                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 13-1828


DAVID KARL DANSER,

                 Plaintiff - Appellee,

           v.

WARDEN PATRICIA R. STANSBERRY; LIEUTENANT BOBBY ROY; OFFICER
THERON BOYD,

                 Defendants – Appellants,

           and

LIEUTENANT DODSON; OFFICER DIAZ,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-ct-03116-BO)


Argued:   May 13, 2014                         Decided:   July 3, 2014

                     Amended:    September 12, 2014


Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.


Vacated and remanded with instructions by published opinion.
Judge Keenan wrote the opinion, in which Judge Wilkinson and
Judge Diaz joined.
ARGUED: Michael Gordon James, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellants.  Elizabeth
Guild Simpson, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee.   ON BRIEF: Thomas G.
Walker, United States Attorney, R.A. Renfer, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellants.




                              2
BARBARA MILANO KEENAN, Circuit Judge:

      In    this    appeal,          we     consider            whether     the    district         court

erred in holding that certain prison officials were not entitled

to qualified immunity for injuries inflicted by an inmate on

David    K.     Danser,        a    federal          prisoner         serving     a   sentence        for

convictions involving the sexual abuse of a minor.                                     The incident

occurred        after    prison          officials         left       an   enclosed         recreation

space    unsupervised              for    several         minutes,         during     which       period

Danser was attacked by an inmate who was a member of a violent

prison     gang.         Danser          filed       a    complaint        against        the     prison

officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971) (Bivens), alleging that the officials’ actions showed a

deliberate       indifference             to    his       safety,      thereby        violating       his

constitutional rights.                   The prison officials filed a motion for

summary       judgment         asserting             qualified          immunity,           which     the

district court denied.

      On      appeal      from       the        district         court’s        summary       judgment

determination,          the        prison      officials          argue     that      they      did   not

violate Danser’s constitutional rights because the record lacks

any     evidence        that       they        had       the    “culpable         state      of     mind”

necessary to establish a deliberate indifference claim.                                               See

Farmer     v.    Brennan,          511    U.S.       825,       834    (1994).         In    response,

Danser argues that we lack jurisdiction over this appeal and,

alternatively,          maintains           that          the    district         court      correctly

                                                      3
concluded that the defendants were not entitled to qualified

immunity at the summary judgment stage of the proceedings.

     Upon our review, we conclude that we have jurisdiction to

decide this issue of law, and that the district court erred in

denying       the   prison    officials’       motion      for     summary      judgment

asserting       qualified     immunity.         Accordingly,        we    vacate     the

district court’s order and remand the matter with instructions

that the court enter judgment in favor of the prison officials.



                                          I.

     Danser is a federal inmate serving a 370-month sentence for

convictions of sexual exploitation of children in violation of

18 U.S.C. § 2251(a), sexual abuse of a minor in violation of 18

U.S.C.    §     2243(a),     and     possession      of    child    pornography         in

violation of 18 U.S.C. § 2252(a)(4)(B).                      At the time of the

incident at issue in this civil action, Danser was housed in the

“low” security facility at the Federal Correctional Institution

in Butner, North Carolina (FCI-Butner).

     On   August      21,    2005,    Danser   was    assigned      to   the    Special

Housing   Unit      (SHU)    within    FCI-Butner,        after    he   engaged    in    a

verbal altercation with another inmate.                     The SHU is a secure,

closely       supervised     facility     within      FCI-Butner         that     houses

inmates whom prison officials have determined need separation

from the general inmate population, either because the inmate

                                          4
violated prison rules or because the inmate requires protective

custody.       See 28 C.F.R. §§ 541.21-541.23.                    Inmates in the SHU

are   allowed    only     five   hours      of    outdoor       recreation    per   week.

About    100    inmates    were       housed      in    the   SHU    when    Danser   was

assigned to that unit.

      Theron     Boyd   is   a    correctional           officer     employed    by   the

Federal Bureau of Prisons who worked in the SHU at FCI-Butner.

On August 22, 2005, Boyd reported to the SHU and was assigned to

a post that placed him in charge of the SHU’s recreation area.

The   recreation    area     consists        of    eight      fenced-in      “recreation

cages,” which each are about ten feet long and ten feet wide and

hold up to five inmates per cage.                  Among other responsibilities,

Boyd was required to ask each SHU inmate if he wanted outdoor

recreation, determine which inmates would be placed together in

the   recreation    cages,       and    help      transport      inmates     from   their

cells to the cages.

      On the day of the incident, Danser informed Boyd that he

wanted   to    participate       in    outdoor         recreation.      Boyd    did   not

recall Danser expressing concerns to him about being placed in a

recreation cage with any other inmate, and there is no evidence

in the record showing that Boyd was aware that Danser was a sex

offender.

      Boyd made assignments to the recreation cages based on the

inmates’      custody   level,        the   location       of    the   inmates’     cells

                                            5
within the facility, and information contained in a computer-

generated “SHU Report.”            As a general matter, the SHU Report

includes each inmate’s name, his prison identification number,

and whether any inmate should be “kept separate” from any other

inmate in the SHU (“separation orders”). 1

      The SHU Report is compiled from information entered into

the SHU computer by the “Officer-in-Charge” of the SHU.                   Danser

did not name this officer as a defendant in this lawsuit, and it

is undisputed that Boyd had no role in compiling or entering the

information in the SHU Report.

      The   parties      dispute     the      content    of     the   information

contained   in    the    SHU    Report     that   Boyd   used    in   making   the

recreation cage assignments, including whether separation orders

were included in the report. 2           However, it is undisputed that the

SHU   Report     did    not    contain    information    concerning     Danser’s

status as a sex offender or the gang affiliation of Danser’s



      1
       An inmate may be considered a “separatee” from another
inmate if the two prisoners have engaged in physical violence
toward each other or if prison officials have determined that
physical violence would occur if the two inmates were placed
together. Under prison rules, two inmates with separatee status
toward each other are not allowed to participate in the same
recreation period, even if the inmates are placed in different
recreation cages.
      2
       We observe that neither the SHU Report used by Boyd on the
date of the incident, nor any examples of other SHU Reports from
other dates, are included in the record.



                                          6
assailant.          Instead,    that   information        was    entered     into    the

“Sentry”      and    “Central    Information       Monitoring”       (CIM)   systems,

which    are    separate       databases        maintained      by   the   Bureau     of

Prisons.       As an officer in the SHU, Boyd had access to these

databases but there is no evidence in the record that he was

required to examine the two databases, or actually consulted

either of them, in making the recreation cage assignments.

     Boyd assigned Danser to a recreation cage with three other

inmates, including Scott Gustin, a convicted drug dealer who is

a member of the violent prison gang “La Nuestra Familia.” 3                     It is

undisputed that Danser and Gustin had never met before being

placed   in    the    same     recreation       cage,   and   that   there    were    no

“separation orders” requiring that Danser and Gustin be kept

apart from each other.

     After placing the inmates in their recreation cages, Boyd

left the recreation area.              By leaving the area unsupervised,

Boyd violated a duty specified in the orders for his post, which

required that inmates in the recreation area remain supervised

at all times.




     3
       Gustin originally was sentenced to prison for charges
relating to possession with intent to distribute heroin and
methamphetamine, and was assigned to the SHU after assaulting
another inmate.



                                            7
     While     Boyd   was     away   from      the   recreation    area, 4   Gustin

knocked Danser to the ground and repeatedly kicked and stomped

his face, head, and body.               Danser stated that Gustin uttered

obscenities and commented on Danser’s sex-offender status during

the attack.      After prison officials responded to the assault,

Danser was transported to a local hospital where he received

treatment for a ruptured spleen, a punctured lung, some broken

ribs,    and   numerous       bruises    and     abrasions.        Boyd    was   not

disciplined or reprimanded by his supervisors for his actions in

connection with the incident.

     Danser     filed     a    complaint       pursuant   to      Bivens     against

Patricia Stansberry, the Warden of FCI-Butner at the time of the

incident, 5 in which he sought damages for his injuries. 6                   Danser

later filed an amended complaint (the complaint) naming Boyd and


     4
       The parties dispute the amount of time that the area was
left unsupervised, with Boyd asserting that he was gone for
about one minute and Danser asserting that Boyd was away for at
least five minutes.
     5
       Danser also named two other prison officials, Officer
Carmine Diaz, Jr., and Lieutenant Robert Dodson, as defendants
in the original complaint.   The district court granted summary
judgment in favor of Diaz and Dodson based on qualified
immunity, and Danser does not appeal from the court’s dismissal
of those defendants.
     6
       The Supreme Court held in Bivens that a violation of the
Fourth Amendment committed by a federal agent acting under color
of his authority may give rise to a cause of action for damages.
403 U.S. at 397; see Carlson v. Green, 446 U.S. 14, 24 (1980)
(extending Bivens to claims for Eighth Amendment violations).



                                         8
his   direct         supervisor,       Bobby       Joe      Roy,   the   Special        Housing

Lieutenant in charge of the SHU at the time of the attack, as

additional defendants.                 Danser alleged in the complaint that

Boyd, Stansberry, and Roy (collectively, the defendants) were

deliberately          indifferent           to    Danser’s     safety,      and       that    his

injuries       resulting        from    the       defendants’       conduct       constituted

cruel        and     unusual    punishment             in   violation      of     the      Eighth

Amendment (the deliberate indifference claim).

      Following discovery, the defendants filed a motion seeking

summary       judgment       based     on    qualified       immunity.          The     district

court    denied        the     motion,       holding        that   there    were        material

disputed           facts   concerning            whether     the   defendants           violated

Danser’s constitutional rights.                         The defendants filed a timely

notice of appeal.



                                                  II.

                                                  A.

        We     first       address          Danser’s        argument       that       we     lack

jurisdiction          over     this     appeal,         because    our     review       of   the

district court’s decision would require that we review whether

the court’s factual findings are supported by the record.                                     We

disagree with Danser’s position.

        Under the collateral order doctrine, we have jurisdiction

to review a district court’s denial of qualified immunity at the

                                                   9
summary judgment stage of the proceedings to the extent that the

court’s decision turned on an issue of law.                    Cooper v. Sheehan,

735 F.3d 153, 157 (4th Cir. 2013); see Mitchell v. Forsyth, 472

U.S. 511, 530 (1985) (holding that a district court’s denial of

qualified immunity, “to the extent that [the decision] turns on

an    issue    of    law,”   is   an    appealable    final    decision   under    28

U.S.C. § 1291).         We lack jurisdiction, however, if the decision

was    based    on    questions        of   evidentiary   sufficiency        properly

resolved at trial.           Cooper, 735 F.3d at 157; Al Shimari v. CACI

Int’l, Inc., 679 F.3d 205, 221-22 (4th Cir. 2012) (en banc); see

also Gray-Hopkins v. Prince George’s Cnty., 309 F.3d 224, 229

(4th Cir. 2002) (courts of appeal lack jurisdiction to determine

in an immediate appeal of denial of qualified immunity whether

the evidence is sufficient to support the facts as set forth by

the district court).

       In this matter, contrary to Danser’s suggestion, our review

of the district court’s holding does not require that we reweigh

the evidence or resolve any disputed material factual issues.

See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).                         Rather,

we determine as a matter of law whether the defendants violated

Danser’s      constitutional      rights,        considering   the   facts    as   the

district court viewed them as well as any additional undisputed

facts.     See Winfield v. Bass, 106 F.3d 525, 529-30, 532 n.3 (4th

Cir. 1997) (en banc).              Accordingly, we conclude that we have

                                            10
jurisdiction over this appeal, and we proceed to address the

merits of the defendants’ qualified immunity defenses.

                                        B.

       Boyd, Stansberry, and Roy argue that the district court

erred in denying their motion for summary judgment asserting

qualified immunity.          They contend that, as a matter of law, the

undisputed     material      evidence    failed    to       establish     that   they

violated Danser’s constitutional rights.                Before we address each

defendant’s argument, we first set forth the applicable legal

principles.

       We   review   de   novo   the    denial    of    a    motion      for   summary

judgment asserting qualified immunity.                  Iko, 535 F.3d at 237.

Summary judgment in such cases should be granted when, viewing

the facts in the light most favorable to the nonmoving party,

there is no genuine issue of material fact and judgment for the

moving party is warranted as a matter of law.                     Id. at 230; Fed.

R. Civ. P. 56(c).         In reviewing the district court’s decision

denying qualified immunity, we generally accept the facts as the

court viewed them.        Winfield, 106 F.3d at 530.              Additionally, we

may also consider any undisputed facts that the court did not

use in its analysis.         See id. at 532 n.3, 535-36.

       The doctrine of qualified immunity “balances two important

interests—the      need   to   hold    public    officials        accountable     when

they    exercise     power     irresponsibly      and       the   need    to   shield

                                        11
officials from harassment, distraction, and liability when they

perform their duties reasonably.”                 Pearson v. Callahan, 555 U.S.

223, 231 (2009).           The doctrine protects government officials

from liability for civil damages, provided that their conduct

does not violate clearly established statutory or constitutional

rights within the knowledge of a reasonable person.                           Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).                  An official asserting the

defense of qualified immunity bears the burden of proof with

respect to that defense.               Meyers v. Baltimore Cnty., Md., 713

F.3d 723, 731 (4th Cir. 2013) (citation omitted).

       In    reviewing     a     district        court’s    decision        rejecting     a

defendant’s         assertion    of     qualified      immunity,       we     apply     the

analysis set forth by the Supreme Court in Saucier v. Katz, 533

U.S. 194 (2001), as modified by the Court’s later decision in

Pearson.       See Meyers, 713 F.3d at 731.                 The Court’s holding in

Saucier requires a two-step approach, under which a court first

must       decide    whether     the     undisputed        facts    show      that      the

government          official’s        actions       violated       the       plaintiff’s

constitutional rights.            Id. (citing Saucier, 533 U.S. at 201).

When the plaintiff has satisfied this initial step, a court must

determine whether the right at issue was “clearly established”

at the time of the events in question. 7                   Id. (citing Saucier, 533


       7
       Thus, although a plaintiff may prove that an official has
(Continued)
                                            12
U.S.    at   201);     see   Pearson,      555        U.S.   at     236    (modifying     the

Saucier approach           such   that    courts       are     no   longer    required     to

conduct the analysis in the sequence set forth in Saucier).

       In this case, we focus our analysis on the first prong of

the Saucier test, namely, whether Danser has established for

purposes of summary judgment that the defendants violated one of

his constitutional rights.               The constitutional right at issue is

Danser’s Eighth Amendment right to be protected from violence

committed by other prisoners.                   See Farmer, 511 U.S. at 833-35.

This    constitutional        right      derives        from      the     Supreme   Court’s

holdings that the treatment an inmate receives in prison and the

conditions under which he is confined are subject to scrutiny

under   the    Eighth      Amendment.           Id.    at    832-33.        Because      being

assaulted in prison is not “‘part of the penalty that criminal

offenders pay for their offenses against society,’” id. at 834

(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), prison

officials      are     responsible        for     “protect[ing]           prisoners      from

violence      at     the   hands    of     other       prisoners.”           Id.    at     833

(citations and internal quotation marks omitted).



violated the plaintiff’s constitutional rights, the official
nonetheless is entitled to qualified immunity if a reasonable
person in the official’s position “could have failed to
appreciate that his conduct would violate those rights.”
Meyers, 713 F.3d at 731 (citation and internal quotation marks
omitted).



                                            13
       An Eighth Amendment claim of this nature requires proof of

two elements to establish deprivation of a constitutional right.

Id. at 834; Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th

Cir.       2010).        First,   a   prisoner      must    establish    a   serious

deprivation         of   his   rights   in    the    form    of   a     “serious   or

significant physical or emotional injury.” 8                  Brown, 612 F.3d at

723; see also De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir.

2013).       It is undisputed here that Danser’s injuries qualify as

“significant” under this first element.

       The second element, which forms the core of the present

dispute, requires that a plaintiff show that the prison official

allegedly violating the plaintiff’s constitutional rights had a

“sufficiently culpable state of mind.”                 Farmer, 511 U.S. at 834


       8
       We observe that in Wilkins v. Gaddy, 559 U.S. 34, 37-38
(2010) (per curiam), the Supreme Court rejected the “significant
injury” requirement in the context of an Eighth Amendment
excessive force claim concerning an assault committed by a
corrections officer.    The Court’s decision emphasized that in
cases involving the use of force committed by a prison official,
the “core” inquiry was not the degree of harm the prisoner
suffered   but   rather    whether  the   official  used   force
“‘maliciously and sadistically to cause harm.’”       Id. at 37
(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). We do not
discern anything in the Wilkins decision that casts doubt on our
requirement that an inmate show a significant injury in
deliberate indifference cases, as opposed to excessive force
cases such as Wilkins. Indeed, in a case issued after Wilkins,
we applied the significant injury requirement to an Eighth
Amendment deliberate indifference claim involving allegations of
inadequate medical treatment. See De’lonta v. Johnson, 708 F.3d
520, 525 (4th Cir. 2013).



                                         14
(citation       and    internal          quotation      marks     omitted).           In    this

context, the required state of mind that must be established is

a “deliberate indifference to inmate health or safety.”                                      Id.

(citations omitted).

      A    plaintiff          establishes            “deliberate       indifference”          by

showing that the prison official “kn[ew] of and disregard[ed] an

excessive       risk    to    inmate        health      or     safety.”       Id.     at    837.

Importantly, deliberate indifference is “a very high standard,”

Grayson    v.    Peed,       195     F.3d    692,      695     (4th    Cir.   1999),       which

requires that a plaintiff introduce evidence suggesting that the

prison official had actual knowledge of an excessive risk to the

plaintiff’s safety.                Farmer, 511 U.S. at 837.                    Notably, the

official “must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.”                        Id.; see also id. at 840-

42 (evidence concerning “constructive notice” of a substantial

risk is generally not sufficient proof to establish a deliberate

indifference claim); Rich v. Bruce, 129 F.3d 336, 338-40 (4th

Cir. 1997).           A “showing of mere negligence” will not suffice.

Grayson,     195      F.3d    at    695.        Thus,    “an     official’s     failure       to

alleviate a significant risk that he should have perceived but

did   not”      will    not    give       rise    to     a   claim     under    the        Eighth

Amendment.         Farmer,         511   U.S.    at     838;    Iko,    535    F.3d    at    241

(stating that “[i]t is not enough that the [defendant] should

                                                15
have recognized” a substantial risk of harm for purposes of a

deliberate indifference claim) (citation and internal quotation

marks omitted).

                                              1.

     We turn to address Boyd’s argument that the district court

erred     in    concluding        that   he    is   not       entitled    to    qualified

immunity.        Boyd asserts that he did not have a culpable mental

state amounting to deliberate indifference, because he was not

aware of any facts suggesting that Gustin posed a particular

threat to Danser.             In response, Danser argues that Boyd was not

entitled       to     summary    judgment     because     a    jury    could    determine

that, based on information available to Boyd, Boyd knew that

placing    Danser       and     Gustin   in   the   same      recreational      cage   and

leaving the area unsupervised would create an excessive risk to

Danser’s safety.          We disagree with Danser’s argument.

     In        this     procedural       posture,    we       are     limited    in    our

consideration of the parties’ arguments to the district court’s

factual findings and any additional undisputed facts.                           Winfield,

106 F.3d at 530, 534.              The district court based its decision on

the undisputed facts that Boyd assigned Danser, a convicted sex

offender, to the same recreation cage as Gustin, a violent gang

member, and that Danser’s injuries occurred when Boyd left the

area unsupervised in violation of his duties.                         The court further

noted that Boyd relied on information provided to him in the SHU

                                              16
Report, and that the SHU Report did not include any data about

the inmates’ sex offender status or gang affiliation.            However,

the court concluded that there was a “material fact in question

as   to   whether   the   information   provided   to   [Boyd]   had   the

separation orders apparent on the [SHU] report.” 9

     Critically, the district court’s analysis did not include

any findings concerning the fundamental issue whether Boyd had a

“sufficiently culpable state of mind,” namely, that he “kn[ew]

of and disregard[ed] an excessive risk to [Danser’s] health or

safety” in assigning him to the same recreation cage as Gustin.

Farmer, 511 U.S. at 834, 837 (citations and internal quotation

marks omitted).      Moreover, there is no evidence in the record

that Boyd was aware Danser was a sex offender, or that Boyd was

required to check the prison databases in which that information

was contained. 10


     9
       The district court also considered whether the information
generally included on the SHU Report was sufficient and the fact
that Boyd was not disciplined for his actions in connection with
the attack. Because Boyd was not responsible for the content of
the SHU Report or for his own discipline, these issues are not
relevant in deciding whether he is entitled to qualified
immunity.   See Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir.
2001) (liability in a Bivens case is personal, based upon each
defendant’s own actions).
     10
        Danser’s unsupported speculation to the contrary is
insufficient to create a disputed issue of material fact for
purposes of summary judgment. See Othentec Ltd. v. Phelan, 526
F.3d 135, 142 (4th Cir. 2008) (defendants’ mere access to
information insufficient to show on summary judgment that
(Continued)
                                   17
     The record also lacks any evidence of separation orders

issued before the attack requiring that Danser and Gustin be

separated from each other.           The mere fact that Danser and Gustin

each had separation orders with respect to other inmates does

not show that Boyd would have appreciated the risk posed by

putting Danser and Gustin in the same recreation cage.                        Thus,

although the district court concluded that there were disputed

facts    concerning    the   content    of     the   SHU    Report   relating    to

existing     separation      orders,    that     factual     dispute    was     not

material to Boyd’s assertion of qualified immunity based on his

lack of knowledge that Danser and Gustin should be separated

from each other.       See Al Shimari, 679 F.3d at 221-22 (whether a

disputed fact is material may be considered in an appeal of the

denial of qualified immunity on summary judgment).

     With regard to Boyd’s act of leaving the recreation area

unsupervised, it is undisputed that this act was a violation of

Boyd’s responsibilities.         However, there is no evidence in the

record     showing    that    this     dereliction     of     duty   constituted



defendants actually used that information); Goldberg v. B. Green
& Co., 836 F.2d 845, 848 (4th Cir. 1988) (conclusory assertions
about defendant’s motivation and state of mind not sufficient to
withstand summary judgment); cf. Odom v. S.C. Dep’t of Corr.,
349 F.3d 765, 771-72 (4th Cir. 2003) (prison officials not
entitled to qualified immunity at summary judgment because
affirmative evidence showed they knew of and disregarded an
excessive risk to plaintiff’s safety).



                                        18
anything other than negligence.                   Because the record lacks any

evidence that Boyd knew that Gustin posed a particular danger to

Danser, the record as a matter of law fails to show that Boyd

must have appreciated that his act of leaving Danser and Gustin

together in an unsupervised area created an excessive risk to

Danser’s safety on that basis.                  See Farmer, 511 U.S. at 837.

Accordingly, although Boyd may well have been negligent in his

actions, the evidence on which Danser relies fails to show that

Boyd acted with deliberate indifference.

       Danser nevertheless argues that it was “obvious” to Boyd

that placing Danser in a recreation cage with Gustin and leaving

the area unsupervised would have led to an attack.                           See id. at

842    (evidence    showing       that    a   substantial       risk    of    harm   was

“obvious” constitutes circumstantial evidence that a defendant

was actually aware of that risk).                  However, the district court

did not conclude that the risk was obvious to Boyd, nor, as

discussed   above,        does    the    record    suggest   that      the    risk   was

obvious given the lack of evidence concerning Boyd’s awareness

of Danser’s sex-offender status.                  To establish that a risk is

“obvious”    in     this    legal       context,    a   plaintiff      generally     is

required    to     show    that    the     defendant     “had    been    exposed     to

information concerning the risk and thus must have known about

it.”    Id. (citation and internal quotation marks omitted).                         On

this record, there is no evidence that Boyd was exposed to such

                                           19
information.           Thus, as a matter of law, the record fails to

support Danser’s claim that Boyd violated his Eighth Amendment

rights.     Accordingly, we conclude that the district court erred

in     denying     Boyd’s        motion     for   summary      judgment        asserting

qualified immunity.

                                            2.

       We   next       address     the    arguments     of    Stansberry       and    Roy

challenging the district court’s denial of qualified immunity.

Stansberry       and    Roy   argue      that   they   did   not    violate     Danser’s

constitutional rights because there is no evidence that they had

any personal involvement in the events leading up to the attack,

or that they were aware of an excessive risk to Danser’s safety.

In   response,     Danser     argues       that   Stansberry       and   Roy   were   not

entitled to qualified immunity because, as Boyd’s supervisors,

they     “tacitly       authorized”         Boyd’s     actions      by     failing     to

discipline him for his role in the assault.                              See Slakan v.

Porter, 737 F.2d 368, 372-73 (4th Cir. 1984).                       We disagree with

Danser’s argument.

       We first set forth the entirety of the district court’s

analysis concluding that Stansberry and Roy were not entitled to

qualified immunity:

       [T]o the extent that FCI-Butner or the SHU had a
       policy or practice of ignoring or failing to update
       the BOP classifications in Sentry and the CIM system,
       or failed to adhere to acknowledged correctional best
       practices regarding the protection of sex offenders,

                                            20
        Boyd’s supervisors, defendant Lieutenant Roy, as the
        Special Housing Lieutenant in charge of the SHU, and
        defendant    Warden    Stansberry[,]   are    directly
        responsible and not shielded by qualified immunity for
        the purposes of summary judgment.

       The district court’s brief analysis concerning Stansberry

and    Roy   is        problematic    in   several       respects.         As     an   initial

matter, government officials cannot be held liable in a Bivens

case under a theory of respondeat superior for the actions of

their    subordinates.            Ashcroft        v.    Iqbal,       556   U.S.    662,       676

(2009).       Rather,        liability     may    be     imposed       based    only     on    an

official’s own conduct.               Id. at 676-77; Trulock v. Freeh, 275

F.3d 391, 402 (4th Cir. 2001); see also McWilliams v. Fairfax

Cnty. Bd. of Supervisors, 72 F.3d 1191, 1197 (4th Cir. 1996)

(supervisors may not be held liable under 42 U.S.C. § 1983 for

actions      of    subordinate       employees         unless    the    supervisors        have

“direct      culpability”        in    causing         the     plaintiff’s        injuries),

overruled         on    other   grounds    by     Oncale        v.   Sundowner         Offshore

Servs., Inc., 523 U.S. 75 (1998).

       The district court’s analysis fails to apply these legal

principles.             The court’s observation that Stansberry and Roy

were     “directly         responsible”     cannot        be     reconciled        with       the

court’s failure to identify any conduct of Stansberry and Roy

supporting         this    conclusion.          Moreover,        the    record     fails       to

reveal any such evidence, or other evidence that FCI-Butner or

the SHU “had a policy or practice of ignoring or failing to

                                             21
update the BOP classifications in Sentry and the CIM system.”

Thus, all that is present in the record before us is the mere

fact that Stansberry and Roy were Boyd’s supervisors, and under

Iqbal that is insufficient as a matter of law to conclude that

Stansberry and Roy violated Danser’s Eighth Amendment rights.

See 556 U.S. at 676.

     Our conclusion is not altered by Danser’s argument that

Stansberry     and    Roy     are      not    entitled       to    qualified        immunity

because they “tacitly authorized” Boyd’s actions by failing to

discipline     him    after      the    incident.            At    its    core,     Danser’s

argument reflects a misperception of the “tacit authorization”

theory,    which     focuses     on     information          known       to   a   supervisor

before an incident occurs.                   See Shaw v. Stroud, 13 F.3d 791,

798-800 (4th Cir. 1994).               A supervisor may be held liable under

a tacit authorization theory if that supervisor fails to take

action    in   response     to   a     known       pattern    of    comparable         conduct

occurring      before   the      incident          at   issue      took       place.       See

McWilliams, 72 F.3d at 1197; Slakan, 737 F.2d at 373.                                   Here,

there is no evidence in the record that either Stansberry or Roy

was aware before the date of Danser’s attack of any alleged

defects in the assignment process for the recreation cages or of

a pattern of officers leaving the recreation area unattended.

Therefore, neither Stansberry nor Roy may be held liable under a

tacit authorization theory.                  See McWilliams, 72 F.3d at 1197;

                                              22
Slakan,    737    F.2d      at   373.      Accordingly,    based   on   the   record

before us, we conclude as a matter of law that the district

court erred in denying the summary judgment motion of Stansberry

and Roy. 11



                                           III.

      For these reasons, we vacate the district court’s order

denying the defendants’ motion for summary judgment.                     We remand

the   matter     to   the    district      court   with   instructions    that   the

court enter an order granting judgment in the defendants’ favor

on the ground of qualified immunity.



                                        VACATED AND REMANDED WITH INSTRUCTIONS




      11
        Having concluded that the defendants did not violate
Danser’s constitutional rights, we need not analyze under the
second   Saucier  prong   whether   such  rights  were   clearly
established at the time of these events. See 533 U.S. at 201.



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