                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                 No. 06-3743
                                ___________
                                      *
Randell Brown,                        *
                                      *
            Plaintiff-Appellee,       * Appeal from the United States
                                      * District Court for the Western
      v.                              * District of Missouri.
                                      *
Keith Fortner; Eugene Scott,          *
                                      *
            Defendants-Appellants.    *
                                ___________

                             Submitted: September 27, 2007
                                Filed: March 4, 2008
                                 ___________

Before MURPHY, MELLOY, and SMITH, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

       Former Missouri Department of Corrections (MDOC) inmate Randell Brown
filed a 42 U.S.C. § 1983 suit against a number of MDOC employees, including Keith
Fortner and Eugene Scott. Brown alleged Fortner and Scott, both correction officers
with the MDOC, acted with deliberate indifference by failing to provide safe
transportation to Brown, thus violating Brown’s Eighth Amendment rights. The
district court granted the defendants’ motion to dismiss, and this court reversed in
part, concluding Brown stated a claim against Fortner, Scott, and the other
correctional officers involved in his transportation. Brown v. Mo. Dep’t of Corr., 353
F.3d 1038 (8th Cir. 2004). On remand, the district court denied Fortner’s and Scott’s
claims of qualified immunity and denied their motions for summary judgment.
Fortner and Scott appeal. Brown argues this court lacks interlocutory appellate
jurisdiction to hear Fortner’s and Scott’s claims. We conclude we have jurisdiction to
consider this appeal and affirm in part and reverse in part.

I.    Background

       For purposes of summary judgment, we view the evidence in the light most
favorable to Brown, the non-moving party. Ngo v. Storlie, 495 F.3d 597, 599 (8th
Cir. 2007).

      Fortner and Scott were part of an MDOC transportation team transferring
Brown and other inmates from one MDOC facility to another in a five-vehicle
convoy. Fortner drove the second vehicle in the convoy, a van carrying Brown and
nine other inmates. Scott drove the third vehicle, a van carrying one inmate.

      Brown was fully shackled with belly chains, handcuffs, leg chains, and a black
box covering the handcuffs as officers loaded him into the van. The other inmates
were similarly restrained. These restraints prevented Brown and the other inmates
from securing their seatbelts without assistance. The restraints also would prevent the
inmates from bracing themselves in the event of a crash.

       As correction officers loaded Brown into the van, Brown asked the officers to
fasten his seatbelt. The officers refused to secure Brown’s seatbelt and instead replied
with taunts. Other inmates also requested seatbelts and were rebuffed. Brown reports
hearing transportation officers say, “Ah, hell, you all will be all right,” “You all don’t
think we’re gonna wreck, do you?”, and “What, you all don’t trust our driving?”
Brown is unable to identify personally the officers who made the taunting comments
and has presented no evidence identifying either Fortner or Scott as one of the officers
who taunted the inmates.



                                           -2-
       Fortner denies being present when Brown was loaded into the van and denies
making any of the taunting comments recounted above. However, Fortner admits he
failed to fasten Brown’s seatbelt. When seatbelts are available, transporting inmates
without securing their seatbelts violates MDOC policy. Scott claims he was not
present when Brown was loaded into the van, explaining he was fifty feet away,
calling the names of the prisoners as they were loaded into the vans. Scott did not
fasten the seatbelt of the prisoner riding in his van; there is no evidence as to whether
the prisoner requested a seatbelt.

       After the officers placed the inmates in the vans, the convoy departed. Both
Fortner and Scott put on their own seatbelts. While driving in a convoy formation, the
convoy drivers purposely followed closely to prevent other cars from getting between
the convoy vehicles. The convoy passed other vehicles at inappropriate times. The
convoy traveled in excess of the speed limit (55 miles per hour), going up to 75 miles
per hour. Inmates in Fortner’s van repeatedly asked Fortner to slow down, but he did
not respond nor adjust his driving. After one request, Fortner turned up the radio.

       At one point, Fortner slammed on his brakes and swerved to avoid hitting the
convoy’s lead vehicle, which had slowed suddenly due to the actions of another car.
Scott, who was looking down at his speedometer, looked up and saw Fortner’s brake
lights. Scott slammed on the brakes and swerved. Scott’s vehicle skidded and
collided with the back of Fortner’s van while going approximately 30 miles per hour.
Brown suffered injuries as a result of the collision.

       The police investigation after the collision listed Scott’s inattentive driving as
causing the accident. MDOC also investigated the incident and concluded there was
insufficient spacing between the vehicles.

      Brown filed suit against multiple MDOC defendants pursuant to 42 U.S.C.
§ 1983. Brown alleged the acts described above constituted a violation of his Eighth

                                           -3-
Amendment right to be free from cruel and unusual punishment. The district court
granted the defendants’ motions to dismiss, and Brown appealed. On appeal, this
court upheld the dismissal of Brown’s claims against a number of defendants, but
reversed the district court as to the correction officers involved in Brown’s
transportation. This court concluded that “Brown stated a claim against the five
[correction officers] involved in transporting the inmates, as he alleged he asked them
all to fasten his seatbelt, but they refused.” Brown, 353 F.3d at 1040 (citing Fruit v.
Norris, 905 F.2d 1147, 1150 (8th Cir. 1990) (prison officials violate the Eighth
Amendment when they intentionally place prisoners in dangerous situations or
manifest deliberate indifference for their safety) and Brown v. Morgan, 39 F.3d 1184,
*1 (8th Cir. 1994)(unpublished) (per curiam) [hereinafter “Morgan”] (sheriff’s refusal
to let prisoner wear seatbelt, driving at high rate of speed in bad weather, and smiling
when he saw that prisoner was frightened was sufficient to support conclusion that
sheriff manifested deliberate indifference for prisoner’s safety)).

       On remand, all of the remaining defendants moved for summary judgment. The
district court granted summary judgment in favor of all the defendants except Fortner
and Scott. The district court found that Brown presented sufficient evidence for a
reasonable jury to conclude that Fortner and Scott violated Brown’s Eighth
Amendment rights. The court further held that the right Fortner and Scott allegedly
violated was clearly established and therefore concluded that Fortner and Scott were
not entitled to qualified immunity. Fortner and Scott appeal the denial of summary
judgment and the district court’s conclusion that they are not entitled to qualified
immunity. Brown argues that this court lacks interlocutory appellate jurisdiction to
hear Fortner’s and Scott’s claims.




                                          -4-
II.   Analysis

      A.     Jurisdiction

        We first address whether we have interlocutory appellate jurisdiction. “While
a denial of summary judgment is not generally reviewable on immediate appeal, we
may review a denial of summary judgment based on qualified immunity on immediate
appeal, ‘to the extent that it turns on an issue of law.’” Powell v. Johnson, 405 F.3d
652, 654 (8th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
“‘[I]f the issues relate to whether the actor actually committed the act of which he is
accused . . . or other similar matters that the plaintiff must prove, we have no
jurisdiction to review them in an interlocutory appeal of a denial of a summary-
judgment motion based on qualified immunity.’” Henderson v. Munn, 439 F.3d 497,
501 (8th Cir. 2006) (alteration in original) (quoting Miller v. Schoenen, 75 F.3d 1305,
1309 (8th Cir. 1996)). Thus, in an interlocutory appeal, we may not review a district
court’s finding of facts, but it is within our jurisdiction to “determine whether all of
the conduct that the district court deemed sufficiently supported for purposes of
summary judgment violated the plaintiff’s clearly established federal rights.”
Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en
banc) (quotation and citation omitted).

       In this appeal, Fortner and Scott question whether the uncontested evidence
demonstrates that they violated a clearly established constitutional right, thereby
foreclosing the protection of qualified immunity. We conclude this is a legal issue
falling squarely within our limited interlocutory appellate jurisdiction. However, in
making their argument, Fortner and Scott contest some facts Brown asserts. Such
factual disputes are not properly before the court. Craighead v. Lee, 399 F.3d 954,
960 (8th Cir. 2005). This does not strip us of jurisdiction. “We conduct our review
by accepting as true the facts that the district court specifically found were adequately
supported, along with those facts that the district court likely assumed.” Lockridge,

                                           -5-
315 F.3d at 1008 (quotation and citation omitted). Where there are questions of fact
the district court did not resolve, “we determine the facts that it likely assumed by
viewing the record favorably to the plaintiff as in any other summary judgment
motion.” Id. (citation and quotation omitted).

      B.     Qualified Immunity

       Fortner and Scott appeal the district court’s denial of their claims of qualified
immunity. “Qualified immunity protects a government official from liability in a
section 1983 action unless the official’s conduct violated a clearly established
constitutional or statutory right of which a reasonable person would have known.”
Henderson, 439 F.3d at 501. This court applies de novo review to the district court’s
denial of a motion for summary judgment on the issue of qualified immunity. Ngo,
495 F.3d at 601. In considering whether qualified immunity was properly denied, we
must consider the evidence “in the light most favorable to the party asserting the
injury.” Lockridge, 315 F.3d at 1008 (quotation omitted). As with any summary
judgment motion, while we are required to make all reasonable inferences in favor of
the non-moving party, we do not resort to speculation. Twymon v. Wells Fargo &
Co., 462 F.3d 925, 934 (8th Cir. 2006).

       Review of a denial of summary judgment based upon a rejection of a claim of
qualified immunity is a two-step process. First, we consider whether the evidence
demonstrates that the defendants’ conduct violated a constitutional right. See Saucier
v. Katz, 533 U.S. 194, 201 (2001); Powell, 405 F.3d at 654–55. If there was a
constitutional violation, we next consider whether the right violated was clearly
established. See Saucier, 533 U.S. at 201; Powell, 405 F.3d at 655.




                                          -6-
             1.     Did the Defendants’ Conduct Violate a Constitutional Right?

       The Supreme Court has interpreted the Eighth Amendment’s prohibition against
cruel and unusual punishment to include a right to safe and humane conditions of
confinement. See Farmer v. Brennan, 511 U.S. 825, 847 (1994). A denial of safe and
humane conditions can result from an officer’s deliberate indifference to a prisoner’s
safety. See Fruit v. Norris, 905 F.2d 1147, 1150 (8th Cir. 1990). A claim based on
deliberate indifference requires a substantial risk of harm to the inmate that an officer
knew of and disregarded. Farmer, 511 U.S. at 837. Deliberate indifference requires
“more than mere negligence,” but does not require acting “for the very purpose of
causing harm or with knowledge that harm will result.” Id. at 835. The Supreme
Court has stated that “acting or failing to act with deliberate indifference to a
substantial risk of serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.” Id. at 836. This court has previously held that failure to
provide a seatbelt to a prisoner while driving in a manner that puts the prisoner at risk
of injury can constitute deliberate indifference to a prisoner’s safety and health.
Morgan, 39 F.3d 1184, *1. If the facts as alleged by Brown establish that 1) there was
a substantial risk of harm to Brown and 2) Fortner or Scott knew of and disregarded
the substantial risk to Brown, then their conduct demonstrated a deliberate
indifference to Brown’s safety and violated Brown’s Eighth Amendment rights.
Because claims under § 1983 cannot be based upon vicarious liability, see City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Otey v. Marshall, 121 F.2d 1150,
1155 (8th Cir. 1997), we must consider each defendant individually to determine
whether the evidence indicates a constitutional violation occurred.

                    a.     Fortner

      Fortner was driving the van transporting Brown. Fortner states in his brief,
“There is no dispute that Fortner did not place plaintiff in a seatbelt despite Brown,
and other inmates, requesting that he do so.” This admission acknowledges two facts:

                                           -7-
1) Brown requested a seatbelt and 2) Fortner did not secure Brown with a seatbelt.
Fortner asserts these are the only facts on which Brown’s § 1983 claim rests and
argues that failing to secure a seatbelt is insufficient to constitute a constitutional
violation. Fortner’s characterization of the evidence is incorrect. In addition to the
failure to fasten Brown’s seatbelt, Brown presents evidence of Fortner’s reckless
driving. Brown has offered evidence that Fortner was driving in excess of the speed
limit, following too closely to the lead van, crossing over double-yellow lines, and
passing non-convoy cars when the road markings clearly prohibited doing so. Further,
Brown has presented evidence showing that the inmates riding in Fortner’s van asked
him to slow down, and Fortner ignored their requests.1

      The evidence Brown presented makes the instant case quite similar to Morgan,
39 F.3d 1184,*1. In Morgan, the plaintiff alleged the officer transporting him in the


      1
        Brown has also alleged that five of the nine officers in the transportation
convoy were gathered around his van as he was being loaded and that the officers
made taunting comments about the inmates’ requests for seatbelts. This court
originally relied upon this assertion in concluding that Brown stated a claim against
the transportation officers as a group. See Brown, 353 F.3d at 1040. A claim
pursuant to § 1983 cannot be based upon vicarious liability, however, so Fortner must
have made—or at least been aware of—the taunting comments to be held accountable
for them. See Canton, 489 U.S. at 385 (“Respondeat superior or vicarious liability
will not attach under § 1983.”). While Brown proceeds under the assumption that
Fortner was present or participated in the taunting, he has proffered no evidence
showing that Fortner was one of the five officers standing by the van, and Fortner
denies being there. The district court noted Brown’s testimony that the statements
were made, but did not address whether the evidence indicates that Fortner made or
heard the statements. The district court did not specifically rely on the alleged taunts
in reaching its conclusion that Fortner was not entitled to qualified immunity,
however, and we conclude that this omission demonstrates the district court did not
“likely assume[]” Fortner made or heard the statements. See Lockridge, 315 F.3d at
1008. Like the district court, we will not rely upon the alleged taunting as part of our
analysis as to whether Fortner violated Brown’s constitutional rights.


                                          -8-
rear of a patrol car refused to let him wear a seatbelt, drove at a high rate of speed in
bad weather, refused to slow down despite the requests to do so, and taunted him for
being scared under the circumstances. Id. This court found the plaintiff to have
alleged facts “sufficient to support a conclusion that [the transporting officer]
manifested deliberate indifference for [the inmate’s] safety, and thus entitle[d] [him]
to relief.” Id. Although Morgan is an unpublished per curiam opinion and we are not
bound to follow it under Eighth Circuit Rule 32.1A, the panel deciding the earlier
appeal in this case relied upon Morgan, see Brown, 353 F.3d at 1040, and we choose
to do so, as well. As in Morgan, the facts presented regarding Fortner’s conduct
provide sufficient grounds to conclude Fortner’s actions created a substantial risk of
harm to Brown, and Fortner knew of and disregarded the risk he created.

       The uncontested evidence indicates Fortner knew Brown was shackled and
restrained in a manner that prevented him from securing his own seatbelt.
Nonetheless, Fortner rejected Brown’s request for a seatbelt. Fortner drove recklessly
and ignored requests by the inmate passengers in his van for him to slow down. From
this evidence, a reasonable jury could conclude that there was a substantial risk of
harm to Brown and that Fortner knew of and disregarded the substantial risk harm.
As such, Brown has presented sufficient evidence that Fortner’s actions may have
violated the Eighth Amendment prohibition against cruel and unusual punishment.

                    b.     Scott

       Scott was driving the van that crashed into Fortner’s van. Scott was looking
down at his speedometer when the convoy vehicles in front of him suddenly slowed
down. When he looked up and saw the brake lights, Scott responded by slamming on
his brakes and swerved in an attempt to avoid the van in front of him. He was
unsuccessful. Like Fortner, Scott was driving in excess of the speed limit, following
too closely to the van in front of him, and passing at inappropriate times as part of the



                                           -9-
five-vehicle convoy. Scott’s driving proximately caused the accident that resulted in
Brown’s physical injuries.

       The critical difference between Fortner and Scott, however, is knowledge. “The
question of what was known to a person who might be shielded by qualified immunity
is reviewable.” Henderson, 439 F.3d at 501 (quotation omitted). There is no evidence
that Scott was asked to slow down and refused. Thus, Brown has not presented
evidence showing that Scott knew the inmate passengers were concerned for their
safety due to his driving or that he ignored those concerns. Further, Brown does not
provide evidence that Scott actually knew Brown was not in a seatbelt, or that Scott
knew Brown had requested and been denied a seatbelt.2 The district court concluded
there was sufficient evidence that Scott had “knowledge that [Brown] was being
unrestrained by a seatbelt,” but does not state the evidence demonstrating Scott’s
knowledge. The evidence in the record that may, by inference, tend to support this
conclusion is the fact that the inmate in Scott’s van was not secured by a seatbelt; one
could infer Scott knew other inmates may not have been wearing seatbelts because his
inmate passenger was not. We conclude this evidence is insufficient for a reasonable
jury to conclude Scott actually knew Brown was unrestrained by a seatbelt and
therefore more vulnerable to injuries in the event of a crash. Deliberate indifference
requires actual knowledge of a substantial risk. Young v. Selk, 508 F.3d 868, 873 (8th
Cir. 2007) (“An official is deliberately indifferent if he or she actually knows of the
substantial risk and fails to respond reasonably to it.”). The inferential evidence on
which the district court’s conclusion apparently relies falls short of establishing
Scott’s required knowledge, as the lack of a requested seatbelt is a critical part of the
risk posed to Brown.



      2
       Brown cannot identify Scott as one of the officers who taunted him, and Scott
denies making or hearing the taunts. As explained in analyzing the claim against
Fortner, we cannot consider the taunts made by unidentified officers in determining
whether a specific officer violated Brown’s constitutional rights. See supra note 1.

                                          -10-
       Considering the facts in the light most favorable to Brown, the evidence
demonstrates that Scott may have driven in a manner that increased the risk of harm
to the shackled inmates in the convoy, including Brown. Without more than reckless
driving, however, we cannot conclude that Scott’s conduct amounted to deliberate
indifference.

              2.     Was the Right Violated Clearly Established?

       The second question in considering the denial of qualified immunity is whether
the right violated was clearly established. Although we conclude there is insufficient
evidence that Scott’s conduct violated the constitution, because we conclude there is
sufficient evidence regarding Fortner’s conduct, this inquiry is necessary. See Scott
v. Harris, 127 S. Ct. 1769, 1774 (2007) (“If, and only if, the court finds a violation of
a constitutional right, the next, sequential step is to ask whether the right was clearly
established . . . in the specific context of the case.” (Quotation omitted, omission in
original)).

       A right is clearly established if “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. In
determining whether a right was clearly established, we must define the right allegedly
violated “at the appropriate level of specificity before [we] can determine whether it
was clearly established.” Craighead, 399 F.3d at 962. “The Supreme Court, however,
has made it clear that there need not be a case with materially or fundamentally similar
facts in order for a reasonable person to know that his or her conduct would violate
the Constitution.” Young, 508 F.3d at 875 (quotations omitted). A right is clearly
established if the law, as established at the time of the events in question, gave the
officials “fair warning that their alleged conduct was unconstitutional.” Id. (alteration
and quotation omitted).




                                           -11-
       We conclude that Fortner had “fair warning” that driving recklessly while
transporting a shackled inmate who had been denied the use of a seatbelt and ignoring
requests to slow down violated the constitutional prohibition against cruel and unusual
punishment. There is no question that it was clearly established that subjecting
inmates to unreasonable and substantial risk of harm constituted a constitutional
violation. See Farmer, 511 U.S. at 847; Fruit, 905 F.2d at 1150. While there are not
any published cases from our circuit directly addressing deliberate indifference in the
context of prisoner transportation, Morgan is on point. 39 F.3d 1184, *1. The court
in Morgan stated, “While a constitutional claim cannot be based on mere negligence,
when prison officials intentionally place prisoners in dangerous situations or manifest
deliberate indifference for their safety, the Eighth Amendment is violated.” Id.
(internal citation omitted). The facts in Morgan that were sufficient to support a
conclusion that an officer transporting an individual was deliberately indifferent are
sufficiently similar to the conduct alleged of Fortner to make it clear to a reasonable
officer that the conduct was unconstitutional. Moreover, even discounting Morgan’s
significance because it was unpublished, “‘officials can still be on notice that their
conduct violates established law even in novel factual circumstances.’” Craighead,
399 F.3d at 962 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Other cases
addressing deliberate indifference to the safety of prisoners provided notice that the
conduct engaged in by Fortner was unconstitutional, making the right clearly
established. Cf. id. (finding no prior cases presenting the same factual circumstances
in an excessive force claim, but concluding nonetheless that the right allegedly
violated was clearly established because the prior case law, while factually distinct,
would have put a reasonable officer on notice that the challenged conduct was
unconstitutional).




                                         -12-
III.   Conclusion

       Accordingly, we affirm the district court’s order denying qualified immunity
to Fortner, and we reverse the denial of qualified immunity to Scott. We remand for
further proceedings consistent with this opinion.
                       ______________________________




                                       -13-
