Clinton W. Odom v. South Carolina Department of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CLINTON W. ODOM,
Plaintiff-Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF
CORRECTIONS; DOUG CATOE; D. J. No. 02-7086  EVANS; P. POWELL; W. TAYLOR; J.
GRIFFIN; S. JOHNSON; R. CHAVIS;
SOUTH CAROLINA DEPARTMENT OF
CORRECTIONS MEDICAL FACILITY;
NURSE WALTERS; NATHANIEL HUGHES,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Terry L. Wooten, District Judge.
(CA-00-3786-9)
Argued: May 7, 2003
Decided: November 19, 2003
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by published opinion. Judge Traxler wrote the
majority opinion, in which Judge Williams joined. Judge Luttig wrote
a dissenting opinion.
COUNSEL
ARGUED: David Isaac Bruck, LAW OFFICES OF DAVID I.
BRUCK, Columbia, South Carolina, for Appellant. Andrew Frederick

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Lindemann, DAVIDSON, MORRISON & LINDEMANN, Columbia,
South Carolina, for Appellees. ON BRIEF: Robert E. Lominack,
LAW OFFICES OF DAVID I. BRUCK, Columbia, South Carolina,
for Appellant. James E. Parham, Jr., Irmo, South Carolina, for Appel-
lees.
OPINION
TRAXLER, Circuit Judge:
Clinton W. Odom appeals the district court’s entry of summary
judgment based on qualified immunity in favor of correctional offi-
cers Perry Powell, David Evans, and Willy Taylor. Odom asserts that
Powell, Evans, and Taylor were deliberately indifferent to his safety,
in violation of the Eighth Amendment, when they ignored Odom’s
requests for protection against an assault committed by fellow
inmates at Evans Correctional Institution (ECI). According to Odom’s
uncontradicted version of the facts, the defendants knew the inmates
intended to kill or seriously injure him and the defendants even
watched as these inmates worked for at least forty-five minutes to
break into an outdoor recreational cage in which Odom was being
held, yet ignored Odom’s pleas for help. The defendants failed to sub-
mit any evidence explaining why they did not grant Odom’s request
to be removed from his cage despite the clear and substantial risk
posed by the hostile inmates in the adjoining cage. Accordingly, we
vacate the district court’s order and remand for further proceedings.
I.
Odom presents evidence to support the following version of events.
On June 15, 2000, shortly after 9:00 p.m., Odom’s fellow inmates
started a fire in order to create an opportunity to attack Odom.
Because of the fire, inmates were moved from their cells to outdoor,
chain-link cages used for temporary confinement in the recreation
yard.
As he was being moved from his cell, Odom warned Powell that
a group of fellow inmates would kill him if he were put in an area
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where they could gain access to him. When Odom told Powell repeat-
edly that he if he was put "on the rec[reational] field, they are going
to try and kill me," Powell dismissed his concern, stating that "those
dudes ain’t going to f--- with you." J.A. 11-12.
However, Powell’s hasty dismissal of Odom’s fears about his
safety soon proved to be mistaken. Several inmates from the Special
Management Unit where Odom was assigned demanded that defen-
dant Evans put them in Odom’s cage. When they were put in the
adjoining cage instead, they immediately began tearing down the
fence that separated them from Odom and making verbal threats to
Odom. Odom’s pleas to be removed from the cage fell on deaf ears:
[U]pon the inmates entering this [adjoining] cage it was very
evident what th[ei]r [p]lan was, by the verbal threats and
actions of trying to breakout of th[ei]r cage and into the one
[I] was in. As time continued, and it became more
ap[p]arent of these inmates[’] intentions, [I] begged the
defendants to get me out of the cage more times th[a]n I can
recall. I pleaded for the defendants to help me and to get me
out. My pleas were ignored and laughed at by the defen-
dants. At one point [Officer] Alford and [Sergeant] Martin
told P. Powell, W. Taylor, and D.J. Evans [the defendants]
to get me out, but all of them ignored this order. One of the
[d]efendants even made the remar[k] that [I] "should not
have snitched on them." When asked by an inmate what was
going on, [Officer] Powell stated, "they got th[ei]r snitch."
J.A. 107.
Powell actually observed Odom’s eventual attackers trying to break
into Odom’s cage soon after they had been placed in the neighboring
cage. In fact, Powell filed an incident report acknowledging that he
saw several inmates destroying the fence separating the two recre-
ational cages. There is no evidence, however, that Powell attempted
to remove Odom or responded in any way. To the contrary, Powell
simply observed that the inmates who were about to assault Odom
had "got[ten] th[ei]r snitch." J.A. 107.
Likewise, Odom’s evidence showed that Evans was aware of the
risk of harm to Odom. Odom told Evans more than once that this
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group of inmates intended to harm him. When the inmates told Evans
they wanted to be placed in Odom’s cage, Odom protested and told
Evans that they intended to attack him. Later, after Odom’s attackers
had been placed in the adjacent cage and had begun the forty-five
minute process of breaking into Odom’s cage, Odom again asked
Evans for help. When Evans approached, one of the inmates pulled
a piece of chain link fence out of his back pocket and threatened to
stab Evans. Evans then withdrew, looking at Odom and stating "I
ain’t f------ with you." J.A. 13. There is no evidence that Evans took
any additional action to assist Odom.
Odom also tried to get help from Officer Taylor. According to
Odom, the same inmate who threatened Officer Evans "stuck his arm
out the rec[reational] cage handcuff hole and started pushing little
pieces of tissue in the lock on [Odom’s] rec[reational] cage door in
order to jam it so it could not be unlocked." J.A. at 13. Odom tried
to prevent this by slapping the inmate’s hand away from the lock, but
when the inmate tried to stab Odom’s hand and arm, Odom was
"forced to move away." J.A. at 13. Concerned that he would be a sit-
ting duck if the lock were disabled, Odom begged Taylor to remove
him, but Taylor ignored him.
Not only did the defendants ignore Odom’s requests for help and
the inmates’ efforts to break into Odom’s cage, but they ignored
directives from fellow correctional officers Martin and Alford to
remove Odom. Alford noticed "several inmates were working to tear
the chain-link fence in order to get into the Plaintiff’s recreation
area." J.A. 69. At the same time, inmates in "adjoining recreation
areas" were goading one of the inmates in Odom’s recreational cage,
Timothy Evans, into assaulting Odom. J.A. at 69. Inmate Evans even-
tually struck Odom and a fight ensued between them, forcing Alford
to use pepper spray to break it up. Powell’s incident report indicates
he also witnessed this scene. Odom asserts, without contradiction, that
Alford and Martin told Powell, Evans and Taylor they needed to "get
[Odom] out," but Odom was left in the cage. J.A. 107.
Shortly after 10:00 p.m., several inmates from the adjoining cage
finally destroyed enough of the fence to climb into Odom’s cage and
brutally attack him. Alford and Martin used pepper spray on the
inmates after the assault was in progress. According to Odom, this
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effort was temporarily successful and the attackers retreated to their
own cage, but some five minutes later, two of the attackers returned
to Odom’s cage and, picking up Odom, swung him face first into the
fence. The second beating lasted until Odom’s attackers "got tired."
J.A. 108. Forty-five minutes later, Odom was removed from the cage
on a stretcher with three broken ribs.
Odom filed a pro se complaint under 42 U.S.C.A. § 1983 (West
2003), alleging that prison officials violated his Eighth Amendment
rights by knowingly and willingly placing his life in danger. He
named as defendants the South Carolina Department of Corrections
(SCDC); SCDC Director Doug Catoe; several individual correctional
officers, including Evans, Powell, and Taylor; the SCDC Medical
Facility; and other personnel employed by SCDC. The district court
dismissed the complaint as to SCDC and Catoe, and granted summary
judgment to the remaining defendants based on qualified immunity.1
This appeal followed.
II.
We review de novo an award of summary judgment based on qual-
ified immunity. See Taylor v. McDuffie, 155 F.3d 479, 482 (4th Cir.
1998). In determining whether summary judgment is appropriate, we
must determine "whether the evidence presents a sufficient disagree-
ment to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). And, "[i]n deciding whether there
is a genuine issue of material fact, the evidence of the non-moving
party is to be believed and all justifiable inferences must be drawn in
his favor." Taylor, 155 F.3d at 482.
Because Powell, Evans, and Taylor have invoked qualified immu-
nity as a defense, we examine this case under the two-step qualified
1Pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West Supp. 2003), a magis-
trate judge reviewed Odom’s case and recommended entry of summary
judgment. The district court accepted this recommendation without mod-
ification. In the interest of simplicity, the magistrate judge’s report and
recommendation is referred to throughout this opinion as the district
court’s opinion.
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immunity analysis. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
The "threshold question" in the qualified immunity analysis on sum-
mary judgment is whether, "[t]aken in the light most favorable to the
party asserting the injury, . . . the facts alleged show [that] the offi-
cer’s conduct violated a constitutional right." Id.2 "If no constitutional
right would have been violated were the allegations established, there
is no necessity for further inquiries concerning qualified immunity."
Id.; see Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir. 2002). If, how-
ever, the facts alleged show a constitutional violation, "then the next
step is to ask whether the constitutional right was clearly established
in the specific context of the case." Figg, 312 F.3d at 635 (internal
quotation marks omitted).
The Eighth Amendment imposes a duty on prison officials "to pro-
tect prisoners from violence at the hands of other prisoners." Farmer
v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omit-
ted). "[G]ratuitously allowing the beating . . . of one prisoner by
another serves no legitimate penological objective, any more than it
squares with evolving standards of decency." Id. (internal quotation
2Our colleague does an admirable job of taking the evidence from
Odom and presenting it with flourish and hyperbole in a light most favor-
able to the guards. Unfortunately, this approach is contrary to the legal
standard we are to apply on summary judgment. For example, it is sug-
gested by our friend that we have "omit[ted] any reference to the fact that
the defendants knew at all times that other guards . . . were standing by,
armed with pepper spray and ready to intervene if hostile inmates were
able to tear a hole in the fence of Odom’s cage and attempt an assault
on Odom." Infra at 20.
There are several reasons why such a statement is not included in our
opinion. The most obvious reason is that no one says it. The defendants
have provided no affidavits to show what they knew or what they
believed. To reach the conclusion proposed we would have to draw an
inference the guards knew or believed that someone else would protect
Odom. But this would be an inference in favor of the defendants, which
we are prohibited from drawing under the summary judgment rules, see
Taylor, 155 F.3d at 482, particularly where Odom gives a statement
under oath that the guards, who were theoretically being relied on by the
defendants, were themselves asking the defendants to get Odom out of
the cage. This confusion over the summary judgment standard persists
throughout the dissent.
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marks, alteration and citation omitted). However, not "every injury
suffered by one prisoner at the hands of another . . . translates into
constitutional liability for prison officials responsible for the victim’s
safety." Id. at 834. To establish a claim under the Eighth Amendment,
a prisoner must satisfy two elements. "First, the deprivation alleged
must be, objectively, ‘sufficiently serious.’" Id. (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991)). "Only extreme deprivations are
adequate to satisfy the objective component of an Eighth Amendment
claim regarding conditions of confinement." De’Lonta v. Angelone,
330 F.3d 630, 634 (4th Cir. 2003). "[T]o demonstrate such an extreme
deprivation, a prisoner must allege a serious or significant physical or
emotional injury resulting from the challenged conditions or demon-
strate a substantial risk of such serious harm resulting from the pris-
oner’s exposure to the challenged conditions." Id. (internal quotation
marks and citation omitted).
Second, a prisoner must present evidence that the prison officials
had a "‘sufficiently culpable state of mind.’" Farmer, 511 U.S. at 834
(quoting Wilson, 501 U.S. at 297). When an inmate challenges the
conditions of his confinement under the Eighth Amendment, the req-
uisite "state of mind is one of ‘deliberate indifference’ to inmate
health or safety." Id. (quoting Wilson, 501 U.S. at 302-03). A prison
official shows deliberate indifference if 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 sub-
stantial risk of serious harm exists, and he must also draw the infer-
ence." Id. at 837. "In addition, prison officials who actually knew of
a substantial risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk, even if the harm ulti-
mately was not averted. A prison official’s duty under the Eighth
Amendment is to ensure reasonable safety." Id. at 844 (internal quota-
tion marks omitted).
Because Odom has presented evidence of significant physical
injury resulting from the allegedly unconstitutional conditions, his
alleged deprivation is "sufficiently serious" to survive summary judg-
ment on the first element under Farmer. See, e.g., Case v. Ahitow,
301 F.3d 605, 606 (7th Cir. 2002) (serious physical injuries received
in violent assault by fellow inmate were sufficiently serious under
Eighth Amendment). Accordingly, we turn to the question of whether
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Powell, Evans, and Taylor showed deliberate indifference. That is, we
must decide whether the defendants were "aware of facts from which
the inference could be drawn that a substantial risk of serious harm
exist[ed]," and whether they in fact drew such an inference but disre-
garded it. Farmer, 511 U.S. at 837.
With respect to all three defendants, Odom’s uncontradicted sworn
statements are sufficient to show that they were aware of the risk of
harm and simply ignored it. According to Odom, as soon as his
attackers entered the adjoining cage, they issued verbal threats and
began trying to break into Odom’s cage, a process that lasted for at
least forty-five minutes and ultimately succeeded. Odom’s character-
ization of the inmates’ intent to harm him as "evident" and "apparent"
is uncontradicted by the defendants.
On this record, it is more than reasonable to conclude that Powell
was both aware of an excessive risk of harm to Odom and simply dis-
regarded it. Among other things, Powell was told by Odom repeatedly
that he feared for his safety if he were placed with the other inmates.
Powell thereafter witnessed the aggressors goading another inmate
into attacking Odom, observed these inmates destroying the fence
separating them from Odom, and heard them making violent threats
to Odom. As the inmates continued to progress on breaking into
Odom’s cage, officers Alford and Martin became concerned with
Odom’s safety and told Powell to remove Odom. Powell’s response,
which is not contradicted by the defendants, was flippant: he figured
"they got th[ei]r snitch." J.A. 107. When viewed in the light most
favorable to Odom, the evidence shows that Powell knew that
Odom’s fellow inmates intended to inflict serious harm on him, that
they had the opportunity to do so while being held in the adjoining
cage, and that Odom was in serious peril without immediate interven-
tion from the guards. There is no evidence, however, that Powell did
anything to help, nor is there evidence explaining why he did not
respond to Odom’s requests in the face of a serious risk of harm.
The evidence permits the same conclusion for Evans. He had per-
sonal knowledge that these inmates wanted to be put in Odom’s cage
and that Odom feared these inmates would assault him. Evans
decided, therefore, not to risk putting these inmates in with Odom,
obviously aware of the danger to Odom if Odom were accessible to
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them. It is reasonable to infer that when Evans noticed the inmates
destroying the fence separating them from Odom, he recognized that
Odom was in immediate danger. Indeed, at one point Evans went to
get Odom out. But, when Evans was threatened by one of the caged
inmates with a broken-off piece of the fence separating Odom from
the inmates, he withdrew and left the inmates to continue their
destruction of the fence. Evans apparently took no further steps to
help Odom, even though he surely recognized that Odom needed
assistance. Evans also offers no evidence explaining why he took no
action in response to Odom’s requests. According to Odom’s uncon-
tested statement, Evans chose to ignore his pleas for help even though
it was clear that Odom would be attacked absent some response by
the guards.
Likewise, the evidence on this record allows a similar conclusion
that Taylor was aware of an excessive risk of harm to Odom and
ignored it. Odom repeatedly begged Taylor, like the others, to be
removed from his cage, only to be scolded by Taylor that "you should
not have snitched on them guys[,] you stupid [expletive]." J.A. 13.
Certainly, a reasonable person could infer from this statement an
awareness of the danger to Odom and a deliberate disregard of that
danger. No doubt this expressed lack of concern could have readily
encouraged the inmates to redouble their efforts, comfortable in the
fact that Taylor was condoning what the inmates were trying to do.
Finally, it is also reasonable to conclude that Taylor witnessed the
inmates’ efforts to break into Odom’s cage in light of the evidence
that Alford and Martin told all three defendants, within earshot of
Odom’s cage, that Odom needed to be removed. Taylor also points
to no evidence showing he responded in any way whatsoever or
explaining why he did not respond.3
3In his dissent, our friend worries that we have omitted important alle-
gations from Odom’s complaint, which suggested that "at the very
moment that Odom shouted at Taylor to free him from his cage, Taylor
was evacuating other prisoners out of the burning prison facility." Infra
at 19. The inference made by our friend is that Odom only asked Taylor
for help one time. This inference would be strained even if we were
viewing Odom’s complaint in a light most favorable to the guards. But,
to repeat yet again, this is not our standard of review. In addition to the
allegations in Odom’s complaint, the record contains statements by
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If Powell, Evans, and Taylor did not believe the inmates could get
through the fence, or if their responsibilities from the fire occupied all
of their time, they might have a defense. But they do not present evi-
dence to show either. For that matter, the defendants fail to offer any
evidence in support of any other justification for their actions. If we
are to view the events from the officers’ perspectives, the defendants
could help themselves by educating us on that score. But the only evi-
dence submitted in support of the defendants’ motion for summary
judgment is a sworn statement from Alford, who only reported his
own efforts to protect Odom with tear gas and who does not deny ask-
ing the defendants to get Odom out of his cell; a sworn statement
from James Griffin, an investigator employed by the South Carolina
Department of Corrections, who states that he did not witness the
incident; and a handful of routine incident reports submitted from var-
ious guards that do not contradict Odom’s version of the events that
day.
Odom presents evidence that Powell saw the inmates destroying
the fence between them and Odom, and did nothing; that Evans real-
ized Odom was in danger, but walked away from Odom when Evans
was personally threatened by one of the inmates; and that Taylor told
Odom, in effect, that Odom was going to get what he deserved. And,
all three refused to help when two guards watching the yard told them
to get Odom out of the cage. If what Odom says is true, and at this
stage we must presume that it is, then Odom has produced sufficient
Odom made under oath that are uncontradicted by the defendants. Those
statements show that Odom continuously begged the defendants for help
and that, in response to those pleas, even guards Alford and Martin at
one point told Taylor and the other defendants to get Odom out of the
cage. Odom states that the defendants laughed at his pleas and ignored
Alford and Martin’s order to get Odom out.
This evidence can reasonably be viewed as establishing that the danger
to Odom was obvious, that continuous requests for help were being made
to Taylor and the other defendants by Odom, that a request was made by
other guards to Taylor and the other defendants to help Odom, and that
the refusal of the defendants to help Odom was not due to the fire or the
anticipated assistance from other guards, but because of the deliberate
indifference of the defendants.
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evidence to prove that Powell, Evans, and Taylor were deliberately
indifferent to Odom’s safety and that his injuries were the result of
their violation of his constitutional rights.
Viewing this evidence in the light most favorable to Odom, we are
satisfied that Odom has successfully negotiated the first hurdle of
qualified immunity, presenting evidence which, if believed, would
establish that the defendants’ conduct violated his rights under the
Eighth Amendment.
III.
Next, we turn to the question of "whether the established contours
of the Eighth Amendment were sufficiently clear [in June 2000] to
make it plain to reasonable officers that their actions under these par-
ticular circumstances violated [Odom’s] rights." Winfield v. Bass, 106
F.3d 525, 531 (4th Cir. 1997) (en banc). In determining whether the
right in question was clearly established, we must define "the right
allegedly violated . . . at the appropriate level of specificity." Wilson
v. Layne, 526 U.S. 603, 615 (1999). This does not mean that "the
exact conduct at issue [must] . . . have been held unlawful for the law
governing an officer’s actions to be clearly established." Amaechi v.
West, 237 F.3d 356, 362 (4th Cir. 2001). Rather, our analysis must
take into consideration "not only already specifically adjudicated
rights, but those manifestly included within more general applications
of the core constitutional principle invoked." Id. at 362-63 (internal
quotation marks omitted). The right must be defined "in such a way
as to provide notice to a reasonable person in the official’s position
that his conduct violated the identified right." Id. at 363. That is, the
right allegedly abridged is "clearly established" for qualified immu-
nity purposes if
[t]he contours of the right [are] sufficiently clear that a rea-
sonable official would understand that what he is doing vio-
lates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in light of pre-existing law the unlawfulness must be
apparent.
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Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).
Specifically, then, the question is whether it was clearly established
in June 2000 that the defendants’ failure to act in response to Odom’s
requests to be removed from the cage adjacent to his attackers consti-
tuted deliberate indifference to Odom’s Eighth Amendment rights
under the circumstances. We conclude that it was.
In June 2000, it was clearly established in this circuit that correc-
tional officers who are present when a violent altercation involving an
armed inmate erupts and fail to intervene immediately do not violate
the Eighth Amendment if the officers are unarmed, unaware of a risk
of harm prior to the altercation, and take reasonable steps to intervene
safely. See Winfield, 106 F.3d at 531-32. By the same token, we had
also determined, well before the time of this attack, that a correctional
officer who stands by as a passive observer and takes no action what-
soever to intervene during an assault violates the rights of the victim
inmate. See Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978).
Gordon does not suggest whether the officers knew about the poten-
tial violence before the attack or whether they were merely present
when the fight broke out; nevertheless, the plaintiff stated a viable
claim as a result of the officers’ failure to take any action whatsoever.
Other circuit courts of appeal, at the time of the attack, had con-
cluded that a prison official acts with deliberate indifference when he
ignores repeated requests from a vulnerable inmate to be separated
from a fellow inmate who has issued violent threats which the aggres-
sor will likely carry out in the absence of official intervention. See,
e.g., Spruce v. Sargent, 149 F.3d 783, 786 (8th Cir. 1998); Haley v.
Gross, 86 F.3d 630, 642 (7th Cir. 1996); Hayes v. New York City
Dep’t of Corr., 84 F.3d 614, 621 (2nd Cir. 1996); Roland v. Johnson,
856 F.2d 764, 770 (6th Cir. 1988). We conclude that, at the time of
the attack on Odom, the state of pre-existing law was such that rea-
sonable prison guards in the defendants’ position would have under-
stood that doing nothing in response to Odom’s requests in light of
the circumstances of this case violated Odom’s rights.
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IV.
The differences of opinion in this case apparently stem from differ-
ences as to what our standard of review is in matters involving sum-
mary judgment. The law, however, is clear that we are to view the
evidence in a light most favorable to the nonmoving party and to give
him the benefit of all reasonable inferences. See United States v. West
Virginia, 339 F.3d 212, 214 (4th Cir. 2003). This necessarily means
that where Odom’s testimony is credible and uncontradicted, his testi-
mony will be accepted. There is nothing nefarious about this process.
It is how the standard of review operates. We also must give Odom
the benefit of all reasonable inferences. Again, that is how the stan-
dard of review operates. For example, when Powell responded to
Odom’s fear of assault by saying "those dudes ain’t going to f--- with
you," a completely reasonable inference that could be drawn by a
factfinder is that Powell was dismissing Odom’s concerns, similar to
an "aw, don’t worry about it" response. By contrast, our dissenting
colleague draws a different inference from Powell’s statement, one
that favors Powell, viewing it as "an expression that others would not
be permitted to harm Odom." Infra at 17-18. Assuming the latter
inference is even a reasonable one to make,4 we are presented with an
example that highlights the nub of our dispute — when we are pre-
sented with two reasonable inferences, we are constrained on sum-
mary judgment to accept the one most favorable to the non-moving
party.
When we take all of the evidence and view it in this context, we
find Odom’s evidence sufficient to make out a claim against the
defendants. In fact, our job here is easier than in most cases because
none of the defendants have submitted affidavits denying that what
Odom says is true. Not one defendant has, under penalty of perjury,
contradicted the actions and motives Odom ascribes to him.
4It is honestly no more "obvious" to us that Powell’s profane response
can only be viewed as some kind of official statement, than would be
Taylor’s response to Odom that "you should not have snitched on them
guys you stupid m-----------." J.A. 13. But, in any event, we know our
disagreement with our dissenting brother is one that stems from an hon-
est difference of opinion among colleagues (which is possible), rather
than "flat mischaracterizations" and agenda-driven judicial monkey-
shines on his part.
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In essence, this case boils down to a prisoner presenting facts that
reasonably support the conclusion that he was not protected in the
face of a known and avoidable danger, and the guards, accused of
deliberate indifference, not denying it. If prisoners are going to be
denied equal application of the law, then guards who are sued would
be better advised not to respond with explanations of their own, but
to wait and let an appellate court manufacture an excuse for them. In
our view, the only way to reach a result that gives the defendants
immunity is to take Odom’s statements, turn a blind eye to what is
favorable to Odom, view the evidence only for the benefit of the
guards, and ignore the standard of review. But, this is impermissible
if we are to follow the law.
Accordingly, for the foregoing reasons, we vacate the district
court’s entry of summary judgment on behalf of the defendants and
remand the matter for further proceedings.
VACATED AND REMANDED
LUTTIG, Circuit Judge, dissenting:
On the face of the allegations as Odom makes them, not as the
majority distorts them, it is indisputable that the defendant prison offi-
cials responded constitutionally throughout the emergency with which
they were confronted. Indeed, the denial of qualified immunity to
these officials, given the exigent circumstances and their responsible
conduct in those circumstances, may well represent the most far-
reaching decision to date denying qualified immunity in our circuit.
Needless to say, the court’s opinion is not even arguably reconcil-
able with our precedent in Robles v. Prince George’s County, 302
F.3d 262, 266-67, 269 (4th Cir. 2002), reh’g denied, 308 F.3d 437,
in which we granted qualified immunity to officers who, in the mid-
dle of the night and in a deserted parking lot, handcuffed a man to a
metal pole, and left him there, admittedly for no law enforcement pur-
pose whatsoever. Thus, apart from the commission of error in this
case, the majority also extends to the other end of the qualified immu-
nity continuum the confusion that the court sowed by its decision in
Robles, rendering principled predictions as to the availability of quali-
fied immunity in our circuit now all but impossible.
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It might be thought the saving grace of today’s decision, that it will
not be followed by the members of our court any more faithfully than
has Robles. Properly viewed, however, this is the tragedy of such
opinions, not their grace. For such confirms (for the cynic at least)
that law really is but the ad hoc, not the principled application of pre-
existing rule to fact.
I.
The majority’s opinion is riddled with three distinct categories of
error, all of which are evident upon a reading of Odom’s own com-
plaint. First, the majority selectively recites the contextual facts from
Odom’s allegations and the record, featuring only those facts that tend
to bolster its conclusion, and excluding those facts that undermine its
disposition. Next, it engages in advocatory characterization of the
facts that it does choose to recite, presenting them in such a way that
they are unrecognizable as they are alleged in Odom’s own pleadings.
Finally, the majority simply omits altogether those facts that would,
in and of themselves, confirm the error of its holdings both as to a
constitutional violation and as to the reasonableness of the defen-
dants’ actions. Through this composite of errors, the majority fails
both to capture fairly the volatile circumstances Officers Powell,
Evans and Taylor faced and to detail the emminently reasonable
actions that each took in the course of their response to those exigent
circumstances.
The irony in the end is that the majority postures itself as merely
scrupulously repeating the allegations in the complaint and resting
decision exclusively on those allegations, when in fact, itself not con-
tent to accept the plaintiff’s allegations as they have been made, the
majority has resorted to full-throated advocacy on the plaintiff’s
behalf.
The telling fact is this. If one reads Odom’s handwritten complaint,
he is actually struck by the care and specificity with which Odom has
described the events of which he complains. From his description, it
is plain that Odom does not allege a constitutional violation, but at
least one is left with the belief that Odom has been scrupulously
exacting in the allegations that he has made. In contrast, if one reads
Odom’s complaint, and then compares it with the majority’s asserted
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recitation of Odom’s report of events and allegations, one is left with
the unmistakable impression that the majority has been anything but
scrupulously exacting in its presentation of Odom’s well-pleaded
complaint.
A.
As to its selective recitation of Odom’s allegations, the majority,
first, hardly even acknowledges that the defendants’ actions were
taken during and in response to a fire that had engulfed the Special
Management Unit where Odom was housed. Thus, despite its pro-
fessed reliance upon Odom’s allegations, the majority chooses not to
include Odom’s own description of the fire, which confirms the mag-
nitude of the emergency with which the defendants were faced.
According to Odom himself, "the fire reached such a level to where
the whole B-side of the [Special Management Unit] had to be evacu-
ated due to the smoke being so bad, that the officers had to put on
oxygen tanks, and gas masks in order to evacuate the building." J.A.
11. Indeed, Odom states that at the moment when Officer Powell
arrived to evacuate him from his cell, the smoke was so suffocating
that he "could not breath [sic]." J.A. 106. In short, the defendants
were evacuating prison inmates in response to a full-scale emergency
— the burning of the building in which the inmates were housed —
a fact that the majority all but ignores both in its factual recitation and
in its analysis.
Second, although the majority refers in passing to the fact that
Odom was housed in the Special Management Unit, it similarly
chooses not to explain that this unit is the high-security ward at Evans
Correctional Institution, in which the most dangerous inmates are kept
segregated in their individual cells for twenty-three hours per day
because of their dangerousness. J.A. 226. Relatedly, the majority also
chooses not to mention that Odom was placed in this high security
unit because he was found in possession of a homemade weapon. J.A.
225. Thus, when the Special Management Unit caught on fire, the
defendants were faced with the task of evacuating and controlling not
rank-and-file prison inmates, but the most dangerous and disobedient
inmates in the correctional facility — another fact ignored by the
majority in both its factual recitation and its analysis.
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Third, although the majority notes that, when the fire broke out, the
Special Management Unit inmates had to be moved from their cells
into outside recreational cages, it also chooses not to cite those por-
tions of the record that reveal the difficulty the guards had in main-
taining control over those inmates once they were outside the burning
building. For example, Odom reports that even before inmates broke
into his cage, "[s]everal cages down . . . several inmates had suc-
ceeded in busting a hole in [their] rec cage door and escaped from
[their] cage and went to the next cage to help those inmates escape
from [their] cage. [And] [o]nce all of them were out, they started try-
ing to break into the cage I was in." J.A. 14. A report filed by Captain
Rogers, who was in command at the prison, explains that even after
the Special Management Unit wing was finally cleared of smoke, "in-
mates refused to be restrained and placed back in their cells." J.A. 80.
And, in fact, the guards ultimately had to call for reinforcements,
force all the inmates to lie on the ground, and then strip search them
before they could be allowed back into their permanent cells follow-
ing the fire. Id. Thus, the picture that emerges from Odom’s actual
allegations (together with the uncontradicted record reports), as
opposed to that painted by the majority, is not one of calm and order-
liness during which guards stood idly by, but rather one of pandemo-
nium that could well have devolved into full riot. Again, another fact
all but ignored by the majority in its factual recitation and in its analy-
sis.
To read the majority’s opinion, then, one would scarcely know
that, as Odom candidly alleges, the events in question took place dur-
ing the emergency evacuation of the high-security unit at Evans Cor-
rectional Institution, during which the defendants were responding to
near riotous conduct by the prison’s most dangerous inmates.
B.
Having selectively recited Odom’s allegations so as to minimize
the magnitude of the exigency confronting the defendants, the major-
ity next mischaracterizes the defendants’ actions in ways so as to
build the impression that those actions were anything but reasonable.
First, for example, the majority characterizes Powell as having
"dismissed" Odom’s concerns, when he said to Odom that "those
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dudes ain’t going to f--- with you." It is not even credible to draw the
inference that the majority does, that this statement was a "dismissal"
of Odom’s concerns, evidencing deliberate indifference. No reason-
able factfinder could so find. To the contrary, on their face, these
words reflect not only an acknowledgment of those concerns, but an
expression that others would not be permitted to harm Odom. Were
there any doubt as to this (which there is not), it would be laid to rest
by yet another of Odom’s allegations. In that allegation, which imme-
diately precedes the one referenced above and, again, is left out by
the majority, Odom states as follows: "Once . . . Powell got to my cell
to place the cuffs on me, I told him ‘I can’t go out there with those
guys on the rec field, they are going to try and kill me.’ He [Powell]
stated ‘O.K. come on,’ so I put the cuffs on and he opened my cell
door." J.A. at 11-12 (emphasis added).
Second, in like (mis)characterization, in summarizing Evans’
actions, the majority asserts that "[t]here is no evidence that Evans
took any action to assist Odom." J.A. 5. A more inaccurate character-
ization of Odom’s own complaint could hardly be imagined. Odom
himself reports that after Officer Evans placed him in an outside cage,
Evans proceeded to evacuate another group of prisoners from the
building. And Odom also reports that when Odom’s enemies asked
Evans to place them in Odom’s cage, Evans refused and instead
placed the hostile inmates in cages separate from Odom’s, in order to
protect Odom. J.A. 12.
Indeed, later, when Evans observed the inmates in the cage adjoin-
ing Odom’s attempting to tear a hole in the fence, he went to Odom’s
cage to let Odom out, and retreated only when one of Odom’s ene-
mies brandished "a sharpened piece of fence band" and shouted at
Evans that he would "stab the [expletive] out of [him]" if he contin-
ued to approach. J.A. 13. While, in his pleading, Odom included this
account of Evans’ initial attempts to rescue Odom, J.A. 13, Odom
omitted mention of Evans’ effort in the declaration of facts that he
filed with his memorandum opposing the defendants’ motion for sum-
mary judgment, see J.A. 107. Thus, even though the majority fails to
appreciate the negative implications of this information for Odom’s
chances of success on the merits, Odom certainly understood those
implications.
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Again, Odom’s own allegations prove the error in the majority’s
mischaracterization that there is "no evidence that Evans took any
action to assist Odom."
Third, the majority mischaracterizes the actions of Odom’s ene-
mies, in order to buttress its dubious conclusion that the defendants
were aware that Odom was in danger for the entire time that he was
in the outside cage. According to the majority, when Odom’s enemies
were evacuated into the adjoining cage, "they immediately began
tearing down the fence that separated them from Odom." Ante at 3.
Yet again, Odom himself tells a different story. According to Odom,
the inmates first "started kicking on the chain link fence trying to bust
through it. This was not working, so they took their towells [sic] put
them through the fence and pulled them back through and started
bending one of the chain links back and forth in order to weaken and
break it." J.A. 13. Odom’s own allegations, therefore, reveal not only
that the first efforts of his enemies to access his cage failed but that
their succeeding efforts did not appear any more likely to succeed —
and certainly not sufficiently more likely to succeed as to render the
threat so imminent that abandonment of the inmates’ evacuation from
the burning building was warranted.
And there are similar inappropriate characterizations (and mis-
characterizations at that) of Odom’s pleadings throughout the majori-
ty’s opinion.
C.
Finally, in addition to its selective recitation of facts and mis-
characterization, the majority omits entirely to recite perhaps the most
critical facts from Odom’s allegations that ultimately prove the rea-
sonableness of the actions taken by all of the defendants, and Taylor
in particular.
As to defendant Taylor, according to Odom’s own pleadings, at the
very moment that Odom shouted at Taylor to free him from his cage,
Taylor was evacuating other prisoners out of the burning prison facil-
ity. Nowhere in the majority’s opinion does this indisputably critical
fact appear. Compare J.A. 13 with ante at 4, 9. And after Taylor fin-
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ished with the evacuation of those prisoners, he returned into the
building to continue to rescue others. See J.A. 13, 81.
But similar omissions from the pleadings are made by the majority
when those alleged facts would negate its conclusion of unconstitu-
tional conduct by all three of the defendants. Among others, the
majority omits any reference to the fact that the defendants knew at
all times that other guards — whom Odom has not named as defen-
dants here — were standing by, armed with pepper spray and able to
intervene if hostile inmates were able to tear a hole in the fence of
Odom’s cage and attempt an assault on Odom, see ante at 7-9. And
this fact not only appears on the face of Odom’s complaint, but, need-
less to say, contrary to the majority’s unconvincing assertion, see ante
at 6 n. 2, requires no inference that the "guards knew or believed that
someone else would protect Odom." Once again, as Odom’s own
complaint makes clear, Officer Alford, even before inmates broke
into Odom’s cage, had already used pepper spray on an inmate inside
Odom’s cage, whom other inmates goaded into attacking Odom. J.A.
15. And all in all, Officer Alford reports that he and Officer Moore
discharged nine pounds of pepper spray on the hostile inmates that
evening. Id. at 70. That other officers were present, armed with pep-
per spray, and able to intervene in any assault that did occur while the
defendants completed the inmate evacuation from the burning build-
ing is plainly relevant, if not fully dispositive, of the reasonableness
of these defendant’s actions.
D.
1.
In sum, while posturing itself as but faithful scriveners of plain-
tiff’s allegations, the majority selectively recites the facts that Odom
himself candidly recites that convey the emergency context in which
the defendants found themselves, leaving out that the fire that forced
the evacuation was of such magnitude as to require oxygen masks and
gas tanks; taking no notice whatever that the Special Management
Unit under evacuation was the facility’s high-security ward, home to
the most uncontrollable of the uncontrollable; and making no mention
at all of the difficulties that beset the guards in attempting to bring
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under control these inmates, who, once evacuated from the burning
building, began to riot.
The majority additionally characterizes and mischaracterizes the
record, inaccurately (not to mention unfairly) describing Officer Pow-
ell’s conduct as dismissive of Odom’s concerns, when in fact Powell
actually evinced genuine concern for Odom not only by personally
rescuing him from the fire, but also by his reassurances in reply to
Odom’s expressions of fear; criticizing Evans for doing nothing to
assist Odom, when in fact Evans took affirmative steps to protect
Odom from harm; and misleadingly describing the hostile inmates as
immediately having begun to tear down the fence, when in truth their
initial attempts to weaken the fence had failed and their subsequent
efforts appeared destined, if not to fail, then to prove time-consuming.
And, if this were not enough, the majority deliberately omits criti-
cal information from Odom’s own allegations that confirms the rea-
sonableness of the defendants’ actions, failing even to mention
Odom’s own statement that Taylor was in the process of evacuating
other inmates when Odom called to him, and omitting all reference
whatsoever to the fact that other guards armed with pepper spray were
standing by at all times, ready to quell any attack on Odom that
materialized.
2.
When Odom’s allegations are fairly and honestly presented in full,
an entirely different picture emerges from that painted by the major-
ity. In that picture, guards at a high-security prison were evacuating
the worst of the worst as the prison filled with suffocating smoke
from a fire set by the prisoners themselves. One of those prison
guards, Powell, who was wearing an oxygen tank and a gas mask,
personally rescued Odom from his cellblock and led him to the safety
of an outside recreational cage. When Odom noticed that another
guard, Evans, was evacuating some of his enemies, Odom pleaded
with Evans that these inmates not be allowed into his recreational
cage, and Evans responded to those pleas by placing Odom’s enemies
in a cage separate from Odom’s. And later, when Odom saw that his
enemies were trying to use towels to weaken the fence separating his
cage from theirs, he called out and Evans came to his rescue, retreat-
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ing only when an inmate threatened to stab him if he proceeded fur-
ther. Odom then called out to yet another officer, Taylor, but Taylor
was occupied with the ongoing evacuation at that time. And all the
while, other guards, armed with pepper spray, were present, ready to
assist Odom should be become the victim of an inmate’s assault, and
ultimately in fact assisting him when inmates finally did break
through and into Odom’s cage.
It is not even arguable that anything occurred in this sequence of
events that comes anywhere close to an Eighth Amendment violation.
II.
A.
The majority’s qualified immunity analysis is even more strikingly
indefensible than its Eighth Amendment analysis. The majority cites
as controlling Fourth Circuit precedent Gordon v. Leeke, 574 F.2d
1147 (4th Cir. 1978), stating that, on the strength of this opinion, it
was well-established at the time of the attack on Odom "that a correc-
tional officer who stands by as a passive observer and takes no action
whatsoever to intervene during an assault violates the rights of the
victim inmate." Ante at 12. Gordon v. Leeke, which includes only a
handful of lines even addressing the Eighth Amendment claim, is, to
the extent that one can discern anything at all about the allegations
in that case, of no relevance whatsoever to the case before us.
There, we held that it was error for a district court to grant sum-
mary judgment to prison guards on an inmate’s claim of Eighth
Amendment violation, where the inmate had alleged that the guards
stood idly by and watched while other inmates raped and robbed him.
Gordon, 574 F.2d at 1152. Quite obviously, Powell, Evans and Taylor
neither "stood idly by" nor were "passive observers." Rather, even
from Odom’s own allegations (which the majority distorts), it is clear
that Powell personally evacuated Odom from his cell, that Evans
attempted to free Odom from his cage until inmates threatened to stab
him, forcing him to retreat, and that Taylor was evacuating other Spe-
cial Management Unit prisoners from the burning building at the time
that Odom called for help.
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Moreover, unlike in Gordon, where the officers who did stand idly
by were the only ones who observed the rape, here, other officers,
armed with pepper spray, were present to observe, and respond affir-
matively to prevent, any serious assault upon Odom by other inmates.
And if these distinctions were not enough, unlike in this case, there
were no exigent circumstances of any kind whatsoever present in
Gordon, against the backdrop of which the reasonableness of the
defendants’ conduct must be assessed.
Even to suggest, much less hold, as the majority does, that Gordon
v. Leeke constituted clearly established law that these defendants’
actions were unconstitutional is simply indefensible.
B.
Unable to find authority from our circuit that even comes close to
supporting its disposition, the majority string cites four additional
cases from other jurisdictions, which it claims in similarly general
fashion support the proposition that "a prison official acts with delib-
erate indifference when he ignores repeated requests from a vulnera-
ble inmate to be separated from a fellow inmate who has issued
violent threats which the aggressor will likely carry out in the absence
of official intervention." Ante at 12. If it is possible, these cases are
even less relevant to the case sub judice than Gordon v. Leeke. Not
only, as in Gordon v. Leeke, were there no exigent circumstances in
any of these cases, but in each of these cases the defendant officers
failed to respond over an extended period of time to the threat of
which they had been made aware — a fact that the majority happens
not to mention.
In Spruce v. Sargent, 149 F.3d 783, 785-86 (8th Cir. 1998), prison
officials ignored for over twelve months an inmate’s requests for pro-
tection from sexual assaults. In Haley v. Gross, 86 F.3d 630, 632-34
(7th Cir. 1996), prison officials failed, for over five days, to respond
to an inmate’s request to be separated from his dangerous cellmate,
who eventually set the cell on fire. In Hayes v. New York City Dep’t
of Correction, 84 F.3d 614, 617-19, 621 (2d Cir. 1996), prison offi-
cials ignored for months the requests of an inmate with known ene-
mies in the prison to be transferred to a different location. And in
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Roland v. Johnson, 856 F.2d 764, 765-67, 770 (6th Cir. 1988), prison
officials allowed certain individuals for a considerable period of time
to enjoy the privilege of being able to access other inmates’ cells,
despite evidence of the privileged individuals’ tendencies toward sex-
ual aggression. The contrast between the facts in these cases and the
facts here, where the defendants had only minutes, if not moments,
within which to respond during an emergency, and actually did so,
could not be any starker.
To rest denial of qualified immunity on these authorities is nothing
less than to read out of existence the foundational notice requirement
that officials must have violated clearly established law in order to be
held liable.
III.
That the majority’s opinion is insupportable is only confirmed, as
often is the case, by the nature of the response to the critique of its
opinion. It presents itself as simply relying upon Odom’s allegations,
and this, without any characterization. But in responding to this dis-
sent the majority does not even bother so much as to add reference
to those allegations from Odom’s complaint that it omits, nor remove
its own advocatory characterizations. And neither does it attempt to
marshal additional authority or clarify the authority relied upon in
support of its legal conclusion that the defendants would have vio-
lated clearly established law had they conducted themselves as Odom
alleges. Instead, it merely tries to deflect attention from its selective
recitation of the contextual facts, its advocatory characterization, and
its omission of facts, by suggesting that ours is a dispute over the
standard of review on summary judgment, and that the majority,
unlike the dissent, is simply drawing all inferences in favor of the
plaintiff, as required. Ante at 12. As the majority well knows, this is
not the nature of the dispute. I dissent from the majority’s conclusion
and opinion because it does not present the facts accurately, compare
Hamdi v. Rumsfeld, 337 F.3d 335, 345 (4th Cir. 2003) (Traxler, J.,
concurring in the denial of rehearing en banc), with 337 F.3d 335, 357
(Luttig, J., dissenting from denial of rehearing en banc), and when the
facts are presented accurately, the majority’s conclusion and opinion
cannot withstand scrutiny.
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Because Odom’s own allegations fail to establish even a prima
facie case that the defendants violated any of Odom’s rights under the
Eighth Amendment, let alone "clearly established" ones, I would
affirm the district court’s grant of summary judgment, and I dissent
from the unprecedented disposition announced by the majority today.
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