that unit,

not each of the various alleged unconstitutional conditions

present in the unit; “[o]therwise the defendants could obstruct

legal remedies to unconstitutional actions by subdividing the

grievances . . . .”). Further, the TDCJ rules specifically

direct prisoners not to file repetitive grievances about the same

issue and hold out the threat of sanctions for excessive use of

23 the grievance process. It would make little sense to require a

prisoner being subjected to a frigid cell to continue to file

grievances stating that the cell remains frigid, and the same

principle applies here. Cf. Wilson v. Seiter,

(1991) (referring to “the temperature he is subjected to in his

cell, and the protection he is afforded against other inmates”

both as “conditions of confinement” subject to the Eighth

Amendment).

Given the circumstances of this case and the nature of

Johnson’s complaint, we do not believe that he was required to

file repeated grievances reminding the prison officials that he

remained subject to attack in the general population. Johnson’s

grievances were sufficient to exhaust claims that arose from the

same continuing failure to protect him from sexual assault.

Thus, we disagree with the defendants’ suggestion that he has

failed to exhaust any claims relating to the September 2001,

December 2001, and January 2002 UCC meetings.13

13 We pause to observe that we do not here hold that a grievance filed in response to one particular incident automatically exhausts claims that arise from future incidents of the same general type. Thus, an inmate who claims to have been beaten by guards (or, for that matter, not protected by guards) once one month and again the next month can rightfully be expected to grieve both incidents, following TDCJ’s fifteen-day rule in each case. Nor do we hold that Johnson would not be required to file additional grievances for future incidents that reflect a different problem. For instance, Johnson’s claims against Lieutenant Paul stem solely from the March 2002 incident in which Paul responded indifferently after Johnson reported being harassed in the shower. This discrete incident reflects a different type of problem that would require a different

24 C. Which defendants?

Johnson has sued fifteen prison officials, but the

defendants contend that he has not exhausted his claims against

many of them. In particular, they argue that a claim against a

person has been exhausted only if that person was identified in

the prisoner’s Step 1 grievance.

We are mindful that the primary purpose of a grievance is to

alert prison officials to a problem, not to provide personal

notice to a particular official that he may be sued; the

grievance is not a summons and complaint that initiates

adversarial litigation. Cf. Brown,

(rejecting a rule that a prisoner must always name defendants in

his grievance). But, at the same time, the grievance must

provide administrators with a fair opportunity under the

circumstances to address the problem that will later form the

basis of the suit, and for many types of problems this will often

require, as a practical matter, that the prisoner’s grievance

identify individuals who are connected with the problem.

Non-UCC defendants. Two of the defendants in this case,

Paul and Willingham, are prison guards who are accused of failing

to protect Johnson on a few discrete occasions. The character of

Johnson’s formal grievances is that he is frequently being

grievance. (Indeed, we will hold in the next section of the opinion that Johnson has not exhausted his claims against Paul.)

25 assaulted and has repeatedly but unsuccessfully sought a change

in housing status through the established administrative

channels. Nowhere does he mention or describe Paul or

Willingham. Johnson’s grievances would alert administrators

particularly to problems regarding the prison’s housing and

classification practices, but we do not think that they can

fairly be read to alert them to, or give them an opportunity to

remedy, the discrete conduct that forms the basis of Johnson’s

claims against these two officers, which is of a different

character. (In addition, as observed above, all of the conduct

concerning Willingham occurred before March 2001, which is an

independent reason to hold it unexhausted.)

Johnson has also sued three supervisory-level officials who

never sat on a UCC: Treon, Wright, and Executive Director

Johnson. Johnson specifically named Treon and Wright, but only

in Step 2 grievances. The defendants contend that this is

insufficient, for TDCJ rules instruct inmates not to “bring up

new grievance issues on appeal.” But cf. Burton,

(permitting a prisoner to provide “additional factual detail” at

appellate stages of grievance process). Johnson’s grievances did

not mention Executive Director Johnson, but Johnson says that

there is no need to mention the Executive Director. See Brown,

(observing that “[e]veryone involved in the

grievance process knows who the warden and [state prison]

commissioner are”). We need not struggle with these matters

26 here, however, because we determine in Part III of our opinion

that these three supervisory defendants are clearly entitled to

dismissal based on qualified immunity.14

UCC defendants. We held above that Johnson had not

exhausted any claims related to UCC meetings before March 2001.

We now ask whether, regarding the exhausted UCC meetings,

Johnson’s grievances adequately identified the relevant

defendants.

The defendants conceded at oral argument, and we agree, that

a grievance can sufficiently identify a person even if it does

not provide an actual name; functional descriptions and the like-

-e.g., a reference to “the guards in the shower room” on a

certain date--would suffice. Cf.

at 1209-10 & n.4 (noting

prison administrators’ superior access to personnel information

and records). As we have already said, Johnson’s grievances

repeatedly refer to the UCC committees and their failure to

believe his pleas and take measures to protect him. This was

adequate to put the prison administrators on notice that members

of the UCCs were connected, indeed most closely connected, with

Johnson’s problem.

D. Summary

Drawing together the threads of the three arguments

considered above, we conclude that many of Johnson’s claims were

14 We note that the exhaustion requirement is not jurisdictional. See Underwood,

.

27 not exhausted and should have been dismissed. All of his race-

based Equal Protection claims are unexhausted, as are all claims

against defendants Paul and Willingham. So too are all claims

related to all UCC meetings before the March 2001 meeting; in

particular, Johnson may not now pursue claims against Bright and

Kuyava as regards the September 6, 2000 UCC; Mooneyham and Vitolo

as regards the December 13, 2000 UCC; Bowman, Boyle, and Kuyava

as regards the February 14, 2001 UCC; and Vitolo and Wathen as

regards the February 21, 2001 UCC.

The claims that are exhausted are Johnson’s Eighth Amendment

claims and his claims for failure to protect because of sexual

orientation under the Equal Protection Clause against Wathen and

Kuyava as regards the March 16, 2001 UCC; Wathen as regards the

September 5, 2001 UCC; Bowman, Kuyava, and Ranjel as regards the

December 13, 2001 UCC; and Norwood, Vitolo, and Taylor as regards

the January 17, 2002 UCC.15

Finally, we find it unnecessary to reach a decision on

exhaustion regarding the claims against Executive Director

Johnson, Treon, and Wright.

III. EIGHTH AMENDMENT CLAIMS

15 We observe that the defendants have not argued in favor of a total exhaustion rule according to which an entire lawsuit must be dismissed without prejudice when certain claims are exhausted but others are not.

28 The defendants also appeal, in No. 03-10455, the district

court’s denial of their motion for summary judgment on Johnson’s

Eighth Amendment claims. Of course, in accordance with our

rulings above, we need only consider those claims that Johnson

exhausted.

A. Appellate jurisdiction in No. 03-10455

We begin by noting that Johnson has filed a motion to

dismiss No. 03-10455 for want of appellate jurisdiction.

Although a public official claiming qualified immunity can as a

general matter immediately appeal a denial of summary judgment,

see Mitchell v. Forsyth,

(1985), we lack

interlocutory jurisdiction to review the district court’s

conclusion that the plaintiff has created a genuine issue of fact

as to some matter. See Johnson v. Jones,

, 319-

20 (1995). Johnson points out that the district court’s order

denying summary judgment specifically stated that genuine

disputes of material fact existed that precluded a ruling on the

immunity defense.

As the Supreme Court explained in Behrens v. Pelletier,

(1996), Johnson does not mean that there is no

interlocutory appellate jurisdiction whenever the district

court’s order denying summary judgment states that fact questions

remain. Rather, Johnson means only that the district court’s

ruling cannot be appealed to the extent that the official seeks

29 to challenge the district court’s determinations regarding the

sufficiency of the summary-judgment record.

.

“Johnson permits [a defendant official] to claim on appeal that

all of the conduct which the District Court deemed sufficiently

supported for purposes of summary judgment met the Harlow

standard of ‘objective legal reasonableness.’”

Yet while the

appeal will not be dismissed, we are nonetheless required to

limit our review along the lines described in Johnson and

Behrens. That is, we may not consider any of the defendants’

arguments that challenge the district court’s assessment that

certain facts are sufficiently supported in the summary-judgment

record. This turns out to be an important limitation in this

case, as much (though not all) of the defendants’ argument asks

us to contradict one of the district court’s determinations

regarding the sufficiency of the evidence.

B. Analysis

1. Principles

The Supreme Court formally recognized and described the

Eighth Amendment failure-to-protect theory in Farmer v. Brennan:

[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners. . . . [G]ratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objectiv[e], any more than it squares with evolving standards of decency. Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.

30

(1994) (second and fifth alterations in

original) (citations and internal quotation marks omitted). The

Court went on to explain that, to succeed on such a claim, “the

inmate must show that he is incarcerated under conditions posing

a substantial risk of serious harm” and that the prison officials

acted with “deliberate indifference” to the inmate’s safety.

. An official is deliberately indifferent when he “knows

of and disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.”

. The

official’s knowledge of the risk can be proven through

circumstantial evidence, such as by showing that the risk was so

obvious that the official must have known about it.

.

Finally--and significantly for purposes of this case--there is no

liability if the official “responded reasonably to the risk, even

if the harm ultimately was not averted.”

.

The defendants are entitled to qualified immunity unless

their conduct was not only illegal but also violated clearly

established law such that their behavior was objectively

unreasonable. To be “clearly established” for purposes of

qualified immunity, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v.

Creighton,

(1987). The law can be clearly

31 established even without prior cases that are on all fours with

the present case, “so long as the prior decisions gave reasonable

warning that the conduct then at issue violated constitutional

rights.” Hope v. Pelzer,

(2002) (internal

quotation marks omitted). Of course, the defendant’s conduct

cannot constitute a violation of clearly established law if, on

the plaintiff’s version of the facts, there is no violation at

all. We therefore initially ask whether the challenged conduct

actually presents a violation of federal law. See Saucier v.

Katz,

, 201 (2001); Siegert v. Gilley,

(1991).

With the necessary qualification that we may not in this

appeal review the district court’s conclusions that genuine

issues of fact remain, see supra Part III.A, we exercise de novo

review over the district court’s legal ruling that, on the set of

facts that it assumed, the defendants are not entitled to

qualified immunity. See Lemoine v. New Horizons Ranch & Ctr.,

Inc.,

(5th Cir. 1999).

2. Application

Most of the defendants’ brief in No. 03-10455 is devoted to

showing that Johnson “failed to create a fact question over

whether any [defendant’s] conduct violated Johnson’s

constitutional rights or whether any [defendant’s] conduct was

objectively unreasonable.” In particular, they repeatedly seek

to demonstrate that, based on the information before them when

32 they acted, either they did not realize the danger Johnson faced

or they had reason to disbelieve Johnson’s complaints of repeated

rape and abuse. See Farmer,

(explaining that

prison officials can try to prove that they “did not know of the

underlying facts” or “believed (albeit unsoundly) that the risk

. . . was insubstantial or nonexistent”). That particular

argument, whether sound or not, is beyond the purview of this

appeal. The Supreme Court expressly stated in Farmer that

“[w]hether a prison official had the requisite knowledge of a

substantial risk is a question of fact.”

(emphasis

added). The district court’s April 9 order, while less detailed

than ideal, clearly stated that there remained a fact question as

to the defendants’ knowledge: “Whether any Defendant had the

requisite knowledge of a substantial risk of harm is a question

of material fact that [this] Court cannot resolve on the current

record.” As explained earlier, we lack jurisdiction to review

the district court’s assessment that a genuine issue of fact

exists as to some matter, and therefore we cannot look behind the

ruling that Johnson presented sufficient evidence for a fact-

finder to conclude that the defendants knew of the risk. See

Smith v. Brenoettsy,

(5th Cir. 1998)

(dismissing an interlocutory appeal where there was a factual

dispute regarding whether defendant prison officials were aware

of the danger to the inmate’s safety). Accordingly, we must

reject this aspect of the defendants’ argument on appeal.

33 Nonetheless, our inability to second-guess the district

court’s conclusion that there existed a fact issue regarding the

defendants’ awareness of the risk does not end our inquiry.

Under Farmer, prison officials violate the Eighth Amendment only

if they are both aware of a substantial risk to inmate safety and

fail to respond properly. The Farmer Court emphasized that there

is no Eighth Amendment violation if the official “responded

reasonably to the risk, even if the harm ultimately was not

averted.”

. Although the district court’s

opinion in this case clearly stated that there were fact issues

regarding the defendants’ knowledge of the risk, the opinion did

not directly address the material fact issues (if any) that

existed with respect to how the defendants responded to the risk.

When the district court fails to set forth carefully the factual

disputes that preclude summary judgment, the Supreme Court has

recognized that “a court of appeals may have to undertake a

cumbersome review of the record to determine what facts the

district court, in the light most favorable to the nonmoving

party, likely assumed.” Johnson,

. Even assuming

that all of the defendants knew of the substantial risk to

Johnson’s safety, there would be no Eighth Amendment violation if

the undisputed facts in the record demonstrated that they

responded reasonably. Moreover, they would be entitled to

qualified immunity unless clearly established law showed that

their response was insufficient. Accordingly, we must consider

34 whether some of the defendants might be entitled to qualified

immunity on those grounds.

Non-UCC defendants. We concluded above that all claims

against non-UCC defendants Paul and Willingham were unexhausted.

We pretermitted deciding the exhaustion issue as regards

Executive Director Johnson, Treon, and Wright in favor of ruling

on qualified immunity, to which we now turn. In addition to

discharging their usual duties of overseeing and reviewing those

prison operations for which they were responsible, these

supervisory officials had notice of Johnson’s plight through

various letters and life-endangerment forms. Like all prison

officials, these supervisory defendants have a duty to take

reasonable measures to protect inmates. See Farmer,

. Yet given the size of the operation that they oversee, they

cannot be expected to intervene personally in response to every

inmate letter they receive. The record in this case shows that

they responded to Johnson’s complaints by referring the matter

for further investigation or taking similar administrative steps.

This was a reasonable discharge of their duty to protect the

inmates in their care. Given that neither the Supreme Court nor

this court has delineated the contours of what supervisory

officials must do on pain of personal liability, their conduct

did not violate clearly established law of which reasonable

officers should have known. Therefore, they are entitled to

qualified immunity.

35 UCC defendants. We held in Part II that Johnson had not

exhausted some of his claims arising from certain UCC meetings

but that he had exhausted claims relating to the September 2001,

December 2001, and January 2002 UCC meetings (in addition to the

March 2001 meeting, which the defendants concede was exhausted).

We now consider whether the defendants involved in those meetings

are nonetheless entitled to qualified immunity.

Certain UCCs responded to Johnson’s claims by taking action

such as ordering further investigation or separating Johnson from

a particular inmate who had been threatening him. Those

responses were unavailing, but they may well have been reasonable

methods of addressing the risk that Johnson faced. See

(observing that officials are not liable if they take

reasonable measures, “even if the harm ultimately was not

averted”). The most diligent prison administrators cannot

guarantee complete safety. But unlike the UCCs that at least

took some (unsuccessful) measures to protect Johnson, the

particular UCC committees that we are now considering--March

2001, September 2001, December 2001, and January 2002--did

nothing in response to Johnson’s claims except (according to

Johnson) tell him to fight off his attackers, despite the

committee members’ awareness (which awareness we must assume in

this appeal) of the substantial risk that Johnson faced.

Although it is not clear exactly what type of action an official

is legally required to take under Farmer, the Supreme Court’s

36 opinion does make it abundantly clear that an official may not

simply send the inmate into the general population to fight off

attackers. See

(explaining that jailers must “take

reasonable measures to guarantee the safety of the inmates” and

“are not free to let the state of nature take its course”

(internal quotation marks and citation omitted)). (And Farmer

itself is factually similar to today’s case in that it involved

an effeminate prisoner who was raped after he was put in the

general prison population.

.) The defendants, at

least according to Johnson, repeatedly expressed the view that

Johnson must “learn to f*** or fight,” which runs directly

counter to Farmer’s directive. Given the facts that we must

assume for purposes of this appeal, this was not a reasonable

response and it indeed contravenes clearly established law.

Moreover, although the defendants contend that no single person

acting alone could have granted Johnson’s requests--the UCC makes

recommendations to the state classification authority by majority

vote of its three members, so nobody in particular is

responsible, they say--that does not transform this deliberately

indifferent failure to take any action into a reasonable method

of discharging their duty to protect the prisoners in their care.

Accordingly, we affirm the district court’s denial of qualified

immunity to Wathen and Kuyava as regards the March 16, 2001 UCC;

Wathen as regards the September 5, 2001 UCC; Bowman, Kuyava, and

Ranjel as regards the December 13, 2001 UCC; and Norwood, Vitolo,

37 and Taylor as regards the January 17, 2002 UCC.16

IV. EQUAL PROTECTION CLAIMS

Johnson relinquished Equal Protection claims against

Executive Director Johnson, Treon, Wright, Mooneyham, Willingham,

and Paul. After further subtracting claims that we deemed

unexhausted in Part II, we are left with Johnson’s claims for

failure to protect because of sexual orientation against the

participants in the March 2001, September 2001, December 2001,

and January 2002 UCCs.

A. Appellate jurisdiction

Johnson has also filed a motion to dismiss No. 03-10505, the

defendants’ appeal from the district court’s denial of judgment

on the pleadings. The defendants moved for judgment on the

pleadings in November 2002 and, while that motion was still

pending, moved for summary judgment in January 2003. The first

motion largely involved Equal Protection claims, while the second

addressed Eighth Amendment claims. The district court denied the

motion for summary judgment in April 2003 and, a week later,

denied the motion for judgment on the pleadings. The defendants

timely filed a notice of appeal regarding the denial of summary

16 We observe as well that Johnson appeared before a UCC in April 2002. It is not clear whether Johnson is pursuing claims related to this meeting, at which Johnson was transferred to a different prison. Defendant Wathen was a member of this committee. If Johnson does mean to pursue such claims, we would hold that Wathen’s response was a reasonable one and that the immunity defense should be upheld.

38 judgment and later timely filed a notice of appeal regarding the

denial of judgment on the pleadings. Johnson argues that, under

the circumstances of this case, the second-filed appeal does not

qualify as an appealable decision under the collateral order

doctrine.

Johnson acknowledges that, as a general matter, rulings

denying qualified immunity--whether the ruling occurs at the

pleadings stage or at summary judgment--are immediately

appealable under the collateral order doctrine’s exception to the

final-judgment rule. Moreover, Johnson recognizes that the

Supreme Court’s decision in Behrens generally permits a public

official to bring multiple qualified-immunity-based interlocutory

appeals in the course of a single case. See

(permitting a public official to bring an interlocutory appeal of

the denial of his motion for summary judgment after the court of

appeals had already affirmed and remanded on a previous

interlocutory appeal of the denial of his motion to dismiss).

Nonetheless, Johnson argues that those general principles are

inapplicable to the unusual circumstances of this case. A motion

to dismiss or for judgment on the pleadings on qualified immunity

grounds is in the usual case immediately appealable, Johnson

reasons, only because the public official would otherwise lose

his entitlement to be free from discovery; an appeal would do no

good if it came only after the official had already been

subjected to discovery during summary-judgment proceedings. But

39 in this case, Johnson points out, (some) discovery has already

occurred and the case has moved to the summary-judgment stage.

The justification for the immediate appeal of the motion to

dismiss is therefore lacking in this case, he contends.

We conclude that Johnson’s motion is not well-taken. The

Supreme Court has announced the general rule that orders denying

qualified immunity are treated as “final” and appealable, and we

think it improper to carve out an exception that responds to the

precise timing of the district court’s rulings. The defendants’

motion for judgment on the pleadings on the Equal Protection

claims effectively asserted an immunity from discovery, from

suit, and from liability. That some discovery did take place as

the proceedings moved into the summary-judgment stage does not

make the court’s denial of the motion for judgment on the

pleadings any less conclusive as regards the motion’s request for

immunity from trial and from liability. See Behrens,

; Mitchell,

; cf. Matherne v. Wilson,

(5th Cir. 1988) (holding that an official who

failed to bring any interlocutory appeal could raise qualified

immunity in a post-verdict appeal of the final judgment, even

though the only aspect of his immunity that could still be

vindicated at that stage was immunity from liability).

It also bears noting that the reason for the unusual course

of proceedings cannot be attributed to any improper conduct or

neglect on the part of the defendants. They properly filed a

40 motion for judgment on the pleadings that largely concerned the

plaintiff’s Equal Protection claims. While waiting for a ruling,

the defendants then filed a motion for summary judgment, which

mostly involved the plaintiff’s Eighth Amendment claims. There

was nothing improper about how the defendants proceeded. The

district court ruled first on the motion for summary judgment and

later concluded (perhaps erroneously) that the earlier motion was

therefore moot. Either motion would, by itself, ordinarily

support an interlocutory appeal. This case presents no reason to

muddle the otherwise clear right of a public official to bring an

interlocutory appeal of a denial of qualified immunity.17 We

will therefore consider the merits of the appeal.

B. Analysis

The district court’s denial of the defendants’ Rule 12(c)

motion for judgment on the pleadings is reviewed de novo. Great

Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,

(5th Cir. 2002). The standard for dismissal under Rule

17 An instructive contrast with today’s case is presented by Armstrong v. Texas State Board of Barber Examiners,

(5th Cir. 1994). There, the defendant’s motion for summary judgment simply repeated the same pleadings-based arguments that the defendant had earlier raised in an unsuccessful motion to dismiss, which the defendant did not appeal. The panel concluded that the defendant was merely trying to circumvent the long- elapsed deadline for filing an appeal of the denial of the motion to dismiss, and it dismissed the appeal.

. In today’s case, by contrast, the defendants’ two motions rely on somewhat different grounds. Further, both appeals were timely filed, so it cannot be said that the defendants are trying to evade any deadline.

41 12(c) is the same as that for dismissal for failure to state a

claim under Rule 12(b)(6).

at 313 n.8. We accept the

complaint’s well-pleaded facts as true and view them in the light

most favorable to the plaintiff. Id. at 312-13. The motion to

dismiss should not be granted unless the plaintiff would not be

entitled to relief under any set of facts that he could prove

consistent with the complaint. Id. at 313.

At the outset, there is some dispute regarding whether

Johnson’s complaint should be measured against a heightened

pleading standard rather than the normal Rule 8(a) standard,

which requires only a “short and plain statement of the claim.”

In our decision in Schultea v. Wood,

(5th Cir. 1995)

(en banc), this court modified our prior practice of requiring

heightened, detail-oriented pleading in § 1983 cases against

public officials. After Schultea, a plaintiff no longer needs to

“anticipate the [qualified immunity] defense in his complaint at

the risk of dismissal under Rule 12.” Id. at 1430.18 The

considerations that had led to the adoption of heightened

pleading would henceforth be satisfied, the court held, through

the device of a detailed Rule 7 reply, which the district court

could order on the defendant’s motion or sua sponte. Id. at

1433. No such Rule 7 reply was requested or ordered in this

18 Schultea nonetheless cautioned that, in making his “short and plain statement of his complaint” under Rule 8, the plaintiff may not rest on “conclusions alone.”

.

42 case, and the defendants have not appealed the district court’s

decision not to require one. As we have observed already,

Johnson’s complaint is quite detailed and factually explicit, and

the defendants’ answer was in the nature of a blanket denial.

Notwithstanding that there was no Rule 7 reply, the

defendants contend that the standards for Rule 7 replies should

govern instead of the rules characteristic of notice-pleading

under Rule 8(a). Their reasoning is that the local rules for the

Northern District of Texas disfavor motions for a more definite

statement and that, according to their own knowledge and their

conversations with court personnel, motions for a Rule 7 reply

are treated the same way. Johnson aptly responds to the

defendants’ contentions by citing cases in which courts in the

Northern District have granted motions requesting Rule 7 replies.

If the district court were flouting Schultea--which we presume

our district courts would not do--the defendants should have

filed a motion for a Rule 7 reply and appealed its denial. As

they did not, we will apply the ordinary rules that govern the

sufficiency of complaints.

2. Whether the complaint adequately stated a claim

Turning to the sufficiency of the complaint, the defendants

make three arguments in support of their view that Johnson’s

pleadings failed to allege any Equal Protection violations. If

Johnson has indeed failed to allege a violation, then of course

there can be no violation of clearly established law that would

43 overcome qualified immunity. See Siegert,

. We

consider each of the defendants’ criticisms of the complaint in

turn.

First, the defendants argue that Johnson’s pleadings fail

because he did not allege that the prison officials’

classification decisions were not rationally related to any

legitimate penological interest. It is important to point out

that the defendants themselves have not attempted to articulate

any legitimate interests that could justify giving less

protection to homosexual inmates. Rather, their position in this

case has consistently been that they did not in fact act on that

basis. Nonetheless, they contend that there is a pleading

requirement that the plaintiff must allege in his complaint the

lack of any rational relationship to a legitimate penological

interest. Although they are correct that the prisoner, not the

state, bears the burden of proving that a challenged policy is

invalid because it does not bear a rational relationship to

legitimate objectives, Overton v. Bazzetta,

(2003), that does not necessarily mean that the prisoner’s

complaint must allege the absence of such a relationship on pain

of dismissal. Cf. Turner v. Safley,

(1987)

(stating that “there must be a valid, rational connection between

the prison regulation and the legitimate governmental interest

put forward to justify it” (internal quotation marks omitted and

emphasis added)). In any event, Johnson’s complaint does include

44 statements that the defendants subjected him to “an arbitrary and

irrational classification” and acted out of “hostility and

animus.” If a plaintiff’s complaint must deny any rational

relationship to legitimate penological aims even when those aims

have not been articulated, Johnson’s complaint satisfies the

requirement.

Second, the defendants contend that, as mere comments alone

do not violate the Equal Protection Clause, Johnson has not

alleged that he has suffered any actionable discriminatory

treatment. This argument misconstrues the nature of Johnson’s

claim. He does not contend that the comments made by certain

defendants are themselves actionable. Rather, his complaint

repeatedly alleges that he was denied protection because of his

sexual orientation; the comments are relevant because they tend

to reveal the defendants’ reasons for their actions in denying

him safekeeping. See Williams v. Bramer,

(5th

Cir. 1999) (explaining that while an official’s use of racial

epithets “without harassment or some other conduct that deprives

the victim of established rights . . . does not amount to an

equal protection violation,” the use of epithets is “strong

evidence” that the official’s actions are racially motivated).

Third, the defendants argue that the complaint fails to

identify any non-homosexual prisoners who were similarly situated

but were treated better. This argument is unavailing for several

reasons. Johnson’s complaint did contain general allegations to

45 the effect that he qualified for safekeeping status but was

treated differently than other vulnerable inmates because of his

sexual orientation. He alleged, for instance, that the

defendants “treated him differently than other similarly situated

inmates based on their hostility and animus towards non-

aggressive gay men.”19 It is unclear how a prisoner is supposed

to possess identifying information regarding other inmates’

treatment at the complaint stage. But, in any event, evidence of

the type the defendants request is not essential to the claim.

In most cases, a plaintiff lacks direct evidence of intentional

discrimination, and he therefore will try to rely on evidence

that two groups received different treatment, which can support

an inference that the decisionmaker purposefully engaged in

discrimination. But those kinds of inference-producing

comparisons are unnecessary where the § 1983 plaintiff has direct

evidence of discriminatory motive. See Wallace v. Tex. Tech

Univ.,

(5th Cir. 1996). Indeed, Johnson’s

19 The defendants at one point assert that “[a]ll of Plaintiff’s allegations regarding equal protection are made on ‘information and belief,’” and they argue that such allegations are improper. It is inaccurate to say that “all” of the allegations are so phrased. The only “information and belief” allegations related to this subject are a few that concern whether the defendants have a “custom and practice” of denying safekeeping to vulnerable black and homosexual inmates. Further, “information and belief” pleadings are generally deemed permissible under the Federal Rules, especially in cases in which the information is more accessible to the defendant. See 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1224 (2d ed. 1990).

46 complaint contains detailed allegations that, if true, would

constitute direct evidence that the defendants treated Johnson

differently in making their decisions and did so because of his

status.20 Leaving aside the question whether identifying

information about other inmates would even be available to a

plaintiff at the pleading stage, we do not believe that a

plaintiff’s complaint must plead the circumstantial case that the

defendants are requesting. Cf. Swierkiewicz v. Sorema N.A.,

(2002) (holding that a Title VII plaintiff need

not plead facts showing a prima facie case of discrimination

under McDonnell Douglas and remarking that it would be

“incongruous to require a plaintiff, in order to survive a motion

to dismiss, to plead more facts than he may ultimately need to

20 Direct evidence includes statements revealing that an improper criterion--here sexual orientation--played a part in the decisionmaking process. See Fabela v. Socorro Indep. Sch. Dist.,

(5th Cir. 2003); see also Propst v. Leapley,

(8th Cir. 1989) (describing prison official’s statement that disciplinary committee is “inclined to be more lenient to blacks” as “highly probative” direct evidence of intentional discrimination in violation of the Equal Protection Clause). Johnson’s complaint alleges that various defendants made remarks that reveal that they acted on improper criteria when they denied him safekeeping status. See, e.g., Complaint at ¶ 33 (“We don’t protect punks on this farm.”), ¶ 55 (“There is no reason why Black punks can’t fight and survive in general population if they don’t want to f***.”), ¶ 86 (“You like this . . . . I don’t think you need no safekeeping.”).

47 prove to succeed on the merits if direct evidence of

discrimination is discovered.”).21

3. Clearly established law

The defendants contend that the law is not clearly

established regarding (as they phrase the question presented in

this case) “whether the use of race or sexual orientation as a

factor in state prison classification decisions violates the

21 The defendants address Johnson’s Equal Protection claims primarily in their brief in No. 03-10505, the appeal from the denial of the motion for judgment on the pleadings. Naturally, the arguments in that brief--which we have been addressing in this part of the opinion--concern only Johnson’s pleadings, not his summary-judgment evidence. At the end of their brief in No. 03-10455, the separate appeal from the denial of the motion for summary judgment, which mostly pertains to the Eighth Amendment, the defendants incorporate by reference the pleadings-based Equal Protection arguments from the other brief. The defendants’ brief in No. 03-10455 then purports to argue, in a few sentences without any citations to authorities or the record, that Johnson has also failed to provide sufficient evidence to survive summary judgment on his Equal Protection claims. This briefing on the evidentiary support for the Equal Protection claims (as opposed to the adequacy of the pleadings) is likely inadequate to present the issue. See L & A Contracting Co. v. S. Concrete Servs., Inc.,

, 113 (5th Cir. 1994). In any event, the result would not differ if summary- judgment standards were applied to the Equal Protection claims. Johnson’s affidavit recounts the same inflammatory statements alleged in his complaint, which constitute direct evidence. The defendants point out that a couple of the defendants--including Vitolo, a defendant at issue here--did not make such comments. Yet Johnson’s affidavit says that Vitolo laughed during the meeting when one of the other UCC members said that Johnson did not need protection from rape because he liked having sex with men. Further, Johnson had filed a motion to compel disclosure of statistics on safekeeping that might provide the circumstantial evidence of intentional discrimination that the defendants fault him for not employing. Johnson’s response to the motion for summary judgment included a Rule 56(f) affidavit that alerted the district court to the pendency of his request for this information.

48 Equal Protection Clause, when the use is rationally related to a

legitimate penological interest.” No Supreme Court or Fifth

Circuit case, they say, has considered the extent to which sexual

orientation can be considered in housing classifications.

The defendants’ manner of phrasing the issue is inapt.

First, while it is somewhat uncertain to what extent sexual

orientation can legitimately be taken into account in fashioning

prison housing policies,22 the defendants in this case deny that

they took Johnson’s race and orientation into account. That is,

they do not say that such status-based decisionmaking would be

justified because of legitimate countervailing penological aims--

as they would need to say in a case involving a policy of housing

all black or all homosexual inmates together--but rather they say

that they made their decisions based on a status-neutral

determination that Johnson was not unusually vulnerable.

Second, if they actually did deny Johnson protection because

of his homosexuality, as Johnson alleges and as we must assume

for purposes of analysis, that decision would certainly not

effectuate any legitimate interest. See Farmer,

(“[G]ratuitously allowing the beating or rape of one prisoner by

another serves no legitimate penological objectiv[e].” (second

22 We observe that the Supreme Court has granted certiorari to decide whether a prison’s policy of segregating incoming prisoners by race for a period of sixty days violates the Equal Protection Clause. See Johnson v. California,

(9th Cir. 2003), cert. granted,

(Mar. 1, 2004).

49 alteration in original) (internal quotation marks omitted)). It

is clearly established that all prison inmates are entitled to

reasonable protection from sexual assault. See id. at 832-34.

(As it happens, the abused inmate in Farmer was a feminine-

looking preoperative male-to-female transsexual.) Neither the

Supreme Court nor this court has recognized sexual orientation as

a suspect classification [or protected group]; nevertheless, a

state violates the Equal Protection Clause if it disadvantages

homosexuals for reasons lacking any rational relationship to

legitimate governmental aims. Romer v. Evans,

, 631-

32 (1996). The defendants have not attempted to argue that

according homosexuals less protection than other inmates would

advance any legitimate aim. Thus, we conclude that Johnson has

alleged conduct that would be unreasonable in light of law that

was clearly established at the time of the alleged events.

V. CONCLUSION

Johnson’s motions to dismiss Nos. 03-10455 and 03-10505 are

DENIED. We REVERSE the district court’s judgment to the extent

that it concluded that Johnson had exhausted: race-based Equal

Protection claims; claims against defendants Paul and Willingham;

claims against Bright and Kuyava as regards the September 6, 2000

UCC; claims against Mooneyham and Vitolo as regards the December

13, 2000 UCC; claims against Bowman, Boyle, and Kuyava as regards

the February 14, 2001 UCC; and claims against Vitolo and Wathen

50 as regards the February 21, 2001 UCC. See supra Part II.D.

Turning to the exhausted claims, we also REVERSE the district

court’s judgment to the extent that it denied qualified immunity

to Executive Director Johnson, Treon, and Wright. The district

court’s judgment is otherwise AFFIRMED. The case is REMANDED to

the district court, for dismissal of the claims listed above and

for further proceedings on the remaining claims.

Each party shall bear its own costs.

MOTIONS DENIED; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

51