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                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-14929
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:12-cv-00566-WS-N



DRAPER FRANK WOODYARD,

                                                          Plaintiff-Appellant,

                                versus

ALABAMA DEPARTMENT OF CORRECTIONS, et al.,


                                                                   Defendants,


DAVID LEGGETT,

                                                        Defendant-Appellee.

                     ________________________

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

                            (June 30, 2017)
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Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.


PER CURIAM:

      Draper Woodyard, an inmate in the Alabama prison system, alleges that

David Leggett, a corrections officer at the prison where he was incarcerated, acted

with deliberate indifference by failing both to prevent another inmate from

assaulting him and to respond appropriately to that assault. The district court

granted summary judgment to Leggett. Woodyard appeals.

                                         I.

      “We relate the facts — as we must at this stage of the litigation — in the

light most favorable to” Woodyard. Goodman v. Kimbrough, 718 F.3d 1325, 1329

(11th Cir. 2013).

                                         A.

      In July 2012 Woodyard approached Leggett, who was on duty in

Woodyard’s prison dormitory, to report that another inmate, Lawrence Anderson,

had threatened him. According to Woodyard’s deposition, Anderson wanted

Woodyard to give him some goods, which pass for money in prison. Woodyard

refused, at which point Anderson became angry, they shoved each other, and

Anderson threatened to stab Woodyard that night. It is unclear whether Woodyard

told Leggett that Anderson shoved him or the timeframe for the planned attack.

      Leggett brushed off the threat, saying that it was probably just the alcohol

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talking.1 Woodyard asked for permission to go and report the threat to the shift

supervisor, but Leggett refused to allow him to do so, saying that Woodyard had to

“wait until the next movement call.” Leggett also refused to call a supervisor.

Woodyard returned to his bed and, because his medication made him drowsy, fell

asleep.2

       Not long afterwards, Anderson walked to Woodyard’s bed and began

stabbing Woodyard while he was asleep.3 Woodyard woke up and the two men

began to struggle, tumbling over several beds. Woodyard called out to Leggett for

help. He was stabbed repeatedly in the hands, chest, and fingers.

       According to Woodyard’s deposition, the assault seemed to last around five

minutes and he called out to Leggett for help, but received no immediate


       1
        As the district court noted: “Left unexplained is why the prison so generously tolerated
known, repetitive prisoner drunkenness, but that is not an issue raised by the plaintiff.”
       2
        Another inmate testified in a deposition that Woodyard did not go to sleep, but instead
warily watched Anderson until the assault began. Which version of events is more beneficial to
Woodyard’s case is difficult to say, but we credit Woodyard’s version.
       3
          With his opposition to the defendants’ first motion for summary judgment, Woodyard
submitted an affidavit from Anderson. In that affidavit, Anderson claimed that just before the
assault he walked right by Leggett with a knife visible and that “the officer saw the knife and
looked the other way.” Although this affidavit is hearsay and would not be admissible for the
truth of its contents at trial, see Fed. R. Evid. 802, we would normally consider it at the summary
judgment stage because it would indicate what the affiant would testify to at trial, see Fed. R.
Civ. P. 56(c)(2) & (4).
        In this case, however, Anderson testified at his later deposition that his affidavit was
untrue and that Leggett did not see the knife before the assault. As a result, our usual assumption
that an affidavit forecasts the affiant’s trial testimony and for that reason may be considered at
the summary judgment stage does not hold. Without that assumption, the affidavit is only
inadmissible hearsay. And “[e]vidence inadmissible at trial cannot be used to avoid summary
judgment.” Lebron v. Sec’y, Fla. Dep’t of Children & Families, 772 F.3d 1353, 1360 (2014).

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assistance. Leggett testified during his deposition that he called for backup upon

noticing the fight and backup arrived within ten to fifteen seconds of his call for

assistance.

                                               B.

       Woodyard, acting pro se, filed a lawsuit against Leggett and several other

defendants, claiming that his rights had been violated in a number of ways.

Among the claims he raised was one that Leggett had acted with deliberate

indifference in violation of his Eighth and Fourteenth Amendment rights by failing

to (1) prevent Anderson from assaulting him and (2) adequately protect him once

the assault began.

       The defendants filed an answer and special report, to which Woodyard

responded. The magistrate judge construed those filings as a motion for summary

judgment and a response in opposition. She recommended that the district court

grant the motion for summary judgment as to all of Woodyard’s claims except his

deliberate indifference claims against Leggett in his individual capacity. The

district court adopted that recommendation and, in response to a request from

Woodyard, appointed counsel to represent Woodyard on his deliberate indifference

claims against Leggett. 4


       4
         In his briefs to this Court, Woodyard does not challenge the district court’s decision to
grant summary judgment to the defendants on all of his other claims. As a result, he has
abandoned any argument about those claims. United States v. Willis, 649 F.3d 1248, 1254 (11th
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       After additional discovery was taken, Leggett again moved for summary

judgment. Woodyard, now represented by counsel, filed a brief in opposition that

addressed only his claim that Leggett failed to prevent the assault — omitting any

discussion of Woodyard’s allegation that Leggett failed to adequately protect him

once the assault began. The district court granted summary judgment to Leggett

on both claims. It did not consider any of the arguments Woodyard made in his

original pro se brief in opposition to the first motion for summary judgment or the

evidence he submitted in support of that opposition. Because it concluded that no

constitutional violation occurred, the district court did not address whether Leggett

was entitled to qualified immunity.

       Woodyard, once again proceeding pro se, appeals.

                                                 II.

       We review de novo a district court’s decision to grant a motion for summary

judgment, Harrison v. Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014), viewing the

evidence in the light most favorable to the non-moving party and drawing all

reasonable inferences in his favor, Caldwell v. Warden, FCI Talladega, 748 F.3d

1090, 1098 (11th Cir. 2014). Summary judgment is only “appropriate where there

is no genuine issue as to any material fact and the moving party is entitled to



Cir. 2011) (“A party seeking to raise a claim or issue on appeal must plainly and prominently so
indicate . . . . Where a party fails to abide by this simple requirement, he has waived his right to
have the court consider that argument.”) (quotation marks omitted).
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judgment as a matter of law.” Hinkle v. Midland Credit Mgmt., 827 F.3d 1295,

1300 (11th Cir. 2016).

                                          III.

      Leggett asserts — as an alternative ground for affirming the district court’s

grant of summary judgment on the merits of Woodyard’s claims — that he is

entitled to qualified immunity. An officer is entitled to qualified immunity from

liability for actions taken in the course of his discretionary functions unless a

plaintiff can show (1) that the officer violated the plaintiff’s constitutional or

statutory rights and (2) that those rights were “clearly established” at the time of

the violation. Caldwell, 748 F.3d at 1098. Woodyard does not argue that Leggett

was acting outside his discretionary functions as a corrections officer. So the

burden shifts to Woodyard to demonstrate a genuine dispute of material fact as to

whether Leggett is entitled to qualified immunity. Id.

      Because Woodyard must establish a genuine issue of material fact as to

whether Leggett violated his constitutional rights before he can possibly overcome

the officer’s qualified immunity defense, we address the district court’s conclusion

that Woodyard’s Eighth and Fourteenth Amendment rights were not violated.

                                           A.

      We first consider Woodyard’s claim that Leggett acted with deliberate

indifference in violation of the Eighth and Fourteenth Amendments by failing to


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prevent Anderson from assaulting Woodyard after being made aware of

Anderson’s threat. The district court concluded that Woodyard did not present

sufficient evidence to create a genuine issue of material fact as to whether his

constitutional rights were violated. But we need not decide whether it was correct,

because “[w]e may affirm the district court’s judgment on any ground that appears

in the record, whether or not that ground was relied upon or even considered by the

court below.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007). In this case, even if Leggett’s failure to prevent Anderson from assaulting

Woodyard did amount to a constitutional violation, that violation was not clearly

established by binding Supreme Court, Eleventh Circuit, or Alabama Supreme

Court precedent at the time Woodyard was assaulted.

      A right is clearly established if “at the time of the incident, the preexisting

law dictates, that is, truly compel[s], the conclusion for all reasonable, similarly

situated public officials that what [the officer] was doing violated [the plaintiff’s]

federal rights in the circumstances.” Marsh v. Butler Cty., 268 F.3d 1014, 1030–

31 (11th Cir. 2001) (en banc) (quotation marks omitted) (first alteration in

original). Binding precedent has undoubtedly established that prison officials must

take reasonable steps “to protect prisoners from violence inflicted upon them by

other prisoners.” Harrison, 746 F.3d at 1298.

      In all but the most obvious cases, however, such a “highly general” standard


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is not enough to clearly establish the unconstitutionality of an officials’ conduct.

See Marsh, 268 F.3d at 1031–32 & n.9. Instead, a plaintiff must be able to point to

a binding, “materially similar” precedent recognizing the violation. Id. at 1032.

We have explained that:

      For qualified immunity purposes, a preexisting precedent is materially
      similar to the circumstances facing an official when the specific
      circumstances facing the official are enough like the facts in the
      precedent that no reasonable, similarly-situated official could believe
      that the factual differences between the precedent and the
      circumstances facing the official might make a difference to the
      conclusion about whether the official’s conduct was lawful or
      unlawful.

Id. That is not the case here.

      The plaintiff in a deliberate indifference case must show (1) that “a

substantial risk of serious harm” existed, (2) that the defendant acted with

“deliberate indifference” to that risk, and (3) a causal connection between that

indifference and his injury. Caldwell, 748 F.3d at 1100. An official acts with

deliberate indifference to a risk where he (1) had subjective knowledge of the risk,

(2) disregarded it, and (3) did so “by conduct that is more than gross negligence.”

Goodman, 718 F.3d at 1332.

      Some of our sister circuits’ decisions suggest that Woodyard’s report to

Leggett might be enough to show that Leggett had subjective knowledge of the risk

Woodyard faced. See, e.g., Gevas v. McLughlin, 798 F.3d 475, 481 (7th Cir.

2015) (“[A] complaint that identifies a specific, credible, and imminent risk of

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serious harm and identifies the prospective assailant typically will support an

inference that the official to whom the complaint was communicated had actual

knowledge of the risk.”). But in determining whether a particular constitutional

violation is clearly established, we look to our own binding precedent, the binding

precedent of the Supreme Court, and the binding precedent of the “highest court in

the state where the action is filed.” Merricks v. Adkisson, 785 F.3d 553, 560 (11th

Cir. 2015). And no decision from the United States Supreme Court, this Court, or

the Alabama Supreme Court clearly established that the information available to

Leggett was sufficient to apprise him of the risk Woodyard faced and require him

to take preventative action.

      According to his deposition testimony, Woodyard told Leggett before the

assault that Anderson was drunk, had threatened to stab him, and went “nuttio”

when Woodyard declined to provide him with more goods. Woodyard told the

officer that he believed Anderson was “sincere” and that he “need[ed] to go [to the

supervisor’s office] now.” In his sworn complaint, Woodyard alleges he also said

that he feared life-threatening violence. The record indicates that Anderson and

Woodyard had no history of altercations. And one inmate testified in a deposition

that, on the whole, the prisoners in the dorm got along fairly well.

      Our decision in Rodriguez v. Secretary for the Department of Corrections,

508 F.3d 611 (11th Cir. 2007), has some factual similarities to this case. There an


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inmate told several guards that he had been threatened by his former gang and that

he feared they would assault him when he was released into the general population.

Id. at 614–616. He was released anyway and a few hours later a gang enforcer

stabbed him. Id. at 616. We held that — because the inmate had relayed the

threats to several prison officials — the inmate had shown that those officials had

subjective knowledge of the risk of assault he faced. Id. at 618–22.

      In Rodriguez the officers were aware of both the threats made against the

inmate and the gang-related nature of those threats. The assault in this case was

not gang-related. All Leggett was aware of was Anderson’s threats, Anderson’s

drunkenness, and the fact that Anderson and Woodyard had an argument a few

minutes before Woodyard spoke to Leggett. A reasonable officer could conclude

that, because of the violence associated with gangs and the lack of gang

involvement in the dispute between Anderson and Leggett, this situation was

different from the one the officers in Rodriguez faced. A gang’s threat to kill

someone for leaving the gang (or really for almost any other reason) could

reasonably be considered more credible than a drunk inmate’s threat to kill

someone because they didn’t hand over “goods.” That distinction is enough to

prevent Rodriguez from clearly establishing that Leggett’s conduct was

unconstitutional. See Marsh, 268 F.3d at 1032. Even if Leggett was aware that

Anderson had said he would stab Woodyard “that night” and had shoved him, we


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are not persuaded that Rodriguez clearly established that Leggett’s response to the

situation amounted to deliberate indifference.

      As the Eighth Circuit has recognized, “threats between inmates are common

and do not, under all circumstances, serve to impute actual knowledge of a

substantial risk of harm.” Prater v. Dahm, 89 F.3d 538, 542 (8th Cir. 1996). Until

binding precedent clarifies the circumstances in which threats between inmates are

sufficient to allow the jury to impute knowledge of such risks to an officer, we

cannot say that in the circumstances of this case a refusal to act on a threat (or

threats accompanied by drunkenness) amounted to a clearly established

constitutional violation. For those reasons, the district court did not err by granting

summary judgment to Leggett on Woodyard’s failure to prevent claim.

                                          B.

      We next consider Woodyard’s claim that Leggett acted with deliberate

indifference when he failed to immediately intervene to stop Anderson from

assaulting Woodyard. For the reasons that follow, we conclude that the district

court erred when it granted summary judgment to Leggett on this claim.

                                          1.

      The district court believed that Woodyard had failed to establish a genuine

issue of material fact as to whether Leggett had violated his constitutional rights by

failing to adequately respond to Anderson’s assault. Admittedly, Woodyard did


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not address this claim in his response to Leggett’s second motion for summary

judgment. But the district court still considered and addressed the claim and it is

raised in Woodyard’s brief on appeal, so we will also address it.

      As we have explained, to survive summary judgment on his failure to protect

claim, Woodyard bears the burden of showing (1) that “a substantial risk of serious

harm” existed, (2) that Leggett acted with “deliberate indifference” to that risk, and

(3) a causal connection between that indifference and his injury. Caldwell, 748

F.3d at 1100. We think that Woodyard has established a genuine issue of material

fact about this claim.

      As to the first element, a substantial risk of serious harm existed once the

assault began: Woodyard was being assaulted with a knife by a fellow inmate.

The second element, deliberate indifference, is established only where a plaintiff

demonstrates that the defendant (1) had subjective knowledge of the risk,

(2) disregarded it, and (3) did so “by conduct that is more than gross negligence.”

Goodman, 718 F.3d at 1332. Woodyard has created a genuine issue of material

fact as to whether he has met that standard and established the second element.

      First, a jury could conclude that Leggett was subjectively aware of the risk

Woodyard faced. The depositions before the district court established that Leggett

was between seven and twenty feet from the fight when it started, that Woodyard

called for help, that there was a lot of blood, and that the men “tussled” over


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several beds. That would presumably have drawn Leggett’s attention. Indeed,

Leggett himself testified in his deposition that he heard a yell and saw inmates

tumble over a bed, which is consistent with Woodyard’s version of events.

       Likewise, a jury could conclude that Leggett disregarded that risk. Although

the summary judgment record does not reveal exactly how long it took him to

notice the assault once it began, reasonable jurors could conclude that — given his

proximity to the fight, the amount of blood spilled, the yelling, and the commotion

caused by the men tumbling over beds — Leggett noticed the fight soon after it

began. Based on Woodyard’s deposition testimony that the assault lasted around

five minutes and Leggett’s deposition testimony that help arrived within ten to

fifteen seconds of his eventual call for assistance, a jury could also infer that

Leggett did not immediately call for backup. Instead, reasonable jurors could infer

that for some time Leggett merely watched the assault happen or ignored it.5

       And jurors could also reasonably conclude that failing to take immediate

action while an inmate was being assaulted amounted to more than gross

negligence. Though Leggett was not required to leap into the fray alone to save

Woodyard, he could have called for assistance right away instead of waiting for


       5
         Given the contradictory evidence on several of these points in the record, reasonable
jurors might also reach a different conclusion at trial, but at this point we are required to draw all
inferences in Woodyard’s favor. See Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995)
(“[W]hat we state as ‘facts’ in this opinion for the purposes of reviewing the rulings on the
summary judgment motions may not be the actual facts. They are, however, the facts for
present purposes . . . .”).
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five minutes to do so.

      Finally, Leggett’s alleged delay in acting allowed Anderson’s assault to

continue unabated, satisfying the causation element of a deliberate indifference

claim. All of those facts, taken together, are sufficient to create a genuine dispute

of material fact as to whether Leggett violated Woodyard’s constitutional rights.

                                          2.

      Because we conclude that a reasonable jury could find that Leggett violated

Woodyard’s Eighth and Fourteenth Amendment rights by failing to adequately act

once Anderson began his assault, we must determine whether prior case law

clearly established that Leggett’s conduct was unconstitutional. It did.

      As we have already said, our precedents have made clear, repeatedly, that

the Constitution requires that prison officials take reasonable measures to protect

the safety of the inmates. See, e.g., Harrison, 746 F.3d at 1298. Any reasonable

officer should have known that he could not, in keeping with that standard, delay

for five minutes taking any action while one inmate assaulted another one. See

United States v. Lanier, 520 U.S. 259, 271, 117 S. Ct. 1219, 1227 (1997) (“[A]

general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question.”) (quotation marks omitted).

For these reasons, viewing the evidence in the light most favorable to Woodyard,

Leggett is not entitled to summary judgment on Woodyard’s failure to protect


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claim.

                                          IV.

         The judgment of the district court as to Woodyard’s failure to prevent claim

is AFFIRMED. The judgment of the district court as to Woodyard’s failure to

protect claim is REVERSED and the case is REMANDED to the district court for

further proceedings consistent with this opinion.




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