                   Case: 11-15209           Date Filed: 12/20/2012   Page: 1 of 12

                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15209
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 2:08-cv-14261-KMM



CHRISTOPHER JORDAN,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

lllllllllllllllllllllllllllllllllllllllll                             Defendant,

SARGEANT MURPHY,
Officer for the Martin Correctional Inst.,

lllllllllllllllllllllllllllllllllllllll                               lDefendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (December 20, 2012)

Before CARNES, BARKETT and FAY, Circuit Judges.
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PER CURIAM:

      Christopher Jordan, a Florida prisoner proceeding pro se, appeals the

district court’s grant of summary judgment to the defendant, Sergeant Deneen

Murphy, in his civil action under 42 U.S.C. § 1983, alleging an Eighth

Amendment violation. On appeal, Jordan argues that Sgt. Murphy acted with

deliberate indifference to a serious risk of injury when she failed to protect him

from being physically attacked by another prisoner. For the reasons set forth

below, we affirm the district court’s grant of summary judgment to Sgt. Murphy.

                                          I.

      In April 2010, Jordan filed a pro se amended complaint under § 1983

against Sgt. Murphy, an officer at Martin Correctional Institution (“MCI”),

alleging that, on April 6, 2007, while he was incarcerated at MCI, he was

physically threatened by Floyd Robinson, another inmate, in Sgt. Murphy’s

presence. In response, Sgt. Murphy “employed the least and most minimal

measures” to resolve the conflict by separating Floyd and Robinson. Further, Sgt.

Murphy did not “follow[] up with preventative and correctional measures designed

to ensure the safety of both inmates.” Shortly after the incident, Robinson

physically attacked Jordan in Jordan’s cell, which Sgt. Murphy had left open and

unsupervised, in violation of the Florida Department of Correction (“DOC”) rules.

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The attack resulted in the loss of Jordan’s right eye, which was replaced with a

prosthetic eye, and progressively weakening eyesight in his left eye. Jordan also

suffered damage to his head, psychological distress, migraine headaches, periodic

dizziness, and emotional trauma. Jordan claimed that Sgt. Murphy’s actions

violated the Eighth Amendment because her “acts or omissions” created a

substantial risk of serious harm to Jordan, and she was deliberately indifferent to

his safety and security.

      After discovery, Sgt. Murphy moved for summary judgment, arguing that

Jordan failed to demonstrate an Eighth Amendment violation. Contrary to his

allegations, Sgt. Murphy was not aware that he was in danger of an attack.

Specifically, she had no knowledge of any prior issues between Jordan and

Robinson, and Robinson’s prison records reflected he had received minimal

disciplinary action. Further, Sgt. Murphy confirmed with Jordan and Robinson

that “everything was okay” between them, and she remained on their dormitory

wing for a period of time after the initial argument ended. Additionally,

Sgt. Murphy asserted that she responded to the incident, which appeared to be

merely a “commonplace argument” between inmates, in an objectively reasonable

manner. Regardless, Sgt. Murphy was entitled to qualified immunity because her

actions did not constitute a clearly established constitutional violation.

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      In support of her summary judgment motion, Sgt. Murphy submitted several

exhibits, including her own affidavit and affidavits from MCI Security Chief

James Upchurch, two MCI inmates, DOC inspector Nelson Rios, and DOC

Program Administrator Bradford Locke. Sgt. Murphy also submitted excerpts

from Jordan’s deposition.

      The magistrate issued a report and recommendation that the district court

grant Sgt. Murphy’s motion for summary judgment. The magistrate found that the

undisputed material facts showed that, when Jordan was in his cell, with the cell

door “locked” open, such that others could enter, Robinson entered Jordan’s cell

and “brutally attacked Jordan.” The attack resulted in severe physical injuries to

Jordan, including the loss of an eye. While the undisputed facts involved a “tragic

and brutal” attack on Jordan, the attack and resulting injuries were not caused by

any unconstitutional action or inaction by Sgt. Murphy. The evidence showed that

Sgt. Murphy had no knowledge before or during the verbal argument between

Jordan and Robinson that Jordan was in danger of an imminent attack. Moreover,

Sgt. Murphy had no knowledge of any prior issues between Jordan and Robinson,

and Robinson’s prison records showed that he had received minimal disciplinary

action during his confinement. After the verbal altercation concluded and while

she was still conducting her rounds, Sgt. Murphy confirmed with Jordan and

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Robinson that “everything was okay.” Additionally, Jordan never expressed

concern to Sgt. Murphy regarding his safety.

      The magistrate further found that, even if Sgt. Murphy was aware of a risk

of harm, she responded in an objectively reasonably manner by ending the dispute

and ordering Jordan and Robinson to separate to different locations. Further,

during the 10 to 15 minutes that Sgt. Murphy remained on the wing after the

“name-calling incident,” she made efforts to determine that no further problem

existed between Jordan and Robinson, and they confirmed that the problem had

been resolved. Sgt. Murphy did not observe that Jordan needed protection, and no

other inmate alerted her to any possible danger to Jordan. Based on her

experience, Sgt. Murphy concluded that the initial altercation was only a

“commonplace argument” between inmates that would not result in violence. For

these reasons, Jordan could not satisfy the subjective or objective requirements to

show that Sgt. Murphy was aware of a substantial risk of serious harm to Jordan.

      Additionally, the magistrate found that Jordan’s claim that Sgt. Murphy was

responsible for his injuries because she left his door opened and the wing

unsupervised was contradicted by the undisputed facts. No DOC policy required

Sgt. Murphy to lock Jordan’s cell door during the relevant time period, and there

appeared to be no reason for Sgt. Murphy to lock the door closed for Jordan’s

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protection. Further, after the argument concluded, Jordan and Robinson were sent

to different locations, and Sgt. Murphy never left the wing unsupervised. Instead,

Robinson’s attack was a “sudden, isolated incident arising out of his anger with

[Jordan] over use of a mop.” In sum, Jordan failed to show an issue of material

fact regarding whether Sgt. Murphy violated his Eighth Amendment rights by

failing to protect him from Robinson’s attack. Further, because Jordan failed to

demonstrate a constitutional violation, the magistrate was not required to

determine whether Sgt. Murphy was entitled to qualified immunity. Regardless,

Sgt. Murphy was entitled to qualified immunity because, under the circumstances,

a reasonable corrections officer would not have been aware that her actions or

inactions violated the Eighth Amendment. Accordingly, the magistrate

recommended that the district court grant Sgt. Murphy’s motion for summary

judgment as to Jordan’s constitutional claim, and dismiss without prejudice

Jordan’s state law negligence claim.

      The district court adopted the magistrate’s report and recommendation and

granted Sgt. Murphy’s motion for summary judgment.

                                        II.

      We review a district court’s grant of summary judgment de novo,

considering the facts and drawing all reasonable inferences in the light most

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favorable to the non-moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1303 (11th Cir. 2009). Summary judgment is appropriate when 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). Once the party moving for

summary judgment discharges its “initial responsibility of informing the district

court of the basis for its motion,” the burden shifts to the non-moving party to

come forward with relevant evidence beyond the pleadings showing that there is a

genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1314-15 (11th Cir. 2011). If the non-moving party fails to make a sufficient

showing to establish an essential element of its case, summary judgment is

appropriate. Id. at 1315. Mere conclusions and unsupported factual allegations

are insufficient to defeat a summary judgment motion. Ellis v. England, 432 F.3d

1321, 1326 (11th Cir. 2005).

      The Eighth Amendment’s proscription against cruel and unusual

punishment prohibits prison officials from exhibiting deliberate indifference to a

substantial risk of serious harm to an inmate. See Farmer v. Brennan, 511 U.S.

825, 828, 114 S.Ct. 1970, 1974, 128 L.Ed.2d 811 (1994); Carter v. Galloway, 352

F.3d 1346, 1349 (11th Cir. 2003). To survive summary judgment on an Eighth

Amendment claim concerning prison conditions, a plaintiff must “produce

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sufficient evidence of (1) a substantial risk of serious harm; (2) the defendant[’]s

deliberate indifference to that risk; and (3) causation.” Hale v. Tallapoosa Cnty.,

50 F.3d 1579, 1582 (11th Cir. 1995). To establish deliberate indifference on the

part of a prison official, a plaintiff must show: “(1) subjective knowledge of a risk

of serious harm, (2) disregard of that risk, (3) by conduct that is more than gross

negligence.” Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010). The prison

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

a substantial risk of serious harm exists, and [s]he must also draw that inference.”

Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. Thus, prison officials may avoid

liability under the Eighth Amendment if (1) “they did not know of the underlying

facts indicating a sufficiently substantial danger,” (2) “they knew the underlying

facts but believed (albeit unsoundly) that the risk to which the facts gave rise was

insubstantial or nonexistent,” or (3) “they responded reasonably to the risk, even if

the harm ultimately was not averted.” Rodriguez v. Sec’y for Dep’t of Corr., 508

F.3d 611, 617-18 (11th Cir. 2007) (quoting Farmer, 511 U.S. at 844, 114 S.Ct. at

1982-83).

      Finally, government officials are immune from suit when performing

discretionary functions in their individual capacities unless they violate “clearly

established statutory or constitutional rights of which a reasonable person would

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have known.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quotations

omitted). However, we have declined to address whether a defendant was entitled

to qualified immunity where we first held that the district court properly granted

summary judgment to the defendants as to the plaintiff’s Eighth Amendment

deliberate indifference claim. See Carter, 352 F.3d at 1350 n.10 (stating that

defendants had no need for a qualified immunity defense when plaintiff’s

deliberate indifference claim failed).

      Here, the district court correctly concluded that Jordan failed to present

sufficient evidence that Sgt. Murphy knowingly disregarded a substantial risk of

serious harm to his safety or that she acted unreasonably in response to a known

risk. See Thomas, 614 F.3d at 1312; Rodriguez, 508 F.3d at 617-18. The

undisputed evidence revealed that, on April 6, 2007, Sgt. Murphy observed Jordan

and Robinson using profanity while verbally arguing over a mop. Although Jordan

alleged in his complaint that Sgt. Murphy had observed a physical confrontation,

he presented no evidence to support that claim, and on appeal, he describes the

encounter as a “verbal altercation.” While Jordan now asserts that he

“convey[ed]” to Sgt. Murphy that he felt threatened, in the district court he

presented no evidence to substantiate this claim. Sgt. Murphy’s unrebutted

affidavit established that Jordan never indicated that he was afraid of Robinson or

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that he needed protection. Moreover, Rios, the DOC inspector, confirmed that “no

tangible evidence or witnesses” supported Jordan’s claim that his injuries resulted

from Sgt. Murphy’s failure to acknowledge that Jordan had expressed fear for his

safety or a need for protection. Additionally, Sgt. Murphy, who had been a

corrections officer for 12 years, stated that, based on her experience, arguing and

name calling is common among inmates and does not often lead to violence.

Thus, Sgt. Murphy’s observation of the argument between Jordan and Robinson

was insufficient to alert her that Robinson posed a substantial risk of physical

injury to Jordan. See Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.

      Regardless, Sgt. Murphy’s response to the verbal argument was objectively

reasonable. See Rodriguez, 508 F.3d at 617-18. When Sgt. Murphy observed

Jordan and Robinson arguing, she ordered them to stop and to separate from each

other. Further, Jordan testified that he and Robinson complied with Sgt. Murphy’s

order to stop arguing. After the argument, Sgt. Murphy remained in the area for

10 to 15 minutes, and she heard no further arguing after Jordan and Robinson

separated. Two inmate witnesses corroborated that Sgt. Murphy did not leave the

area until the situation appeared “calm” or had “cool[ed] down.” Further, Jordan

presented no evidence that he had any prior conflict with Robinson or that Sgt.

Murphy was aware that Robinson was a violent inmate, and prior to the attack,

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Robinson had received only two prior disciplinary reports, one for fighting in May

2003 and one for disobeying an order in February 2006.

      Jordan argues that Sgt. Murphy acted unreasonably by failing to handcuff

Jordan and Robinson or to lock them in their cells. However, before she left the

area, Sgt. Murphy ensured that Jordan and Robinson had separated, and their

conflict had been resolved. Thus, Sgt. Murphy had no apparent reason to restrain

Jordan or Robinson and no reason to believe that Robinson would return to

physically attack Jordan after the verbal argument had concluded. Jordan also

argues that Sgt. Murphy left him unsupervised, but evidence showed that the

prison dormitory was supervised at all times from an officer in a centrally located

Officer’s Station. In sum, Jordan failed to present sufficient evidence to

demonstrate that Sgt. Murphy acted unreasonably in response to his verbal

argument with Robinson or that she showed a disregard for his safety. See

Rodriguez, 508 F.3d at 617-18.

      Finally, because the district court properly granted summary judgment to

Sgt. Murphy as to the Jordan’s Eighth Amendment deliberate indifference claim,

we decline to address whether Sgt. Murphy was entitled to qualified immunity.

See Carter, 352 F.3d at 1350 n.10. For the foregoing reasons, we affirm the

district court’s grant of summary judgment to Sgt. Murphy.

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AFFIRMED.




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