                                  UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-6121


ADIB EDDIE RAMEZ MAKDESSI,

                   Plaintiff – Appellant,

             v.

LT. FIELDS; SGT. KING; CAPT. GALLIHAR,

                   Defendants – Appellees,

             and

HAROLD W. CLARKE, Director of Virginia Corrections; DAVID BELLAMY;
TIMOTHY SUMPTER; GLEN BOYD; BRANDON WOODWARD; THOMAS
HALL; CLARENCE SHUPE; JANE DOE; DENNIS SLUSS,

                   Defendants.


Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Glen E. Conrad, District Judge. (7:11-cv-00262-GEC-PMS)


Argued: October 25, 2017                                 Decided: December 7, 2017


Before MOTZ, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the majority opinion, in which
Judge Motz joined. Judge Shedd wrote an opinion concurring in the result only.
ARGUED: Stephen William Kiehl, COVINGTON & BURLING LLP, Washington,
D.C., for Appellant. Matthew Robert McGuire, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Daniel Suleiman,
COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Mark R. Herring,
Attorney General, Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy Solicitor
General, Richard C. Vorhis, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit.




                                            2
WYNN, Circuit Judge:

       Plaintiff-Appellant Adib Eddie Ramez Makdessi alleges that several correctional

officers at the prison where Makdessi was housed recklessly disregarded an obvious risk

to his safety in violation of the Eighth Amendment.         The district court previously

dismissed Makdessi’s claims on grounds that the officers disclaimed actual knowledge of

any risk to Makdessi’s safety. Concerned that the district court failed to consider whether

circumstantial evidence established that the risk to Makdessi was so obvious that the

officers had to have known of it, we vacated the district court’s decision and remanded

the case for application of the correct legal standard. See Makdessi v. Fields, 789 F.3d

126, 129 (4th Cir. 2015). On remand, the court adverted to and applied the correct legal

standard and again concluded that Makdessi failed to introduce adequate factual support

for his claims. Because we find no clear error in the court’s judgment, which largely

rested on its credibility assessments, we affirm.



                                             I.

                                             A.

       Makdessi is serving a life sentence for committing two murders. The events

giving rise to the present dispute occurred while Makdessi was housed at Wallens Ridge

State Prison. At that time, Makdessi was 5 feet 4 inches tall, weighed 207 pounds, was

approximately 46 years old, and suffered from back pain and asthma. Makdessi did not

affiliate with any prison gangs. Throughout his term of incarceration at Wallens Ridge,




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Makdessi “had problems with all of his cellmates and [was] forced to pay for protection

in the prison with commissary items.” J.A. 1101.

       During Makdessi’s confinement at Wallens Ridge, he filed numerous grievances,

many of which related to alleged assaults by other prisoners. Although prison officials at

times responded to Makdessi’s grievances, many were lost or received no response.

Makdessi also composed several letters to the Federal Bureau of Investigation—to at

least one of which he affixed postage so it was “ready to be mailed”—recounting the

alleged abuse he received at the hands of his fellow inmates. Id. at 1122.

       Makdessi’s accounts have varied as to the number of prison assaults he suffered,

and he has generally been “unable to provide the names of the offenders, dates of the

alleged incidents, any other evidence to support the allegations or provide any

investigative leads.” See id. at 416. On one of the few occasions Makdessi provided

prison officials with details regarding an alleged assault—which Makdessi maintains was

captured “on [a] security camera” that an “investigator . . . h[ad] seen”—the prison

official who investigated the claim found no corroborating evidence. Id. at 259

       On August 13, 2010, prison officials moved Makdessi to a cell with inmate

Michael Smith. At that time, Smith was 5 feet 11 inches tall, weighed 194 pounds, and

was approximately 34 years old. Incarcerated for “robbery and carjacking,” Smith was a

known member of the “Gangster Disciples,” a gang characterized by prison officials as

“one of the smaller [prison] gangs.” Id. at 1062, 1067. During the three years leading up

to the incident at issue, Smith committed nearly 20 prison infractions, and, based on those




                                            4
infractions, received 115 days in segregation. Prison officials classified Smith at one

security level higher than Makdessi.

       On the first day of Makdessi and Smith’s cohabitation assignment, Makdessi

walked out of their cell and told the floor correctional officer that he did not want to be

housed with Smith. The floor correctional officer said he would pass that request on to

Sergeant Christopher King.     Makdessi subsequently filed numerous complaints and

requests for a single cell. Makdessi testified that he received no response, and that the

complaints and requests “disappeared.” Id. at 541.

       Notwithstanding Makdessi’s complaints and requests, prison officials continued to

house Makdessi with Smith. Makdessi testified that during that time, Smith and his

Gangster Disciples associates physically and sexually assaulted Makdessi on numerous

occasions. Makdessi claims he tried to report the assaults to Sergeant King, the Assistant

Warden, and the Federal Bureau of Investigation.

       Makdessi further testified that on December 20, 2010, during a meeting with

Lieutenant Tracy Fields regarding an unrelated informal complaint Makdessi had filed,

Makdessi told Lieutenant Fields “that he feared for his life due to his cellmate Smith, a

gang leader, and that he wanted to be placed in protective custody.” Makdessi, 789 F.3d

at 130. According to Makdessi, Lieutenant Fields said he would advise Sergeant King of

Makdessi’s concerns and request.       According to Lieutenant Fields, at the meeting

Makdessi never mentioned Smith or any danger to his life. As further detailed in this

Court’s prior opinion, Smith physically assaulted and allegedly raped Makdessi the




                                            5
following day. Id. at 129–31. The assault and alleged rape caused Makdessi serious

physical and mental trauma. Id.

                                             B.

       Seeking redress for the harms he suffered from the assault and alleged rape,

Makdessi filed suit against numerous Wallens Ridge officials under 42 U.S.C. § 1983,

alleging that the officials failed to take reasonable measures to protect Makdessi’s safety,

in violation of his rights under the Eighth Amendment. Makdessi’s claims against the

three correctional officers party to this appeal—Lieutenant Fields, Sergeant King, and

Captain Arvil J. Gallihar (collectively, “Defendants”)—survived summary judgment.

After a two-day evidentiary hearing, a magistrate judge issued a report and

recommendation finding that Makdessi failed to introduce sufficient evidence to support

his claims. Makdessi, 789 F.3d at 131. In particular, the magistrate found that Makdessi

established the first element of his Eighth Amendment claim—that he was “‘incarcerated

under conditions posing a substantial risk of serious harm’”—but failed to produce

evidence sufficient to support the second element of the claim—that the defendant

officials were “‘deliberate[ly] indifferen[t]’” to the serious risk Makdessi faced. See id.

at 133 (quoting Farmer v. Brennan, 511 U.S. 825, 834–35 (1994)). The district court

agreed, entering judgment in favor of all defendants.

       This Court vacated the district court’s decision, expressing concern that the district

court had rested its finding that Makdessi failed to show that the Defendants were

“deliberately indifferent” exclusively on the basis that Makdessi did not put forward

credible direct evidence of the officers’ actual knowledge of the substantial risk Smith


                                             6
posed to Makdessi. Id. at 135–36.        We explained that under the Supreme Court’s

decision in Farmer, a prisoner also may demonstrate deliberate indifference through

circumstantial evidence establishing that “a risk [wa]s so obvious that it had to have been

known” by the defendant. Id. at 129. We also expressed concern that the district court

considered factors irrelevant to the deliberate indifference analysis, such as its finding

that Makdessi did not “personally inform” Defendants that he feared for his safety and

that Makdessi’s grievance filings did not indicate that Smith, in particular, posed a risk to

Makdessi. Id. at 135–36. We therefore remanded the case “for reconsideration using the

proper legal framework.” Id. at 136.

        On remand, the magistrate judge conducted another evidentiary hearing geared

toward the sole remaining question: whether the risk to Makdessi posed by assigning him

to a cell with Smith was so obvious that Defendants violated the Eighth Amendment by

housing the two inmates together. In again finding that Makdessi failed to prove his

claim, the magistrate judge found “that Makdessi . . . failed to persuade the court that

[Defendants] were deliberately indifferent to a known substantial risk to his safety.” J.A.

1176.

        This determination in large part rested on the magistrate’s “finding that much of

Makdessi’s testimony is not credible.” Id. By contrast, the magistrate found Defendants’

testimony credible, including their testimony that Makdessi had never complained to

them regarding sexual assaults nor expressed any concern for his life. Furthermore,

although Makdessi testified regarding numerous grievances, he introduced into evidence

only one form alleging a prior sexual assault by Smith. That form was directed to the


                                             7
mental health department, rather than any Defendant. The magistrate found there was no

evidence that Defendants saw that complaint or any of the other documents in which

Makdessi made sexual assault allegations. Additionally, the magistrate highlighted other

facts she found weighed against a finding of obviousness, including that Makdessi

weighed more than Smith and that no Defendant knew of the full breadth of Smith’s

institutional violations. In her obviousness analysis, the magistrate also found significant

Captain Gallihar’s credible testimony that an inmate’s underlying crime could inform cell

assignments, and Makdessi’s murders were at least as violent as Smith’s robbery and

carjacking; that the Gangster Disciples was not one of the prison’s most violent gangs;

and, finally, that only truthful claims of prior sexual assaults are relevant to determining

if an inmate is vulnerable to future victimization.

       Over Makdessi’s objection, the district court adopted the magistrate’s report and

recommendation. In particular, the district court agreed with the magistrate’s resolution

of the conflicting testimony—i.e., largely discrediting Makdessi’s narrative in favor of

Defendants’ rebuttals—and concluded that even if Defendants did, in fact, “know” of

facts giving rise to an inference of an obvious risk to Makdessi’s safety, Defendants

sufficiently rebutted that inference through evidence establishing that they “believed

(albeit unsoundly) that the risk to which the facts gave rise was insubstantial or

nonexistent.” Id. at 1218 (quoting Farmer, 511 U.S. at 844). Makdessi timely appealed.




                                              8
                                             II.

       Because this case arises from a bench trial, we review factual findings for clear

error and conclusions of law de novo. Plasterers’ Local Union No. 96 Pension Plan v.

Pepper, 663 F.3d 210, 215 (4th Cir. 2011). “A finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has been committed.” Helton v.

AT & T, Inc., 709 F.3d 343, 350 (4th Cir. 2013) (quoting Evergreen Int’l, S.A. v. Norfolk

Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008)). And “[i]n cases in which a district

court’s factual findings turn on assessments of witness credibility or the weighing of

conflicting evidence . . . , such findings are entitled to even greater deference.” Id.

(quoting Evergreen, 531 F.3d at 308).

       In the present case, Makdessi does not argue that the district court misstated the

law, but instead that the evidence below compels judgment in his favor. In this regard,

Makdessi principally argues that Defendants knew or must have known of the obvious

risk to Makdessi’s health and safety as a result of his physical vulnerability, his grievance

filings, and Smith’s many prison infractions. We address each in turn.

       The Eighth Amendment imposes upon “prison officials . . . a duty . . . to protect

prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833

(second alteration in original).    As stated above, liability attaches when a plaintiff

prisoner establishes: (1) he was “incarcerated under conditions posing a substantial risk

of serious harm” and (2) the defendant prison official had a “sufficiently culpable state of

mind.” Id. at 834. In the present case, only the second prong is at issue; the court below


                                             9
found—and we agree—that the evidence of Makdessi’s injuries from the assault and

alleged rape satisfied the first prong by demonstrating “serious or significant physical . . .

injur[ies] resulting from the challenged conditions” of confinement.            De’Lonta v.

Angelone, 330 F.3d 630, 634 (4th Cir. 2003).

       The sole remaining question, therefore, is whether there is sufficient evidence to

establish that the defendants had “a ‘sufficiently culpable state of mind’ to be held

liable.” Makdessi, 789 F.3d at 133 (quoting Farmer, 511 U.S. at 834). This required

mental state is one of “‘deliberate indifference’ to inmate health or safety,” Farmer, 511

U.S. at 834, often characterized as “somewhere between negligence and purpose or

knowledge: namely, recklessness of the subjective type used in criminal law,” Brice v.

Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995).           An inmate plaintiff may

demonstrate deliberate indifference through direct or circumstantial evidence. Farmer,

511 U.S. at 842; Makdessi, 789 F.3d at 133. Because a plaintiff may prove deliberate

indifference through circumstantial evidence, even in the absence of direct evidence that

a prison official knew of a risk posed to the plaintiff, “an injury might be so obvious that

the factfinder could conclude that the [official] did know of it because he could not have

failed to know of it.” Makdessi, 789 F.3d at 133 (quoting Brice, 58 F.3d at 105).

       Prison officials may rebut such a showing of obviousness. Id. at 134; see also

Farmer, 511 U.S. at 844 (“That a trier of fact may infer knowledge from the obvious, in

other words, does not mean that it must do so.”). To that end, “[p]rison officials charged

with deliberate indifference might show, for example, that they did not know of the

underlying facts indicating a sufficiently substantial danger and that they were therefore


                                             10
unaware of a danger, or that they knew the underlying facts but believed (albeit

unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.”

Farmer, 511 U.S. at 844.

       Because the magistrate and district court’s analysis focused on whether

Defendants rebutted any circumstantial evidence establishing the obviousness of the risk

to Makdessi’s safety, we assume, without deciding, that circumstantial evidence indicated

that housing Makdessi with Smith presented an obvious risk. Under this assumption,

Defendants may be charged with knowledge of the obvious substantial risk unless they

demonstrate that the facts and circumstances “prove that they were unaware even of an

obvious risk to inmate health or safety” or did not appreciate the risk’s severity. See id.

(emphasis added). Accordingly, we consider only whether the court below correctly

concluded that Defendants sufficiently rebutted Makdessi’s showing of obvious risk by

demonstrating that they either did not subjectively know of the risk or did not appreciate

its severity.

       Makdessi contends that several associated facts establish that Defendants knew or

must have known of the substantial risk inherent in his cell assignment with Smith:

(1) Makdessi was smaller than Smith, older than Smith, and had health problems;

(2) Makdessi filed numerous grievances and many times checked himself into

segregation, both indications of vulnerability; and (3) Smith was a violent inmate.

Defendants      respond that the district court’s ultimate conclusion—that Defendants

rebutted any such showing by demonstrating “that none of the[m] . . . knew before

Makdessi ran out of his cell on December 21, 2010, that housing him in the same cell


                                            11
with Smith presented a substantial risk”—is based exclusively on well-founded

credibility determinations. Appellees’ Br. 31. We agree with Defendants.

       Although Smith was in better condition than Makdessi—Makdessi suffered from

back problems and asthma, and Smith was seven inches taller than him and twelve years

younger—the district court did not clearly err in finding that none of the Defendants

thought the physical disparity presented a risk. Lieutenant Fields testified that he only

vaguely remembered Makdessi, and that although he would generally notice vulnerable

inmates, Makdessi did not stand out as one. Likewise, Captain Gallihar testified both that

he never noticed “anything out of the ordinary” with Makdessi, and that neither

Makdessi’s height nor age stood out as compared to the other inmates or “in the context

of the whole you have to look at” in making cell assignments. J.A. 1061. The magistrate

and district court did not clearly err in crediting this testimony as establishing that

Defendants believed that any risk suggested by Makdessi’s physical condition “was

insubstantial or nonexistent.” Farmer, 511 U.S. at 844.

       Nor did Defendants consider Makdessi’s numerous grievance filings and

voluntary self-segregation check-ins as indicating that he faced a risk of suffering serious

physical injuries. Although Captain Gallihar and Lieutenant Fields received reports of

Makdessi’s grievance filings and requests for segregation, including his numerous

allegations of physical and sexual abuse, Lieutenant Fields testified that he would receive

complaints “all the time” and that multiple prisoners would “daily” request the

appropriate forms. J.A. 770. And in testimony the magistrate and district court found

credible, Captain Gallihar said he was unaware of anything “ha[ving] been proven to be


                                            12
true regarding [Makdessi] being sexually assaulted,” id. at 1068, and that a correctional

officer “would not consider [a complainant] a victim until the investigation bears that

out,” id. at 1073. Furthermore, Captain Gallihar testified that it was “a common practice”

for inmates to request segregation because it could be used “to manipulate cell moves.”

Id. at 1081. Again, the magistrate and district court reasonably credited this testimony as

establishing that Defendants believed that any risk suggested by Makdessi’s grievance

filings and requests for segregation “was insubstantial or nonexistent.” Farmer, 511 U.S.

at 844. 1

        Finally, the district court did not clearly err in concluding that Defendants did not

believe Smith’s prison-infraction history and membership in the Gangster Disciples

indicated that Smith posed a serious risk to Makdessi. When Makdessi was assigned to

Smith’s cell, Smith had received approximately 20 prison infractions and had spent 115

days in segregation. But Captain Gallihar and Sergeant King investigated and resolved

only one infraction related to Smith. And, in testimony credited by the magistrate and

district court, Sergeant King said that, other than that incident, he was not aware of any


        1
         Nor does the “Institutional Classification Authority Hearing” summary produced
at the second evidentiary hearing alter this conclusion. The summary—issued a week
after Smith assaulted Makdessi—recommended changing Makdessi’s security level to
protective custody because he “is a known snitch among staff and other inmates;” has
“exhibited poor institutional adjustment;” has “been moved to just about every housing
unit” at the prison; was placed in a special unit “[d]ue to his vulnerability;” and could no
longer “be safely housed . . . in general population” because “his safety is compromised.”
J.A. 1098–99. There is no indication, however, that this post-assault security analysis—
prepared by a non-party to this suit—established that Defendants knew or must have
known of a serious risk to Makdessi’s safety at the time of the assault.



                                             13
other infraction committed by Smith. Likewise, Lieutenant Fields testified that he was

unaware of any of Smith’s infractions. And although Captain Gallihar’s higher-ranking

position necessarily supplied him with knowledge of more of Smith’s infractions, Captain

Gallihar stated, in testimony credited by the court, that the correctional officers’ weekly

review of segregated inmates encompassed “several hundred inmates;” that Smith did not

“stand[] out” in those reviews; that “[n]early all” of the inmates had at least one

infraction; and that he did not consider Smith to be a “particularly violent inmate.”

J.A. 1063–65. Furthermore, Captain Gallihar testified that the Gangster Disciples was

“one of the smaller gangs” and “by far not the . . . most aggressive bunch.” Id. at 1062–

63. In light of this evidence, we cannot conclude that the magistrate and district court

clearly erred in finding that Defendants did not believe that Smith’s infraction history

posed a substantial risk to Makdessi’s safety.

       To be sure, the evidence above often conflicts and paints a troubling picture,

prompting both the district and magistrate judge to note that “it is clear” that Defendants

“should have been more diligent in handling Makdessi’s claims of sexual assault.” Id. at

975, 1009. But, deferring to the district court’s credibility findings, the evidence at worst

establishes that Defendants here “knew the underlying facts but believed (albeit

unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.”

Farmer, 511 U.S. at 844. This is insufficient to establish liability. 2


       2
         Makdessi also argues that the district court incorrectly resolved certain factual
disputes or otherwise misstated relevant facts and improperly relied on considerations not
relevant to the Farmer analysis. Makdessi’s factual objections, however, principally turn
(Continued)


                                              14
                                            IV.

       In sum, Makdessi’s arguments and evidence on appeal fail to surmount the high

bar of clear error review. Accordingly, we affirm the dismissal of Makdessi’s claims

against Defendants.

                                                                               AFFIRMED




on the district court’s findings that Makdessi’s testimony was largely not credible and
that Defendants’ testimony was credible. Given that on several occasions Makdessi
changed or recanted his narratives and allegations and that we afford a factfinder’s
credibility determinations substantial deference, the court did not clearly err in resolving
credibility disputes in Defendants’ favor. Likewise, after careful review of the record we
conclude that district court’s judgment did not rest on any considerations not relevant to
the Farmer analysis.



                                            15
SHEDD, Circuit Judge, concurring in result only:

      In my view, the magistrate judge and the district judge properly analyzed this case

during the original bench trial. See Makdessi v. Fields, 789 F.3d 126, 139-45 (4th Cir.

2015) (Shedd, J., concurring in part and dissenting in part). On remand, the magistrate

judge and the district judge once again properly analyzed this case. Because the findings

of fact are not clearly erroneous, and the judges committed no discernible legal error, I

concur in the majority’s decision to affirm the judgment.




                                           16
