                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2001

Beers-Capitol v. Whetzel
Precedential or Non-Precedential:

Docket 00-2479




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Recommended Citation
"Beers-Capitol v. Whetzel" (2001). 2001 Decisions. Paper 126.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/126


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Filed June 11, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2479

AMIE MARIE BEERS-CAPITOL;
ALIYA TATE, Appellants

v.

BARRY WHETZEL, an individual; SHIRLEY ROBINSON, in
her official capacity; ROBERT LIGGETT , in his individual
and official capacity; YOUTH DEVELOPMENT CENTER AT
NEW CASTLE; NORA BURLEY, in her individual and
official capacity; NICK PIHIOU, in his individual and
official capacity; JOHN DOE, in his/her individual and
official capacity; CHARLES LEE EARNHAR T, in his
individual and official capacity; JOSEPH FLECHER, in his
individual and official capacity
(D.C. Civil No. 97-cv-00292)

ALIYA TATE

v.

BARRY WHETZEL, in his individual capacity; SHIRLEY
ROBINSON, in her individual and official capacity;
ROBERT LIGGETT, in his individual and official capacity;
YOUTH DEVELOPMENT CENTER AT NEW CASTLE; JOHN
DOE, in his/her individual and official capacity, NORA
BURLEY, in her individual and official capacity; NICK
PIHIOU, in his individual and official capacity
(D.C. Civil No. 97-cv-00313)

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 97-cv-00292)
District Judge: Honorable Gary L. Lancaster




Argued: February 5, 2001

Before: BECKER, Chief Judge, AMBRO and
STAPLETON, Circuit Judges.

(Filed: June 11, 2001)

       BARBARA M. WOLVOVITZ,
        ESQUIRE (ARGUED)
       GARY M. LANG, ESQUIRE
       Feldstein, Grinberg, Stein &
        McKee, P.C.
       428 Boulevard of the Allies
       Pittsburgh, PA 15219

       Counsel for Appellants

       D. MICHAEL FISHER, ESQUIRE
       Attorney General
       HOWARD G. HOPKIRK, ESQUIRE
        (ARGUED)
       Deputy Attorney General
       CALVIN R. KOONS, ESQUIRE
       Senior Deputy Attorney General
       JOHN G. KNORR, III
       Chief Deputy Attorney General
       Chief, Appellate Litigation Section
       Office of Attorney General
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

Plaintiffs Amie Marie Beers-Capitol and Aliya Tate, two
female former residents at the Youth Development Center
at New Castle, Pennsylvania (YDC), a detention facility for
juveniles run by the Pennsylvania Department of Public
Welfare, appeal from the District Court's grant of summary

                                2



judgment against them in this 42 U.S.C. S 1983 civil rights
lawsuit that they brought against various YDC employees
and supervisors. During their time at YDC, the plaintiffs
were sexually assaulted by Barry Whetzel, a YDC employee
who was working as a youth development aide at the time
he committed the assaults. Whetzel was eventually
convicted of criminal charges arising out of these incidents.
Beers-Capitol and Tate then brought a civil rights action
alleging violations of their Eighth Amendment rights and
naming as defendants: Whetzel; three of his supervisors,
Robert Liggett, the Executive Director of YDC, Charles
Earnhart, a YDC director, and Joseph Flecher, a YDC
manager; and two of his co-workers, Nora Burley, a YDC
counselor, and Shirley Robinson, a YDC youth development
aide. After the District Court granted summary judgment in
favor of all of the other defendants, the plaintif fs won a
judgment of $200,000 against Whetzel.

An Eighth Amendment claim against a prison official
must meet two requirements: (1) "the deprivation alleged
must be, objectively, sufficiently serious;" and (2) the
"prison official must have a sufficiently culpable state of
mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quotation marks and citations omitted). In prison
conditions cases, "that state of mind is one of`deliberate
indifference' to inmate health or safety." Id. "Deliberate
indifference" is a subjective standar d under Farmer--the
prison official-defendant must actually have known or been
aware of the excessive risk to inmate safety. The parties
agree that the sexual assaults against Beers-Capitol and
Tate were sufficiently serious, so the determinative issue in
this case is whether the defendants' actions and inaction
rose to the level of deliberate indiffer ence. Depending on the
roles and responsibilities of the r espective defendants, the
plaintiffs have set forth two bases for their claims of
deliberate indifference. With r espect to the defendants who
are alleged to have had notice that Whetzel was having sex
with one or more of the female residents at YDC, the
plaintiffs assert that these defendants took inadequate (or
no) measures in response to this notice. W ith respect to the
defendants who are not alleged to have had knowledge of
the specific risk that Whetzel posed, the plaintif fs claim
that these defendants either implemented or failed to

                                3



implement YDC policies that created a situation in which
an employee like Whetzel would be able to sexually assault
female residents at YDC without being discover ed for some
time, and that these defendants were awar e that such
policies created this risk but ignored it.

We will affirm the District Court's grant of summary
judgment for defendants Liggett, Earnhart, Flecher, and
Robinson, because the evidence that the plaintif fs proffer
against these defendants fails to raise an infer ence that
these defendants actually knew or were awar e of the
significant risk of harm to the plaintif fs. However, we will
reverse the grant of summary judgment for defendant
Burley, because the plaintiffs have pr esented evidence that
Burley told one of the plaintiffs that she"kind of knew" that
Whetzel was "messing" with the female r esidents at YDC.
This evidence, along with Burley's admission in her
deposition that she heard numerous rumors that Whetzel
was having sex with the female residents, is sufficient to
raise a genuine issue of fact as to whether Burley was
aware of the significant risk that Whetzel posed to the
plaintiffs but did not adequately respond to this risk.1
I. Facts and Procedural History

YDC is a Pennsylvania Department of Public W elfare
institution that houses adjudicated delinquent juvenile
offenders, both male and female; the female r esidents range
in age between 13 and 21 years and come from all areas of
the state. YDC is divided into several "Units," and each of
these Units is itself divided into several "cottages." Beers-
Capitol and Tate were housed in Unit 7, which contained
the female residents. Unit 7 is comprised of three cottages:
7A, 7B, and 7C.
_________________________________________________________________

1. The defendants also raise a defense of qualified immunity. This issue
was not reached by the District Court (because it granted summary
judgment on the merits). With regar d to the defendants for whom we will
affirm summary judgment, we need not decide the issue of qualified
immunity. With regard to the defendant for whom we will reverse
summary judgment, her acts of deliberate indif ference to an excessive
risk to the plaintiffs foreclose her claim of qualified immunity. See
infra
note 15.

                                  4



Defendant Robert Liggett is the Executive Dir ector of
YDC; as such he has ultimate responsibility for the overall
operation of YDC. His duties include managing YDC's daily
operation, supervising and training the staf f, and
formulating and implementing all operational policies,
regulations, and practices. Defendant Charles Lee Earnhart
was the unit director for Units 7 and 8 during the relevant
time period. Earnhart was responsible for the day-to-day
operations of Unit 7, including the supervision of the staff
of the unit, and the review and evaluation of staff reports
and scheduled work. Liggett directly supervised Earnhart,
who in turn directly supervised the unit managers, meeting
with these managers daily. Defendant Joseph Flecher was
the unit manager for Unit 7 during the relevant time period.
Unit managers are responsible for developing, coordinating,
and administering program services for their unit; they also
directly supervise the cottage supervisors within their unit.
Cottage supervisors directly supervise counselors, youth
development aides, and other staff in their cottages (no
cottage supervisor is a defendant in this case). Defendant
Nora Burley was a counselor who worked in Unit 7, and
defendant Shirley Robinson was a youth development aide
in Unit 7. Counselors provide security in the units and
monitor resident interactions, and youth development aides
perform a similar role. Whetzel was also a youth
development aide in Unit 7.
New staff members at YDC receive two weeks of training
on YDC policies. Because the residents incar cerated at YDC
often have previously suffered sexual abuse and have
become sexually active at an early age, this training
includes instruction on how to identify and appr opriately
handle cases of sexual victimization and abuse, and how to
deal with female residents who express sexual interest in
staff members. The staff are taught that the YDC residents
are likely to express attraction to them and to approach
them in a sexual manner, and that any sexual relations
with residents are unethical and absolutely forbidden. Alice
Peoples, the Training Manager at YDC, testified that YDC
employees are taught that children who ar e sexually
abused often afterwards deny that the abuse occurred.
Peoples also stated that she informs YDC employees at
their training that they are legally responsible to report any

                                5



allegations of abuse, and that failure to r eport such
allegations could result in them being char ged with abuse
themselves.

YDC is subject to 23 Pa. Cons. Stat. S 6311, a
Pennsylvania state law on child abuse reporting which
provides that any staff member of a facility like YDC who
receives an allegation of abuse or otherwise becomes aware
of such abuse must notify the person in char ge of the
facility (in this case, Executive Director Liggett).2 Earnhart
testified that there is no discretion for YDC employees
under this law; notification of any allegation of or
information about abuse must go to Liggett. Liggett is then
responsible for initiating an investigation into the alleged
abuse. Part of the process of such an investigation includes
_________________________________________________________________

2. Title 23 Pa. Cons. Stat. S 6311 pr ovides in pertinent part:

       S 6311. Persons required to r eport suspected child abuse

        (a) General rule.--Persons who, in the course of their employment,
       occupation or practice of their profession, come into contact with
       children shall report or cause a r eport to be made in accordance
       with section 6313 (relating to reporting procedure) when they have
       reasonable cause to suspect, on the basis of their medical,
       professional or other training and experience, that a child coming
       before them in their professional or official capacity is an abused
       child. . . .

        (b) Enumeration of persons required to report.--Persons required
       to report under subsection (a) include, but ar e not limited to,
any
       . . . school administrator, school teacher , school nurse, social
       services worker, day-care center worker or any other child-care or
       foster-care worker, mental health professional, peace officer or
law
       enforcement official.

        (c) Staff members of institutions, etc.--Whenever a person is
       required to report under subsection (b) in the capacity as a member
       of the staff of a medical or other public or private institution,
school,
       facility or agency, that person shall immediately notify the person
in
       charge of the institution, school, facility or agency or the
designated
       agent of the person in charge. Upon notification, the person in
       charge or the designated agent, if any, shall assume the
       responsibility and have the legal obligation to report or cause a
       report to be made in accordance with section 6313. This chapter
       does not require more than one r eport from any such institution,
       school, facility or agency.

                               6



sending notification of the alleged abuse within 24 hours to
Child Line, a hotline for child abuse allegations. 3

Because this is an appeal of a grant of summary
judgment, we must review the facts in the light most
favorable to the party against whom summary judgment
was entered. See Pi Lambda Phi Frater nity, Inc. v. University
of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000). We
therefore accept as true for the purposes of this appeal the
plaintiffs' description of: (1) the abuse they suffered at YDC;
(2) relevant abuse suffered by other residents; and (3) the
actions and reactions of YDC staff when they were notified
of such abuse.

A. The Abuse Suffered by Beers-Capitol

Beers-Capitol was 17 years old when she was
incarcerated at YDC New Castle from February 3, 1994 to
March 30, 1994. Whetzel started making sexual comments
to Beers-Capitol a few weeks after she arrived. This
escalated into Whetzel inappropriately touching Beers-
Capitol in various public places at YDC. Whetzel then
began waking Beers-Capitol up in the middle of the night to
bring her into his office to molest her and ask her to have
sex with him. When she refused, he took away her
privileges. Beers-Capitol eventually had sex with Whetzel
about a week or so before she was released, and she then
_________________________________________________________________

3. Notwithstanding this training, there is evidence in the record that YDC
employees viewed claims made by residents with skepticism. Michael
Pogozelec, a counselor at YDC who is not a party in this case, testified
in his deposition that

       kids there [at YDC] are extr emely manipulative. When they come in,
       they're used to getting their way any way they can out there on the
       streets. . . . [A]ll of them came fr om homes that were highly
       dysfunctional where they had to survive themselves either by
       scheming, manipulating, intimidating, game-playing. So, staff
       question things right off the bat. They don't believe everything
that
       a student brings to their attention.

That this attitude was widespread at YDC is supported by a comment
defendant Flecher made to Robert McLean, an investigator hired by
Liggett to look into allegations of abuse by Whetzel. Flecher told McLean
that "these types of accusations [of sexual abuse] occur on a frequent
basis when female students become angry or upset with staff members."

                               7



came to the conclusion that he had gotten her pr egnant.
On the day before she was released fr om YDC, Beers-
Capitol was cleaning the unit's canteen with defendant
Shirley Robinson; at that time, she told Robinson that she
had had sex with Whetzel and that she believed Whetzel
had gotten her pregnant. Robinson did not believe that
Beers-Capitol was serious in her allegation and r esponded
by saying, "Well, you know that you can get in trouble
making accusations like that."

In her deposition, Robinson stated that, although
originally she did not believe Beers-Capitol's allegation, the
accusation "nagged" her because she knew that any
allegation had to be reported. She thus r eported the
accusation to Earnhart the next day and wr ote up an
incident report. According to Robinson's deposition, the
following day Earnhart called Beers-Capitol, who had been
released by then, at her home in Erie, Pennsylvania, to
check on the story, whereupon Beers-Capitol denied the
accusation. However, according to Ear nhart's deposition,
Robinson delayed for a longer period, possibly up to three
weeks, before informing Earnhart of the allegation, and at
that point Earnhart asked defendant Flecher to call Beers-
Capitol at home about the allegation, and Flecher did so at
that time.4 Beers-Capitol testified that someone from YDC
called her at some point after her release and asked, "Amie,
we have accusations we know Barry did not do. I need to
ask you, did you have sex with him?" Beers-Capitol denied
having sex with Whetzel.

Robinson, Earnhart, and Flecher did not r eport Beers-
Capitol's allegation to Liggett as requir ed by 23 Pa. Cons.
Stat. S 6311. Earnhart did check with the Medical
Department and was informed that Beers-Capitol had had
_________________________________________________________________

4. Earnhart's testimony on this issue is somewhat confused. His first
response was that he did not think Robinson delayed three weeks in
reporting the allegation to him, but when confr onted with the fact that
Flecher's file notes show that the phone call to Beers-Capitol was made
three weeks after Beers-Capitol made her allegation, he seems to imply
that Robinson did in fact delay her report of the allegation for three
weeks. Beers-Capitol's deposition is unclear as to who called her and
when, except that the caller was a male YDC employee and that the call
was shortly after her release.

                                 8



a pregnancy test on March 21, and that the results of the
test were negative. Of course, a negative pr egnancy test on
March 21 is consistent with Whetzel impr egnating Beers-
Capitol about a week or so before her r elease on March 30.
According to her deposition, Beers-Capitol did not want her
boyfriend at the time of her release (now her husband) to
find out that Whetzel had impregnated her , so she had sex
with her boyfriend soon following her release. Nine months
later, she gave birth to a son, whom she and her husband
have raised as their child. Although Beers-Capitol has
never had a paternity test done, she seems to be convinced
that Whetzel is her son's biological father.

B. The Abuse Suffered by T ate

Aliya Tate was incarcerated at YDC fr om June 13, 1991
through May 4, 1993 and from July 12, 1994 to March 28,
1995. In November 1994, when she was 16, Tate was in a
counseling session with Whetzel in Whetzel's back office
discussing Tate's past sexual abuse, wher eupon Whetzel
began to rub Tate's leg and lower thigh. On several other
occasions in November and December 1994 and January
1995 Whetzel attempted to kiss Tate and touch her
genitals. On the night of December 12, Whetzel tried to
touch Tate inappropriately while they wer e alone in Unit 7's
TV room, but Tate immediately left the r oom. At around
this time, two other students reported (falsely, according to
Tate) that Tate and Whetzel had had sex in the TV room on
December 12. This allegation was reported to Liggett, who
assigned Robert McLean to investigate. Tate testified that
Whetzel threatened that he would lengthen her stay at YDC
if she told anyone what he had done, so Tate gave McLean
a sworn statement that nothing had occurr ed between her
and Whetzel.

Finally, on January 29, 1995 Whetzel corner ed Tate in
the back office at the unit, prevented her fr om leaving,
grabbed her, kissed her, put his hands down her pants and
then tried to pick her up and lick her chest. After this
incident, Tate wrote up a Student Incident Report (SIR)
complaining of Whetzel's behavior that evening along with
the previous incidents and gave it to the duty officer. The
duty officer then notified Earnhart of the allegation. The
next day, Tate talked to Nora Burley about the previous

                               9



day's incident as well as all the past incidents with Whetzel,
at which time, according to Tate's deposition, Burley said to
her that "she kind of knew he was messing with students
but she didn't know that he was messing with me."

As a result of Tate's filing of the SIR, Liggett instituted an
investigation, and YDC notified Child Line. Child Line in
turn notified the Pennsylvania State Police which initiated
its own investigation into Whetzel's conduct, eventually
resulting in Whetzel's criminal conviction. In the course of
their investigation the police found two other for mer
residents of YDC who had been sexually assaulted by
Whetzel: Melissa Guyaux and Tina McAfee.

C. Relevant Abuse of Other Residents

Melissa Guyaux was at YDC from August 1992 to July
1993. Guyaux testified at Whetzel's criminal trial that she
had had sex with Whetzel on many occasions during her
time at YDC. Guyaux stated that Whetzel often came into
her room in the middle of the night, took her to the
canteen, and even took her out of school in the middle of
the day to have sex with her. In March 1993 it came to
Nora Burley's attention that another YDC resident alleged
that Whetzel and Guyaux were having sex. Burley set up a
meeting to investigate these allegations. Whetzel br ought
Guyaux to the meeting and threatened her en r oute, saying
that he would extend her stay at YDC if she said anything.
Guyaux thus denied having sex with Whetzel at the
meeting; Liggett was not notified of the allegation.

Tina McAfee was at YDC from May 1994 to February
1995. During this time, Whetzel counseled McAfee about
her previous sexual abuse as a child. At one session, while
McAffee was talking about past instances of rape and
abuse, Whetzel asked her if it felt good and pointed to her
vagina. Subsequently, Whetzel would wake McAfee in the
middle of the night to have sex with her. On a couple of
occasions, Flecher became aware of rumors that Whetzel
was having sex with McAfee (one of the times it was
Whetzel himself who approached Flecher, expressing
"concern" over these "rumors"). Flecher twice talked to
McAfee about these allegations, but she denied them both
times. Flecher never informed Liggett about the allegations.

                               10



Finally, during his investigation of the reports that Tate
and Whetzel had sex on Decemeber 12, 1994, investigator
Robert McLean learned from Flecher that another female
resident of YDC, Jochabed Good, had told a judge in mid-
1994 that "YDC was unsafe and `some staf f members at the
YDC are having sex with students.' " It is not clear from the
record when Flecher became aware of Good's allegation, or
what Flecher did in response.

D. Procedural History

The plaintiffs brought suit in the District Court for the
Western District of Pennsylvania under 42 U.S.C. S 1983,
alleging that they were subjected to cruel and unusual
punishment in violation of the Eighth Amendment of the
United States Constitution because they were sexually
assaulted by Whetzel while incarcerated at YDC. 5 All of the
defendants except Whetzel moved for summary judgment.
In deciding this motion, the District Court applied the two-
part test from Farmer v. Brennan, 511 U.S. 825 (1994), for
finding an Eighth Amendment violation by a prison official:
(1) a sufficiently serious constitutional deprivation; and (2)
deliberate indifference by the prison official-defendants.

As noted above, it is not disputed that the sexual abuse
suffered by the plaintiffs was sufficiently serious to support
an Eighth Amendment claim, so the key issue in the case
is whether the defendants exhibited deliberate indif ference
to the plaintiffs' health or safety. The District Court granted
the defendants' motion for summary judgment, concluding
that the plaintiffs had not "demonstrated a triable issue of
fact as to whether any of the moving defendants wer e
deliberately indifferent to a substantial risk to [the]
plaintiffs' rights." D. Ct. Mem. Op. at 8. This timely appeal
followed. The District Court had jurisdiction pursuant to 28
U.S.C. SS 1331 & 1343, and we have jurisdiction pursuant
_________________________________________________________________

5. The plaintiffs also originally br ought claims under the Fourth, Ninth,
and Fourteenth Amendments. The District Court r ejected these claims
because it concluded that an Eighth Amendment analysis was the
proper one to use for claims arising fr om incarceration in a facility for
juvenile offenders. See Dist. Ct. Mem. Op. at 7. The plaintiffs do not
press these other claims on appeal.

                                11



to 28 U.S.C. S 1291. We set forth the familiar standard of
review of grants of summary judgment in the mar gin.6

II. Discussion

Because this case turns on the plaintif fs' claims of
deliberate indifference, we begin our analysis with an
examination of the Supreme Court and Thir d Circuit
jurisprudence on deliberate indifference in the context of an
Eighth Amendment prison conditions claim. We then apply
this analytical structure to the plaintif fs' claims against
each of the defendants.

A. The Law on Deliberate Indiffer ence in a Prison
       Conditions Case

1.

The leading Supreme Court case setting forth the Eighth
Amendment deliberate indifference analysis for a prison
conditions case is Farmer v. Brennan, 511 U.S. 825 (1994).
In Farmer, the Supreme Court r eversed a grant of summary
judgment for various defendant prison officials on the
plaintiff 's Eighth Amendment claim, which was based on
the deliberate indifference that the officials allegedly
showed to his risk of being sexually assaulted in prison. In
its analysis on what type of showing is needed to establish
deliberate indifference by a defendant, Farmer rejected an
objective test for deliberate indiffer ence; instead it looked to
what the prison official actually knew rather than what a
_________________________________________________________________

6. We exercise plenary review over a District Court's grant of summary
judgment and review the facts in the light most favorable to the party
against whom summary judgment was entered. See Pi Lambda Phi
Fraternity, Inc. v. University of Pittsburgh, 229 F.3d 435, 441 n.3 (3d
Cir.
2000). Summary judgment is proper if ther e is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the
non-moving party, the moving party is entitled to judgment as a matter
of law. See F.R.C.P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
At the summary judgment stage, the judge's function is not to weigh the
evidence and determine the truth of the matter , but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).

                                12
reasonable official in his position should have known. More
specifically, the Court held that "a prison official cannot be
found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate
health or safety." Id. at 837.

This requirement of actual knowledge means that "the
official must both be aware of facts fr om which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the infer ence." Id.
Farmer explained, however, that this subjective knowledge
requirement does not mean that a prison official can avoid
liability by remaining deliberately indif ferent to an excessive
or substantial risk of serious harm to prisoners:

       We are no more persuaded by petitioner's argument
       that, without an objective test for deliberate
       indifference, prison officials will be free to ignore
       obvious dangers to inmates. Under the test we adopt
       today, an Eighth Amendment claimant need not show
       that a prison official acted or failed to act believing that
       harm actually would befall an inmate; it is enough that
       the official acted or failed to act despite his knowledge
       of a substantial risk of serious harm.

Id. at 842.

Moreover, a defendant's knowledge of a risk can be
proved indirectly by circumstantial evidence. "[A] factfinder
may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious." Id. (citing
Wayne R. LaFave & Austin W. Scott, Jr ., Substantive
Criminal Law S 3.7, p. 335 (1986) ("[I]f the risk is obvious,
so that a reasonable man would realize it, we might well
infer that [the defendant] did in fact r ealize it. . . .")). In
fact, Farmer anticipated that a plaintiff could make out a
deliberate indifference case by showing that prison officials
simply were aware of a general risk to inmates in the
plaintiff 's situation:

       [I]f an Eighth Amendment plaintiff pr esents evidence
       showing that a substantial risk of inmate attacks was
       longstanding, pervasive, well-documented, or expr essly
       noted by prison officials in the past, and the

                               13



       circumstances suggest that the defendant-official being
       sued had been exposed to information concer ning 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 (quotation marks and citation omitted).
Similarly, Farmer made clear that a prison official
defendant cannot escape liability by showing that he did
not know that this particular inmate was in danger of
attack: "it does not matter . . . whether a prisoner faces an
excessive risk of attack for reasons personal to him or
because all prisoners in his situation face such a risk." Id.
at 843.

Farmer emphasized further that, while a prison official's
knowledge of an excessive risk of serious har m may be
inferred from the fact that the risk is obvious, this inference
is not compelled, as the official always must have an
opportunity to show that he was unaware of the risk. See
id. at 844. Finally, the official who is actually aware of the
risk to the prisoner can avert liability by showing that he
responded reasonably to the risk, even if the ultimate harm
was not avoided. See id.

The Court in Farmer also discussed the showing that a
plaintiff needs to make to survive a summary judgment
motion on a deliberate indifference claim. Although this
discussion was in the context of a claim for an injunction,
it may be applied to a claim for damages. The Court stated
that "to survive summary judgment, [the plaintiff] must
come forward with evidence from which it can be inferred
that the defendant-officials were at the time suit was filed,
and are at the time of summary judgment, knowingly and
unreasonably disregarding an objectively intolerable risk of
harm." Id. at 846. We r ead this discussion in Farmer to
mean that, to defeat the summary judgment motion, Beers-
Capitol and Tate must present enough evidence to support
the inference that the defendants "knowingly and
unreasonably disregarded an objectively intolerable risk of
harm."

Our decision in Hamilton v. Leavy, 117 F .3d 742 (3d Cir.
1997), is instructive because it applies Far mer's deliberate

                               14



indifference test to a situation somewhat similar to the case
at bar. In Hamilton, a prisoner br ought an Eighth
Amendment deliberate indifference claim against certain
prison officials, alleging that the officials were deliberately
indifferent to the risk to his safety posed by other inmates
when they transferred him to a certain Delawar e state
prison. Plaintiff Hamilton had been attacked and seriously
injured by other inmates at this prison. The court granted
summary judgment for Lewis, the prison official who was in
charge of prisoner transfers, on the basis of Lewis's affidavit
that she did not know of any risk posed to Hamilton by the
transfer. The district court granted summary judgment to
the other defendants, who were members of the prison
system's "Multi-Disciplinary Team" (MDT), because the
court concluded that the MDT had acted reasonably and
"did everything they could" after they lear ned of the risk to
Hamilton (the MDT had recommended that Hamilton be
placed in protective custody at the prison before he was
attacked). Id. at 748. We reversed.

First, we noted that Hamilton had presented sufficient
circumstantial evidence that Lewis was awar e of the risk
posed to Hamilton to survive summary judgment: Lewis
had probably received the MDT recommendation (she did
not deny this); Lewis knew that Hamilton was a prison
informant and thus was more likely to be harmed by other
inmates; and Lewis herself had approved pr otective custody
for Hamilton on two prior occasions. See id. at 747. We held
that this proffered evidence was similar to the type of
circumstantial evidence anticipated as sufficient by Farmer,
i.e., it was sufficient evidence "upon which a factfinder
could conclude that Lewis `must have known' of the risk to
Hamilton's safety." Id. at 748 (quoting Farmer, 511 U.S. at
842). Second, we reversed the grant of summary judgment
for the MDT defendants because Hamilton demonstrated
that there was a genuine issue of fact as to whether these
defendants could have done something more than merely
offer a recommendation; for example, they could have
placed Hamilton in administrative segregation. We thus
held that "there remains a genuine issue of material fact
regarding whether the MDT's response to the risk Hamilton
faced was reasonable." Id.

                               15



From Farmer and Hamilton we extract the following
precepts. To be liable on a deliberate indifference claim, a
defendant prison official must both "know[ ] of and
disregard[ ] an excessive risk to inmate health or safety."
Farmer, 511 U.S. at 837. The knowledge element of
deliberate indifference is subjective, not objective
knowledge, meaning that the official must actually be aware
of the existence of the excessive risk; it is not sufficient that
the official should have been aware. See id. at 837-38.
However, subjective knowledge on the part of the official
can be proved by circumstantial evidence to the effect that
the excessive risk was so obvious that the official must
have known of the risk. See id. at 842. Finally, a defendant
can rebut a prima facie demonstration of deliberate
indifference either by establishing that he did not have the
requisite level of knowledge or awareness of the risk, or
that, although he did know of the risk, he took r easonable
steps to prevent the harm from occurring. See id. at 844.

2.

The plaintiffs' theory as to how the defendants' actions
and inactions constitute deliberate indiffer ence proceeds
along two basic lines. First, the plaintiffs contend that some
of the defendants knew of the abuse committed by Whetzel
or were aware of the high risk of abuse, but declined to act
or to seek more information about it. Second, the plaintiffs
also claim that the supervisor defendants, while per haps
not aware of the particular risk that Whetzel posed to these
specific plaintiffs, implemented policies that were so
defective that they created an unreasonable and excessive
risk of abuse to the female residents generally at YDC, and
that the defendants were aware of this risk.

Both of these approaches depend upon the thesis that all
of the defendants were trained experts in the area of
juvenile detention, so that, given what they knew, they
must have been aware of the excessive risks of harm to the
plaintiffs that existed at YDC. In particular , the plaintiffs
contend that those defendants who were r esponsible for
implementing the policies at YDC had to know that the
policies and procedures at YDC created substantial general
risks of sexual abuse for the female residents there, as

                               16



these defendants were trained how to minimize those risks.
The plaintiffs assert further that those defendants who
worked directly with the female residents had to know of
the particular risk that Whetzel posed because they were
trained to recognize cases of sexual abuse and they were
aware of persistent allegations of his sexual r elationships
with the residents.

The deliberate indifference claims implicating supervisors
for their deficient policies are more complicated than the
other, more direct deliberate indif ference claims, because
the former add another level to the analysis. Both the
plaintiffs and the defendants argue that we should analyze
the supervisor-centered claims under the four-part test for
supervisor liability developed in Sample v. Diecks, 885 F.2d
1099 (3d Cir. 1989).7 Sample involved a claim that a
supervisor was liable for a subordinate's Eighth
Amendment violation because the supervisor implemented
deficient policies and was deliberately indif ferent to the risk
these policies generated. Although the claim in Sample does
not seem to be precisely the same as the plaintiffs' claim in
the case at bar--Sample concerned whether a supervisor
could be liable for a subordinate's Eighth Amendment tort
while the plaintiffs here seem to claim that the supervisors
committed their own Eighth Amendment violations by
implementing defective policies--we do not think this
difference material.

In Sample, the plaintiff (Sample) had his life sentence for
murder vacated by the Pennsylvania Supr eme Court, and
was granted bail pending the new trial. Although his family
_________________________________________________________________

7. Although Sample was decided before Farmer, nothing in the Sample
opinion that we rely on here conflicts with Farmer. Indeed, we have used
parts of Sample's analysis of supervisor liability on a deliberate
indifference claim in at least one case after Farmer. See Carter v. City
of
Philadelphia, 181 F.3d 339, 356-357 & n.61 (3d Cir. 1999). District
courts in this circuit have also applied the Sample four-part test for
determining supervisor liability on deliberate indifference claims after
Farmer. See, e.g., Andrews v. Camden County, 95 F. Supp. 2d 217, 228-
29 (D.N.J. 2000); Burch v. Reeves, 1999 WL 1285815 at *2-*3 (E.D. Pa.
Dec. 20, 1999); Carrigan v. Delaware, 957 F. Supp. 1376, 1382-83 (D.
Del. 1997); Wagner v. Pennsylvania, 937 F. Supp. 510, 516 (W.D. Pa.
1995).

                               17



was ready to post bail, the senior recor ds officer (Diecks)
determined that Sample still had time to serve on another
sentence. In fact, Diecks was mistaken, and by the time
this mistake was rectified, Sample had served an additional
nine months. Sample sued Diecks and William Robinson,
the Commissioner of the Pennsylvania Bureau of
Corrections. Diecks was found liable for an Eighth
Amendment violation for his deliberate indif ference. The
apposite precedent concerns the question whether
Robinson was liable on the Eighth Amendment claim, as
Diecks' supervisor, for failing to pr operly supervise and
implement policies and practices that would have pr otected
against the constitutional violation.

Presented with these facts, we developed a four -part test,
based on the Supreme Court's reasoning in City of Canton
v. Harris, 489 U.S. 378 (1989), for supervisor liability on an
Eighth Amendment claim for failure to pr operly supervise.
Under this regime, to hold a supervisor liable because his
policies or practices led to an Eighth Amendment violation,
the plaintiff must identify a specific policy or practice that
the supervisor failed to employ and show that: (1) the
existing policy or practice created an unr easonable risk of
the Eighth Amendment injury; (2) the supervisor was aware
that the unreasonable risk was created; (3) the supervisor
was indifferent to that risk; and (4) the injury resulted from
the policy or practice. See Sample, 885 F .2d at 1118.

According to Sample, one way--per haps the easiest way--
a plaintiff can make out a supervisor liability claim is by
showing that "the supervisory official failed to respond
appropriately in the face of an awareness of a pattern of
such injuries." Id. But that is not the only way to make out
such a claim, as "there are situations in which the risk of
constitutionally cognizable harm is so gr eat and so obvious
that the risk and the failure of supervisory officials to
respond will alone support findings of the existence of an
unreasonable risk, of knowledge of that unr easonable risk,
and of indifference to it." Id.8
_________________________________________________________________

8. Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir.
1989), used a test similar to Sample's in considering a claim made under
the second method of showing deliberate indif ference (existence of "so

                               18



In sum, to make out a claim of deliberate indif ference
based on direct liability (i.e., insofar as the defendants are
alleged to have known of and ignored the particular risk
that Whetzel posed), the plaintiffs must meet the test from
Farmer v. Brennan: They must show that the defendants
knew or were aware of and disregar ded an excessive risk to
the plaintiffs' health or safety, and they can show this by
establishing that the risk was obvious. For the plaintiffs'
claims seeking to hold supervisors liable for their deficient
policies, Sample's four-part test pr ovides the analytical
structure for determining whether the policymakers
exhibited deliberate indifference to the plaintiffs' risk of
injury, it being simply the deliberate indif ference test
applied to the specific situation of a policymaker .

B. The Allegations Against the Defendants: Applying The
       Test

1. Robert Liggett, Executive Director of YDC

As the Executive Director of YDC, Liggett has ultimate
responsibility for the overall operation of YDC. His duties
include managing YDC's daily operation, supervising and
training the staff, and formulating and implementing all
operational policies, regulations, and practices. The
plaintiffs concede that Liggett did not have actual
knowledge of Whetzel's abuse of the plaintif fs, nor of the
specific risk that Whetzel posed to the plaintif fs, until after
the fact. Instead, the plaintiffs level a claim of supervisor
liability against Liggett, contending that the policies and
_________________________________________________________________

great and so obvious" a risk). In Stoneking, the plaintiff, a student in
the
Bradford school district, sought to hold the school district and its
officials liable for a teacher's sexual assault on her, on the theory that
the school district and officials maintained a practice, custom, or policy
of deliberate indifference to instances of known or suspected sexual
abuse by teachers. Stoneking, like Sample, followed the reasoning of City
of Canton, and held that "if the need for mor e or different training is
so
obvious, and the inadequacy so likely to result in the violation of
constitutional rights, `the policymakers . . . can reasonably be said to
have been deliberately indifferent to the need.' " Id. at 725 (quoting
City
of Canton v. Harris, 489 U.S. 378, 390 (1989)).

                                19



procedures that Liggett implemented and approved created
an unreasonably unsafe environment at YDC that allowed
Whetzel to commit his abuse over an extended period, and
that Liggett knew that his policies were deficient in this
way.

The plaintiffs' allegations of Liggett's policymaking
inadequacies fall into three categories: (1) the failure to
follow accepted standards for the basic structure and
staffing of juvenile residential facilities; (2) the failure to
properly train staff to recognize child abuse; and (3) the
promulgation of de facto policies and the failure to
implement other policies, ultimately leading to the stifling of
complaints of abuse and incompetent investigations of the
complaints that were made. The plaintif fs' expert, John
Cocoros (a consultant with extensive experience in the field
of residential facilities for delinquent youths), opined in a
written report prepared for the plaintiffs that these
deficiencies created a situation in which YDC failed to have
"basic precepts of institutional management without which
no administrator can claim to operate a facility which
provides safety and security for its staf f and residents,"
thus "unnecessarily plac[ing] juveniles at high risk for
abuse at the hands of staff " and "cr eating an environment
in which eventual abuse was virtually predictable."

Regarding the first area of allegedly deficient
policymaking by Liggett, the plaintiffs point to five
inadequacies with the basic structure of YDC: (1) YDC did
not require that a female staff member be present at all
times in the female units, in contravention of the American
Correctional Association's Standards for Juvenile Training
Schools No. 3-JTS-3A-07; (2) there was poor or nonexistent
supervision of the staff at night (when Whetzel committed
many of his abuses); (3) YDC had no observation or
surveillance system (thus ensuring that Whetzel could take
female residents to areas where they would be unobserved);
(4) YDC permitted private, unsupervised interactions
between male staff and female residents; and (5) YDC
permitted unsupervised trips off-gr ounds by female
residents solely accompanied by male staf f.

With respect to the failure of staf f training, the plaintiffs
contend that, despite rules that requir ed and staff training

                               20



that emphasized that all allegations of abuse be r eported,
Liggett allowed staff members to decide on their own
whether to report an allegation. Because the allegations
against Whetzel were reported to dif ferent staff members,
many of whom did not report those allegations to Liggett,
no one person knew the extent of the allegations against
Whetzel. In their brief, the plaintiffs list seven different
employees who were aware of differ ent allegations against
Whetzel but who did not report these allegations to Liggett.
See Pls.' Br. at 24 n.8. The plaintif fs argue that Liggett's
failure to have any sort of review pr ocedure in place to
determine whether the notification policy was being
followed, along with his failure to discipline these
employees after this information came out or to train them
properly in the first place, were serious policy deficiencies
that, according to Cocoros, led to the cr eation of a staff
subculture in which a staff member's abuses could go
unaddressed.

Finally, the plaintiffs assert that Liggett's policies failed to
provide the juveniles under his care with multiple and
easily accessible opportunities for them to r eport abuse.
They contend that any reports of abuse that wer e made
were incompetently investigated under Liggett's overall
supervision. According to the plaintiffs, Liggett's policies
allowed his staff to respond to initial allegations with
threats (Robinson, Whetzel) and confrontation (Earnhart).
When a report did reach Liggett, he is alleged either to have
failed to initiate an investigation (as with Jocheded Good's
allegation),9 or to have initiated inadequate investigations
(as with the two Tate allegations, both of which were
determined by YDC to be unfounded although the
_________________________________________________________________
9. At one point in their brief, the plaintif fs claim that Liggett knew
about
Good's allegation, but in another section they assert that Flecher failed
to notify Liggett of Good's allegation. See Pls.' Br. at 24, 32. The
implication of the plaintiffs' claim that Flecher did not inform Liggett
of
the allegation is that Flecher knew of the allegation but Liggett did not;
thus, the plaintiffs' claims here may be inconsistent. Because we must
draw all inferences in favor of the non-moving party in a review of a
summary judgment motion, we conclude for the purposes of this appeal
that Flecher did not inform Liggett of Good's allegation but that Liggett
learned of it through some other means.

                               21



Pennsylvania state police determined them to be true in its
investigation).

Because we are reviewing the District Court's grant of
summary judgment, we take the above allegations to be
true and we must now consider whether they ar e legally
sufficient to support a claim of deliberate indif ference past
the summary judgment stage. More specifically, the
relevant issue is whether the above-described policymaking
inadequacies raise a genuine issue of material fact as to
whether the four-part test for deliberate indifference from
Sample is met. As we noted above, Sample provides two
methods of meeting this test: (i) showing that the
supervisor failed to adequately respond to a pattern of past
occurrences of injuries like the plaintif fs', or (ii) showing
that the risk of constitutionally cognizable har m was "so
great and so obvious that the risk and the failure of
supervisory officials to respond will alone" support finding
that the four-part test is met. Sample v. Diecks, 885 F.2d
1099, 1118 (3d Cir. 1989).

We conclude that the plaintiffs have not met their burden
of showing the existence of a genuine issue of material fact
as to whether Liggett exhibited deliberate indif ference in his
policymaking. Considering the first method of meeting the
Sample test, the plaintiffs have not shown that Liggett was
aware of a "pattern" of sexual assaults being committed by
YDC employees. See id. At most, they have alleged that
Liggett was aware of Good's allegation and that he was
aware of two allegations regarding T ate. Such knowledge
cannot benefit Beers-Capitol in her claim against Liggett
because the behavior described in the allegations occurred
after her abuse, and a successful deliberate indif ference
claim requires showing that the defendant knew of the risk
to the plaintiff before the plaintiff 's injury occurred. See
Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997)
(holding that a plaintiff cannot make out a deliberate
indifference claim against prison officials for a prison attack
when the plaintiff presented evidence that the defendants
knew of the attack afterwards but presented no evidence
that defendants knew of the risk to the defendant before
the attack). Because Whetzel's abuse of Beers-Capitol
occurred approximately eight months befor e Whetzel's

                               22



abuse of Tate, some evidence of the defendants' awareness
of Whetzel's activities is available to Tate but not Beers-
Capitol.

Tate could argue that Liggett knew of Good's allegation
and her first allegation before her final abuse had occurred,
but we do not believe that two allegations constitute a
"pattern of past occurrences" as contemplated by Sample.
Furthermore, even if two instances is a pattern, this is not
a pattern of known injuries, but a pattern of known
allegations, which is quite differ ent; they are known to be
injuries now, but it is what Liggett knew at the time, not
what he knows now, that is material.

The plaintiffs concentrate their argument on the second
method of meeting the Sample test--the existence of "so
great and so obvious" a risk, which is alleged to have arisen
as a result of deficient policies and practices that were in
place before the attacks on Beers-Capitol. T o make their
argument, the plaintiffs point to Cocor os's conclusion that
YDC's administration showed "reckless disr egard for the
safety of residents." This conclusion is suf fused with legal
considerations, and it is our province to deter mine whether
the factual conclusions in Cocoros's report support the
legal conclusion of deliberate indiffer ence. The report shows
that YDC did not implement a number of policies that were
standard or recommended in the juvenile detention field,
and that YDC's policies and procedures could have been
better. We note in passing that the r eport, if accurate, is an
indictment of the administration of the YDC by Liggett and
the Pennsylvania Department of Public Welfar e. Most
importantly, the plaintiffs argue for cefully that Liggett's
policymaking created an "institutional mindset" that
allowed Whetzel's abuse to go on for as long as it did.

The deliberate indifference standar d as set out in Farmer
is a high one, however--requiring actual knowledge or
awareness on the part of the defendant--and the plaintiffs'
evidence here is not sufficient to cr eate a genuine issue of
material fact as to whether the above policies and practices
created a risk of harm to the plaintif fs that was "so great
and so obvious" that Liggett must have known of the
excessive risk but was indifferent to it. Although Cocoros's
report does seem to raise a genuine issue as to Liggett's

                               23



negligence, it is not "evidence from which it can be inferred"
that Liggett "knowingly and unreasonably disregard[ed] an
objectively intolerable risk of harm." Farmer, 511 U.S. at
846; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir.
1996) (holding that evidence that a minimally competent
doctor would have treated the plaintiff prisoner correctly
while the defendant doctor did not is insufficient under
Farmer to survive the defendant's motion for summary
judgment in a deliberate indifference case).

As we have explained, using circumstantial evidence to
prove deliberate indifference r equires more than evidence
that the defendants should have recognized the excessive
risk and responded to it; it requir es evidence that the
defendant must have recognized the excessive risk and
ignored it. The plaintiff 's evidence may raise an issue of
material fact as to the former but it does not for the latter.
We therefore will affirm the District Court's grant of
summary judgment for Liggett.

2. Charles Earnhart, Director of Unit 7

Earnhart was the unit director of Unit 7 during the
relevant time period, responsible for the day-to-day
operations of Unit 7, which included supervising the staff of
the unit and reviewing and evaluating r eports and
scheduled work. Earnhart directly supervised the unit
managers, meeting with these managers daily.

The plaintiffs' deliberate indiffer ence claims against
Earnhart involve a combination of direct and supervisor
liability. First, the plaintiffs assert that Earnhart
participated in formulating and implementing the policy
that allowed the night shift in the female r esidents' unit to
be without a female staff member, as well as the policy
permitting unsupervised male staff to take female residents
off-grounds. The analysis of this claim of deliberate
indifference proceeds along the same lines as outlined
above for Liggett (with the four-part test fr om Sample), but
this supervisory-based claim is weaker than the one against
Liggett that we rejected above. As to whether Earnhart was
aware of a pattern of past injuries, the facts as alleged only
support the conclusion that he knew of Beers-Capitol's

                               24
allegation, and one incident does not a patter n make. As to
the "so great and so obvious a risk" method of meeting
Sample's test, the analysis begins and ends just as it did
for Liggett. In fact, because Earnhart's supervisory
responsibility at YDC was not as great as Liggett's, there is
less evidence that Earnhart's policies cr eated a risk that
was "so great and so obvious" that he must have known of
the excessive risk but was indifferent to it. For these
reasons, the plaintiffs' claims of deliberate indifference
against Earnhart based on supervisor liability cannot
survive summary judgment.

The plaintiffs also submit that Earnhart directly
exhibited deliberate indifference to the plaintiffs' injuries
through two other actions: (1) by failing to discipline
Robinson for delaying her reporting of Beers-Capitol's
allegation of abuse; and (2) by mishandling Beers-Capitol's
allegation, in that (a) Earnhart did not r eport it to Liggett
(as required by law); and (b) Earnhart "undertook a wholly
inadequate investigation," namely, merely calling Beers-
Capitol at home and asking her over the phone if the abuse
occurred.10

We note first that Beers-Capitol cannot use the above two
actions to support her claim that Earnhart was aware of
the risk of abuse to her because these actions took place
after Beers-Capitol's abuse. In the absence of any other
evidence that Earnhart was aware of an excessive risk to
Beers-Capitol, Beers-Capitol cannot make out a dir ect
deliberate indifference claim against Ear nhart. See Lewis v.
Richards, 107 F.3d 549, 553 (7th Cir. 1997).

However, Tate can claim that Ear nhart's actions
surrounding Beers-Capitol's abuse (which occurr ed before
the abuse Tate suffered) ar e evidence that, by the time of
Tate's abuse, Earnhart was aware of but ignored the
excessive risk to the female residents posed by Whetzel. We
nonetheless conclude that this evidence is insufficient to
create a genuine issue of material fact as to whether
Earnhart was deliberately indiffer ent. It is not apparent
_________________________________________________________________

10. Although it is unclear from the r ecord whether Earnhart called
Beers-Capitol himself or had Flecher call Beers-Capitol, see supra page
8 & note 4, this does not affect our analysis.

                               25



how Earnhart's failure to discipline Robinson for her brief
delay in reporting Beers-Capitol's allegation demonstrates
that Earnhart was deliberately indiffer ent to a risk to Tate.
Furthermore, although Earnhart pr obably should have
better handled the investigation into Beers-Capitol's
allegation, this lapse is not nearly enough to clear the high
bar set by Farmer: raising an infer ence that he "knowingly
and unreasonably disregard[ed] an objectively intolerable
risk of harm." Farmer, 511 U.S. at 846. We therefore will
affirm the District Court's grant of summary judgment for
Earnhart.

3. Joseph Flecher, Manager of Unit 7

Flecher was the unit manager for Unit 7 during the
relevant time period. Unit managers are r esponsible for
developing, coordinating, and administering pr ogram
services for their unit; they also directly supervise the
cottage supervisors within their unit. As with Ear nhart, the
plaintiffs' claims of Flecher's deliberate indifference
combine direct and supervisor liability. First, the plaintiffs
claim that Flecher failed to adequately train the staff under
him to recognize abuse. Second (and relatedly), plaintiffs
assert that Flecher carried out a de facto policy of failing to
notify Liggett of allegations of abuse and of disbelieving
such allegations when they were presented to him, because,
as Flecher stated to Investigator McLean, "these types of
accusations occur on a frequent basis when female
students become upset or angry with staff members." The
plaintiffs also have presented evidence that supports a
claim of direct liability against Flecher , namely that, in the
time period before Tate's abuse but after Beers-Capitol's,
Flecher had notice of, but did not adequately r espond to,
Whetzel's abusive activities.11 The evidence is: (1) Flecher's
failure to notify Liggett of Beers-Capitol's allegations; (2)
Flecher's failure to notify Liggett of Good's allegations; (3)
Flecher's failure to notify Liggett of McAfee's allegations; (4)
Flecher's failure to make any recor ding of McAfee's
_________________________________________________________________

11. As above, this evidence only supports T ate's claim against Flecher,
not Beers-Capitol's, because all of these actions occurred after Beers-
Capitol's abuse.

                                26



allegations; and (5) Flecher's failure to conduct adequate
investigations of Beers-Capitol's, McAfee's, and Good's
allegations.

Of the three supervisor defendants (Liggett, Earnhart,
and Flecher), Flecher appears to be the one who had the
most information about what was going on with Whetzel.
Furthermore, because he was the manager of Unit 7,
Flecher was in a position both to conduct investigations
into Whetzel's behavior and to inform Liggett of any
problems and allegations regarding Whetzel. The plaintiffs
argue that the combination of Flecher's knowledge of the
allegations against Whetzel, Flecher's failur e to follow YDC
procedures and Pennsylvania law in not notifying Liggett of
these allegations, and Flecher's own inadequate
investigations of the allegations together cr eate a genuine
issue of fact as to Flecher's deliberate indif ference.
Although there is no direct evidence that Flecher was aware
of Whetzel's activities, the plaintiffs contend that Flecher
had heard enough allegations against Whetzel and knew
enough about the inadequate system for addressing those
allegations that he must have known of the excessive risk
of harm to the plaintiffs.

While this issue is a close one, we conclude that the
plaintiffs' evidence does not create a genuine issue of fact
as to Flecher's deliberate indifference. The plaintiffs have
provided evidence that Flecher was awar e of three
allegations of abuse by Whetzel, but there is no evidence
that Flecher believed that these allegations wer e likely to be
true, or that the evidence surrounding the allegations was
so strong that he must have believed them likely to be true.
In fact, the plaintiffs have presented evidence that Flecher
disbelieved the allegations: his statement to McLean that
"these types of accusations occur on a fr equent basis when
female students become upset or angry with staf f
members." See supra note 3. This statement is illuminating
of Flecher's subjective mindset of basic skepticism
regarding the allegations raised by the female YDC
residents; although this mindset does not comport well with
YDC's official policies and Pennsylvania law, it is also
inconsistent with the subjective knowledge of a risk
required for deliberate indiffer ence under Farmer.

                               27



The plaintiffs here have failed to pr esent the kind of
evidence that successful plaintiffs have pr esented in
deliberate indifference cases after Farmer: evidence that
directly shows that Flecher either knew of the excessive risk
to the plaintiffs or was aware of such overwhelming
evidence that he had to know of such a risk. The case is
thus different from Hamilton v. Leavy, 117 F.3d 742 (3d
Cir. 1997), where we reversed the grant of summary
judgment in a deliberate indifference case for a prison
official defendant who was in charge of prison transfers.
The plaintiff in Hamilton presented evidence that, before the
attack, the defendant had received a recommendation that
the plaintiff be placed in protective custody because of his
risk of being attacked, the defendant knew that the plaintiff
was more likely to be attacked because he was a prison
informant, and the defendant had approved putting the
plaintiff in protective custody on two pr evious occasions.12
The plaintiffs' evidence against Flecher falls well below this
level.

Flecher investigated McAfee's allegation, and either he or
Earnhart investigated Beers-Capitol's allegation (the record
is not clear what happened with Good's allegation).
Although these investigations may have been inadequate,
we do not review the adequacy of a defendant's response to
an excessive risk to inmate safety in a deliberate
indifference case until the plaintif f has established that the
defendant knew or was aware of that risk. See Farmer, 511
U.S. at 844. The performance of a less-than-thorough
investigation of a risk does not show that the investigator
_________________________________________________________________

12. See also Spruce v. Sargent, 149F.3d 783 (8th Cir. 1998) (reversing
district court's judgment as a matter of law for one defendant in a
deliberate indifference case because the plaintiff-prisoner presented
documents signed by that defendant which contained numerous
references to sexual attacks the plaintif f was suffering, but affirming
judgment for another defendant because the plaintif f did not present
similar evidence as to that defendant); Pavlick v. Mifflin, 90 F.3d 205
(7th
Cir. 1996) (affirming entry of judgment for the plaintiff-prisoner in
deliberate indifference case because the plaintiff presented evidence
that,
moments before he was attacked while sleeping in his cell by prison gang
members who had a grudge against him, the defendant, a prison guard,
was outside plaintiff 's cell talking with these gang members, and then
the defendant unlocked the door to plaintiff 's cell and walked away).

                               28



believed that the excessive risk existed--indeed, it may
show the opposite. Finally, Flecher's failur e to notify Liggett
of these allegations is evidence of negligence in the
performance of his job, but it does nothing to support the
claim that he knew or must have known of the excessive
risk to the plaintiffs.

The most that the plaintiffs show is that Flecher followed
a set of de facto rules and policies that involved his
deciding on his own whether and how to investigate certain
allegations of abuse, in violation of YDC policy and
Pennsylvania law. While this course of action was
imprudent, and in fact led to a very regr ettable outcome, it
does not constitute deliberate indiffer ence as the Supreme
Court defined that concept in Farmer. Moreover, the
plaintiffs have presented no other evidence that shows that
Flecher was subjectively aware of the excessive risk to the
plaintiffs. The plaintiffs have thus failed to raise a genuine
issue of fact as to the existence of deliberate indifference on
the part of Flecher, and we will affir m the District Court's
grant of summary judgment in his favor.

4. Nora Burley, Counselor in Unit 7

Burley worked in Unit 7 as a counselor; her job was to
provide security in the unit and monitor r esident
interactions. The plaintiffs' deliberate indif ference claims
against Burley center solely on direct liability, as Burley
was not a supervisor. The plaintiffs pr esent fairly
substantial evidence of Burley's knowledge or awar eness of
the excessive risk that Whetzel posed to the female
residents. Burley testified in a deposition that, while she
was at YDC, she had heard general rumors fr om the
residents that Whetzel was having sex with some of the
female residents, but she did not investigate these rumors
or report them to her supervisors. She did, however, make
file notes of these rumors "[t]o cover my behind, in case it
were true."

Burley was also told on a couple of occasions that
Guyaux claimed to have a sexual relationship with Whetzel.
Burley did not inform her supervisors of this allegation, but
instead set up a meeting with Whetzel, Guyaux, and

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another counselor to ask Guyaux about it.13 Burley also
testified that she knew McAfee had a sexual inter est in
Whetzel, although she did not report or investigate this.
Finally, and most tellingly, Tate testified in her deposition
that Burley admitted to her that "she kind of knew that
[Whetzel] was messing with students" when T ate told
Burley of Whetzel's assault on her.14 [1532a, Tate Dep.]

We are satisfied that the plaintif fs have presented
sufficient evidence to raise a genuine issue of material fact
as to Burley's deliberate indifference to the excessive risk
Whetzel posed to the plaintiffs. Burley's statement to Tate
that she "kind of knew" that Whetzel was "messing" with
students is significant evidence that Burley was"aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed]" and that she
"also dr[ew] the inference." Farmer, 511 U.S. at 837. The
other evidence about what Burley knew strengthens this
conclusion. Moreover, the fact that Burley said to Tate that
she did not know that Whetzel was "messing" with Tate in
particular does not constitute a defense to a deliberate
indifference claim; Farmer is clear that a defendant need
not know that the particular inmate attacked was at risk,
as it is enough for deliberate indiffer ence if a defendant
knows that inmates in the plaintiff 's situation face such a
risk. See id. at 843-44.

For the purposes of reviewing a grant of summary
judgment for the defendants, Burley basically admitted that
she had knowledge of Whetzel's abusive activities by the
time of Tate's abuse in her statement to T ate. The difficulty
for Beers-Capitol is that this admission was made in
January 1995, approximately ten months after Beers-
Capitol was abused, and Beers-Capitol must show that
Burley knew of the risk Whetzel posed before he abused
Beers-Capitol. See Lewis v. Richards, 107 F.3d 549, 553
(7th Cir. 1997). However, even though the abuse of Beers-
_________________________________________________________________

13. This was the meeting to which Whetzel br ought Guyaux, threatening
her en route.

14. Tate's recounting of Burley's comment is admissible evidence
because, as an admission by a party-opponent, it is not hearsay under
the Federal Rules of Evidence. See Fed. R. Evid. 801(d)(2).

                               30



Capitol occurred before Burley made her admission to Tate,
we think that the evidence presented by the plaintiffs raises
a genuine issue of fact as to what Burley was awar e of
regarding Whetzel at the time Beers-Capitol was abused.

Burley's awareness of Whetzel's activities had to have
been based upon some information she r eceived before she
made her admission to Tate in January 1995. Burley
admitted in her deposition that, during her time at YDC,
she heard various rumors that Whetzel was having sex with
female residents, and she made file notes of these rumors,
"[t]o cover my behind, in case it wer e true." Because we
draw all inferences in the non-movant's favor in our review
of a summary judgment motion, we conclude that these
rumors formed at least part of the basis for her awareness
of Whetzel's activities. Burley had started to hear these
rumors at least by March 1993 (a full year before Beers-
Capitol was abused), when she set up a meeting with
Whetzel and Melissa Guyaux to investigate rumors that
Whetzel and Guyaux were having sex. Thus, Beers-Capitol
has shown that Burley received at least some of the
information that formed the basis for her awareness before
Beers-Capitol was abused.

The short of it is that, drawing all inferences in Beers-
Capitol's favor, it is possible that Burley r eceived enough
information about Whetzel's activities that she formed her
awareness of these activities by March 1994, when Beers-
Caitol was abused. This creates a genuine issue of fact as
to what Burley knew when, and the evidence pr esented
could support a conclusion by the factfinder that Burley's
awareness arose before March 1994. Under this
circumstance, the evidence presented r egarding Burley is
sufficient to get both Tate and Beers-Capitol past summary
judgment. We will thus reverse the grant of summary
judgment for Burley on both plaintiffs' claims.15
_________________________________________________________________

15. As we noted earlier, the defendants also assert qualified immunity;
the District Court did not reach this issue because it granted summary
judgment to the defendants on the merits. While it is not necessary for
us to decide this claim as to the other defendants because we will affirm
the summary judgment grants for them, it is a live issue as it relates to
Burley. The qualified immunity argument fails, however, because, to the

                               31



5. Shirley Robinson, Youth Development Aide in Unit 7

As a youth development aide, Robinson perfor med a role
that was similar to a YDC counselor's: providing security in
_________________________________________________________________

extent that the plaintiffs have made a showing sufficient to overcome
summary judgment on the merits, they have also made a showing
sufficient to overcome any claim to qualified immunity.

Under the doctrine of qualified immunity, "government officials
performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818,
(1982). It is the defendants' burden to establish that they are entitled
to
such immunity. See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720,
726 (3d Cir. 1989). That is, the defendants must show that their conduct
did not violate clearly established statutory or constitutional rights of
which a reasonable person would have known."The contours of the right
must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right." Anderson v. Creighton, 483
U.S. 635, 640 (1987). Unlike Farmer's subjective test of what the prison
official knew, the test for qualified immunity is objective. "Under the
test
announced in Harlow, reasonableness is measured by an objective
standard; arguments that the defendants desired to handle or
subjectively believed that they had handled the incidents properly are
irrelevant." Stoneking, 882 F.2d at 726 (citing Anderson v. Creighton, 483
U.S. at 641). That is, Burley is entitled to qualified immunity only if
she
can show that a reasonable person in her position at the relevant time
could have believed, in light of clearly established law, that her conduct
comported with established legal standards. See id.

There is no question that the plaintiffs' constitutional right that was
violated--the right not to be sexually abused by a state employee while
in confinement--was clearly established at the time of Burley's relevant
actions. See Farmer, 511 U.S. at 833-34; Estelle v. Gamble, 429 U.S. 97,
102-03 (1976); Stoneking, 882 F.3d at 726. The doctrine of deliberate
indifference was also clearly established at the relevant time. See
Estelle,
429 U.S. at 104-05. The key issue for our purposes is whether Burley's
relevant conduct was objectively reasonable, or, more specifically,
whether a reasonable YDC worker in her situation could have believed
that her conduct comported with established legal standards, i.e., she
was not being deliberately indifferent to the existence of an excessive
risk to the plaintiffs (either because she thought that there was no
excessive risk or because she thought that her r esponse was adequate).
We have determined, however, that the plaintiffs have raised a genuine

                               32



the units and monitoring resident interactions. As with
Burley, the plaintiffs' claims against Robinson involve only
direct liability. The plaintiffs pr offer the following two acts
as evidence of Robinson's deliberate indiffer ence: (1) when
Beers-Capitol told Robinson that Whetzel impr egnated her,
Robinson's first response was to say, "W ell, you know you
can get in trouble making accusations like that,"; and (2)
Robinson delayed reporting Beers-Capitol's allegation to her
supervisor (although it is unclear from the r ecord exactly
how long this delay was, as Robinson's and Ear nhart's
testimony differ on this point). Because these actions by
Robinson occurred after Beers-Capitol's abuse, and the
plaintiffs present no evidence regar ding Robinson's
awareness of Whetzel's activities befor e that abuse, Beers-
Capitol has presented no evidence to support her deliberate
indifference claim against Robinson. See Lewis v. Richards,
107 F.3d 549, 553 (7th Cir. 1997). T ate, however, has a
potential direct deliberate indiffer ence claim against
Robinson, as her abuse occurred after Robinson's actions,
and Tate can argue that these actions ar e evidence that, by
the time of Tate's abuse, Robinson was awar e of the risk
Whetzel posed to the female residents but was indifferent to
this risk.

Nevertheless, we conclude that the above-described
evidence is an insufficient basis for inferring that Robinson
_________________________________________________________________

issue of material fact as to whether Burley was deliberately indifferent.
Because deliberate indifference underFarmer requires actual knowledge
or awareness on the part of the defendant, a defendant cannot have
qualified immunity if she was deliberately indif ferent; a reasonable YDC
worker could not believe that her actions comported with clearly
established law while also believing that ther e is an excessive risk to
the
plaintiffs and failing to adequately r espond to that risk. Conduct that
is
deliberately indifferent to an excessive risk to YDC residents cannot be
objectively reasonable conduct. See Carter v. City of Philadelphia, 181
F.3d 339, 356 (3d Cir. 1999) (holding that, if the plaintiff succeeds in
establishing that the defendants acted with deliberate indifference to
constitutional rights, then a fortiori the defendants' conduct was not
objectively reasonable, and hence the defense of qualified immunity
would not be available to defendants). Because ther e is a genuine issue
of fact as to whether Burley was deliberately indif ferent, she has not
carried her burden to establish that she is entitled to such immunity.
We thus reject Burley's qualified immunity claim.

                               33



"knowingly and unreasonably disregar d[ed] an objectively
intolerable risk of harm." Farmer , 511 U.S. at 846. The
plaintiffs' evidence contains only a single instance where
Robinson was informed of an allegation against Whetzel.
Moreover, she did report this allegation to her supervisor
(albeit after a short delay). While Robinson's r esponse to the
allegation--telling Beers-Capitol that "you can get in trouble
making allegations like that"--was certainly inappropriate
given her responsibilities as a youth development aide, this
impropriety is not enough to show deliberate indifference.
Furthermore, Robinson did report the allegation to her
supervisor, which was a reasonable r esponse. Although
Robinson delayed her report somewhat, this minor delay
surely had little or no effect on Whetzel's risk to Tate, who
was not yet at YDC at the time of Beers-Capitol's allegation.

The most that Tate can claim is that Robinson's original
response to Beers-Capitol and her delay in r eporting the
allegation made Beers-Capitol less likely to continue to
maintain her allegation when later questioned. As with
Flecher, however, such evidence goes to the adequacy of
Robinson's response to the risk, and we do not reach that
question until we determine that there is a genuine issue of
as to Robinson's awareness of the risk. One allegation,
later denied, is not sufficient evidence for us to infer that
Robinson knew or must have known of the risk to T ate. We
therefore affirm the grant of summary judgment for
Robinson.

Conclusion

For the foregoing reasons, we will affir m the District
Court's grant of summary judgment as to the defendants
Liggett, Earnhart, Flecher, and Robinson, and reverse the
grant of summary judgment for Burley. The case will be
remanded to the District Court for further pr oceedings
consistent with this opinion. Parties to bear their own
costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               34
