UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-6121
ADIB EDDIE RAMEZ MAKDESSI,
Plaintiff – Appellant,
v.
LT. FIELDS; SGT. KING; CAPT. GALLIHAR,
Defendants – Appellees,
and
HAROLD W. CLARKE, Director of Virginia Corrections; DAVID BELLAMY; TIMOTHY SUMPTER; GLEN BOYD; BRANDON WOODWARD; THOMAS HALL; CLARENCE SHUPE; JANE DOE; DENNIS SLUSS,
Defendants.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, District Judge. (7:11-cv-00262-GEC-PMS)
Argued: October 25, 2017 Decided: December 7, 2017
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the majority opinion, in which Judge Motz joined. Judge Shedd wrote an opinion concurring in the result only. ARGUED: Stephen William Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Daniel Suleiman, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General, Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy Solicitor General, Richard C. Vorhis, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2 WYNN, Circuit Judge:
Plaintiff-Appellant Adib Eddie Ramez Makdessi alleges that several correctional
officers at the prison where Makdessi was housed recklessly disregarded an obvious risk
to his safety in violation of the Eighth Amendment. The district court previously
dismissed Makdessi’s claims on grounds that the officers disclaimed actual knowledge of
any risk to Makdessi’s safety. Concerned that the district court failed to consider whether
circumstantial evidence established that the risk to Makdessi was so obvious that the
officers had to have known of it, we vacated the district court’s decision and remanded
the case for application of the correct legal standard. See Makdessi v. Fields, 789 F.3d
126, 129 (4th Cir. 2015). On remand, the court adverted to and applied the correct legal
standard and again concluded that Makdessi failed to introduce adequate factual support
for his claims. Because we find no clear error in the court’s judgment, which largely
rested on its credibility assessments, we affirm.
I.
A.
Makdessi is serving a life sentence for committing two murders. The events
giving rise to the present dispute occurred while Makdessi was housed at Wallens Ridge
State Prison. At that time, Makdessi was 5 feet 4 inches tall, weighed 207 pounds, was
approximately 46 years old, and suffered from back pain and asthma. Makdessi did not
affiliate with any prison gangs. Throughout his term of incarceration at Wallens Ridge,
3 Makdessi “had problems with all of his cellmates and [was] forced to pay for protection
in the prison with commissary items.” J.A. 1101.
During Makdessi’s confinement at Wallens Ridge, he filed numerous grievances,
many of which related to alleged assaults by other prisoners. Although prison officials at
times responded to Makdessi’s grievances, many were lost or received no response.
Makdessi also composed several letters to the Federal Bureau of Investigation—to at
least one of which he affixed postage so it was “ready to be mailed”—recounting the
alleged abuse he received at the hands of his fellow inmates. Id. at 1122.
Makdessi’s accounts have varied as to the number of prison assaults he suffered,
and he has generally been “unable to provide the names of the offenders, dates of the
alleged incidents, any other evidence to support the allegations or provide any
investigative leads.” See id. at 416. On one of the few occasions Makdessi provided
prison officials with details regarding an alleged assault—which Makdessi maintains was
captured “on [a] security camera” that an “investigator . . . h[ad] seen”—the prison
official who investigated the claim found no corroborating evidence. Id. at 259
On August 13, 2010, prison officials moved Makdessi to a cell with inmate
Michael Smith. At that time, Smith was 5 feet 11 inches tall, weighed 194 pounds, and
was approximately 34 years old. Incarcerated for “robbery and carjacking,” Smith was a
known member of the “Gangster Disciples,” a gang characterized by prison officials as
“one of the smaller [prison] gangs.” Id. at 1062, 1067. During the three years leading up
to the incident at issue, Smith committed nearly 20 prison infractions, and, based on those
4 infractions, received 115 days in segregation. Prison officials classified Smith at one
security level higher than Makdessi.
On the first day of Makdessi and Smith’s cohabitation assignment, Makdessi
walked out of their cell and told the floor correctional officer that he did not want to be
housed with Smith. The floor correctional officer said he would pass that request on to
Sergeant Christopher King. Makdessi subsequently filed numerous complaints and
requests for a single cell. Makdessi testified that he received no response, and that the
complaints and requests “disappeared.” Id. at 541.
Notwithstanding Makdessi’s complaints and requests, prison officials continued to
house Makdessi with Smith. Makdessi testified that during that time, Smith and his
Gangster Disciples associates physically and sexually assaulted Makdessi on numerous
occasions. Makdessi claims he tried to report the assaults to Sergeant King, the Assistant
Warden, and the Federal Bureau of Investigation.
Makdessi further testified that on December 20, 2010, during a meeting with
Lieutenant Tracy Fields regarding an unrelated informal complaint Makdessi had filed,
Makdessi told Lieutenant Fields “that he feared for his life due to his cellmate Smith, a
gang leader, and that he wanted to be placed in protective custody.” Makdessi, 789 F.3d
at 130. According to Makdessi, Lieutenant Fields said he would advise Sergeant King of
Makdessi’s concerns and request. According to Lieutenant Fields, at the meeting
Makdessi never mentioned Smith or any danger to his life. As further detailed in this
Court’s prior opinion, Smith physically assaulted and allegedly raped Makdessi the
5 following day. Id. at 129–31. The assault and alleged rape caused Makdessi serious
physical and mental trauma. Id.
B.
Seeking redress for the harms he suffered from the assault and alleged rape,
Makdessi filed suit against numerous Wallens Ridge officials under 42 U.S.C. § 1983,
alleging that the officials failed to take reasonable measures to protect Makdessi’s safety,
in violation of his rights under the Eighth Amendment. Makdessi’s claims against the
three correctional officers party to this appeal—Lieutenant Fields, Sergeant King, and
Captain Arvil J. Gallihar (collectively, “Defendants”)—survived summary judgment.
After a two-day evidentiary hearing, a magistrate judge issued a report and
recommendation finding that Makdessi failed to introduce sufficient evidence to support
his claims. Makdessi, 789 F.3d at 131. In particular, the magistrate found that Makdessi
established the first element of his Eighth Amendment claim—that he was “‘incarcerated
under conditions posing a substantial risk of serious harm’”—but failed to produce
evidence sufficient to support the second element of the claim—that the defendant
officials were “‘deliberate[ly] indifferen[t]’” to the serious risk Makdessi faced. See id.
at 133 (quoting Farmer v. Brennan, 511 U.S. 825, 834–35 (1994)). The district court
agreed, entering judgment in favor of all defendants.
This Court vacated the district court’s decision, expressing concern that the district
court had rested its finding that Makdessi failed to show that the Defendants were
“deliberately indifferent” exclusively on the basis that Makdessi did not put forward
credible direct evidence of the officers’ actual knowledge of the substantial risk Smith
6 posed to Makdessi. Id. at 135–36. We explained that under the Supreme Court’s
decision in Farmer, a prisoner also may demonstrate deliberate indifference through
circumstantial evidence establishing that “a risk [wa]s so obvious that it had to have been
known” by the defendant. Id. at 129. We also expressed concern that the district court
considered factors irrelevant to the deliberate indifference analysis, such as its finding
that Makdessi did not “personally inform” Defendants that he feared for his safety and
that Makdessi’s grievance filings did not indicate that Smith, in particular, posed a risk to
Makdessi. Id. at 135–36. We therefore remanded the case “for reconsideration using the
proper legal framework.” Id. at 136.
On remand, the magistrate judge conducted another evidentiary hearing geared
toward the sole remaining question: whether the risk to Makdessi posed by assigning him
to a cell with Smith was so obvious that Defendants violated the Eighth Amendment by
housing the two inmates together. In again finding that Makdessi failed to prove his
claim, the magistrate judge found “that Makdessi . . . failed to persuade the court that
[Defendants] were deliberately indifferent to a known substantial risk to his safety.” J.A.
1176.
This determination in large part rested on the magistrate’s “finding that much of
Makdessi’s testimony is not credible.” Id. By contrast, the magistrate found Defendants’
testimony credible, including their testimony that Makdessi had never complained to
them regarding sexual assaults nor expressed any concern for his life. Furthermore,
although Makdessi testified regarding numerous grievances, he introduced into evidence
only one form alleging a prior sexual assault by Smith. That form was directed to the
7 mental health department, rather than any Defendant. The magistrate found there was no
evidence that Defendants saw that complaint or any of the other documents in which
Makdessi made sexual assault allegations. Additionally, the magistrate highlighted other
facts she found weighed against a finding of obviousness, including that Makdessi
weighed more than Smith and that no Defendant knew of the full breadth of Smith’s
institutional violations. In her obviousness analysis, the magistrate also found significant
Captain Gallihar’s credible testimony that an inmate’s underlying crime could inform cell
assignments, and Makdessi’s murders were at least as violent as Smith’s robbery and
carjacking; that the Gangster Disciples was not one of the prison’s most violent gangs;
and, finally, that only truthful claims of prior sexual assaults are relevant to determining
if an inmate is vulnerable to future victimization.
Over Makdessi’s objection, the district court adopted the magistrate’s report and
recommendation. In particular, the district court agreed with the magistrate’s resolution
of the conflicting testimony—i.e., largely discrediting Makdessi’s narrative in favor of
Defendants’ rebuttals—and concluded that even if Defendants did, in fact, “know” of
facts giving rise to an inference of an obvious risk to Makdessi’s safety, Defendants
sufficiently rebutted that inference through evidence establishing that they “believed
(albeit unsoundly) that the risk to which the facts gave rise was insubstantial or
nonexistent.” Id. at 1218 (quoting Farmer, 511 U.S. at 844). Makdessi timely appealed.
8 II.
Because this case arises from a bench trial, we review factual findings for clear
error and conclusions of law de novo. Plasterers’ Local Union No. 96 Pension Plan v.
Pepper, 663 F.3d 210, 215 (4th Cir. 2011). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire evidence is left
with a definite and firm conviction that a mistake has been committed.” Helton v.
AT & T, Inc., 709 F.3d 343, 350 (4th Cir. 2013) (quoting Evergreen Int’l, S.A. v. Norfolk
Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008)). And “[i]n cases in which a district
court’s factual findings turn on assessments of witness credibility or the weighing of
conflicting evidence . . . , such findings are entitled to even greater deference.” Id.
(quoting Evergreen, 531 F.3d at 308).
In the present case, Makdessi does not argue that the district court misstated the
law, but instead that the evidence below compels judgment in his favor. In this regard,
Makdessi principally argues that Defendants knew or must have known of the obvious
risk to Makdessi’s health and safety as a result of his physical vulnerability, his grievance
filings, and Smith’s many prison infractions. We address each in turn.
The Eighth Amendment imposes upon “prison officials . . . a duty . . . to protect
prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833
(second alteration in original). As stated above, liability attaches when a plaintiff
prisoner establishes: (1) he was “incarcerated under conditions posing a substantial risk
of serious harm” and (2) the defendant prison official had a “sufficiently culpable state of
mind.” Id. at 834. In the present case, only the second prong is at issue; the court below
9 found—and we agree—that the evidence of Makdessi’s injuries from the assault and
alleged rape satisfied the first prong by demonstrating “serious or significant physical . . .
injur[ies] resulting from the challenged conditions” of confinement. De’Lonta v.
Angelone, 330 F.3d 630, 634 (4th Cir. 2003).
The sole remaining question, therefore, is whether there is sufficient evidence to
establish that the defendants had “a ‘sufficiently culpable state of mind’ to be held
liable.” Makdessi, 789 F.3d at 133 (quoting Farmer, 511 U.S. at 834). This required
mental state is one of “‘deliberate indifference’ to inmate health or safety,” Farmer, 511
U.S. at 834, often characterized as “somewhere between negligence and purpose or
knowledge: namely, recklessness of the subjective type used in criminal law,” Brice v.
Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995). An inmate plaintiff may
demonstrate deliberate indifference through direct or circumstantial evidence. Farmer,
511 U.S. at 842; Makdessi, 789 F.3d at 133. Because a plaintiff may prove deliberate
indifference through circumstantial evidence, even in the absence of direct evidence that
a prison official knew of a risk posed to the plaintiff, “an injury might be so obvious that
the factfinder could conclude that the [official] did know of it because he could not have
failed to know of it.” Makdessi, 789 F.3d at 133 (quoting Brice, 58 F.3d at 105).
Prison officials may rebut such a showing of obviousness. Id. at 134; see also
Farmer, 511 U.S. at 844 (“That a trier of fact may infer knowledge from the obvious, in
other words, does not mean that it must do so.”). To that end, “[p]rison officials charged
with deliberate indifference might show, for example, that they did not know of the
underlying facts indicating a sufficiently substantial danger and that they were therefore
10 unaware of a danger, or that they knew the underlying facts but believed (albeit
unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.”
Farmer, 511 U.S. at 844.
Because the magistrate and district court’s analysis focused on whether
Defendants rebutted any circumstantial evidence establishing the obviousness of the risk
to Makdessi’s safety, we assume, without deciding, that circumstantial evidence indicated
that housing Makdessi with Smith presented an obvious risk. Under this assumption,
Defendants may be charged with knowledge of the obvious substantial risk unless they
demonstrate that the facts and circumstances “prove that they were unaware even of an
obvious risk to inmate health or safety” or did not appreciate the risk’s severity. See id.
(emphasis added). Accordingly, we consider only whether the court below correctly
concluded that Defendants sufficiently rebutted Makdessi’s showing of obvious risk by
demonstrating that they either did not subjectively know of the risk or did not appreciate
its severity.
Makdessi contends that several associated facts establish that Defendants knew or
must have known of the substantial risk inherent in his cell assignment with Smith:
(1) Makdessi was smaller than Smith, older than Smith, and had health problems;
(2) Makdessi filed numerous grievances and many times checked himself into
segregation, both indications of vulnerability; and (3) Smith was a violent inmate.
Defendants respond that the district court’s ultimate conclusion—that Defendants
rebutted any such showing by demonstrating “that none of the[m] . . . knew before
Makdessi ran out of his cell on December 21, 2010, that housing him in the same cell
11 with Smith presented a substantial risk”—is based exclusively on well-founded
credibility determinations. Appellees’ Br. 31. We agree with Defendants.
Although Smith was in better condition than Makdessi—Makdessi suffered from
back problems and asthma, and Smith was seven inches taller than him and twelve years
younger—the district court did not clearly err in finding that none of the Defendants
thought the physical disparity presented a risk. Lieutenant Fields testified that he only
vaguely remembered Makdessi, and that although he would generally notice vulnerable
inmates, Makdessi did not stand out as one. Likewise, Captain Gallihar testified both that
he never noticed “anything out of the ordinary” with Makdessi, and that neither
Makdessi’s height nor age stood out as compared to the other inmates or “in the context
of the whole you have to look at” in making cell assignments. J.A. 1061. The magistrate
and district court did not clearly err in crediting this testimony as establishing that
Defendants believed that any risk suggested by Makdessi’s physical condition “was
insubstantial or nonexistent.” Farmer, 511 U.S. at 844.
Nor did Defendants consider Makdessi’s numerous grievance filings and
voluntary self-segregation check-ins as indicating that he faced a risk of suffering serious
physical injuries. Although Captain Gallihar and Lieutenant Fields received reports of
Makdessi’s grievance filings and requests for segregation, including his numerous
allegations of physical and sexual abuse, Lieutenant Fields testified that he would receive
complaints “all the time” and that multiple prisoners would “daily” request the
appropriate forms. J.A. 770. And in testimony the magistrate and district court found
credible, Captain Gallihar said he was unaware of anything “ha[ving] been proven to be
12 true regarding [Makdessi] being sexually assaulted,” id. at 1068, and that a correctional
officer “would not consider [a complainant] a victim until the investigation bears that
out,” id. at 1073. Furthermore, Captain Gallihar testified that it was “a common practice”
for inmates to request segregation because it could be used “to manipulate cell moves.”
Id. at 1081. Again, the magistrate and district court reasonably credited this testimony as
establishing that Defendants believed that any risk suggested by Makdessi’s grievance
filings and requests for segregation “was insubstantial or nonexistent.” Farmer, 511 U.S.
at 844. 1
Finally, the district court did not clearly err in concluding that Defendants did not
believe Smith’s prison-infraction history and membership in the Gangster Disciples
indicated that Smith posed a serious risk to Makdessi. When Makdessi was assigned to
Smith’s cell, Smith had received approximately 20 prison infractions and had spent 115
days in segregation. But Captain Gallihar and Sergeant King investigated and resolved
only one infraction related to Smith. And, in testimony credited by the magistrate and
district court, Sergeant King said that, other than that incident, he was not aware of any
1 Nor does the “Institutional Classification Authority Hearing” summary produced at the second evidentiary hearing alter this conclusion. The summary—issued a week after Smith assaulted Makdessi—recommended changing Makdessi’s security level to protective custody because he “is a known snitch among staff and other inmates;” has “exhibited poor institutional adjustment;” has “been moved to just about every housing unit” at the prison; was placed in a special unit “[d]ue to his vulnerability;” and could no longer “be safely housed . . . in general population” because “his safety is compromised.” J.A. 1098–99. There is no indication, however, that this post-assault security analysis— prepared by a non-party to this suit—established that Defendants knew or must have known of a serious risk to Makdessi’s safety at the time of the assault.
13 other infraction committed by Smith. Likewise, Lieutenant Fields testified that he was
unaware of any of Smith’s infractions. And although Captain Gallihar’s higher-ranking
position necessarily supplied him with knowledge of more of Smith’s infractions, Captain
Gallihar stated, in testimony credited by the court, that the correctional officers’ weekly
review of segregated inmates encompassed “several hundred inmates;” that Smith did not
“stand[] out” in those reviews; that “[n]early all” of the inmates had at least one
infraction; and that he did not consider Smith to be a “particularly violent inmate.”
J.A. 1063–65. Furthermore, Captain Gallihar testified that the Gangster Disciples was
“one of the smaller gangs” and “by far not the . . . most aggressive bunch.” Id. at 1062–
63. In light of this evidence, we cannot conclude that the magistrate and district court
clearly erred in finding that Defendants did not believe that Smith’s infraction history
posed a substantial risk to Makdessi’s safety.
To be sure, the evidence above often conflicts and paints a troubling picture,
prompting both the district and magistrate judge to note that “it is clear” that Defendants
“should have been more diligent in handling Makdessi’s claims of sexual assault.” Id. at
975, 1009. But, deferring to the district court’s credibility findings, the evidence at worst
establishes that Defendants here “knew the underlying facts but believed (albeit
unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.”
Farmer, 511 U.S. at 844. This is insufficient to establish liability. 2
2 Makdessi also argues that the district court incorrectly resolved certain factual disputes or otherwise misstated relevant facts and improperly relied on considerations not relevant to the Farmer analysis. Makdessi’s factual objections, however, principally turn (Continued)
14 IV.
In sum, Makdessi’s arguments and evidence on appeal fail to surmount the high
bar of clear error review. Accordingly, we affirm the dismissal of Makdessi’s claims
against Defendants.
AFFIRMED
on the district court’s findings that Makdessi’s testimony was largely not credible and that Defendants’ testimony was credible. Given that on several occasions Makdessi changed or recanted his narratives and allegations and that we afford a factfinder’s credibility determinations substantial deference, the court did not clearly err in resolving credibility disputes in Defendants’ favor. Likewise, after careful review of the record we conclude that district court’s judgment did not rest on any considerations not relevant to the Farmer analysis.
15 SHEDD, Circuit Judge, concurring in result only:
In my view, the magistrate judge and the district judge properly analyzed this case
during the original bench trial. See Makdessi v. Fields, 789 F.3d 126, 139-45 (4th Cir.
2015) (Shedd, J., concurring in part and dissenting in part). On remand, the magistrate
judge and the district judge once again properly analyzed this case. Because the findings
of fact are not clearly erroneous, and the judges committed no discernible legal error, I
concur in the majority’s decision to affirm the judgment.