Traci Greene v. Gayle Bowles

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0078P (6th Cir.)
File Name: 04a0078p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TRACI GREENE,
Plaintiff-Appellant,
v.
GAYLE BOWLES, et al.,
Defendants,
ANTHONY J. BRIGANO,
Defendant-Appellee.
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No. 02-3626
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 98-00476—Sandra S. Beckwith, District Judge.
Argued: October 29, 2003
Decided and Filed: March 16, 2004
Before: RYAN, MOORE, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Alphonse A. Gerhardstein, LAUFMAN &
GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Elise W.
Porter, OFFICE OF THE ATTORNEY GENERAL OF
2 Greene v. Bowles, et al. No. 02-3626
OHIO, Columbus, Ohio, for Appellee. ON BRIEF:
Alphonse A. Gerhardstein, Jennifer L. Branch, LAUFMAN
& GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Elise
W. Porter, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which
RYAN, J., joined. ROGERS, J. (pp. 9-12), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Traci Greene
(“Greene”) appeals from the grant of summary judgment in
favor of Defendant-Appellee Warden Anthony J. Brigano
(“Warden Brigano”) in Greene’s § 1983 suit against Warden
Brigano and other prison officials resulting out of an attack on
Greene by another inmate. Because we conclude that the
district court erred in determining that no issue of fact
remains as to whether Warden Brigano acted with deliberate
indifference to Greene’s safety, we REVERSE the district
court’s judgment AND REMAND for further proceedings
consistent with this opinion.
I. BACKGROUND
Greene is a male-to-female transsexual. At the time of her
incarceration at Warren Correctional Institution (“WCI”), she
was preoperative, but still displayed female characteristics,
including developed breasts and a feminine demeanor, and
was undergoing hormone therapy. Because of her feminine
appearance, Greene was placed in the Protective Custody Unit
(“PCU”) to guard against attacks from other inmates. In July
1996, a second inmate in the PCU, Hiawatha Frezzell
(“Frezzell”), assaulted Greene on several occasions,
culminating in a severe attack on July 12 in which Frezzell

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No. 02-3626 Greene v. Bowles, et al. 3
1W hen Greene originally filed suit, she moved to do so anonymously,
but that motion was withdrawn in the wake of press reports prior to trial
revealing her identity. The interlocutory appeal that this court heard was
thus styled Doe v. Bowles.
beat Greene with a mop handle and then struck her with a
fifty-pound fire extinguisher. Frezzell had a long history of
assaults on other inmates and was classified as a maximum-
security prisoner; at the time of the attack, Greene was
classified as medium-security. By Warden Brigano’s own
admission, Frezzell was a “predatory inmate.” Joint
Appendix (“J.A.”) at 408. Frezzell had been placed in the
PCU at WCI, however, in order to protect him from the
repercussions of his testimony against his fellow prisoners in
the Lucasville prison riot; Frezzell had been himself
convicted of aggravated assault for beating two prisoners
during that riot. Nonetheless, for Frezzell’s protection from
others, Frezzell was placed in PCU with Greene, a medium-
security and vulnerable inmate.
After the attack, Frezzell was transferred from the PCU to
the segregation unit, and criminally charged with attempted
murder. Greene filed suit against Warden Brigano and other
prison officials under 42 U.S.C. § 1983, alleging deliberate
indifference to her safety in violation of the Eighth and
Fourteenth Amendments. Warden Brigano moved for
summary judgment arguing that Greene could not as a matter
of law demonstrate that he was aware of a substantial risk to
her safety; the other defendants moved for summary judgment
on the basis of qualified immunity. Summary judgment was
granted as to Warden Brigano and denied as to the other
defendants; they appealed that decision to this court, which
affirmed the denial as to two defendants and reversed as to
one. See Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).1
When summary judgment was granted to Warden Brigano,
Greene had filed a motion pursuant to Fed. R. Civ. P. 54(b)
asking the district court to allow a cross-appeal on that issue
at the same time as the remaining defendants’ appeal from the
4 Greene v. Bowles, et al. No. 02-3626
denial of summary judgment based on qualified immunity,
which motion the district court denied. A jury trial followed,
in which a verdict was rendered for all remaining defendants.
After the entry of final judgment, Greene timely appealed the
grant of summary judgment to Warden Brigano.
II. ANALYSIS
A. Jurisdiction
The underlying civil rights action was brought under 42
U.S.C. § 1983. The district court had original jurisdiction
under 28 U.S.C. § 1331. This court has jurisdiction under 28
U.S.C. § 1291.
B. Standard of Review
We review de novo a grant of summary judgment. Darrah
v. City of Oak Park, 255 F.3d 301, 305 (6th Cir. 2001).
C. Deliberate Indifference
The district court granted summary judgment to Warden
Brigano on the narrow ground that Greene failed to introduce
evidence from which a reasonable trier of fact could conclude
that Warden Brigano knew of a substantial risk of serious
harm to Greene. Specifically, the court held first that as
Frezzell’s attack on Greene wasn’t sexual, Greene’s status
was irrelevant to the determination of a substantial risk, and
second, that Greene had not offered “evidence from which a
trier of fact could conclude that [Warden Brigano] knew of
Mr. Frezzell’s history of violence and, specifically, of attacks
upon other inmates.” Doe v. Bowles, No. C-1-98-476, slip op.
at 14 (S. D. Ohio Jan. 25, 2000), J.A. at 242. The district
court did find that Greene had “offered evidence from which
a trier of the facts could conclude that Hiawatha Frezzell’s
presence in the protective custody unit, without segregation
or other protective measures, presented a substantial risk of
inmate attacks in that unit.” Id. We reject the district court’s

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No. 02-3626 Greene v. Bowles, et al. 5
ultimate conclusion for two reasons: first, evidence had been
offered from which a trier of fact could conclude that Greene
was vulnerable, not just to sexual assault, but also to physical
assaults from her fellow inmates, such that her presence in the
PCU with other inmates without segregation or protective
measures presented a substantial risk to her safety of which
Warden Brigano was aware; and second, Greene has
presented evidence from which a trier of fact could conclude
that Warden Brigano was in fact aware of the substantial risk
Frezzell posed to any inmate with whom he was placed in the
PCU.
In order to establish liability under the Eighth Amendment
for a prison official’s failure to protect her, an inmate must
demonstrate that the official was deliberately indifferent “to
a substantial risk of serious harm” to the inmate. Farmer v.
Brennan, 511 U.S. 825, 828 (1994). To demonstrate
deliberate indifference, an inmate must present evidence from
which a trier of fact could conclude “that the official was
subjectively aware of the risk” and “disregard[ed] that risk by
failing to take reasonable measures to abate it.” Id at 829,
847. As noted above, the only issue before this court is
whether Greene introduced sufficient evidence to convince a
trier of fact that Warden Brigano was aware of a substantial
risk of serious harm to Greene. That awareness can be
demonstrated through “inference from circumstantial
evidence,” and a prison official cannot “escape liability . . . by
showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that the complainant
was especially likely to be assaulted by the specific prisoner
who eventually committed the assault.” Id. at 842-43. Our
cases following Farmer demonstrate that the converse is true
as well: where a specific individual poses a risk to a large
class of inmates, that risk can also support a finding of
liability even where the particular prisoner at risk is not
known in advance. See Curry v. Scott, 249 F.3d 493, 507-08
(6th Cir. 2001) (where particular prison guard had history of
racially motivated harassment of African American inmates,
deliberate indifference could be demonstrated by factual
6 Greene v. Bowles, et al. No. 02-3626
record, without threat to particular inmate). Therefore, to
defeat Warden Brigano’s summary judgment motion, Greene
need only point to evidence from which a finder of fact could
conclude that her vulnerability made her placement in the
PCU with high-security inmates a substantial risk to her
safety, of which Warden Brigano was aware, or alternately,
evidence from which that finder of fact could conclude that
Frezzell’s placement in the PCU without segregation or other
protective measures presented a substantial risk to other
inmates in the PCU, of which Warden Brigano was aware.
We conclude that she has done so.
On the issue of her vulnerability, Greene has presented
evidence which includes the following: a Protective Control
Screening form signed by Warden Brigano on March 17,
1994, noting that Greene was placed in the PCU for her
personal safety; numerous Protective Control Review forms
signed by Warden Brigano noting Greene’s physical
appearance as the reason for her placement in the PCU;
Warden Brigano’s own deposition testimony that
transgendered inmates are often placed in protective custody
because of the greater likelihood of their being attacked by
their fellow inmates; Warden Brigano’s admission that the
universe of harm that can befall inmates like Greene includes
attempted assault, assault, attempted murder, and murder; and
Warden Brigano’s concessions that Greene was placed in the
PCU to protect her from serious harm and that that serious
harm could come from a fellow PCU inmate as well as an
inmate in the general population. On the issue of Frezzell’s
predatory nature, Greene has presented to the district court:
Frezzell’s lengthy prison misconduct record, including
Frezzell’s two convictions for felonious assault arising out of
the Lucasville prison riot; Warden Brigano’s admission of
Frezzell’s status as a predatory inmate; Warden Brigano’s
concessions that Frezzell had “a long institutional history of
being a disruptive, violent inmate,” J.A. at 409; and the fact
that Frezzell was a maximum-security inmate. While
contrary and conflicting evidence was presented to the district
court by Warden Brigano, we must, when reviewing a

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No. 02-3626 Greene v. Bowles, et al. 7
2The plaintiff also raised a hostile-work-environment claim which
was dispo sed o f as to all defendants on summ ary judgment and is
therefore unimp ortant for our ana lysis.
summary judgment, resolve all questions of fact in favor of
the non-moving party. Greene has raised an issue of fact as
to Warden Brigano’s knowledge of a risk to her safety
because of her status as a vulnerable inmate and because of
Frezzell’s status as a predatory inmate.
D. Effect of the Jury Verdict Below
Finally, we reject Warden Brigano’s assertion that the
jury’s verdict below finding that his subordinates were not
liable to Greene precludes Warden Brigano’s own liability to
her. In order to prevail on her claim of deliberate
indifference, Greene must show that Warden Brigano himself
was aware of a substantial risk to her safety and did not take
reasonable steps to guard against that risk. Neither of those
elements was before the jury below, and its verdict can
therefore have no preclusive effect on Greene’s claim against
Warden Brigano. Warden Brigano’s reliance on Klemencic
v. Ohio State University, 263 F.3d 504 (6th Cir. 2001), is
unavailing. Klemencic dealt with a Title IX claim of quid-
pro-quo sexual harrassment against a coach and his university
employer.2 The district court had granted summary judgment
in favor of the university, and a jury had given a verdict in
favor of the defendant coach. The plaintiff appealed from the
grant of summary judgment, and a panel of this court found
that the jury verdict precluded a claim against the university.
In doing so, however, the court clearly relied on the elements
of a claim against an educational institution: 1) that a
plaintiff was subject to harassment; 2) that she provided
actual notice to the institution; and 3) that the institution’s
response amounted to deliberate indifference. See id. at 510
(citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274
(1998)). The jury verdict, which had preclusive effect on the
issue of whether the coach had subjected the plaintiff to
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sexual harassment, therefore went right to the heart of the first
element for Title IX liability. In Greene’s claim against
Warden Brigano’s subordinates that went to trial below, the
elements Greene would have had to show to succeed related
only to the mental state of those subordinates, and not to
Warden Brigano’s mental state. Neither of the elements
Greene must show to succeed on her claim against Warden
Brigano were before the jury, and its verdict can therefore
have no preclusive effect on that claim.
III. CONCLUSION
Because material questions of fact remain as to Warden
Brigano’s knowledge of a substantial risk to Greene, we
conclude the district court erred in granting summary
judgment to Warden Brigano. We therefore REVERSE the
district court’s judgment AND REMAND for further
proceedings consistent with this opinion.

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No. 02-3626 Greene v. Bowles, et al. 9
_________________
DISSENT
_________________
ROGERS, Circuit Judge, dissenting. Although the Eighth
Amendment requires prison officials to maintain humane
conditions of confinement, a prison official’s actions do not
violate the Eighth Amendment unless they are shown to be
deliberately indifferent. Deliberate indifference means that
the prison official had actual knowledge of a substantial risk
to inmate health or safety and ignored that risk or proceeded
in the face of it. Because Greene has failed to show that
Warden Brigano was deliberately indifferent to the risk posed
to her by Frezzell’s presence in the protective custody unit, I
respectfully dissent.
The Eighth Amendment’s prohibition on cruel and unusual
punishment imposes a duty on prison officials to provide
humane conditions of confinement and to take reasonable
measures to guarantee the safety of inmates. Farmer v.
Brennan, 511 U.S. 825, 832 (1994). As the Supreme Court
has explained, however, a prison official’s actions or
omissions do not trigger liability under the Eighth
Amendment without a finding of deliberate indifference,
which is the equivalent of “recklessly disregarding” a risk.
Id. at 835. Under the Supreme Court’s clear instruction in
Farmer, Greene must establish not only that Warden Brigano
was aware of facts from which one could raise the inference
of a substantial risk of harm to her safety, but also that
Warden Brigano, in fact, drew that inference. Id. at 837. This
requirement exists because the Eighth Amendment does not
extend liability to a prison official’s failure to exercise due
care, but only extends liability to such willful disregard as can
be considered the infliction of punishment.
The only evidence cited by Greene that suggests that
Warden Brigano actually drew the inference that Greene
faced a substantial risk of harm in the protective custody unit
10 Greene v. Bowles, et al. No. 02-3626
is Warden Brigano’s admission that harms may befall
protective custody inmates. Such a statement can hardly be
enough to create a triable issue of fact as to Warden Brigano’s
awareness of the risks facing Greene. At most, this admission
is a concession that prison life is inherently dangerous, and
particularly so for transgendered inmates. The fact that
Warden Brigano recognized the existence of certain risks
attendant with the placement of certain categories of inmates
in protective custody, however, does not amount to an
awareness of a significant risk of harm to Greene’s health or
safety. The Eighth Amendment requires, instead, that a
warden actually recognize a significant risk of harm arising
from particular facts. While the majority properly states that,
in some contexts, a particular victim, or a particular
perpetrator, need not be known, general recognition of some
risks is not enough.
This is borne out by the very example given by the
Supreme Court as sufficient to raise a triable issue of fact:
For example, if an Eighth Amendment plaintiff presents
evidence showing that a substantial risk of inmate attacks
was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being
sued had been exposed to information concerning the
risk and thus must have known about it, then such
evidence could be sufficient to permit a trier of fact to
find that the defendant-official had actual knowledge of
the risk.
Id. at 842-43 (internal quotations omitted). The evidence in
this case cannot fairly be characterized as comparable to the
Supreme Court’s example.
Greene first contends that her feminine appearance made it
obvious that she was vulnerable to attack by other inmates.
Warden Brigano was aware of this risk, and that was the
reason that Greene was assigned to protective custody.

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No. 02-3626 Greene v. Bowles, et al. 11
Greene then alleges that Hiawatha Frizzell’s prior conduct
and sexual advances in her direction made it obvious that she
was at a substantial risk to her health and safety. While
Greene has adduced facts indicating the existence of the risk,
she certainly has failed to show that Warden Brigano ever
drew the inference that these facts constituted such a risk. As
to Frizzell’s conduct, although Warden Brigano was aware
that Frizzell had a disciplinary record indicating some
predatory conduct, Warden Brigano also indicated that his
impression of Frizzell’s demeanor was “nothing out of the
ordinary.” As to Greene’s allegations of Frizzell’s sexual
advances, she has not indicated that Brigano was ever even
aware of Frizzell’s conduct in that regard. Without showing
some particular facts that should have triggered alarm bells in
Warden Brigano’s mind, based on his knowledge and
experience, Greene has not raised a material issue of fact as
to Warden Brigano’s awareness of the risk to her safety.
Moreover, although the majority does not reach the issue,
Greene’s claim should fail if she cannot show that Warden
Brigano actually disregarded the risk. Greene maintains that
Warden Brigano’s recognition of the risks she faced in the
general population should have triggered an awareness of
commensurate risks in protective custody and that when he
failed to provide additional protections, he was deliberately
indifferent. This claim must fail, because Farmer makes it
clear that a prison official’s duty under the Eighth
Amendment is only to insure “reasonable safety,” and this
standard “incorporates due regard for prison officials’
‘unenviable task of keeping dangerous men in safe custody
under humane conditions.’” Farmer, 511 U.S. at 844-45.
The effect of the majority’s opinion in this case is to
impose an objective standard of deliberate indifference—a
position explicitly rejected by the Supreme Court. See
Farmer, 511 U.S. at 837. Although a reasonable person may
well have reached the conclusion based on this body of facts
that Greene was in danger, the appropriate test is whether
Warden Brigano reached the conclusion that Greene was in
12 Greene v. Bowles, et al. No. 02-3626
particular danger. Greene has clearly failed to establish a
triable issue as to Warden Brigano’s awareness in this case.
Moreover, the majority takes a position that will make it
more difficult for prison officials to deal with the complicated
issues involved in incarcerating pre-operative transsexual
inmates. These inmates may not be well-suited to the general
populations of either men’s or women’s institutions, and
protective custody may be a warden’s best alternative to
provide for the safety and security of transsexual inmates.
The majority’s broad position that protective custody poses
obvious harms to transsexual inmates could impel
correctional officials to avoid liability for harms to these
inmates by either placing all transsexual inmates in individual
isolation or by building prisons solely for transsexuals. The
Eighth Amendment cannot be read to compel such a result.

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