Greene v. Bowles

• Decision Date: 16 March 2004
• Docket Number: No. 02-3626.,02-3626.
• Parties: Traci GREENE, Plaintiff-Appellant, v. Gayle BOWLES, et al., Defendants, Anthony J. Brigano, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

361 F.3d 290

Traci GREENE, Plaintiff-Appellant, v. Gayle BOWLES, et al., Defendants Anthony J. Brigano, Defendant-Appellee.

No. 02-3626.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2003.

Decided and Filed: March 16, 2004.

COPYRIGHT MATERIAL OMITTED

Alphonse A. Gerhardstein (argued and briefed), Jennifer L. Branch (briefed), Laufman & Gerhardstein, Cincinnati, OH, for Appellant.

Elise W. Porter (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, for Appellee.

Before RYAN, MOORE, and ROGERS, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which RYAN, J., joined. ROGERS, J., (pp. 295-97), delivered a separate dissenting opinion.

OPINION

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 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 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 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (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, 114 S.Ct. 1970. 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, 114 S.Ct. 1970. 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 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 summary judgment, resolve all questions of fact in favor of the non-moving party. Greene has raised an...