               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0467n.06

                                          No. 16-2039                                 FILED
                                                                                Aug 10, 2017
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

MAURICE MOORE,

       Plaintiff-Appellee,
v.
                                                     ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
CARMEN PALMER, et al.,
                                                     EASTERN DISTRICT OF MICHIGAN
       Defendants-Appellants.



BEFORE:       SILER, CLAY, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge.       Defendants Kenneth Niemisto and Shane Place bring this

interlocutory appeal challenging the district court’s order denying them qualified immunity in

Plaintiff Maurice Moore’s prisoner’s civil rights suit brought pursuant to 42 U.S.C. § 1983.

Moore asserts that Defendants violated his Eighth Amendment rights by failing to protect him

from the violent acts of the other inmates at the Marquette Branch Prison, where Moore was

incarcerated. For the reasons set forth below, we DISMISS the appeal for lack of jurisdiction.

                                       BACKGROUND

       Plaintiff Maurice Moore is a former inmate of the Michigan Department of Corrections

(“MDOC”), where he was serving a sentence of twenty-five to fifty years for second-degree

murder. On August 13, 1995, when Moore was incarcerated at the Adrian Correctional Facility,

a riot began in Moore’s wing of the facility. During the riot, Moore overheard other inmates

discussing how they planned to assault a correctional officer. These inmates were alleged to be

members of a gang called the Latin Counts. Upon hearing of the inmates’ plans, Moore decided
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to warn the correctional officer and direct her to a safe location. As a result, Moore alleges that

he became a target of the Latin Counts.

       Over the next four years, Moore was transferred to a number of different correctional

facilities. During that period, Moore was attacked twice by other inmates who were also

allegedly members of the Latin Counts. After the latter of these two attacks, Moore apparently

continued to serve his sentence for another ten years without incident. Then, in 2010, when he

was housed at the Michigan Reformatory (“RMI”) in Ionia, Michigan, Moore discovered that

another prisoner had gained possession of some weapons. This inmate was also a member of the

Latin Counts. Undeterred, Moore informed prison officials about the weapons. As a result,

Moore learned that he was again a target of the gang.

       On June 12, 2010, Moore was attacked with a shank and sliced from “inside [his] right

ear down the right side of his neck toward the throat area,” requiring twenty-three to twenty-five

stitches. (R. 70-8, Critical Incident Report, PageID #322.) After recovering from his injuries,

Moore was transferred to the Marquette Branch Prison (“MBP”). Upon his arrival, the prison

convened a meeting of the Security Classification Committee, on which Defendants Kenneth

Niemisto, a residential unit manager at the prison, and Shane Place, an assistant deputy warden,

served. During this meeting, Moore informed Niemisto and Place that he feared for his safety

because he was being targeted by the Latin Counts. However, Moore was placed in general

population instead of protective segregation or some other more secure environment.

       On March 11, 2011, during his incarceration at MBP, Moore was assaulted in the prison

kitchen by another inmate, who punched him repeatedly. Defendants Niemisto and Place were

among those individuals provided copies of the resulting Assault Investigation Report, which




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also explained that Moore thought he was targeted because he had provided information to

prison officials about a possible hit on an officer.

        Approximately one month later, on April 24, 2011, Moore was attacked again while in

the prison auditorium. During this attack, another inmate struck Moore in the face and neck

repeatedly and punctured Moore’s right eye with a pencil. Moore needed surgery as a result of

this attack to remove the pencil lead lodged in the bone behind his eye. During the period

between the prison riot in 1995 and this final attack, Moore had requested protection from prison

officials at least fifty times.

        Based on the incident involving the pencil, on October 29, 2012, Moore filed a complaint

in district court against twenty-eight MDOC Defendants pursuant to 42 U.S.C. § 1983. Moore’s

complaint asserted claims for violations of his First and Eighth Amendment rights, as well as

various state law claims.         One Defendant was voluntarily dismissed, and the remaining

Defendants moved for summary judgment. Following a Report and Recommendation issued by

the Magistrate Judge and objections filed by Defendants, the district court granted summary

judgment to eleven Defendants. The parties then stipulated to the dismissal of seven more

Defendants, as well as to one of the claims.

        On March 15, 2016, the nine remaining Defendants, including Niemisto and Place, the

two Defendants relevant to this appeal, moved again for summary judgment. Among other

grounds, Defendants moved for summary judgment based on qualified immunity. At a hearing

held on June 3, 2016, the district court granted summary judgment to all Defendants on the First

Amendment retaliation claim, as well as the state law claims for gross negligence and intentional

infliction of emotional distress. The district court further granted the motion for summary

judgment on Moore’s Eighth Amendment claim, based on the prison official’s failure to protect



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Moore from attacks by other prisoners, as to three Defendants, denied it as three others, and took

it under advisement as to Niemisto and Place, as well as one other Defendant, Matthew

Macauley. (Id. at 1071–72.) The district court entered an order to that effect on June 6, 2016. A

few days later, on June 13, 2016, the district court issued an opinion granting summary judgment

to Macauley, but denying summary judgment to Niemisto and Place on Moore’s Eighth

Amendment claim. This timely appeal followed.1

                                         DISCUSSION

       Defendants Niemisto and Place moved for summary judgment claiming they were

entitled to qualified immunity on Moore’s Eighth Amendment claim alleging that they failed to

protect him from the violence inflicted by other prisoners.       “Qualified immunity protects

government officials sued under § 1983 from damages liability ‘insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Kindl v. City of Berkley, 798 F.3d 391, 398 (6th Cir. 2015) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)).

       Moore asserts that Defendants violated his right to be protected from violence inflicted at

the hands of other prisoners. This right has been well-established since before the events giving

rise to Moore’s claim. This Court has held that:

       The [E]ighth [A]mendment, which prohibits infliction of “cruel and unusual
       punishment,” encompasses the proscription of “deliberate indifference” to the
       serious needs of prisoners. See, e.g., Estelle v. Gamble, 419 U.S. 97 102–05
       (1976). On several occasions, we have held that “deliberate indifference” of
       constitutional magnitude may occur when prison guards fail to protect one inmate



       1
        The notice of appeal also stated that Defendants James Alexander, Chad LaCount, and
Lincoln Marshall were appealing the district court’s order denying them qualified immunity.
However, at oral argument, Defendants’ counsel conceded that the notice of appeal for these
three Defendants was untimely and, as a result, abandoned their appeal. Therefore, the only
Defendants to consider at this stage of the proceedings are Niemisto and Place.
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          from an attack by another. See, e.g., Roland v. Johnson, 856 F.2d 764, 769–70
          (6th Cir. 1988); McGhee v. Foltz, 852 F.2d 876, 880–81 (6th Cir. 1988).

Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990) (footnote omitted). The Supreme Court

later clarified that right, holding that the Eighth Amendment encompasses a duty for prison

officials “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan,

511 U.S. 825, 833 (1994).

          To establish a violation of that right, Moore has “the burden of presenting evidence from

which a reasonable juror could conclude that the individual defendants were deliberately

indifferent to a substantial risk of serious harm to [him] and that they disregarded that risk by

failing to take reasonable measures to protect him.” Richko v. Wayne Cty., 819 F.3d 907, 915

(6th Cir. 2016) (citing Farmer, 511 U.S. at 842). This test encompasses “both an objective and a

subjective component.” Id. (citing Farmer, 511 U.S. at 835–38.) The objective component

requires proof that “absent reasonable precautions,” Moore was “exposed to a substantial risk of

serious harm.” Id. (citation omitted). The subjective component requires Moore to establish that

“(1) ‘the official being sued subjectively perceived facts from which to infer a substantial risk to

the prisoner,’ (2) the official ‘did in fact draw the inference,’ and (3) the official ‘then

disregarded that risk.’” Id. (quoting Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir.

2014)).

          This Court generally has jurisdiction over “appeals from all final decisions of the district

courts,” including collateral orders. 28 U.S.C. § 1291; see also Brown v. Chapman, 814 F.3d

436, 443 (6th Cir. 2016). An order denying qualified immunity is considered a final, appealable

order “because it is conclusive, separable from the merits of the action, and, as the purpose of

qualified immunity is to provide officers with ‘immunity from suit rather than a mere defense to




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                                            No. 16-2039


liability,’ is effectively unreviewable on appeal from a final judgment.” Brown, 814 F.3d at

443–44 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526–29 (1985)).

       However, we can only review a denial of qualified immunity insofar as “the appeal

presents a ‘neat abstract issue[] of law.’” Kindl, 798 F.3d at 398 (quoting Johnson v. Jones,

515 U.S. 304, 317 (1995)). “A circuit court’s jurisdiction over denials of qualified immunity

‘does not extend to appeals that merely quibble with the district court’s reading of the factual

record, as opposed to appeals that challenge the legal premises of the district court’s decision.’”

Brown, 814 F.3d at 446 (quoting Leary v. Livingston Cty., 528 F.3d 438, 441 (6th Cir. 2008)).

Therefore, for this Court to exercise jurisdiction over an appeal of a district court’s denial of

qualified immunity, “the defendant appealing a denial of qualified immunity must concede the

plaintiff’s facts.” Id. at 844 (citing Johnson, 515 U.S. at 319–20). Failure to concede the

plaintiff’s version of the facts results in this Court lacking jurisdiction over the appeal. Younes v.

Pellerito, 739 F.3d 885, 888 (6th Cir. 2014) (citing Thompson v. Grida, 656 F.3d 365, 367 (6th

Cir. 2011)). Moreover, “[m]ere conclusory statements that the officers construe the facts in the

light most favorable to the plaintiff cannot confer jurisdiction upon this Court.” Thompson,

656 F.3d at 368.

       In this case, Defendants claim that they are conceding the facts in the light most favorable

to Moore for the purposes of this appeal. However, in reality, Defendants’ arguments are

predicated on rejecting Moore’s deposition testimony. Defendants claim that the issue they

present on appeal is “whether it is clearly established that a correctional official must provide

protection where a prisoner makes vague and ambiguous statements about his safety, but does

not submit a written request for protection.” (Defs.’ Br. at 23.) However, as is clear from this

framing of the issue, Defendants are debating whether there is sufficient evidence for a jury to



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conclude that they actually drew an inference about the risk to Moore’s safety based on Moore’s

complaints. Indeed, Defendants repeatedly refer to the “vague nature” of Moore’s fears and his

“vague allegations in the absence of a formal written request for protection.” (Id. at 25.)

Moreover, they argue that, “[t]o the extent that Moore had any contact with [Defendants], they

were fleeting and distant in time.” (Id.)

       This characterization stands in marked contrast to Moore’s version of the facts, as

supported by his deposition testimony, that he relayed his fears to both Defendants. Indeed, as

Moore testified, Niemisto and Place both participated in the initial security screening when he

arrived at MBP after being attacked at RMI. At this meeting, Moore informed the prison staff

that he had just been stabbed and that he continued to fear for his safety. Niemisto even admitted

that he was aware that Moore feared gang activity in prison, especially that of the Latin Counts,

though Niemisto claimed that Moore had downplayed the extent of his fear. Furthermore, when

Moore was subsequently attacked in the kitchen by another prisoner, Defendants received the

incident report.

       Moore also testified that, over the course of his imprisonment, he asked the prison staff

for protection over fifty times at the various prisons where he was incarcerated. He also stated

that he filled out written requests for protection at MBP and at another prison. Furthermore,

Moore wrote a letter to the Directors of MDOC, after the March 11, 2011 beating, asking for

protection because he feared for his safety.

       We construe Defendants’ appeal as arguing the factual issue of whether Defendants were

sufficiently aware of the danger to Moore from other prisoners such that they may be liable for

violating Moore’s Eighth Amendment rights. Indeed, because Defendants argue that the issue on

appeal relates to Moore’s failure to file written requests, but Moore testified that he did, in fact,



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submit such requests, this appeal essentially involves a factual dispute. As explained above, we

lack jurisdiction to consider factual disputes on an interlocutory appeal concerning qualified

immunity.       See Johnson, 515 U.S. at 313.   We therefore dismiss this appeal for lack of

jurisdiction.

                                       CONCLUSION

        For the reasons stated above, we DISMISS Defendants’ appeal for lack of jurisdiction,

inasmuch as Defendants have failed to concede the facts in the light most favorable to Moore.




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