                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT
                          ________________________
                                                                     FILED
                                       No. 04-10241         U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                               ________________________           March 13, 2006
                                                               THOMAS K. KAHN
                         D.   C. Docket No. 01-00011-CV-1-SPM       CLERK



JOSE ELIAS SEPULVEDA,

                                                                          Plaintiff-Appellant,

                                            versus

RALPH W. BURNSIDE,
STEPHEN M. OELRICH, et al.,

                                                                      Defendants-Appellees.

                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            _________________________

                                      (March 13, 2006)

Before BIRCH and WILSON, Circuit Judges, and ROYAL*, District Judge.

PER CURIAM:


       *
        Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
       This case is before us for review of the district court's grant of summary

judgment in favor of various jail officials as to the civil rights claims of Plaintiff-

Appellant Jose Elias Sepulveda ("Sepulveda"). Sepulveda, who proceeded pro se

in the case below, was an inmate in the Alachua County Correctional Center

("ACCC") who brought claims for violations of the Eighth and First Amendments

pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 and Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d

619 (1971).1 We review a district court's grant of summary judgment de novo,

“viewing the record and drawing all reasonable inferences in the light most

favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d

1294, 1296 (11th Cir.2002). Upon review of the record in the case, we find that the

district court properly granted summary judgment on all of Sepulveda's claims,

with one exception. There remain genuine issues of material fact related to

Defendant-Appellee Floyd Gipson ("Gipson") and his role in an assault on

Sepuveda by a fellow inmate. Accordingly, the decision of the district court is

hereby AFFIRMED in part, and REVERSED in part, and REMANDED to the


       1
         Because Sepulveda does not raise any arguments as to his Section 1983 claims pursuant
to the Fifth, Sixth, and Fourteenth Amendments, or as to his claims under Section 1986, those
claims are deemed abandoned. See Chavis v. Clayton County School Dist., 300 F.3d 1288, 1291
n. 4 (11th Cir. 2002) (noting in a civil rights case that a plaintiff's retaliation claim that was not
argued on appeal was abandoned).

                                                   2
district court for further proceedings on the merits with regard to the claims against

Gipson.

      The central event in this case is an assault on Sepulveda by inmate Donald

Small that took place on February 2, 2000. The evidence is sufficient to justify a

jury finding that Gipson, a Detention Officer at ACCC, was aware that inmate

Small posed a threat to Sepulveda, and was deliberately indifferent to that threat

when he released Small and Sepulveda into a common area at the same time. A

reasonable jury could also draw inferences from the conduct of Gipson to support a

conclusion that Gipson brought Sepulveda and Small together with the intent that

Small would assault Sepulveda.

      The undisputed facts alone raise a suspicion about Gipson's involvement in

the attack, in that the attack occurred as a result of Gipson's decision to release

Small and Sepulveda from their cells at the same time, even though both were

Special Management inmates. ACCC's policy manual defines a Special

Management Inmate as an inmate who, "due to continual unruly and/or violent and

aggressive behavior towards staff and/or other inmates, . . . presents a serious threat

to the safety and security of the facility, other inmates, themselves, or is considered




                                           3
an extremely high escape risk."2 Inmates so classified are housed in ACCC's

Special Managment Unit, where they receive a higher degree of supervision than

inmates in the general population.

       In releasing Small and Sepulveda, Officer Gipson violated three specific

policies for supervision of Special Management inmates. First, he violated a policy

that allowed only one inmate from the Special Management Unit to be outside his

cell at any given time. Second, he violated a policy requiring Special Management

inmates to be placed in leg restraints before leaving their cells. Third, he violated

policy by leaving two metal chairs in the common area while Sepulveda and Small

were released. Had Officer Gipson followed established procedures, Small would

not have had the opportunity to attack Sepulveda.

       The moment Officer Gipson released him into the common area, Small

assaulted Sepulveda from behind, striking him in the left ear with his fist and

causing hearing damage. Small continued to assault Sepulveda with his fist and

with a metal chair, until he was finally restrained by Officer Gipson. There is no

evidence in the record before us to indicate that any other officers were present at

the time of the assault, or that anyone witnessed the assault besides Small,



       2
        ACCC's Recommended Disciplinary Action Report for Officer Gipson's violation
describes Small as a "special management inmate" and Sepulveda as an "escape risk inmate."

                                              4
Sepulveda, and Gipson. The incident was investigated by the Alachua County

Sheriff's Office, and inmate Small was prosecuted for aggravated assault. Officer

Gipson was suspended for one day without pay for his violations of jail policy.

      The disputed evidence, when viewed in the light most favorable to

Sepulveda's case, may support a conclusion that Officer Gipson's violations of

ACCC policy were more than a mere oversight, and that he had good reason to

expect that Small would assault Sepulveda if given the opportunity. Indeed,

Sepulveda's testimony indicates that Officer Gipson encouraged Small's hostility

towards Sepulveda. According to Sepulveda, Small was “outspoken about his

hatred of anybody who was not black.” Sepulveda has testified by affidavit that

prior to the attack Small had been known to scream racial slurs and display hostile

behavior specifically directed at Sepulveda, in the presence of Officer Gipson.

Small and Gipson are black; Sepulveda is hispanic. In his Complaint (verified

pursuant to 28 U.S.C. § 1746) Sepulveda stated that Officer Gipson and Small had

regular contact and that Gipson gave favorable treatment to Small. Sepulveda

frequently heard Gipson and Small exchange racist remarks concerning him.

Gipson referred to Sepulveda as a “snitch” or a “Puerto Rican snitch.” On one

occasion three days before the assault, Sepulveda overheard Gipson state to Small,




                                         5
“Sepulveda is the piece of shit who’s suing Greg. He didn’t learn nothing when

they shackled his ass.”

       Sepulveda's testimony regarding Officer Gipson's knowledge of Small's

hostility is disputed by Defendants. Gipson testifies that prior to the February 2

assault, he had seen no indication of any animosity between the two inmates. In

the report he gave to the Alachua County Sheriff's Deputy who investigated the

assault, Gipson stated that prior to the assault Small and Sepulveda were on good

terms, talked and joked with each other, and frequently played chess or checkers

through the food slot in Small's cell.

       Gipson also offers an explanation for his violation of the Special

Management policies. In his affidavit, Gipson testifies that he allowed the two

inmates out of their cells at the same time to accommodate their requests for

haircuts. He states that he had two barbers sent to the Special Management Unit to

"expedite" the haircut process.3 In his statement to the Sheriff's investigator, he

acknowledged that he "made the wrong decision," and explains that his decision

"was based on my heart rather than my head." He states that Sepulveda and Small

"had been getting along very well and no arguments or anything had taken place


       3
         Sepulveda denies having requested a haircut, and there is no evidence in the record to
indicate that any barbers were present in the Special Management Unit at the time Sepulveda and
Small were released from their cells.

                                               6
between them," and explains that this prior good relationship between the two

played a part in his decision to release them both.

      The primary question in this case concerns Officer Gipson's knowledge of

the threat that Small posed to Sepulveda, and there is sufficient evidence of such

knowledge to establish the subjective element of an Eighth Amendment claim. To

prove a violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment, a prisoner must meet two requirements. First, he must show that the

deprivation alleged was objectively serious enough to be of constitutional concern.

Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811

(1994). Second, he must show that the prison official subjectively acted with a

“sufficiently culpable state of mind,” and that his actions constituted an

“unnecessary and wanton infliction of pain.” Id. In the context of the assault by

inmate Small, the objective element is not a subject of dispute in this appeal.

"Clearly, an allegation of an unjustified serious physical assault against an inmate

raises an arguable section 1983 claim." McFadden v. Lucas, 713 F.2d 143, 146

(5th Cir. 1983). The dispute in this case revolves around Gipson's state of mind

and his culpability in the assault.

      The question of Gipson's state of mind might be approached from two

different perspectives: the perspective of a failure-to-protect case or the perspective

                                           7
of a use-of-force case. In cases involving an officer's failure to protect an inmate

from abuse by other inmates, a plaintiff must prove the officer's “deliberate

indifference” to inmate health or safety. Id. In cases involving the direct use of

force by an official, a plaintiff must show that the officer acted “maliciously and

sadistically for the very purpose of inflicting harm.” Whitley v. Albers, 475 U.S.

312, 320-21 (1986).

      The conclusions of the finder of fact as to Gipson's intent will determine

whether the use-of-force or the failure-to-protect analysis could be used in this

case. A reasonable jury could find that Officer Gipson was aware that inmate

Small was a threat to Sepulveda, based on Sepulveda's testimony about Small's

prior displays of hostility towards him, in addition to Small's classification as a

dangerous inmate. Such a finding would support a conclusion that Gipson was

deliberately indifferent to Sepulveda's safety when he released the two inmates

together. A reasonable jury might further infer from his conduct that Officer

Gipson encouraged or deliberately orchestrated the assault, based on Sepulveda's

testimony about the close relationship between Officer Gipson and Small, and their

exchange of racist and derogatory remarks about Sepulveda. If a jury accepts as

true Sepulveda's testimony about the prior relationship between Small and Gipson,

it might also infer that Officer Gipson's release of the two inmates into the common

                                           8
area at the same time was more than a momentary lapse of judgment, but was

malicious and sadistic, for the very purpose of inflicting harm to Sepulveda.

      The same evidence that supports Sepulveda's claim against Gipson under the

Eighth Amendment also supports his claim of retaliation. “The gist of a retaliation

claim is that a prisoner is penalized for exercising the right of free speech,”

particularly the right to petition the government for redress of grievances by filing

complaints or lawsuits regarding prison conditions. Thomas v. Evans, 880 F.2d

1235, 1242 (11th Cir. 1989). “A prisoner can establish retaliation by demonstrating

that the prison official's actions were ‘the result of his having filed a grievance

concerning the conditions of his imprisonment.’” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003) (quoting Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th

Cir.1989)). In this case, it is undisputed that Sepulveda had filed a lawsuit in 1999

against an officer at ACCC, Greg James, for an incident involving the use of leg

shackles during a previous stay at the jail. In addition, in the weeks prior to the

February 2, 2000 assault by inmate Small, Sepulveda had filed three grievances

against officers at the jail, the last just two weeks before the assault. Should a jury

find that Officer Gipson knowingly allowed or encouraged the assault by Small,

there is evidence to support a causal connection between Gipson's actions and

Sepulveda's protected activity. The primary piece of evidence supporting such a

                                           9
causal connection is Sepulveda's testimony that three days prior to the attack he

overheard Gipson telling Small that Sepulveda was "the piece of shit who's suing

Greg," who "didn't learn nothing when they shackled his ass." These statements

might be read to indicate that Gipson intended to teach Sepulveda the lesson he

failed to learn when he was shackled, and to punish him for filing a lawsuit against

Greg James. There are genuine issues of material fact concerning whether such

statements were made and what inferences can be drawn from them. Accordingly,

with regard to Sepulveda's claims against Defendant Gipson, summary judgment is

not warranted.

      Summary judgment is warranted, however, with regard to Sepulveda's claims

against all other Defendants in this case, and we affirm the district court's grant of

summary judgment in favor of those Defendants. As to Defendants Allen and

Elliot, Sepulveda alleges that they referred to him as a "snitch" in the presence of

other inmates and that Defendant Allen on one occasion jerked him by the ankle

while checking his leg shackles. These claims do not rise to the level of a

constitutional violation. See Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th

Cir. 1989) (verbal taunts not sufficient to constitute deprivation); Hudson v.

McMillan, 503 U.S. 1, 9-10, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (de

minimis uses of force excluded from Eighth Amendment prohibition). Sepulveda's

                                          10
claims against Defendants Oelrich, Burnside, and Morrow are essentially

respondeat superior claims, and there is no evidence that any of them was on

notice that Sepulveda was at risk of being harmed by any inmate, or that any of

them was involved with the attack by Small. See Brown v. Hughes, 894 F.2d 1533,

1537 (11th Cir. 1989) ("Prison officials must have been deliberately indifferent to a

known danger before we can say that their failure to intervene offended 'evolving

standards of decency,' thereby rising to the level of a constitutional tort"). Finally,

as there is no evidence to support a claim that Elliott, Allen, Oelrich, Burnside, or

Morrow conspired or in any way acted with Gipson to encourage or allow the

attack by Small, Sepulveda's conspiracy claims also merit summary judgment.

      For the reasons set forth above, this case is hereby remanded to the District

Court for further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART and REMANDED.




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