                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0306n.06

                                             No. 12-3515
                                                                                             FILED
                            UNITED STATES COURT OF APPEALS                               Mar 27, 2013
                                 FOR THE SIXTH CIRCUIT                             DEBORAH S. HUNT, Clerk


CARMELLA L. AMICK, et al.,                                  )
                                                            )         ON APPEAL FROM THE
        Plaintiffs-Appellants,                              )         UNITED STATES DISTRICT
                                                            )         COURT FOR THE
v                                                           )         SOUTHERN DISTRICT OF
OHIO DEPARTMENT OF REHABILITATION &                         )         OHIO
CORRECTION, et al.,                                         )
                                                            )                  OPINION
        Defendants-Appellees.                               )
                                                            )



        BEFORE: DAUGHTREY, McKEAGUE and GRIFFIN, Circuit Judges.

        McKEAGUE, Circuit Judge. This case stems from the death of Harry J. Amick while

incarcerated in an Ohio prison. The decedent’s estate brought suit against various corrections

entities and employees, asserting claims under 42 U.S.C. § 1983 for deliberate indifference to serious

medical needs and failure to protect. The district court dismissed all claims under Fed. R. Civ. P.

12(b)(6). Plaintiffs contend the district court improperly failed to construe the facts alleged in their

favor. For the reasons that follow, the district court’s ruling is affirmed in part and reversed in part.

                    I. FACTUAL AND PROCEDURAL BACKGROUND1

        Harry J. Amick was forty-seven years old at the time of his death while imprisoned on

September 18, 2008. He had suffered from schizoaffective disorder for most of his life, for which


        1
       This fact summary is drawn essentially from the allegations of plaintiffs’ first amended
complaint, accepted as true for present purposes.
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he had been prescribed psychotropic medications by various mental health professionals. During

the last months of his life, while incarcerated, these medications were withdrawn. This may have

contributed to manifestation of increasing symptoms, which may have played a role in his death at

the hands of another inmate.

       On November 7, 2007, Amick was taken into custody at the Cuyohoga County Corrections

Center. There psychotropic medications were prescribed, specifically zyprexa and depakote. On

April 8, 2008, Amick was sentenced to four years’ imprisonment and ordered to remain on his

psychotropic medications.

       Amick was transferred to a state prison facility, Lorain Correctional Institution, on April 14,

2008. There Amick was diagnosed with schizoaffective disorder and his prescription for zyprexa

and depakote was maintained. However, it was determined that Amick did not need mental health

services and administration of his medications was tapered. As a result, Amick stopped receiving

zyprexa on April 28, 2008. On April 29, 2008, he was transferred to another correctional facility,

Madison Correctional Institution. Amick was again diagnosed with schizoaffective disorder and

depakote was prescribed, but Amick was deemed not to need mental health services and he no longer

received depakote after May 1, 2008.

       Amick was transferred to Belmont Correctional Institution on June 3, 2008, where he was

diagnosed with schizoaffective disorder, but no medications were prescribed and mental health

services were deemed unnecessary. Three months later, Amick began to experience delusions and

hallucinations and his behavior became more aggressive. On September 17, 2008, Amick visited

the mental health department at Belmont seeking help. He was seen by a social worker on

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September 18, who concluded Amick was only “med seeking,” but she referred him to a physician,

a psychiatrist, who likewise examined Amick and determined that medications were unnecessary.

       Amick was then assigned to a cell with an inmate named Vonquez Henderson. This was

allegedly contrary to an order to place Amick in a single cell due to his involvement in altercations

with other prisoners. Within several hours after being placed in the cell with Henderson, in the

afternoon on September 18, the two men began fighting. Although inmates reportedly “yelled,

screamed, and made lots of noise to try to summon a corrections officer for help,” some thirty

minutes elapsed before help arrived. By the time officers reached the cell, Henderson had Amick

in a choke hold. Amick was not breathing and did not have a pulse. He was transported to the

hospital, where he was pronounced dead.

       This action was commenced on September 16, 2009 by Amick’s mother Carmella L. Amick,

Administratrix of the Estate, and by Amick’s wife Michelle Amick, on her own behalf and on behalf

of their minor children, Harry and Ashley. The district court permitted the filing of an amended

complaint on April 15, 2011. The first amended complaint asserts claims against twenty-four

individual defendants, including Vonquez Henderson and twenty-three individuals who were

involved in Amick’s custody and care while imprisoned.2 Also named as defendants are three

corporate entities who had contracted with the Ohio Department of Rehabilitation and Correction

to provide mental health services for inmates.3



       2
           The action against defendant Vonquez Henderson plays no role in this appeal.
       3
           Plaintiffs have settled their claims against all three of the corporate entities.

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       The amended complaint asserts fourteen causes of action, including claims under 42 U.S.C.

§ 1983 for violation of Amick’s constitutional right to freedom from cruel and unusual punishment,

and numerous state law claims. The twenty-three individual defendants moved to dismiss the

amended complaint under Fed. R. Civ. P. 12(b)(6). The district court granted the motion, dismissing

all claims. On appeal, plaintiffs challenge only the dismissal of their § 1983 claims; specifically,

their claims that defendants were deliberately indifferent to Amick’s serious medical needs; that

defendants were deliberately indifferent to Amick’s need for protection from violent attacks by

inmates; and that defendants’ deliberate indifference to Amick’s serious medical needs was the

product of a policy or custom of deficient training and supervision. Plaintiffs contend the district

court applied an erroneous legal standard in assessing the sufficiency of their fact allegations.

                                          II. ANALYSIS

       A. Standard of Review

       The district court’s dismissal of plaintiffs’ claims for failure to state a claim for relief is

reviewed de novo. Frank v. Dana Corp., 646 F.3d 954, 958 (6th Cir. 2011). Under Rule 12(b)(6),

the complaint is viewed in the light most favorable to plaintiffs, the allegations in the complaint are

accepted as true, and all reasonable inferences are drawn in favor of plaintiffs. Bassett v. Nat’l

Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). However, “a legal conclusion couched

as a factual allegation” need not be accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). Plaintiffs’ obligation to provide the “grounds” for their claimed entitlement to relief

“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. The factual allegations must “raise the right to relief above the speculative

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level.” Id. The complaint must state a claim that is plausible on its face, i.e., the court must be able

to draw a “reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). This “plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent

with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of

“entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557).

        Assessment of the facial sufficiency of the complaint must ordinarily be undertaken without

resort to matters outside the pleadings. Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th

Cir. 2010). If a court does consider material outside the pleadings, the motion to dismiss must be

treated as a motion for summary judgment under Fed. R. Civ. P. 56 and all parties must be given a

reasonable opportunity to present all material pertinent to the motion. Id. However, a court may

consider “exhibits attached [to the complaint], public records, items appearing in the record of the

case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the

complaint and are central to the claims contained therein,” without converting the motion to one for

summary judgment. Bassett, 528 F.3d at 430.

        B. Deliberate Indifference to Serious Medical Needs

        Plaintiffs allege that numerous defendants are liable for failing to provide treatment needed

to control the symptoms of Amick’s schizoaffective disorder, which caused the fight that resulted

in his death. They attached to their complaint an affidavit by forensic psychiatrist Stephen G.

Noffsinger, M.D., stating his opinion, upon review of Amick’s relevant medical records, that

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defendant mental health care givers not only breached the applicable standard of care in their

treatment of Amick, but were deliberately indifferent to his needs.

       The district court correctly recognized that deliberate indifference to an inmate’s serious

medical needs may amount to cruel and unusual punishment prohibited by the Eighth Amendment.

See Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010). The court also noted that deliberate

indifference entails something more than mere negligence. See Farmer v. Brennan, 511 U.S. 825,

835 (1994). To make out a valid claim, a plaintiff must satisfy an objective component and a

subjective component. The objective component is satisfied by showing a sufficiently serious

condition that denial of needed medical care would result in the unnecessary and wanton infliction

of pain or pose a substantial risk of serious harm. See Quigley v. Thai, 707 F.3d 675, 681 (6th Cir.

2013); Flanory, 604 F.3d at 253. To satisfy the subjective component, a plaintiff must allege and

ultimately prove that the defendant was aware of facts from which the inference could be drawn that

a substantial risk of harm would exist if needed care were not provided, that the defendant actually

drew the inference, and that the defendant acted in disregard of that risk. Farmer, 511 US. at 837;

Quigley, 707 F.3d at 681-82.

       Applying this standard, the district court noted that Amick had undergone six evaluations

during the five months he was incarcerated in state facilities, all of which yielded the assessment

that, despite the diagnosis of schizoaffective disorder, he did not need medications or other mental

health treatment. The court concluded that this alleged history did not evidence conscious disregard

of a known risk, but, at most, made out a claim for negligence. The court characterized plaintiffs’

claim as consisting of allegations of inadvertent failure to provide adequate medical care or of

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negligent diagnosis, which are insufficient to make out a claim for deliberate indifference to serious

medical needs.

       1. Objective Component

       As to the objective component of plaintiffs’ claim, the seriousness of Amick’s condition, the

complaint contains the following allegations:

              It is well known that psychotropic medication is necessary to regulate
       individuals diagnosed with schizoaffective disorder. Individuals with schizoaffective
       disorder who are not medicated may experience delusions and hallucinations
       involving all five senses and may become violent and attack other individuals
       without provocation.

               The longer that Harry Amick remained off his psychotropic medications, the
       intensity of his delusions and hallucinations from his schizoaffective disorder
       intensified.

R. 119 First Amended Complaint at 13, ¶¶ 51-52, Page ID # 742. The complaint does not otherwise

define schizoaffective disorder. Nor does Dr. Noffsinger’s affidavit, attached to the complaint,

provide a definition.

       Yet, even accepting as true the allegations that the withholding of medications exposed

Amick to the possibility of experiencing delusions and hallucinations and becoming violent,

plaintiffs’ allegations reveal no hint of increasing symptomatology or behavioral problems during

most of the five months he was incarcerated in state prison facilities. In other words, according to

plaintiffs’ own allegations, Amick would appear to have made an acceptable and unremarkable

adjustment to prison life without medications for almost five months. It was only during the final

days of his life that symptoms became manifest. Until then, the allegations do not suggest that

Amick suffered from such a serious condition that denial of antipsychotic medications could be

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expected to result in the unnecessary and wanton infliction of pain or pose a substantial risk of

serious harm. Hence, the claim of deliberate indifference to serious medical needs against all

defendants who had been involved in or responsible for Amick’s mental health care until September

17 is facially deficient for its failure to satisfy the objective component requirement.

       It is further alleged that Amick sought help from the mental health department at Belmont

Correctional Institution on September 17 and spoke to a supervisor, defendant Jim Sall. Sall did not

ignore or disregard the concern, but referred Amick for assessment by a mental health liaison. This

assessment was conducted the very next day by defendant Patty Feoick, a social worker, who

believed that Amick did not need mental health services, but was simply “med seeking.” Despite

her impression, however, Feoick referred Amick for examination by a psychiatrist, defendant Robert

Turton, M.D. Dr. Turton evaluated Amick that same day and declined to prescribe any medications.

       Though no medications were prescribed at this time, the determination was made—ostensibly

in response to reports that Amick had experienced hallucinations and had been involved in

altercations with other inmates—to place Amick in a single cell. These allegations of increased

sympomatology, viewed in the light most favorable to plaintiffs, arguably satisfy the objective

component element of the claim against defendants Sall, Feoick and Turton. It is reasonable to infer

that these three defendants were involved in Amick’s care during his final days and were privy to

information suggesting that absent some precaution, Amick’s reported hallucinations and

inappropriate interactions with other inmates could expose him to a substantial risk of serious harm.




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        2. Subjective Component

        Assuming these three defendants were aware of these facts and actually drew the inference

that Amick was at risk of harm, the allegations still fall short of satisfying the subjective component.

Sall did not ignore Amick’s complaint, but referred Amick for assessment to determine whether and

what intervention might be appropriate. Feoick conducted the initial assessment and, although she

did not feel that medications were called for, she did not ignore Amick’s concern, but referred him

to Dr. Turton. Turton did not ignore Amick’s condition, but conducted a psychological evaluation.

Turton maintained the five-month long medication-free treatment approach, but it is reasonable to

infer from the allegations that Turton either directed, concurred or acquiesced in the determination

by the custodial staff to place Amick in a cell by himself. This change in Amick’s custodial

assignment appears to have been reasonably calculated to minimize the risk that Amick’s condition

would expose him to harm at the hands of another inmate. The allegations do not, therefore, support

a finding that any of the mental health care defendants consciously disregarded a known risk.

Unfortunately, the directive to place Amick in a single cell was not implemented. However, there

is no basis for attributing deliberate-indifference fault for this error to the defendant mental health

care givers.

        Plaintiffs insist that Dr. Noffsinger’s affidavit, attached to their complaint, and particularly

his opinion that defendants were deliberately indifferent, is sufficient substantiation of the elements

of their claim at the pleading stage. A relevant opinion by Dr. Noffsinger, a forensic psychiatrist,

within his field of expertise, would be admissible and probative. However, Noffsinger’s deliberate-

indifference opinion is a legal conclusion that would be properly excluded under the Rules of

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Evidence. See Woods v. Lecureux, 110 F.3d 1215, 1219-20 (6th Cir. 1997). Further, a “legal

conclusion couched as a factual allegation” is still a legal conclusion and need not be accepted as

true at the pleading stage. Twombly, 550 U.S. at 555. Plaintiffs’ pleading obligation “requires more

than labels and conclusions.” Id. As tragic and seemingly avoidable as Amick’s death was, the

factual allegations of plaintiffs’ complaint simply fall short of satisfying the subjective component

of their claim for deliberate indifference to serious medical needs.

       The Sixth Circuit recently affirmed the denial of a motion for summary judgment on a

deliberate indifference claim against a prison psychiatrist stemming from his prescription of

medication that may have contributed to his inmate patient’s death. Quigley, 707 F.3d at 682-83.

The record was deemed sufficient to allow a reasonable factfinder to conclude that the defendant

consciously exposed his patient to an excessive risk of serious harm because the lethal danger

associated with simultaneously ingesting both of the medications the inmate had been prescribed was

well known within the psychiatric profession and therefore “obvious.”

       Quigley is distinguishable in two important respects. Here, the risk of harm did not proceed

directly from the treatment prescribed and was not as obvious. Further, any potential risk of injury

at the hands of another inmate, a risk that had newly become manifest, was to be minimized by

assignment of Amick to a single cell. The risk of harm that Amick was exposed to was contingent

and clearly not so obvious as to reasonably justify the inference that Dr. Turton consciously

disregarded the risk when he addressed Amick’s concern in a manner other than by prescribing

medication.



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       Accordingly, we find no error in the district court’s dismissal of the claim for deliberate

indifference to Amick’s serious medical needs.

       C. Failure to Train and Supervise

       Plaintiffs’ complaint purports to state a claim that defendants’ violation of Amick’s Eighth

Amendment rights through their deliberate indifference to his serious medical needs was pursuant

to a policy or custom of inadequate training or supervision. The district court dismissed the claim,

finding (1) no allegation that any supervisor had implicitly authorized, approved or knowingly

acquiesced in the alleged denial of Amick’s rights; and (2) no allegation that any policy-making

official knew or had reason to know that training was inadequate.

       Again, we find no error. Once it was correctly determined that plaintiffs failed to sufficiently

plead the underlying claim for deliberate indifference to serious medical needs, the basis for any

claim that such a violation was pursuant to a policy or custom of inadequate training or supervision

was fatally undermined. If the mental health care givers did not deprive Amick of a federally

protected civil right, then their actions are not actionable as a deprivation pursuant to policy or

custom. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Wilson v. Morgan, 477 F.3d

326, 340 (6th Cir. 2007).

       D. Failure to Protect

       Plaintiffs also allege that numerous corrections officers who were responsible for Amick’s

custodial care violated his Eighth Amendment right to freedom from cruel and unusual punishment

by failing to protect him from violent attack by inmate Vonquez Henderson. Specifically, they allege

that defendant Andrei L. Jackson “recklessly disregarded” a supervisor’s order not to place Amick

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in a cell with another inmate and instead placed Amick in a cell with Henderson. Plaintiffs allege

that within several hours of being placed in the cell with Henderson, Amick attacked Henderson.

Although “inmates yelled, screamed, and made lots of noise to try to summon a corrections officer,”

defendants who were responsible for making rounds in the segregation cells at Belmont—Willie R.

Ford, Harry Wright, Jerry Gianangeli, Joseph Underwood and Richard Drake—allegedly disregarded

Amick’s need for protection for up to thirty minutes before removing Amick from Henderson’s

choke hold.

        The district court recognized that the Eighth Amendment imposes a duty on corrections

officers to take reasonable measures to protect prisoners from violence at the hands of other

prisoners. The court dismissed the claim, however, holding that plaintiffs had not alleged that

defendant Jackson was told why a single-cell placement was ordered for Amick. Absent allegation

that Jackson was aware of the risk of harm that prompted the single-cell directive, the court

concluded that Jackson could not be deemed to have consciously disregarded the risk when he placed

Amick in Henderson’s cell. Similarly, in regard to the defendant officers on duty in the segregation

unit when the fight between Amick and Henderson occurred, the court held the complaint lacked

allegations to support a finding that defendants heard the noise made by other inmates or were

otherwise aware of the fight. Absent such an allegation, the court held defendants Ford, Wright,

Gianangeli, Underwood and Drake could not be deemed to have consciously disregarded the risk of

harm.

        The failure to protect claim is governed by standards substantially similar to those applied

to the claim for deliberate indifference to serious medical needs. To make out a prima facie claim

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that defendants were deliberately indifferent to Amick’s need for protection from assault by another

inmate, plaintiffs’ allegations must satisfy an objective component and a subjective component.

Farmer, 511 U.S. at 835-38. The objective component is satisfied by allegations that absent

reasonable precautions, an inmate is exposed to a substantial risk of serious harm. Id. at 836. To

satisfy the subjective component, a plaintiff must allege that the defendant was aware of facts from

which the inference could be drawn that a substantial risk of harm would exist if reasonable

measures were not taken, that the defendant actually drew the inference, and that the defendant acted

in disregard of that risk. Farmer, 511 US. at 837. See also Mingus v. Butler, 591 F.3d 474, 479-80

(6th Cir. 2010).

       1. Defendant Jackson

       For the reasons explained above, we find that plaintiffs have adequately alleged facts

satisfying the objective component in relation to their failure to protect claim against defendant

Jackson. That is, by the time Amick was ordered to be placed in a single cell, it appears to have been

recognized that the symptoms of his schizoaffective disorder had reached a level where a single-cell

placement was deemed appropriate to minimize the risk of harm that his condition posed to himself

and other inmates.

       It was at this point, according to the allegations, after defendant Jackson had been ordered

by a supervisor not to place Amick in a cell with another inmate, that Jackson “recklessly

disregarded” the order. The district court correctly observed that plaintiffs have not alleged that

Jackson knew why he had been ordered to place Amick in a single cell. Yet, “whether a prison

official had the requisite knowledge of a substantial risk is a question of fact subject to

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demonstration in the usual ways, including inference from circumstantial evidence . . . and a

factfinder may conclude that a prison official knew of a substantial risk from the very fact that the

risk was obvious.” Farmer, 511 U.S. at 842. See also Quigley, 707 F.3d at 682.

       The potential reasons for ordering a particular inmate placed in a single cell, where double-

celling is apparently otherwise the norm, are limited in number. The measure is usually undertaken

to avoid or minimize the risk of harm to one or both of the inmates who would otherwise be placed

together. Even apart from whether Jackson specifically knew of the recent manifestation of Amick’s

symptoms or the reasons why Amick was being removed from the cell he had been assigned to, it

would seem to be “obvious,” under the teaching of Farmer, that Jackson’s supervisor had ordered

him to place Amick in a single cell to ensure inmate safety in the face of a perceived risk of harm.

The notion implied by defendants’ argument that Jackson disregarded his supervisor’s order without

even inquiring about the reason for it smacks of exactly the sort of deliberate indifference

contemplated by the failure to protect cause of action.

       The allegations of the claim against Jackson could be more explicit. Nonetheless, the

complaint sufficiently alleges facts from which a reasonable factfinder could conclude, from the

obviousness of the danger posed by double-celling Amick, that Jackson knew he was exposing

Amick to a substantial risk of harm when he “recklessly disregarded” the order. The complaint states

a claim that is “plausible on its face,” one that gives rise to “more than a sheer possibility” that

Jackson acted unlawfully. See Twombly, 550 U.S. at 556.

       It is also possible that Jackson has an innocent explanation for placing Amick in Henderson’s

cell. The motion to dismiss tests only the facial sufficiency of the complaint. And reversal of the

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dismissal merely allows proceedings to continue, in which Jackson can freely give his explanation.

At this stage, it is enough that the factual allegations “raise the right to relief above the speculative

level.” Id. at 555. As the Court observed in Twombly, “a well-pleaded complaint may proceed even

if it strikes a savvy judge that actual proof of those facts is improbable.” Id. at 556.

        2. Defendants Ford, Wright, Gianangeli, Underwood and Drake

        The failure to protect claim against the remaining five defendant corrections officers—Ford,

Wright, Gianangeli, Underwood and Drake—arises from their alleged inaction after the very harm

that single-celling was designed to prevent had swung into force. These defendants’ alleged thirty-

minute delay in responding to the fight between Amick and Henderson was allegedly caused by their

deliberate indifference to the substantial risk of serious harm. The district court did not find and

defendants do not seriously contend that the objective component of the claim is not met. A physical

fight between two adult men in a locked cell clearly posed a substantial risk of serious harm.

        The district court held, however, that the claim lacks the required allegation that defendants

knew the fight was going on, in spite of the alleged noise made by neighboring inmates. The court

held the allegation that one of the defendants allegedly heard but “waved off” one inmate as he called

for help was insufficient. The court noted that plaintiffs failed to identify what, specifically, the

inmate said and which defendant ignored his request. Absent allegation that defendants heard the

commotion and were aware of the fight, the court concluded the alleged inaction of the defendants

amounted to no more than negligence.

        Again, the district court failed to view the allegations in the light most favorable to plaintiffs.

The facts alleged are sufficient to plausibly suggest that a plea for help was communicated to at least

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one and potentially all of the five defendant on-duty officers—i.e., the officers charged with

responsibility for ensuring inmate safety in the segregation unit. Their alleged ignoring of the plea

might ultimately be shown to amount to no more than mere negligence. However, sufficient facts

have been stated to plausibly support the claim that defendants were deliberately indifferent to

Amick’s need for protection, such that “it may be supported by showing any set of facts consistent

with the allegations in the complaint.” Twombly, 550 U.S. at 563.

        The following language from Farmer is instructive:

                “[P]rison officials have a duty . . . to protect prisoners from violence at the
        hands of other prisoners.” . . . Having incarcerated “persons with demonstrated
        proclivities for antisocial criminal, and often violent, conduct,” . . . having stripped
        them of virtually every means of self-protection and foreclosed their access to outside
        aid, the government and its officials are not free to let the state of nature take its
        course. . . . Prison conditions may be “restrictive and even harsh,” . . . but
        gratuitously allowing the beating or rape of one prisoner by another serves no
        “legitimate penological objective” . . . any more than it squares with “evolving
        standards of decency.” . . . Being violently assaulted in prison is simply not “part of
        the penalty that criminal offenders pay for their offenses against society.”

Farmer, 511 U.S. at 833-34 (internal alterations and citations omitted).

        Given that these five defendants were the government officials most directly responsible for

ensuring inmate safety in the segregation unit on the afternoon of September 18; and assuming the

truthfulness of plaintiffs’ allegations that inmates in the segregation unit “yelled, screamed, and made

lots of noise” in an effort to summon help after the fight broke out in Amick’s cell; and assuming

the truthfulness of the allegation that the plea for help was communicated to and ignored by at least

one of the defendants; and assuming the truthfulness of the allegation that defendants disregarded

the inmates’ noise for up to thirty minutes, we conclude that the substantial risk of serious harm was


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so obvious that a reasonable factfinder could conclude that defendants’ delay in responding was due

to conscious disregard of that risk. See Farmer, 511 U.S. at 842; Quigley, 707 F.3d at 682.

          There may be a reasonable explanation for the delay. Recovery by plaintiffs may not be

probable. However, the “plausibility standard is not akin to a probability requirement;” it requires

only something “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556

U.S. at 678. Here, plaintiffs’ allegations make out more than a sheer possibility of entitlement to

relief.

          We therefore hold that a plausible claim for deliberate indifference to Amick’s need for

protection has been stated and that further proceedings are justified. The order dismissing this claim

must be set aside.

                                       III. CONCLUSION

          In sum, the district court’s order of dismissal is AFFIRMED in part and VACATED in

part. For the reasons discussed above, the dismissal of plaintiffs’ claim for deliberate indifference

to serious medical needs is AFFIRMED, as is the dismissal of plaintiffs’ claim that such deliberate

indifference was pursuant to a policy or custom of inadequate training and supervision. However,

the dismissal of plaintiffs’ claim against defendants Andrei Jackson, Willie Ford, Harry Wright, Jerry

Gianangeli, Joseph Underwood, and Ricky Drake, for deliberate indifference to Amick’s need for

protection from the risk of violence, is VACATED and the case is REMANDED for further

proceedings.




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