                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-7746


JAMES HERMAN RAYNOR,

                 Plaintiff - Appellant,

           v.

G. PUGH, Housing Unit #1 Manager,

                 Defendant - Appellee,

           and

HAROLD W. CLARK,     Director    of   Department   of   Corrections;
MARIE VARGO, Ms.,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:13-cv-01117-LMB-JFA)


Argued:   December 8, 2015                   Decided:     March 17, 2016


Before MOTZ, KING, and KEENAN, Circuit Judges.


Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge King joined.      Judge Keenan wrote a
separate opinion concurring in part and concurring in the
judgment.


ARGUED: Brian David Schmalzbach, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant.  Trevor Stephen Cox, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: John D. Adams, Katherine Mims Crocker, MCGUIREWOODS
LLP, Richmond, Virginia, for Appellant.       Mark R. Herring,
Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy
Attorney General, Linda L. Bryant, Deputy Attorney General,
Public Safety & Enforcement, Richard C. Vorhis, Senior Assistant
Attorney   General,  J.  Michael   Parsons,  Assistant  Attorney
General, Stuart A. Raphael, Solicitor General of Virginia,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

       James Herman Raynor, an inmate at a Virginia correctional

facility,     brought          this        action       pursuant     to     42   U.S.C.     §    1983

(2012),     alleging          that     a    prison       official         violated   the    Eighth

Amendment by failing to protect Raynor from an attack by another

inmate.       The district court granted the official’s motion for

summary judgment.               For the reasons that follow, we vacate and

remand for further proceedings.



                                                    I.

       Raynor, an inmate at Sussex II State Prison, suffers from

medical ailments, including seizures, blackouts, “blood issues,”

“heart issues,” and “breath[ing] issues.”                                   In November 2012,

Raynor,     who     was       housed       with   inmate       K.    Mullins,       asked   prison

officials to move him to a different cell with a “caretaker”

inmate      who    had        volunteered         to     assist       him    with    his    health

conditions.         On January 10, 2013, Raynor renewed his request

with   G.    Pugh,       the    Prison       Housing          Manager      for   Raynor’s       unit.

That   day,       Pugh    informed          Mullins       that      he,    instead    of    Raynor,

would have to relocate to a different cell.

       According         to    Raynor,        Mullins         then    threatened      Raynor       in

front of Pugh, saying, “it’s on,” that they were both “going to

seg[regated        housing],”          and    that       he    “would       physically      assault

[Raynor].”         Raynor alleges that, in response, Pugh stated that

                                                    3
he did not care what Mullins did and ordered both men back into

their cell.           Soon after, Mullins smashed Raynor’s television and

punched him in the face multiple times, knocking him to the

ground.         Raynor alleges that Pugh watched the entire assault and

did not call for assistance or take any action until after the

attack        had   ended.       Raynor     also       alleges    that    he   sustained       a

significant injury from the assault.                         In addition to temporary

facial injuries and bruising, when Mullins knocked him to the

ground, the impact assertedly damaged his spine and tailbone.

As   a       result   of    that    spinal     injury,       he   alleges      that    he    now

suffers constant and severe pain, numbness, and loss of control

of his legs, and will be confined to a wheelchair for the rest

of his life.

         After exhausting his administrative remedies, Raynor filed

this         complaint     pursuant    to    42    U.S.C.     §   1983     against      Pugh. 1

Raynor        alleges,     and     realleges      in    an   amended      complaint,        that

Pugh’s         deliberate     indifference         to    Raynor’s        safety,      and    the

resulting injuries, constituted cruel and unusual punishment in

violation of the Eighth Amendment.




         1
       Raynor also named as defendants Director of the Virginia
Department of Corrections Harold Clarke and Sussex II Warden
Marie Vargo.   The district court dismissed the claims against
these defendants because Raynor had failed to allege facts
supporting supervisory liability.  Raynor does not appeal those
dismissals.


                                               4
      As    evidence        of    Pugh’s     deliberate      indifference,         Raynor

submitted     a   verified       complaint       and   a   corroborating       affidavit

from another inmate, who had witnessed the assault.                           To support

his claim of serious injury, Raynor offered copies of several

requests for medical attention for severe spinal pain, numbness,

and uncontrollable falling after January 10th, some of which

attribute these issues to the assault.                      Raynor also submitted

six doctors’ reports describing spinal x-rays before and after

the assault, which he maintains describe damage to a different

section of his spine post-assault than had already been injured.

In an effort to further substantiate his claim, Raynor moved for

production      of   the    following       materials      from    the   prison:        the

security video of the incident, all prison reports related to

the assault, any prison policies or procedures detailing staff

responsibility for inmate safety, and any documents from the

prison’s investigation of the incident.

      Although       Pugh    does     not     dispute      that     Mullins     attacked

Raynor,    he     disputes       essentially      every    other    fact      alleged    by

Raynor.     According to Pugh, Mullins made no threatening comments

in   Pugh’s     presence     before     the      assault,    and    because     the     two

inmates    had    gotten     along    in    the    past,    he     had   no    reason    to

anticipate one would attack the other.                      Pugh contends that he

was in a different part of the housing unit during the alleged

assault and was only “later informed” of an “altercation.”                            Pugh

                                             5
also   maintains      that,   even     if   he    had    been   present      during      an

attack, prison policy would have prevented him from physically

intervening without additional guards.                   He maintains that Raynor

suffered only minor facial abrasions, as reflected in the “mild

abrasions”    noted     in    the    medical     report     from    the    day     of   the

assault.       Pugh     argues      that    Raynor       suffered    ongoing       spinal

problems due to a 2005 accident, so that to the extent Raynor

does currently suffer from chronic back pain, that pain is not

attributable to the asserted assault.                     Finally, Pugh points to

the lack of any written grievances or medical forms from Raynor

complaining of back pain before August 2013, seven months after

the assault.

       Pugh moved for summary judgment, arguing that “Raynor did

not suffer a serious or significant physical injury for which

Pugh would be liable under the Eighth Amendment,” that “Pugh did

not have a sufficiently culpable state of mind,” and that Pugh

was entitled to qualified immunity.                  On the same day, Pugh also

moved for a protective order to stay discovery based on his

qualified     immunity       defense.           Raynor    opposed     both       motions,

reasserted his discovery requests, and filed a motion for an

examination by a back specialist.

       The   district    court      denied      Raynor’s     motions      and    granted

Pugh’s discovery protective order without reaching the merits of

the    qualified   immunity         defense.       Seven     months       later,    still

                                            6
without resolving the issue of Pugh’s asserted immunity from

suit or ordering any discovery, the district court granted Pugh

summary       judgment.         The   court        acknowledged       that    the     parties

“dispute[d]” both “defendant’s motivation in not breaking up the

fight        between     plaintiff       and       Mullins”     and     whether       Raynor

“suffered a severe injury to his spinal cord.”                                However, it

concluded       that    these    disputes      were    not     “genuine,”       due    to    an

asserted       lack     of     evidentiary         support    for     Raynor’s        claims.

Raynor timely noted this appeal.



                                              II.

        The Eighth Amendment’s prohibition on “cruel and unusual

punishments” imposes certain basic duties on prison officials.

Farmer v. Brennan, 511 U.S. 825, 832 (1994).                                 These include

maintaining          humane    conditions       of    confinement,       including          the

provision of adequate medical care and, relevant to this case,

“reasonable measures to guarantee the safety of the inmates.”

Id.          (internal        quotation       marks    omitted).             Specifically,

corrections         officers     have    “a    duty    to    protect    prisoners        from

violence       at      the    hands     of    other     prisoners,”          for    “[b]eing

violently assaulted in prison is simply not part of the penalty

that criminal offenders pay for their offenses against society.”

Id.     at    832,     834    (internal       quotation       marks    and     alterations

omitted).

                                               7
     However, “not every injury suffered by a prisoner at the

hands of another translates into constitutional liability for

prison officials responsible for the victim’s safety.”                           Makdessi

v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation

marks   omitted).       A     plaintiff      must    satisfy       a    two-part    test,

consisting of both an objective and a subjective inquiry, for

liability to attach.

     First, the inmate “must establish a serious deprivation of

his rights in the form of a serious or significant physical or

emotional injury,” or a substantial risk thereof.                              Danser v.

Stansberry,      772   F.3d    340,    346-47       (4th    Cir.       2014)    (internal

quotation marks omitted); see Farmer, 511 U.S. at 834.                                  This

objective inquiry “requires a court to assess whether society

considers the risk that the prisoner complains of to be so grave

that it violates contemporary standards of decency to expose

anyone unwillingly to such a risk.”                   Helling v. McKinney, 509

U.S. 25, 36 (1993).

     Second, an inmate must show that the prison official had a

“sufficiently culpable state of mind,” which, in this context,

consists    of    “deliberate         indifference         to   inmate         health    or

safety.”      Farmer,    511    U.S.    at    834    (internal         quotation    marks

omitted).     This subjective inquiry requires “evidence suggesting

that the prison official had actual knowledge of an excessive

risk to the plaintiff’s safety.”               Danser, 772 F.3d at 347.                 The

                                          8
defendant must “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.”         Farmer,       511    U.S.     at     837

(emphasis added).         An inmate can, however, prove an official’s

actual    knowledge     of    a   substantial      risk    “in    the    usual        ways,

including inference from circumstantial evidence.”                       Id. at 842.

In   other     words,    “a    factfinder     may     conclude      that     a    prison

official knew of a substantial risk from the very fact that the

risk was obvious.”       Id.

       However,    “prison        officials     who       actually      knew       of     a

substantial risk to inmate health or safety may be found free

from liability if they responded reasonably to the risk.”                               Id.

at 844.        In failure-to-protect cases, “prison guards have no

constitutional duty to intervene in the armed assault of one

inmate upon another when intervention would place the guards in

danger of physical harm.”              Prosser v. Ross, 70 F.3d 1005, 1008

(8th Cir. 1995); see also Winfield v. Bass, 106 F.3d 525, 532

(4th   Cir.    1997)    (en    banc)    (“[S]uch    heroic       measures        are    not

constitutionally required.”).             But “completely failing to take

any action” to stop an ongoing assault on a prisoner can amount

to   deliberate    indifference.          Winfield,       106    F.3d   at     532;     see

also, e.g., Odom v. S.C. Dep’t of Corr., 349 F.3d 765, 773 (4th

Cir. 2003) (“[A] correctional officer who stands by as a passive

observer and takes no action whatsoever to intervene during an

                                          9
assault violates the [Eighth Amendment] rights of the victim

inmate.”); Williams v. Mueller, 13 F.3d 1214, 1216 (8th Cir.

1994) (“A prison official acts with deliberate indifference to

an inmate’s safety when the official is present at the time of

an assault and fails to intervene or otherwise act to end the

assault.”);      cf. Prosser,      70      F.3d      at    1008-09     (finding      no

deliberate      indifference     where      prison    guard    ran    to    get   help

immediately after inmate threw first punch at plaintiff).                         Thus,

courts   have    found    that   “a     corrections        officer’s    failure      to

intervene in a beating can be the basis of [§ 1983] liability”

if the officer had a reasonable opportunity to act and “simply

refused to do so.”        Smith v. Mensinger, 293 F.3d 641, 650 (3d.

Cir. 2002).



                                        III.

     With    these   principles       in    mind,     we   consider    whether     the

district court ignored genuine disputes of material fact and so

erroneously     granted   summary       judgment      to   Pugh.       We   review    a

court’s grant of summary judgment de novo.                    PMB Prods., LLC v.

Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011).                       Summary

judgment is appropriate only “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.”                       Fed. R. Civ. P.

56(a).      In deciding whether a genuine issue of material fact

                                           10
exists, “[t]he evidence of the non-movant is to be believed, and

all   justifiable         inferences      are   to    be   drawn    in   his   favor.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

      For    the       objective-injury     prong,     Raynor      alleges     specific

facts describing the facial trauma and spinal injury caused by

Mullins’ attack.           Raynor also submitted his verified complaint,

describing the assault and his injuries in detail; several of

written      requests       to     the     prison      for   medical      attention,

complaining of severe back pain and numbness; and six medical

reports interpreting x-rays of his spine before and after the

assault. 2        He    offered a witnessing inmate’s affidavit, which

describes the impact from Mullins’ final blow that allegedly

caused Raynor’s spinal injury.                  The witness swore that Raynor

“fell backwards and hit the floor on his buttocks.                           He hit so

hard he bounced off the floor and then landed again after going

about     three    or    four    inches   off   the    floor.       Mr. Raynor    then




      2 Our friend in concurrence suggests that Raynor “has not
yet raised a genuine dispute” regarding his injury because his
x-ray reports would be difficult for a lay person to interpret.
However, when faced with documents purportedly related to a
material issue but inscrutable to the court, we cannot
“eliminate the possibility that genuine issues of material fact
exist.”    Matherly v. Andrews, No. 14-7691, slip op. at 20 (4th
Cir. March 16, 2016).       Rather, summary judgment “should be
granted only when it is perfectly clear that no issue of
material fact exists.”    Haulbrook v. Michelin N. Am., 252 F.3d
696, 702 (4th Cir. 2001).


                                           11
proceeded to slowly get up off the floor and had a dazed, pain

[sic] look on his face.”

     Of course, Pugh does not concede the truth of these facts.

Rather, Pugh maintains that Raynor suffered no more than “mild

abrasions on [his] face and cheeks.”           Appellee’s Br. at 6.         Pugh

contends that, to the extent Raynor does suffer chronic back

pain, it is attributable to a 2005 accident.              Pugh also points

to the lack of written complaints about back pain from Raynor in

the first seven months following the assault, suggesting that

Raynor began concocting a written record of this pain only after

he filed his § 1983 complaint in August 2013.                   A fact finder

might    ultimately    agree   with    Pugh,     but   Raynor    has   offered

contrary    evidence     as    to     material    facts    concerning        the

seriousness of his injury which, at present, preclude the grant

of summary judge to Pugh on this prong.

     Similarly, as for the subjective inquiry -- whether Pugh

acted with deliberate indifference –- Raynor has also offered

evidence   preventing    the   grant    of   summary   judgment. 3     In    his


     3 Part and parcel of our review of the district court’s
grant of summary judgment is Raynor’s claim that the court
improperly disregarded most of Raynor’s evidence. We agree that
the court erred in doing so.     For example, in assessing the
deliberate-indifference  prong,   the  court   ignored Raynor’s
factual assertions about Mullins’ comments, concluding that
“nothing in plaintiff’s evidentiary submissions [] show[s] that
Pugh knew that Mullins posed a risk to plaintiff’s health or
safety.”   The court then stated that, “[i]n fact, Pugh stated
(Continued)
                                       12
verified complaint, Raynor alleges two independent grounds for

establishing Pugh’s subjective knowledge of the risk of assault.

First, in his verified complaint, Raynor alleges that Mullins

told Pugh he was going to attack Raynor and that Pugh responded

that he did not care what Mullins did.            This allegation, taken

as   true,    establishes   that   Pugh   had   “actual   knowledge   of   an

excessive risk to the plaintiff’s safety.”           Danser, 772 F.3d at

347; see e.g., Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.

2000); Street v. Corr. Corp. of America, 102 F.3d 810, 815-16

(6th Cir. 1996).

      Independent of this fact, Raynor also alleges that Pugh had

actual knowledge of the attack as it was happening because Pugh

watched the entire incident.        Because he did so without radioing

for assistance or taking any other action, in Raynor’s view Pugh

did not respond reasonably to the substantial risk to Raynor’s

safety.      The witnessing inmate’s affidavit corroborates Raynor’s

allegations, stating that during the assault Pugh stood watching




that the plaintiff had never mentioned having any problems with
Mullins, and that the two men ‘got along well’” -- apparently
crediting   only  Pugh’s   factual  assertions  while  ignoring
Raynor’s.   But, of course, the nonmoving party is entitled “to
have . . . his version of all that is in dispute accepted, all
internal conflicts in it resolved favorably to him, [and] the
most favorable of possible alternative inferences from it drawn
in his behalf.” Charbonnages de France v. Smith, 597 F.2d 406,
414 (4th Cir. 1979).


                                     13
“behind the first set of chase doors smil[ing] with a two way

radio in his hand . . . which he never used.”

      Pugh again disputes this version of events.                         He asserts

that he was outside of the housing unit during the assault and

saw no part of it.             But where “affidavits present conflicting

versions of the facts which require credibility determinations,”

summary    judgment      cannot       lie.         Davis,   600    F.2d   at   459-60

(reversing summary judgment where inmate alleged that “the guard

watched the knifing attack without acting to protect him,” but

the   guard    claimed    he    was    not    present);     see    also   Pressly    v.

Hutto, 816 F.2d 977, 979 (4th Cir. 1987). 4

      In sum, genuine disputes of material fact underlie both

prongs    of   Raynor’s    claim.            See   Anderson,      477   U.S.   at   248

(explaining that factual disputes are “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the




      4 These factual disputes also defeat Pugh’s claim to
qualified immunity at this early stage, for Raynor has alleged
facts that make out a violation of a clearly established
constitutional right.    See Pearson v. Callahan, 555 U.S. 223,
232 (2009).   Long before this 2013 attack, we had specifically
determined that a prison official who passively watches an
inmate assault without taking any action in response “violates
the rights of the victim inmate.”    Odom, 349 F.3d at 773; see
also, e.g., Winfield, 106 F.3d at 532; Brown v. N.C. Dep’t of
Corr., 612 F.3d 720, 723 (4th Cir. 2010); Davis v. Zahradnick,
600 F.2d 458, 459-60 (4th Cir. 1979); Gordon v. Leeke, 574 F.2d
1147, 1152 (4th Cir. 1978).



                                             14
nonmoving party”).       Thus, on this record, the district court

erred in granting summary judgment to Pugh. 5



                                   IV.

     For the forgoing reasons, we vacate the judgment of the

district   court   and   remand   the    case   for   further   proceedings

consistent with this opinion.

                                                      VACATED AND REMANDED




     5 Raynor also argues that the district court erred in
denying him any discovery. Generally, a court should not grant
summary judgment when, as here, outstanding discovery requests
on material issues exist. See Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 196-97 (4th Cir. 2006).       The district
court stayed Raynor’s discovery requests pending resolution of
Pugh’s qualified immunity defense, in accord with Crawford-El v.
Britton. See 523 U.S. 574, 598 (1998). But, without ruling on
the (meritless at this stage) qualified immunity claim, the
court granted summary judgment on evidentiary grounds, faulting
Raynor for “not provid[ing] any evidence, other than his own
affidavit, to support his allegations.” In so doing, the court
erred.   On remand the district court should permit appropriate
discovery before entertaining any additional motions for summary
judgment.


                                    15
BARBARA MILANO KEENAN, Circuit Judge, concurring in part and
concurring in the judgment:

       I agree with the majority’s conclusion that the district

court     erred    because      Raynor       should       have     been     afforded       an

opportunity to conduct discovery, and because a genuine dispute

exists regarding whether Pugh acted with a culpable state of

mind.     I write separately to state my view that given Raynor’s

complex     medical      history       and    his       improper       reliance    on    lay

causation    opinion,      he    has    not       yet    raised    a    genuine    dispute

regarding    the    cause       of   his     alleged       injury.         Nevertheless,

because that defect may be remedied during the course of future

discovery in this case, Raynor is entitled to have the district

court’s summary judgment award vacated.

       I do not think that a reasonable jury could conclude from

the    present    record     that      Mullins’         attack,    rather    than       other

factors, caused Raynor’s alleged back injury.                           Raynor’s complex

medical history includes seizures, cardiovascular issues, and a

back impairment that existed long before the attack.                              Prior to

that event, Raynor had fallen multiple times, seeking medical

treatment for his back pain.                 Moreover, various medical reports

both    before     and     after     the      attack       describe       Raynor’s       back

condition as being “degenerative” in nature.

       A nonmoving party seeking to prevent summary judgment must

show a genuine dispute of fact using admissible evidence, not



                                             16
merely conclusory or speculative statements.                           See Fed. R. Civ.

P. 56(c).      Raynor’s own interpretation of his x-ray reports, and

his speculation regarding the causes of his back pain and his

falls after the attack, constitute conclusory and inadmissible

lay opinion on issues requiring “scientific, technical, or other

specialized     knowledge.”           Fed.    R.    Evid.      701(c).         A   layperson

could not determine whether the “multilevel spondylosis” and the

“facet arthropathy” described in a post-attack report differs

from    the   “multilevel       lower      lumbar     facet         arthrosis”      and   the

“spondylosis” described in pre-attack reports.                            Thus, without

expert   testimony,       a    lay    juror       would   be    unable        to   determine

whether any change in Raynor’s spinal condition was attributable

to Mullins’ attack.

       Although, in many cases, an inference of causation may be

drawn based on temporal proximity between violent contact and a

particular      injury,       such    an     inference         is     unavailable      here.

Raynor’s      medical   history       is     sufficiently           complex    that   a   lay

juror could not rationally infer the cause of his existing back

problems.      Unlike an injury that appears immediately following a

violent impact, Raynor’s degenerative spinal condition existed

before the attack and worsened after multiple falls during the

seven    months    following         the   attack.        Nothing        in    the    record

indicates that this type of spinal condition can be caused by

acute physical trauma.


                                             17
      Nevertheless, evidence revealed during future discovery may

yet   establish   material   facts        supporting   Raynor’s   claim   of

causation.     Therefore, I respectfully concur in the judgment in

this appeal.




                                     18
