               Case: 11-14864       Date Filed: 04/02/2014       Page: 1 of 24


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 11-14864
                              ________________________

                         D.C. Docket No. 1:09-cv-00283-KD-C

JODY O’NEIL HARRISON,

                                                                        Plaintiff - Appellant,

                                            versus

GRANTT CULLIVER,
SYLVESTER FOLKS,
et al.,

                                                                    Defendants - Appellees,


                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                             ________________________

                                     (April 2, 2014)

Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MARRA, ∗ District
Judge.
       ∗
          Honorable Kenneth A. Marra, United States District Judge for the Southern District of
Florida, sitting by designation.
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TJOFLAT, Circuit Judge:

       This appeal arises out of an inmate-on-inmate assault that occurred on

August 6, 2008, at the W.C. Holman Correctional Facility (“Holman”) in Atmore,

Alabama. The plaintiff, Jody O’Neil Harrison, 1 was assaulted with a knife by

another inmate, Dale Pounders, who cut Harrison’s throat, nearly killing him.

Harrison, proceeding pro se, brought this action against Warden Grantt Culliver,

Deputy Warden Sylvester Folks, Captain David Craft, and Officer Allen Lang,

seeking damages under 42 U.S.C. § 19832 for the injuries he received on August 6.

According to Harrison’s complaint, these defendants were deliberately indifferent

to the substantial risk of serious harm Harrison faced at the time of the assault, in

violation of the Eighth Amendment. 3




       1
        Harrison was serving a sentence for first degree robbery, which he began serving in
August 1995.
       2
           42 U.S.C. § 1983 provides, in relevant part:
       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to
       be subjected, any citizen of the United States or other person within the
       jurisdiction thereof to the deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for redress . . . .
       3
        The Eighth Amendment prevents the government from inflicting “cruel and unusual
punishment,” U.S. Const. amend. VIII, and is made applicable to the States via the Due Process
Clause of the Fourteenth Amendment, Wilson v. Seiter, 501 U.S. 294, 296, 111 S. Ct. 2321,
2323, 115 L. Ed. 2d 271 (1991).

                                                  2
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      The defendants denied liability and moved the District Court for summary

judgment. The court granted their motion and gave the defendants judgment.

Harrison appeals the judgment. We affirm.

                                                I.

      The record before the Magistrate Judge on summary judgment consisted of

statements Harrison and another inmate made under penalty of perjury pursuant to

28 U.S.C. § 1746, 4 an inmate’s affidavit, affidavits of the defendants, copies of the

prison’s policies governing searches of inmates and the operation of the hobby

craft shop, copies of reports of inmate incidents, and copies of two order forms

inmates sent to outside vendors for the purchase of utility knives. In subpart A, we

recount the August 6 assault on Harrison. Subpart B describes the course of the

proceedings below.
      4
          28 U.S.C. § 1746 provides:
      Wherever, under any law of the United States or under any rule, regulation, order,
      or requirement made pursuant to law, any matter is required or permitted to be
      supported, evidenced, established, or proved by the sworn declaration,
      verification, certificate, statement, oath, or affidavit, in writing of the person
      making the same (other than a deposition, or an oath of office, or an oath required
      to be taken before a specified official other than a notary public), such matter
      may, with like force and effect, be supported, evidenced, established, or proved
      by the unsworn declaration, certificate, verification, or statement, in writing of
      such person which is subscribed by him, as true under penalty of perjury, and
      dated, in substantially the following form:

      ...

      (2) If executed within the United States, its territories, possessions, or
      commonwealths: “I declare (or certify, verify, or state) under penalty of perjury
      that the foregoing is true and correct. Executed on (date). (Signature)”.
                                                3
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                                         A.

      On August 6, 2008, at approximately 3:20 p.m., Harrison was in line in an

area of Holman known as the “back hallway,” waiting to receive his medication

from the medical prescription pick-up window on the “main hallway,” which ran

perpendicular to the back hallway. While he stood in line, another inmate, Dale

Pounders, came from behind Harrison and cut his throat with a box-cutter blade

that was attached to a wooden handle. Pounders then passed the weapon into the

hobby craft shop—which is adjacent to the back hallway—through a hole in the

security screen that surrounds the hobby shop, and informed a detention officer on

the main hallway that he “just cut a rat’s throat.” Record, no. 69-4, at 11 (quoting

Dale Pounders). When asked about the knife, Pounders stated he threw the knife

down the back hallway. There is nothing in the record to indicate how Pounders

obtained the knife or what materials were used to make it. Detention officers

searched for but were unable to find the knife. It was never recovered.

      No officer was present on the back hallway at the time of the attack, and the

officers on duty in the area at the time were supervising inmates going to the

cafeteria and those going to the dispensary to pick up medicine. The back hallway

was not a duty post for a detention officer, but detention officers assigned as rovers

on the main hallway were also responsible for monitoring the back hallway. A

security camera is located on the back hallway, but it does not record video.
                                          4
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Instead, the camera feeds footage to a monitor that is manned by a detention officer

twenty-four hours a day. Multiple cameras feed into the monitor, and the monitor

displays the cameras in a loop, which leaves periods of time in which the officer is

unable to view the security footage of the back hallway. 5

       According to an inmate at Holman, the back hallway is an area of the prison

where inmates commonly go to settle disputes because detention officers were not

posted there. However, the record does not bear this assertion out. From the

incident reports produced by the defendants during discovery, it appears that from

2005 until August 6, 2008, only five assaults occurred on the back hallway. 6 Of

these back-hallway assaults, three involved knives, one involved a lock, and one

involved no weapon.

                                              B.

       On May 21, 2009, Harrison filed a pro se complaint and a motion to proceed

in forma pauperis in the Southern District of Alabama. The complaint named

Warden Culliver, Deputy Warden Folks, Captain Craft, Officer Lang, 7 and a Nurse

       5
          Warden Culliver disputes that the back hallway is not monitored 24 hours a day, but
because we are reviewing the District Court’s grant of summary judgment, we view all facts in
favor of the nonmoving party, Harrison.
       6
        From 2005 to August 6, 2008, a total of 33 assaults involving weapons were reported in
the whole facility.
       7
          The complaint improperly named “Allen Lane” as a defendant, but this appears to have
been a typo. Officer Lang signed a waiver of summons, which indicates he was on notice of the
litigation.

                                               5
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Poindexter as defendants, and alleged that the defendants had deprived Harrison of

his Eighth Amendment right not to be subjected to deliberate indifference to a

substantial risk of serious harm. The complaint alleged that the defendants were

deliberately indifferent in two ways: (1) they failed to provide adequate security on

the back hall and (2) they failed to implement and enforce a policy to ensure that

inmates could not possess a box cutter or utility knife outside of the hobby shop.8

Harrison filed a motion to amend his complaint on November 25, 9 which the

Magistrate Judge granted on March 19, 2010.

       Also on March 19, the Magistrate Judge ordered the defendants to file

special reports containing the sworn statements of all individuals with knowledge

of the subject matter of the complaint, certified copied of medical or psychiatric


       8
          The Magistrate Judge granted Harrison’s motion to proceed in forma pauperis on May
28 and ordered Harrison to pay a $25.00 fee, which he did on June 6. Once Harrison paid the
$25.00 fee, the Clerk forwarded the action to the Magistrate Judge for screening pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b). Those sections direct a court, upon the filing of a civil
action by a prisoner, to review the complaint to ensure that it raises cognizable claims and is not
frivolous. If the court determines the complaint is frivolous, malicious, fails to raise a claim
upon which relief can be granted, or raises claims against defendants who enjoy immunity, the
court is required to dismiss the action before the defendants are served. The Magistrate Judge
determined the complaint was sufficient to satisfy the requirements of 28 U.S.C. §§ 1915(e)(2)
and 1915A(b).
       9
          The amended complaint again named Warden Culliver, Deputy Warden Folks, Captain
Craft, and Nurse Poindexter, but it did not name Officer Lang. The complaint named additional
medical professionals as defendants, raising allegations that they had deprived Harrison of his
constitutional rights by failing to provide him medical treatment after the attack, but Harrison
filed a motion to dismiss these new defendants and Nurse Poindexter from the case, which the
District Court granted and dismissed these defendants without prejudice on December 21, 2010.
These defendants are not parties to the instant appeal.

                                                 6
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records, and copies of relevant administrative rules, regulations, and guidelines.

On May 28, Warden Culliver, Deputy Warden Folks, Captain Craft, and Officer

Lang filed their answer and their special report. The report included affidavits of

each defendant, as well as Holman’s standard operating procedures and certified

copies of reports of incidents involving Harrison. The Magistrate Judge entered an

order converting the special report to a motion for summary judgment and took the

motion under submission. The order explained the relevant standard of review,

and highlighted that

      except in certain circumstances, a person against whom a motion for
      summary judgment is filed may not rely on the allegations of his
      pleadings. In other words, a plaintiff against whom a motion for
      summary judgment is filed must oppose that motion by affidavits,
      depositions, answers to interrogatories, admissions, or as otherwise
      provided in the rules. If a party against whom a motion for summary
      judgment is filed fails to respond, the materials filed by the moving
      party may be taken as true.

Record, no. 42, at 2.

      On August 4, 2010, Harrison propounded interrogatories to Warden

Culliver, Deputy Warden Folks, Captain Craft, and Officer Lang. He also filed a

motion to produce (1) all incident reports relating to assaults on the back hallway,

(2) all incident reports from inmate-on-inmate assaults involving the use of a

weapon, (3) all disciplinary and behavioral reports for Dale Pounders, (4) the

names of the correctional officers assigned to the main hallway on August 6, 2008,

                                          7
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(5) all duty shift rosters for August 6, 2008, (6) all known administrative policies

governing the use of the back hallway, (7) all employee complaints regarding

security hazards on the back hallway, (8) all hobby craft order invoices of inmates

assigned to the hobby shop, (9) a list of the inmates assigned as hobby craft wood

workers, (10) all policies governing the use of hobby craft tools by inmates, and

(11) any standard operating procedures governing hobby crafting. On September

15, 2010, Harrison filed a motion pursuant to Federal Rule of Civil Procedure

56(f)10 requesting a delay of the disposition of the defendants’ motion for summary

judgment pending further discovery, arguing that he was unable to meet his burden

of pleading without obtaining the documents requested and answers to the

interrogatories.

       The Magistrate Judge partially granted Harrison’s motion for discovery on

November 30, ordering the defendants to produce incident reports involving

inmate-on-inmate assaults from 2005 to 2010 in which a blade, box cutter, or other

cutting instrument was involved; incident reports involving inmate-on-inmate

assaults in the back hallway from 2005 to 2010; and guidelines, policies, and




       10
           Effective December 1, 2010, Rule 56(f) was reclassified as Rule 56(d) with no
substantial change. See Fed. R. Civ. P. 56 Advisory Committee Notes to the 2010 amendments.
Because Harrison’s motion was filed on September 15, 2010, the rule had not yet been
reclassified, and thus, his motion was properly filed under Rule 56(f).

                                             8
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procedures related to hobby craft activity. 11 The Magistrate Judge granted

Harrison’s motion to delay ruling on the summary judgment motion pending

production of the documents. The Magistrate Judge did not address the

interrogatories in his November 30 order, and the defendants never responded to

the interrogatories.12 The defendants complied with the Magistrate Judge’s order

on February 4, 2011.

        On March 2, 2011, Harrison sought leave of court to conduct further

discovery. Specifically, he sought (1) all invoices for purchases of cutting

instruments by inmates assigned to the hobby shop from 2005 to the present, (2) all

invoices for purchases of cutting instruments by inmates assigned the status of

“Wood Worker” from 2005 to the present, (3) all policies related to the dispensing

of cutting instruments, and (4) all policies related to the securing and recovery of

used, broken, or no longer functional cutting instruments. The defendants

objected, arguing that Harrison’s request was not calculated to lead to admissible

evidence, was unreasonable in scope, and was irrelevant insofar as it sought

evidence receipts for after the August 6, 2008, incident. On April 13, Harrison



       11
           Because Harrison was assaulted on August 6, 2008, any incident that occurred after
that date is not probative of whether Harrison was denied his constitutional rights. We therefore
only consider the incident reports for assaults that occurred prior to the August 2008 assault.
       12
          Harrison never filed a motion to compel the defendants to respond to the
interrogatories.

                                                9
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moved the court for leave to submit an interrogatory to Officer Lang. The

interrogatory contained three questions related to the number of utility blades that

inmates ordered from 2008 to 2011, how the blades were dispensed to inmates, and

whether a procedure existed that required inmates to dispose of old blades prior to

receiving new ones.

      On August 26, 2011, the Magistrate Judge issued a report and

recommendation recommending that the District Court deny Harrison’s March 2

and April 13 motions and grant summary judgment for the defendants. The

Magistrate Judge credited the defendants’ testimony of various security measures

taken with respect to the back hallway, concluding that Harrison failed to present

evidence that a lack of security posed an objectively substantial risk of serious

harm and, even if he had, he further failed to show the defendants were

deliberately indifferent. He also concluded that Harrison failed to present evidence

that the hobby craft shop posed an objectively serious risk of harm; nor did

Harrison establish a link between the operation of the hobby shop and the assaults

reported.

      Harrison filed objections to the report and recommendation, but on

September 22, the District Court, without a hearing, entered an order adopting the

Magistrate Judge’s report and recommendation, granting the defendants summary

judgment and denying as moot Harrison’s March 2 and April 13 motions for leave
                                          10
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to conduct discovery. On October 13, the District Court denied Harrion’s motion

to alter or amend judgment.

      Harrison filed a pro se notice of appeal with this court on October 19. We

appointed counsel for Harrison to assist his prosecution of this appeal.

                                          II.

      Harrison argues that the District Court abused its discretion in refusing to

grant his March 2 and April 13 requests for leave to conduct additional discovery,

which, he claims, left him to rely on two inmate statements, his own statement, and

sparse documentary evidence of Holman’s “contraband industry.” Appellant’s Br.

at 26. But Harrison’s argument overlooks the fact that the defendants were

required to submit incident reports for all assaults that occurred in the back

hallway, as well as all incident reports for assaults involving weapons that occurred

anywhere in Holman. Thus, the only evidence Harrison was unable to obtain

related to the purchasing of craft materials and the policies for disposing of used

hobby craft blades.

      As recounted in part I.B., supra, Harrison filed multiple motions for

discovery during the course of the litigation, which the Magistrate Judge granted in

part and denied in part. Also, Harrison’s original interrogatories went unanswered,

perhaps because Harrison never filed a motion to compel answers and the

Magistrate Judge did not, on his own initiative, order the defendants to respond.
                                          11
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After the Magistrate Judge disposed of Harrison’s original discovery requests,

Harrison filed two motions related to discovery. First, he filed a motion seeking

discovery of invoices from the purchasing of cutting instruments, policies related

to the dispensing of cutting instruments purchased by inmates, or policies related to

the securing and recovery of used, broken, or no longer functional cutting

instruments. He also moved the court for leave to propound an interrogatory to

Officer Lang asking him about the number of box cutters ordered by inmates, how

those box cutters are dispensed to inmates, and whether a procedure existed that

required inmates to return their old box cutters before new materials were

dispensed. The District Court denied both motions as moot after granting

summary judgment for the defendants. 13

        The District Court has broad discretion under Federal Rule of Civil

Procedure 26 to compel or deny discovery. Josendis v. Wall to Wall Residence

Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Thus, we review its denial of

discovery for abuse of discretion. Id. “Discretion means the district court has a

range of choice, and that its decision will not be disturbed as long as it stays within

that range and is not influenced by any mistake of law.” Betty K Agencies, Ltd. v.


       13
          The District Court also denied as moot Harrison’s motions for leave to conduct
discovery into his claims against the medical professionals, which neither the Magistrate Judge
nor the District Court had acted on after Harrison voluntarily dismissed them from the case.
Harrison does not appeal the dismissal of these motions.

                                               12
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M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (internal quotation marks

omitted). “Accordingly, under the abuse of discretion standard, we will leave

undisturbed a district court’s ruling unless we find that the district court has made a

clear error of judgment, or has applied the wrong legal standard.” Josendis, 662

F.3d at 1307 (internal quotation marks omitted). Moreover, “we will not overturn

discovery rulings unless it is shown that the District Court’s ruling resulted in

substantial harm to the appellant’s case.” Iraola & CIA, S.A. v. Kimberly-Clark

Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (internal quotation marks omitted).

      We cannot say that the District Court abused its discretion in denying

Harrison the opportunity to seek invoices detailing the craft materials purchased at

Holman and the policies related to the disposal of craft materials. Harrison already

had evidence of every incident of inmate-on-inmate assault involving weapons. To

be sure, the additional evidence Harrison sought may have been relevant to his

claims, but he has failed to show, beyond conclusory assertions, how the court’s

ruling “resulted in substantial harm to [his] case.” See id. Absent such a showing,

we will not disturb a court’s exercise of discretion to deny discovery requests. We

therefore move to the question of whether the District Court erred in granting the

defendants summary judgment.




                                          13
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                                          III.

      We review the District Court’s grant of summary judgment de novo,

construing all evidence in the light most favorable to the plaintiff, Harrison. Baby

Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). Under

Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” “An issue of fact is ‘material’

if, under the applicable substantive law, it might affect the outcome of the case.

An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational

trier of fact to find for the nonmoving party.” Hickson Corp. v. N. Crossarm Co.,

357 F.3d 1256, 1259–60 (11th Cir. 2004) (citations omitted).

                                          A.

      Prison officials have an obligation to protect prisoners from violence

inflicted upon them by other prisoners. “It is not, however, every injury suffered

by one prisoner at the hands of another that translates into constitutional liability

for prison officials responsible for the victim’s safety.” Farmer v. Brennan, 511

U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994). Prison officials

must “take reasonable measures to guarantee the safety of the inmates.” Hudson v.

Palmer, 468 U.S. 517, 526–27, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393 (1984).

Only “[a] prison official’s deliberate indifference to a known, substantial risk of
                                          14
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serious harm to an inmate violates the Eighth Amendment.” Marsh v. Butler

Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc).

       Thus, a prisoner-plaintiff must first demonstrate “an objectively substantial

risk of serious harm to prisoners.” Id. at 1028–29. Then, the plaintiff must show

that the defendant was deliberately indifferent, which requires the following: “(1)

subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by

conduct that is more than gross negligence.” Goodman v. Kimbrough, 718 F.3d

1325, 1331–32 (11th Cir.2013) (internal quotation marks omitted). 14

       “It is well established in this Circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003) (internal quotation marks omitted). Therefore, a plaintiff seeking

to hold a supervisor liable for constitutional violations must show that the

supervisor either participated directly in the unconstitutional conduct or that a

causal connection exists between the supervisor’s actions and the alleged

constitutional violation. Id.

       The necessary causal connection can be established when a history of
       widespread abuse puts the responsible supervisor on notice of the
       need to correct the alleged deprivation, and he fails to do so.

       14
         Our assessment of whether the official acted recklessly is an objective inquiry. See
Marsh, 268 F.3d at 1029.

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       Alternatively, the causal connection may be established when a
       supervisor’s custom or policy . . . result[s] in deliberate indifference to
       constitutional rights or when facts support an inference that the
       supervisor directed the subordinates to act unlawfully or knew that the
       subordinates would act unlawfully and failed to stop them from doing
       so.

Id. (alterations in original) (internal quotation marks omitted) (citations omitted).

“The deprivations that constitute widespread abuse sufficient to notify the

supervising official must be obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th

Cir. 1999) (internal quotation mark omitted). In other words, “the standard by

which a supervisor is held liable in [his] individual capacity for the actions of a

subordinate is extremely rigorous.” Cottone, 326 F.3d at 1360 (internal quotation

marks omitted).15

                                                  B.

       Harrison raises two claims against the defendants, one related to the alleged

failure to provide adequate security on the back hallway and the other related to the

alleged failure to secure hobby craft tools. The Magistrate Judge analyzed
       15
           Moreover, it is not enough to demonstrate that a state official violated a plaintiff’s
constitutional rights. A plaintiff must also overcome a defendant’s assertion of qualified
immunity, which requires a showing (1) that the state official violated the plaintiff’s federal
constitutional right, and (2) that the constitutional right was “clearly established” at the time the
state official acted. Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815–16, 172 L. Ed.
2d 565 (2009). Because we conclude that Harrison has failed to establish that the defendants
violated any of his constitutional rights, “there is no necessity for further inquiries concerning
qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d
272 (2001).

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Harrison’s claim against defendants as two separate counts, likely because that is

how Harrison presented the claim in his complaint. However, Harrison was a pro

se plaintiff, and a more charitable reading of the complaint can be distilled as

follows: by failing to provide adequate security on the back hallway and by failing

to implement and enforce policies regarding the use of utility knives in the hobby

shop, the defendants created prison conditions that presented a substantial risk of

serious harm, and the defendants were deliberately indifferent to the substantial

risk that inmates would inflict serious harm on each other in the back hallway via

box-cutter type weapons. Harrison does not claim that the defendants were present

on the back hallway the day of the attack and failed to intervene.

                                                1.

       The evidence demonstrates that Warden Culliver was on notice that inmate-

on-inmate assaults occurred on the back hallway; his signature is on each of the

incident reports detailing assaults that occurred on the back hallway from 2005

until August 6, 2008. However, the incident reports indicate that only four assaults

occurred on the back hallway from 2005 until the day Harrison was assaulted. 16


       16
           In his statement, Harrison claims that “To the best of [his] belief and knowledge,” there
were 20 assaults in the back hallway in 2005, 15 in 2006, 30 in 2007, and five in 2008. Record,
no. 40, at 29. We do not credit this statement as creating a genuine issue of fact because the
statement itself evinces that Harrison did not rely on his personal knowledge of the incidents that
occurred on the back hallway. See Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002)
(“Rule 56(e)’s personal knowledge requirement prevents statements in affidavits that are based,
                                                17
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“We accept that an excessive risk of inmate-on-inmate violence at a jail creates a

substantial risk of serious harm; occasional, isolated attacks by one prisoner on

another may not constitute cruel and unusual punishment, [but] confinement in a

prison where violence and terror reign is actionable.” Purcell ex rel. Estate of

Morgan v. Toombs Cnty., Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (alteration in

original) (internal quotation mark omitted). Although assaults did occur

throughout Holman, and some did involve weapons fashioned out of a utility knife,

box cutter, or razor, 17 the evidence of inmate-on-inmate assault involving weapons

does not does not indicate that inmates were “exposed to something even

approaching the constant threat of violence.” See id. at 1321 (internal quotation

marks omitted). Holman is a large institution—according to the District Court’s

undisputed finding, Holman housed between 830 and 990 inmates during the

relevant time period—and the thirty-three incidents involving weapons, only four

of which occurred on the back hallway, are hardly sufficient to demonstrate that

Holman was a prison “where violence and terror reign.” See id. at 1320 (quoting

Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.1973)).


in part, ‘upon information and belief’—instead of only knowledge—from raising genuine issues
of fact sufficient to defeat summary judgment.”).
       17
          Of the 33 assaults involving weapons that occurred throughout all areas of Holman
between 2005 and the day Harrison was assaulted, 11 involved some sort of weapon fashioned
from a razor or box cutter. The incident reports do not clearly indicate whether the knives were
made from razors used for shaving or from box cutters in the craft shop.

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       Similarly, Holman’s policies for monitoring the back hallway did not create

a substantial risk of serious harm. The evidence shows that, although a detention

officer was not permanently stationed on the back hallway, at least one was

assigned as a rover with responsibility for monitoring the back hallway. In

addition, a camera monitored the back hallway, and although it did not record, it

provided a live stream that a detention officer monitored twenty-four hours a day. 18

Additionally, Warden Culliver took reasonable steps to reduce the inmate traffic on

the back hallway, relocating the Masjid 19 and library to other areas of Holman.

The limited number of inmate-on-inmate assaults on the back hallway from 2005

until August 2008 indicates that the area was fairly secure already. Although

placing a detention officer on the back hallway to monitor inmates may have

improved the security at Holman, Warden Culliver’s decision not to do so did not

create a substantial risk of harm. Cf. Connick v. Thompson, ___ U.S. ___, ___,

131 S. Ct. 1350, 1363, 179 L. Ed. 2d 417 (2011) (“[Section 1983] does not provide

plaintiffs or courts carte blanche to micromanage local governments throughout the

United States.”).



       18
           In his declaration, Harrison states that “To the best of [his] belief and knowledge many
different cameras feed into this monitor,” and the officer in the control cubical has other assigned
duties and cannot constantly monitor the monitor. Again, we do not credit this assertion because
it is not based on Harrison’s personal knowledge. See Pace, 283 F.3d at 1278.
       19
            A Masjid is an Islamic place of worship.

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                                               2.

      Harrison has also failed to establish that the defendants created a substantial

risk of harm through their lack of oversight of the hobby craft shop. Indeed, the

evidence does not demonstrate that the box cutter Pounders used to assault

Harrison had been obtained from the hobby shop. It could have been a shaving

razor. Thus, we cannot conclude, based on the record, that the alleged lack of

oversight created a substantial risk of serious of excessive inmate-on-inmate

violence. Nevertheless, assuming arguendo that the knife was a box cutter

obtained from the hobby shop, Harrison still fails to present sufficient evidence to

survive summary judgment.

      Warden Culliver implemented Standard Operating Procedure (SOP) 14-002

in October 2003, which laid out the rules for the hobby shop. SOP 14-002 dictated

that no inmate could enter the hobby shop without a current and valid hobby card

issued by the recreational officer, 20 and those who had been disciplined within the

previous six months were ineligible to receive a hobby card. Shift commanders

were responsible for ensuring that inmates did not enter the hobby shop without a

current hobby craft card or exit with any tools or hobby craft items. SOP 14-002

directed that inmates be searched when they left the hobby shop. The hobby shop


      20
           Office Lang was the recreational officer at Holman in August 2008.

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was to remain locked at all times except when inmates entered or left the area. In

addition, detention officers were required to conduct unannounced searches of the

hobby shop at least twice per week, and recreational officers were responsible for

keeping an accurate record of all inmates assigned to hobby shop, including their

assigned storage box number and tool inventory.

      Inmates were permitted to order leather and leather-working materials from

approved outside vendors. They could also order approved craft tools with prior

approval. The approved tools included leather cutting scalpels, exacto knives, skiff

knives, and awl scratchers. SOP 14-002 expressly prohibited inmates from

purchasing box cutters or utility knives. All tools were to be kept under lock.

      Despite the standard operating procedures, at least some Holman staff did

not adhere to the prison’s policies. One inmate stated that on multiple occasions he

and other inmates ordered cutting tools, including utility knives and utility-knife

replacement blades, and were able to order and receive replacement blades without

returning old or broken tools. The record includes a purchasing order that shows

an inmate was able to purchase utility knife replacement blades on June 18, 2007,

in direct contravention of SOP 14-002. In addition, one inmate stated that on many

occasions the hobby shop was left open and inmates were able to enter and exit the

hobby shop freely without being searched.


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      Although the evidence could suggest that the SOP 14-002 was not strictly

enforced, there is no evidence to suggest that this was a widespread problem, or

that if it was widespread, that Warden Culliver was aware of the extent to which

the policies were not enforced. “Our decisions establish that supervisory liability

for deliberate indifference based on the implementation of a facially constitutional

policy requires the plaintiff to show that the defendant had actual or constructive

notice of a flagrant, persistent pattern of violations.” Goebert v. Lee Cnty., 510

F.3d 1312, 1332 (11th Cir. 2007). Warden Culliver acknowledged that some staff

members might have allowed inmates to keep hobby craft knives in the housing

area, but he stated that “this was not the sentiment of the majority of [his] staff.”

Record, no. 35-1, at 4. Thus, he did not have actual notice of a flagrant, persistent

pattern of violations.

      The limited number of assaults involving weapons fashioned from box

cutters or razor blades—around eleven of a total thirty-three assaults involving

weapons over a three year period—is insufficient to establish that Warden Culliver

was constructively aware of a pattern of detention officers failing to follow the

Standard Operating Procedures. Although we are unable to pin down precisely

how many assaults involved box cutters procured through the hobby shop—five

incident reports indicate that a box cutter was used, but they do not indicate from


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where the inmate obtained the box cutter 21—the record fails to demonstrate that

any lapses in oversight of cutting instruments created a substantial risk of

excessive inmate-on-inmate violence.

       Even if the conditions at Holman created an excessive risk of inmate-on-

inmate violence, the defendants were not deliberately indifferent to the risk.

Warden Culliver put policies in place to provide oversight of the hobby shop,

which, although not strictly enforced, were not ignored. Cf. id. Moreover, the

record indicates that inmates who violated SOP 14-002 were disciplined, and

inmates who had received a disciplinary write-up within the previous six months

were prohibited from entering the hobby shop. Thus, Harrison has failed to present

evidence demonstrating that the defendants acted with “more than gross

negligence.” Franklin v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013) (internal

quotation mark omitted). Having failed to do so, he cannot succeed on his

constitutional claim. 22


       21
          Six of the incident reports list a razor blade as the weapon, but it appears those reports
refer to weapons fashioned from shaving razors.
       22
          We note, parenthetically, an independent reason for granting summary judgment in
favor of Deputy Warden Folks. In his affidavit, Deputy Warden Folks stated that he was not
responsible for the security operation of Holman and that the establishment of hobby craft
procedures was not under his purview. Harrison did not dispute this assertion and presented no
evidence to the contrary. “If a party fails . . . to properly address another party’s assertion of fact
as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the
motion . . . .” Fed. R. Civ. P. 56(e)(2). Thus, independent of the analysis presented above,
summary judgment was proper as to Deputy Warden Folks.

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                                IV.

The District Court’s grant of summary judgment is, accordingly,

AFFIRMED.




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