                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-6229


KIM    M.    STRICKLAND,   Personal    Representative    and
Administrator of the Estate of Aaron A. Cooper,

                Plaintiff - Appellant,

          v.

HEATHER HALSEY, Corrections and Floor Officer, Red Onion
State Prison; TRACY GILMORE, Building Sergeant, Red Onion
State Prison; BRIAN MEADE, Corrections Officer, Red Onion
State Prison; ROBERT MULLINS, Corrections Officer, Red Onion
State Prison; FIRST NAME UNKNOWN BALL, (Female) Corrections
Officer, Control Booth, Red Onion State Prison; THREE
UNKNOWN CORRECTIONAL OFFICERS,

                Defendants – Appellees,

          and

HAROLD   W.   CLARKE,   Director,  Virginia   Department   of
Corrections; JOHN JABE, Director, Operations, Virginia
Department   of   Corrections;  JOHN  S.   GARMAN,   Regional
Director, Virginia Department of Corrections; TRACY RAY,
Warden, Red Onion State Prison; RICHARD ROWETTE, Assistant
Warden and Incident Commander, Red Onion State Prison;
LESLIE FLEMING, Major, Chief of Security, Red Onion State
Prison; TRAVIS MCCOY, Lieutenant, Shift and Watch Commander,
Red Onion State Prison; TONY ADAMS, Sergeant, Instructional
Investigator, Red Onion State Prison; JAMES BENTLEY,
Intelligence Officer, Red Onion State Prison; J. RICK
WIANDT, MSA, Investigator, Inspector General, Virginia
Department of Corrections; L. FLEMING (male) Lieutenant, Red
Onion State Prison,

                Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:12-cv-00019-JPJ-PMS)


Argued:   March 24, 2015                Decided:   August 19, 2015


Before WYNN, FLOYD, and HARRIS, Circuit Judges.


Affirmed in part; reversed and remanded in part by unpublished
per curiam opinion.


Mary Lynn Tate, TATE LAW, PC, Abingdon, Virginia, for Appellant.
Henry  Keuling-Stout,    KEULING-STOUT, P.C.,  Big   Stone  Gap,
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       This lawsuit arises from the murder of an inmate, Aaron

Cooper, by another inmate, Robert Gleason, at a maximum security

prison in Virginia.          Kim Strickland, the personal representative

and    administrator     of    Cooper’s       estate,     brought      suit    under   42

U.S.C. § 1983, alleging that a sergeant (Tracy Baird) and three

corrections officers (Heather Halsey, Brian Meade, and Robert

Mullins)      violated   the    Eighth    Amendment        by    being      deliberately

indifferent to Cooper’s safety.                   In support, Strickland asserts

that the defendants took no measures to prevent Cooper’s murder,

despite knowing that Gleason had killed another inmate and that

he    threatened    to   kill        again.        She    also    asserts     that     the

defendants actively facilitated Cooper’s murder by, among other

things, agreeing not to search Gleason for the murder weapon in

exchange for Gleason providing them certain favors.

         On    appeal,   we    must     decide      whether      the   district     court

correctly held that qualified immunity protects the defendants

from    Strickland’s     §    1983    claim.        For   the     reasons     set   forth

below, we agree that Baird and Halsey are entitled to qualified

immunity.      On the other hand, disputed issues of material fact

exist   as    to   Meade’s     and    Mullin’s      involvement        in   the   murder.

Accordingly, we affirm as to Baird and Halsey, and reverse and

remand as to Meade and Mullins.



                                              3
                                              I.

      Robert C. Gleason Jr. first entered prison in 2007 after

receiving      a   life     sentence      for           murder. 1     While       serving     his

sentence at Wallens Ridge State Prison, Gleason strangled his

cellmate,       Harvey      Watson      Jr.,        to      death.         During    a    court

appearance for Watson’s murder, Gleason declared that he would

kill again if he were not executed.                          According to a Red Onion

sergeant present in the courtroom at the time, Gleason said, “it

might be one of these guys next time” and pointed to several

prison officers present in the courtroom.                            J.A. 66-67.         Despite

this outburst, Gleason was not sentenced to death.                                Instead, he

was   transferred          to    Red    Onion       State      Prison      (Red     Onion),     a

Security Level S facility housing Virginia’s most violent and

dangerous inmates.

      After arriving at Red Onion, Gleason set about making good

on this threat to kill again.                       As his target, he settled on

Aaron       Cooper,   a     26-year-old         inmate         serving      a   sentence      of

approximately         34        years   for         a     series      of    robberies         and




        1
       In reviewing de novo the district court’s order granting
summary judgment to the Defendants, we “view the facts and all
justifiable inferences arising therefrom in the light most
favorable to” Strickland, as the nonmoving party.     Libertarian
Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013).      The
following statement of facts conforms to this standard.



                                                4
carjackings. 2     Gleason testified that he befriended Cooper in

order to gain his trust.        Gleason then convinced Cooper to go

along with a plan in which Cooper would fake being strangled by

Gleason in order to bring suit against the prison.                Gleason

testified that he told Cooper, “I want you to take a deep breath

so you can pass out so if they do a polygraph test on you if

they ask you did you actually pass out from Mr. Gleason choking,

pulling on the rope.”       J.A. 97.     But, according to Gleason, “I

made that up.      That was never going to happen.        That was never

going to happen.      I was going to kill him.”        J.A. 88.   Gleason

wanted to make the Department of Corrections look stupid because

“they kept on saying this is Red Onion, this ain’t going to

happen up here.”      J.A. 102.     With the help of other prisoners,

Gleason obtained his weapon, a long rope “braided so that way it

wouldn’t break” while in the showers.       J.A. 89.

     After obtaining the rope, Gleason still needed to find a

way to get close enough to Cooper to use it, no easy feat in Red

Onion, where the prisoners are separated in individual metal

cages    even    during   outdoor   recreation   time.     Gleason   took



     2 Cooper had been transferred to Red Onion because he set
fire to objects at least twice in order to escape gang violence
at his previous prison. Cooper’s behavior at Red Onion seems to
have been the motivating factor in drawing Gleason’s attention.
J.A. 106 (Gleason targeted Cooper because he “messed up and
started running his mouth” and told “lies.”).



                                     5
advantage of a widespread system of favor-trading between guards

and inmates in order to get close to Cooper.                 Gleason says that

he   made    arrangements    with    Halsey,       Meade     and     Mullins   to

effectuate    his   plan.    According      to    Gleason,    prisoners     would

often arrange to stay inside their cells during recreation time

in exchange for other favors from guards.               Guards participated

in this exchange because they were saved the work of bringing

the prisoner onto the recreation yard. To execute his plan to

kill Cooper, Gleason says that he arranged with Halsey and Meade

to assign prisoners to the metal cages in the recreation yard so

that Cooper’s and Gleason’s cages would be adjacent.                      J.A. 91

(“Well, I told [Meade] I’d stay in plus other things, and I

don’t want to get into that.”).             According to both Meade and

Mullins, inmates usually chose their own cages.                      J.A. 230-31

(“They usually just choose their own cage.                   . . .    We’d just

take them to whichever case they went to.”); J.A. 245 (“They

chose.     When they come out, they went to the rec, the cage that

they just walked out and went to the cage that they wanted to go

into.”).      Halsey   and   Meade   deny    an    agreement       with   Gleason

regarding the placement of inmates on that day.

     After securing a place next to Cooper in the recreation

yard, Gleason still had to get the rope into the cage.                     Again,

Gleason testified that he had help in doing so.                 Before inmates

are brought onto the recreation yard, they are strip-searched by

                                     6
the officers.          On the day of the killing, Meade and Mullins

searched Gleason (Halsey was elsewhere at the time).                          Although

Gleason had the rope in his shirt during the search, Meade and

Mullins did not find it.                J.A. 93.      Gleason claims that Meade

and     Mullins    purposefully         performed       an     insufficient     search

because of an agreement to provide them with favors.                           Gleason

also testified that his plan to kill Cooper was common knowledge

among the inmates.              J.A. 94 (the inmates “all knew what was

going on.”); see also J.A. 97 (“All of [the inmates] except for

Sparrow”).        He also says that the prison officials “all knew

what was going on.          And plus Martin [Rodgers] gave them all a

heads-up.” 3       J.A.    94.     Meade       and   Mullins     in   turn    deny   any

agreement       with   Gleason     or    that    they    performed       an   improper

search.

      Gleason also testified that Halsey deliberately looked the

other     way   during    the    killing    itself.          According   to   Gleason,



      3An affidavit by Tony Adams, a sergeant at Red Onion,
states that Rodgers “made a statement to us that there were
going to be problems on the recreation yard.       He did not
elaborate on the date, time or parties that would be involved
and gave no details or specifics about what he knew or how he
knew this.”      J.A. 66.    Other affidavits support Adams’s
statement   that   Rodgers did   not  provide  any   actionable
information. See J.A. 69 (“Rodgers provided no specific, exact
or detailed information to staff about anything that was going
to happen on the recreation yard or in any other location.”);
J.A. 72 (“Rodgers was not specific and refused to give
details”).



                                           7
Halsey was in the control tower overlooking the yard in the

moments before he strangled Cooper.                   Gleason also testified that

Halsey saw him place the rope around Cooper’s neck.                            J.A. 118.

Then, according to Gleason, “She looked down, that’s when they

all looked up, were inside talking and what not, and I pulled

the rope up and that’s when she shut window and never seen her

again.”         J.A. 118.         Halsey, however, denies this account, and

instead says she was in another part of the prison during the

killing. 4           According to Travis McCoy, the Warden of Red Onion at

the time, “staffing policy did not require security staff be

present         on    the   recreation      yard    during    offender   recreation.”

J.A. 76.

       Video evidence shows that Gleason strangled Cooper, walked

away, and then strangled him again.                        When Halsey went to the

yard       to   bring       the   inmates    back    to    their   cells,      she   found

Cooper’s body and radioed Baird, a sergeant at the prison, for

assistance.             Although medical assistance was administered, it

was    too       late:        Cooper   died    at    the     scene. 5    The    Virginia


       4
       It is undisputed that neither Mullins nor Meade where near
the yard when the killing happened.
       5
       Gleason was put to death by electrocution on January 16,
2013. Justin Jouvenal, Va. Executes Convicted Killer Who Sought
Death    Penalty,    Washington     Post,    Jan.    16,    2013,
www.washingtonpost.com/local/va-executes-convicted-killer-who-
sought-death-penalty/2013/01/16/89802e00-6015-11e2-9940-
6fc488f3fecd_story.html.


                                              8
Department            of       Corrections           later        disciplined          all        of     the

Defendants for their roles in Cooper’s death.

       Acting         as       personal       representative              and    administrator              of

Cooper’s estate, Kim Strickland brought this action under 42

U.S.C.       § 1983,           alleging       that    Defendants            violated        the    Eighth

Amendment of the U.S. Constitution. 6                             The district court granted

summary          judgment        for    Defendants           on       the    basis     of    qualified

immunity.          Specifically, the district court found that none of

the four Defendants violated the Eighth Amendment because they

were       not    deliberately           indifferent          to      a     “substantial          risk      of

serious harm” to Cooper.                      Farmer v. Brennan, 511 U.S. 825, 834

(1970).          This appeal followed.



                                                     II.

       “Whether            a   party     is    entitled          to    summary        judgment         is    a

question         of    law      we     review    de       novo     using        the   same    standard

applied by the district court.”                           Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (en banc).                        “Summary judgment is appropriate

only if taking the evidence and all reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party,

‘no material facts are disputed and the moving party is entitled

       6
       Strickland originally brought two additional counts, which
are not on appeal here: Count II, a supervisory liability claim,
and Count III, a civil conspiracy claim.



                                                      9
to judgment as a matter of law.’”                       Id. (quoting Ausherman v.

Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).                                Thus, in

this case, we view the facts in the light most favorable to

Strickland.

       At the center of this appeal is the district court’s grant

of    qualified        immunity    to    all    of    the     Defendants.           Qualified

immunity      “balances      two    important         interests—the          need     to   hold

public        officials      accountable             when     they       exercise          power

irresponsibly and the need to shield officials from harassment,

distraction,          and   liability        when     they     perform        their       duties

reasonably.”           Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Put     differently,         qualified          immunity           shields      “government

officials           performing     discretionary            functions     .     .     .     from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of    which     a    reasonable    person      would        have   known.”          Harlow    v.

Fitzgerald, 457 U.S. 800, 818 (1982).

       Consequently, a defendant is entitled to qualified immunity

in a § 1983 case if (1) his or her conduct did not violate the

constitutional right at issue or (2) the right was not “clearly

established” at the time of the incident.                          Pearson, 555 U.S. at

232,     236.         Succeeding        on   either     prong       is   sufficient          for

entitlement to qualified immunity, and courts may begin with

either prong.          Id. at 234.

                                               10
       As set forth below, we agree that Baird and Halsey did not

violate     the    Eighth      Amendment      because     they     did    not    take   any

action or inaction such that a reasonable factfinder could find

that they were deliberately indifferent.                         We conclude that a

reasonable    factfinder          could    determine,      drawing       all    reasonable

inferences        in    Strickland’s       favor,       however,     that       Meade    and

Mullins     exhibited      such      indifference.         We    also    conclude       that

Cooper’s Eighth Amendment right in this instance was clearly

established.           Accordingly, we will reverse the district court’s

grant of qualified immunity as to Meade and Mullins, but affirm

as to Baird and Halsey.



                                           III.

       We   begin       with   the    first      prong    of     qualified       immunity:

whether     the        Defendants     violated      Cooper’s        Eighth       Amendment

constitutional          rights.      The   Eighth       Amendment    requires       prison

officials to “protect prisoners from violence at the hands of

other prisoners.”          Farmer, 511 U.S. at 833.              Officials must take

“reasonable measures to guarantee the safety of the inmates.”

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984).                          In other words,

“[t]he government and its officials are not free to let the

state of nature take its course.”                       Farmer, 511 U.S. at 833.

“The   burden      is     on   the    prisoner     to    demonstrate        that    prison

officials violated the Eighth Amendment, and that burden is a

                                            11
heavy one.”         Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir.

2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).

      Not every “injury suffered by one prisoner at the hands of

another    .    .   .    translates       into     constitutional          liability      for

prison officials responsible for the victim’s safety.”                               Farmer,

511 U.S. at 834.              Instead, the Supreme Court has outlined two

requirements for an Eighth Amendment failure to protect claim.

First, “a prison official’s act or omission must result in the

denial     of       ‘the       minimal      civilized           measure         of    life’s

necessities.’”          Id. (quoting Rhodes v. Chapman, 452 U.S. 337,

347   (1981)).          In    other    words,     the    denial     of    the    prisoner’s

constitutional          rights    must    be     “sufficiently           serious.”        Id.

Second, the prison official must have a “sufficiently culpable

state     of    mind,”         id.,     which     means       the    official         either

purposefully        caused       the     harm      or     acted      with       “deliberate

indifference,” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).

      The first requirement is easily satisfied here.                            Cooper was

murdered       by   another          prisoner.          The     deprivation          of   his

constitutional rights is unquestionably “sufficiently serious.”

      Whether        prison           officials         acted       with        “deliberate

indifference” for purposes of the second requirement presents a

closer    call.          In    the    Eighth     Amendment        context,       deliberate

indifference “lies somewhere between negligence and purpose or

knowledge: namely, recklessness of the subjective type used in

                                            12
criminal law.”       Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105

(4th Cir. 1995).        For a prison official to be liable, “the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.”              Farmer, 511 U.S. at 837.

The test is subjective, not objective.              Brice, 58 F.3d at 105.

A   prison   official    is   not    liable   if    he     or   she    “knew      the

underlying facts but believed (albeit unsoundly) that the risk

to which the facts gave rise was insubstantial or nonexistent.”

Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336,

338 (4th Cir. 1997) (finding that a prison official was not

liable, because he did not actually draw the inference that the

inmate was exposed to a substantial risk of serious harm).

     This    case,    therefore,     hinges   on     whether       any     of     the

Defendants   were     subjectively    aware   of     the    risk      of   harm   to

Cooper, shown either through direct evidence or circumstantial

evidence of actual knowledge. 7        Makdessi v. Fields, __ F.3d __,

No. 13-7606, 2015 WL 1062747, at *5-6 (4th Cir. 2015).



     7  A court can use circumstantial evidence to infer that an
official “must have known” of the risk based on “the very fact
that the risk was obvious.” Farmer, 511 U.S. at 842. “In other
words, although the obviousness of a particular injury is not
conclusive of an official’s awareness of the injury, an injury
might be so obvious that the factfinder could conclude that the
guard did know of it because he could not have failed to know of
it.” Brice, 58 F.3d at 105 (citation omitted).



                                      13
       Strickland claims the defendants were subjectively aware of

the    risk    to    Cooper     because:    (i)    they    knew    that       Gleason   had

killed in the past and that he threated to kill again; and (ii)

they facilitated the murder by, inter alia, failing to properly

strip-search         Gleason      and    recover     the    murder         weapon.       As

explained below, we disagree that mere knowledge of Gleason’s

threats rises to the level of deliberate indifference.                               On the

other hand, taking the facts in the light most favorable to

Strickland, we conclude that failing to adequately strip-search

Gleason       for    the    murder      weapon,    pursuant       to   a    pre-arranged

agreement,         does    constitute     deliberate       indifference.          Because

Meade and Mullins were responsible for conducting the search, we

reverse as to them only.



                                            1.

       We start with Gleason’s criminal history and his declared

intent to kill again.             Strickland argues that Defendants should

have       taken    more    precautions     given    Gleason’s         past    murder    of

another inmate.            The parties dispute whether the defendants were

actually aware of Gleason’s criminal past and the reason for his

transfer      to    Red     Onion. 8     Whether    the     Defendants        knew    about


       8
       Before the district court, Strickland’s counsel conceded
that Mullins, Meade, and Halsey were not formally notified of
Gleason’s declaration that he would kill again.       J.A. 160
(Continued)
                                            14
Gleason’s’ past threats is ultimately not dispositive, however.

The   relevant   question   is   whether   the   Defendants   subjectively

believed Gleason posed a substantial risk of serious harm to

other inmates, not whether they simply knew he had previously

stated he would kill again.        See     Farmer,   511   U.S.   at   837

(noting that to hold an official liable, “the official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw

the inference”).     In other words, there is no evidence that any

of the Defendants drew the inference that Gleason posed a risk

to other inmates due to his criminal history.




(Halsey); 172S, 172T (“[T]hey weren’t notified in any specific
way of his promise to kill again . . . .”).      Only Baird was
briefed about Gleason’s murder of Watson.    In contrast, Meade,
Mullins, and Halsey testified that they discovered Gleason’s
past through rumor.      See J.A. 284 (Mullins) (“I’d asked
somebody, you know, what he had done, and they told me about the
Wallens Ridge incident.”); J.A. 227 (Meade) (“Just hearsay.    I
don’t know if it was true.    But an incident that occurred at
another facility.”).

     Gleason also testified that Defendants were (at least
informally) aware of his criminal past and declaration to kill
again. J.A. 85 (“In fact up front they were telling COs to look
at it on the Internet. So each one that came by they asked me
about it and I said yeah, I said that. Everybody knew that.”).
In other words, although Meade, Mullins, and Halsey were not
formally told by any prison official to be especially careful
with Gleason, they had at least some reason to believe Gleason
intended to kill again.



                                    15
       Here, the undisputed testimony shows that the Defendants

simply did not believe that Gleason was capable of acting on his

threats.      Instead, they believed Red Onion’s maximum security

procedures would thwart any efforts to kill again.                          See J.A. 83

(“And I was like well, you heard what I said in court.                          He said

this   is    Red    Onion,    this    doesn’t         happen   up    here.”    (Gleason

commenting referring to Tracy Ray, the Warden at Red Onion));

J.A. 102 (“Well, Tracy Ray, the Major, and a lot of the staff

said no one has ever been killed in segregation—first they said

nobody’s     ever   been     killed   at    Red       Onion.”).      Gleason    instead

sought   to    make   the     Department         of    Corrections     look    “stupid”

because his threats were not being taken seriously.                           J.A. 102-

03.    Instead, Defendants regarded Gleason as (to the extent a

twice-convicted killer can be) pleasant and respectful.                               See

J.A.   151    (Halsey)     (stating     that       Gleason     was    “talkative      and

friendly” most of the time and “nice[] and respectful[]); J.A.

227 (Meade) (stating he “[n]ever had any issues with” Gleason).

       Regardless     of     whether       the        Defendants     were     aware    of

Gleason’s threats then, they did not subjectively infer that

Gleason posed a substantial risk of serious harm.                       Accordingly,

prong one fails to the extent it is based solely on Gleason’s

past threats.




                                           16
                                        2.

     Although     the    Defendants’    awareness      of    Gleason’s   criminal

history   did    not    demonstrate     deliberate     indifference,      Gleason

also describes a network of favor-trading between guards and

inmates at Red Onion that facilitated the circumstances of his

murder of Cooper.        Specifically, Gleason states that there were

two discrete instances of favor-trading that facilitating his

murder    of   Cooper:    (1)    arranging      with   Meade   and   Halsey   the

placement of inmates on the recreation yard such that Gleason

was next to Cooper, and (2) agreeing with Meade and Mullins to

be insufficiently searched prior to entering the recreation yard

so that he could keep the braided rope on his person.                    Only the

second instance of favor-trading, with Meade and Mullins, rises

to the level of deliberate indifference.

     Regarding the first instance of favor-trading, Gleason says

that he arranged with Halsey and Meade to ensure that he was put

next to Cooper on the recreation yard.                  At the time of this

case’s events at Red Onion, inmates were permitted by the guards

to   select     their    own    cages   while    on    the   recreation    yard. 9

Although Red Onion officials stated in affidavits that inmates

     9 An affidavit by the warden states that prison guards are
not permitted to engage in favor-trading with inmates. J.A. 55-
56 (“‘Trading’ and/or doing favors for offenders is against VDOC
policy and is not condoned or tolerated.”); J.A. 58 (affidavit
of assistant warden).



                                        17
are to be placed in cages randomly, that policy, viewing the

evidence in the light most favorable to Strickland, was widely

ignored.      See     J.A.      63,    76.       Gleason       seeking      to    be     next   to

Cooper, then, was not a particularly notable event at Red Onion.

Strickland presents no evidence that Halsey or Meade were aware

that Gleason’s desire to be next to Cooper posed a substantial

risk of serious harm to Cooper.                      Indeed, the guards regarded the

cage    selection          as    a     normal          activity       in     prison        life.

Consequently, Halsey and Meade were not deliberately indifferent

by allowing Gleason to select cages.

       Second,   according            to     Gleason,     Meade       and    Mullins        then

granted Gleason a much more unusual favor: the right not to be

thoroughly searched prior to entering the yard as required by

prison policy.         See J.A. 62 (“It is policy that all offenders

are strip searched when leaving their cells for any reason . . .

.”).    Unlike the cage selection policy, there is no evidence in

the record that the strip-search policy was widely ignored by

the guards.

       Of   course,    a     merely        negligent      or    careless         strip    search

would not result in liability under the deliberate indifference

standard articulated in Farmer.                       But Gleason states that Meade

and    Mullins   entered        into       an   agreement        to   avoid       a    thorough

search, an important safety regulation for inmate safety at the



                                                18
prison. 10            As part of that agreement, they                  failed to search

Gleason’s long-sleeved shirt, which concealed the braided rope.

       Deliberate        indifference        can     be     found     if     the     official

“declined        to     confirm    inferences        of     risk      that   he     strongly

suspected to exist.”              Farmer, 511 U.S. at 843 n.8.                     And as we

stated in Makdessi, “prison officials may not simply bury their

heads       in   the    sand   and    thereby       skirt      liability.”           2015   WL

1062747, at *6.           Under this standard, Meade and Mullins need not

have known that there was a certain risk of harm to Cooper or

other inmates, of course, only that there was a “substantial

risk of serious harm.”               Farmer, 511 U.S. at 834.                    We conclude

that they would have had reason to know of such risk here.

Surely Meade and Mullins suspected that Gleason wished to avoid

a search in order to bring contraband into the yard – why else

would he want to avoid a search?                    And even if Meade and Mullins

were not aware of the precise nature of the contraband (i.e., a

rope),      absolute      certainty     of    danger      is    not    required       –   only

knowledge of “substantial risk” is.                       Farmer, 511 U.S. at 834.

Certainly permitting an inmate to bring an object of some kind

onto    the      yard    presented     such     a    risk.         Thus,     a     reasonable



       10The record contains ample evidence regarding the
importance of this policy. See J.A. 191 (policy was enacted to
prevent inmates from throwing feces, weapons, and other objects
from cage to cage).



                                             19
factfinder    could      conclude     that       Meade    and     Mullins      must   have

subjectively known that there was a substantial risk of serious

harm to Cooper or other inmates. 11



                                            3.

     Unlike      Meade      and    Mullins,        Halsey        and   Baird    did     not

participate      in   the    inadequate          search     of    Gleason      before   he

entered    the    yard.           Indeed,    the     only        evidence      supporting

Strickland’s claims against Baird is her claim that Baird knew

about Gleason’s criminal history and threats to kill again.                             As

we have held above, mere knowledge of those threats does not

constitute deliberate indifference.                  Consequently, the district

court correctly granted summary judgment to Baird on the basis

of qualified immunity.

     The   district       court     also    correctly        held      that    Halsey   is

entitled to qualified immunity.                  Strickland’s primary allegation



     11In order to find liability, Meade and Mullins need not be
aware of a specific risk to Cooper when allowing Gleason to
bring an object onto the yard. Farmer, 511 U.S. at 843 (stating
that if officials are aware of a risk of inmate violence, “it
would obviously be irrelevant to liability that the officials
could not guess beforehand precisely who would attack whom”).
To meet the deliberate indifference standard, moreover, Meade
and Mullins did not have to enter into an agreement for the
purpose of harming Cooper.     As the Supreme Court has noted,
deliberate indifference “is satisfied by something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Id. at 835.



                                            20
against Halsey is that she saw Gleason with the rope from a

control room above the prison, yet did nothing to stop him. 12

Gleason          testified    that     Halsey       saw    Gleason    holding      the   rope.

J.A. 118 (“[B]ecause when she opened up that window I had it in

my hands.          She could see it clear as day.”).                   Then, according to

Gleason, “[s]he looked down, that’s when they all looked up,

were inside talking and what not, and I pulled the rope up and

that’s when she shut window and never seen her again.”                                     J.A.

118.    Halsey denies seeing the rope or being in the control room

at all during the events that led to Cooper’s murder.

       Although we must credit Gleason’s testimony and make all

reasonable           inferences         in      Strickland’s          favor,       Gleason’s

statements about Halsey amount to mere speculation.                                   A party

“cannot create a genuine issue of material fact through mere

speculation          or    the     building    of    one    inference       upon   another.”

Beale       v.    Hardy,     769    F.2d     213,    214    (4th     Cir.    1985).      Here,

Gleason          merely    speculates        that    Halsey    saw     the    rope    on   the

recreation yard.             Of course, Gleason cannot know for sure what

Halsey saw.          Strickland offers no other evidence supporting her

       12
        Tracy Ray, the Warden of Red Onion at the time, states
that although there is a control room overlooking this part of
the prison, there “is no ‘video room’ at Red Onion for purposes
of observing offenders on the recreation yard. The Intel Office
has access to live and recorded video footage; however, no staff
person is posted to monitor live videos.”      J.A. 55; see also
J.A. 58 (similar statement by assistant warden at Red Onion).



                                                21
claims about Halsey’s activities on the recreation yard.                 By

contrast, as to Meade and Mullins, as discussed above, Gleason

stated personal knowledge of an explicit agreement with them for

an insufficient search.

      “Mere unsupported speculation . . . is not enough to defeat

a summary judgment motion.”           Ennis v. Nat’l Ass’n of Bus. &

Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).                  Because

Strickland offers no other evidence about Halsey’s activities on

the recreation yard other than Gleason’s speculative testimony,

we will affirm the district court’s grant of qualified immunity

as to Halsey.



                                      IV.

      Having concluded that only Meade and Mullins violated the

Eighth     Amendment,   those   two   defendants   “may   nevertheless   be

shielded from liability for civil damages if their actions did

not   violate   ‘clearly   established      statutory   or   constitutional

rights of which a reasonable person would have known.’” Saucier

v. Katz, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). 13          Consequently, we must determine




      13The district court did not reach question because it
decided that Meade and Mullins did not violate Cooper’s
constitutional rights at all.



                                      22
whether       Cooper’s        Eighth     Amendment         rights     were    “clearly

established” at the time of his murder.

      “[C]onduct violates clearly established law when, at the

time of the challenged conduct, the contours of a right are

sufficiently        clear     that    every    reasonable      officer      would   have

understood that what he is doing violates that right.”                        Ashcroft

v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quotation omitted).

But   the     court    need    not     determine     that    the    “very    action   in

question has previously been held unlawful.” Doe ex rel. Johnson

v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010)

(citation omitted). Indeed, “general statements of the law are

not inherently incapable of giving fair and clear warning, and

in    other    instances        a    general       constitutional      rule    already

identified in the decisional law may apply with obvious clarity

to the specific conduct in question.” United States v. Lanier,

520 U.S. 259, 271 (1997).

      That     is     the   case     here.        Farmer    applies   with    “obvious

clarity”: the case clearly establishes that the Eighth Amendment

protects prisoners from violence perpetrated by other inmates.

See Price v. Sasser, 65 F.3d 342, 346 (4th Cir. 1995) (stating

that “the law governing failure to protect [inmates] . . . was

unclear in some important respects” prior to Farmer).                               Other

circuits similarly agree that Farmer, and similar cases, clearly

established that the Eighth Amendment is violated when an inmate

                                             23
commits violence against another inmate.                       See, e.g., Cantu v.

Jones, 293 F.3d 839, 845 (5th Cir. 2002) (“[T]he constitutional

right   of    offenders       to    be    protected        from     harm   was    clearly

established at the time of the attack.”); Bistrian v. Levi, 696

F.3d 352, 367 (3d Cir. 2012) (inmate “had a clearly established

constitutional right to have prison officials protect him from

inmate violence.”); Curry v. Crist, 226 F. 3d 974, 977 (8th Cir.

2000)   (“Prison        inmates     have        a    clearly      established      Eighth

Amendment     right      to    be    protected          from      violence   by     other

inmates.”).

     Here, a reasonable officer would know that intentionally

violating prison policy by failing to strip-search an inmate,

pursuant     to    an   agreement        with    that     inmate,    would   put    other

inmates at a substantial risk of serious harm.                       Consequently, we

reverse the district court’s grant of qualified immunity as to

Meade and Mullins and remand for further proceedings.



                                            V.

     For     the    foregoing       reasons,        the    district     court’s     order

granting summary judgment to Defendants is

                                                                 AFFIRMED IN PART;
                                                    REVERSED AND REMANDED IN PART.




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