                                                                     [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                            FILED
                                                                  U.S. COURT OF APPEALS
                       ------------------------------------------- ELEVENTH CIRCUIT
                                                                        AUG 21, 2007
                                    No. 06-15897
                                                                     THOMAS K. KAHN
                              Non-Argument Calendar
                                                                          CLERK
                      --------------------------------------------

                      D.C. Docket No. 04-00171-CV-DF-5

JAMES DOE,

                                                       Plaintiff-Appellee,

                                        versus

GEORGIA DEPARTMENT OF CORRECTIONS,

                                                       Defendants,

GENE A. SCROGGY,
Individually and in his former official capacity as Warden of Frank Scott State
Prison,
AUBREY JONES,
Individually and in his former capacity as Deputy Warden of Frank Scott State
Prison,
TOM McELHENNEY,
Individually and in his official capacity as Deputy Warden of Care and Treatment
for Frank Scott State Prison,
GLORIA NICHOLSON,
a.k.a. Gloria Chester, Captain, Individually and in her official capacity as an
employee of the Georgia Department of Corrections serving as a supervisory
officer of Frank Scott State Prison,
CARL EVANS,
Captain, Individually and in his official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison,
DENNIS HOLSEY,
Sergeant, Individually and in his official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison,
DENNIS KNIGHT,
Sergeant, Individually and in his official capacity as an employee of the Georgia
Department of Corrections serving as a supervisory officer of Frank Scott State
Prison,

                                                             Defendants-Appellants.

                          -------------------------------------------
                      Appeal from the United States District Court
                           for the Middle District of Georgia
                         --------------------------------------------

                                      (August 21, 2007)

Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

       Defendants-Appellants, seven Georgia Department of Corrections

(“GDOC”) correctional officers sued in their individual capacities,1 bring this

interlocutory appeal of the denial of their motion for summary judgment based on

   1
     Defendants also were sued in their official capacities. The district court granted Defendants
summary judgment on Plaintiff’s official-capacity claims. Also named in the complaint were two
investigators employed by GDOC Internal Investigations Division. The district court determined
that these two defendants were entitled to summary judgment on Plaintiff’s failure-to-protect claim.
The only order we review in this appeal is the denial of Defendants’s qualified-immunity-based
summary judgment motion.

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qualified immunity in Plaintiff-Appellee James Doe’s section 1983 action for

damages, 42 U.S.C. § 1983. We reverse the denial of summary judgment.

      This section 1983 civil rights action arises from a series of sexual assaults at

Scott State Prison by prison guard Nicholas Tuft during the summer of 2002. On

10 July 2002, an altercation took place between Tuft and inmate John Doe. Tuft

claimed that inmate John Doe pushed him; inmate John Doe denied the accusation

and claimed Tuft demanded sexual favors. John Doe and Tuft were each

interviewed; noting inconsistencies between the statements of inmate John Doe

and Tuft, Deputy Warden Jones referred the matter to Warden Scroggy on 12 July

2002. That same day, Warden Scroggy referred the matter to Regional Director

Jimmy Sikes, and on 17 July 2002, Sikes forwarded the allegations to the Director

of Internal Investigations who, in turn, assigned it to an investigator. No

affirmative action was taken by the investigator until 12 August 2002, when the

investigator heard that another inmate, Charles Doe, also accused Tuft of sexual

assault.

      At some point before the end of July 2002, Tuft was transferred to another

dormitory at Scott State Prison; Tuft continued to interact with inmates.

      In late July and early August 2002, Plaintiff and Charles Doe, each inmates

in the Scott State Prison dormitory to which Tuft had been transferred, claim to

                                          3
have been sexually assaulted by Tuft. In an incident on 30 July, Tuft grabbed

Plaintiff’s penis over his gym shorts. Plaintiff sent a letter complaining about

Tuft’s misconduct to Warden Scroggy via the institutional mail system. Unknown

to Plaintiff, Charles Doe also had an encounter with Tuft; Charles Doe retained a

semen-stained t-shirt as evidence of the incident. On 1 August, Tuft forced

Plaintiff to perform oral sex on him by threatening to accuse Plaintiff of assaulting

an officer. Plaintiff also believed his t-shirt contained seminal evidence of his

encounter with Tuft. Again Plaintiff wrote to Warden Scroggy.2

        Shortly after these incidents, Plaintiff and inmate Charles Doe spoke with

each other about Tuft. And Plaintiff and Charles Doe each related his experience

with Tuft to his respective step-father; on 12 August 2002 Charles Doe’s

stepfather met with the director of the GDOC’s facilities division and informed the

director of Charles Doe’s allegations. About one week later, Plaintiff’s stepfather



  2
    Charles Doe also reports sending letters about Tuft through the prison mail system. The earliest
alleged assault about which Plaintiff or Charles Doe complained happened on 29 July 2002; the last
alleged assault on 1 August 2002. The record fails to establish if and when the letters were received
by the defendants to whom they were addressed. Notably, the attacks started and stopped within a
four-day period. An element of Plaintiff’s section 1983 claim is causation: some evidence must exist
that defendants received the letters when the complained of harm could have been prevented. See
Troupe v. Sarasota County Fla., 419 F.3d 1160, 1165 (11th Cir. 2005)(“a section 1983 claim requires
proof of an affirmative causal connection between the defendant’s acts or omissions and the alleged
constitutional deprivation.”). Even if we were to infer receipt and to infer further that the prison mail
system operated with uncommon competence and swiftness, in the light of this tight time line, these
letters alone establish no constitutional violation.

                                                   4
also traveled to Atlanta and informed a representative of GDOC of Plaintiff’s

allegations. Each step-father delivered the t-shirt evidence collected by his step-

son.

       On 12 August 2002, when the investigator assigned to the John Doe matter

received word that Charles Doe also accused Tuft of sexual assault and had

provided GDOC with clothing he believed to be semen-stained, he interviewed

Charles Doe. And on 16 August 2002, the investigator interviewed Plaintiff. Tuft

was also interviewed on 16 August; he denied all allegations made by John Doe,

Charles Doe and Plaintiff. Tuft opted to resign instead of submitting to a DNA

test. On 19 August 2002, Warden Scroggy recommended that Tuft be ineligible

for rehire because he had resigned during the course of an investigation.

       Pursuant to a search warrant, a sample of Tuft’s DNA was obtained. When

analysis confirmed that Tuft’s DNA matched the fluid found on Charles Doe’s t-

shirt (no fluid had been found on Plaintiff’s t-shirt), Tuft was arrested on three

charges of sexual assault against a person in custody, in violation of O.C.G.A. §

16-6-5.1. Tuft later pleaded guilty.

       Plaintiff alleged his Eighth and Fourteenth Amendment constitutional rights

were violated by Defendants’s failure to take reasonable safety measures to protect

Plaintiff from Tuft’s sexual assault. According to Plaintiff, Tuft was a known risk

                                          5
to inmate safety -- inmate John Doe’s allegations predated Tuft’s attack on

Plaintiff -- and Defendants’s failure to protect Plaintiff from this known risk

constituted deliberate indifference to Plaintiff’s clearly established Eighth

Amendment right to reasonable protection. Defendants moved for summary

judgment based on qualified immunity. The district court determined that Plaintiff

had established a constitutional deprivation and that qualified immunity was

unavailable to Defendants. We disagree.

      The Eighth Amendment prohibits cruel and unusual punishment; prison

officials violate that amendment when they are deliberately indifferent to a

substantial risk of serious harm to inmates. Marsh v. Butler County, Ala., 268

F.3d 1014, 1027 (11th Cir. 2001). As we have explained, Farmer v. Brennan, 114

S.Ct. 1970, 1977; 1982-83 (1994), sets out objective and subjective elements that

must be shown to establish an Eighth Amendment violation. About the objective

elements, a prisoner must first show that an objectively substantial risk of serious

harm existed; and once it is shown that an official is aware of this objectively

substantial risk, the official must respond to this risk in an objectively

unreasonable manner. See Marsh, 268 F.3d at 1028-29. About the subjective

elements, “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

                                           6
inference.” Farmer, 114 S.Ct. at 1979. As Farmer explains, “[t]he Eighth

Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and

unusual ‘punishments.’” Id. Failure to protect from an objectively significant risk

that should have been -- but was not -- perceived, is no infliction of punishment

under the Eighth Amendment. Id. So, to show an Eighth Amendment

constitutional violation, the summary judgment evidence, viewed in the light most

favorable to Plaintiff, must show (i) facts presenting an objectively substantial risk

to inmates and awareness of these facts on the part of the officials charged with

deliberate indifference; (ii) that the officials drew the subjective inference from

known facts that a substantial risk of serious harm existed; and (iii) that the

officials responded in an objectively unreasonable manner.

        We have some doubt that one uncorroborated and disputed allegation of

sexual assault supports the conclusion that prisoners were exposed to an

objectively substantial risk of serious harm. When Plaintiff was assaulted by Tuft,

these officials knew only that Tuft had been accused of sexually assaulting inmate

John Doe and that Tuft denied the allegations.3 Tuft had never before been


    3
      Defendants argue that the record shows that John Doe gave inconsistent accounts of his
encounters with Tuft and some of these accounts indicated that John Doe acceded to Tuft’s persistent
requests for sexual favors in exchange for cigars. At this stage in the proceedings, we accept all
well-pleaded factual allegations (with reasonable inferences drawn therefrom) in Plaintiff’s favor.


                                                 7
accused of such misconduct. As we have said, “[t]he known risk of injury must be

a strong likelihood, rather than a mere possibility before a guard’s failure to act

can constitute deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537

(11th Cir. 1990) (citations and internal quotations omitted).

       But even if we accept for summary judgment purposes that the record

supported an objectively substantial risk of serious harm, and even assuming

arguendo that the officials drew the requisite inferences -- which they deny --

from known facts, no Eighth Amendment constitutional violation is shown unless

the official’s response was objectively unreasonable. The district court concluded

that the officials response -- reporting John Doe’s allegations to respective

superiors and the commencement of an investigation by GDOC’s Internal

Investigation Division -- was an objectively unreasonable response to the danger

posed. But to reach this conclusion, one has to accept the district court’s

underlying premise: no response to John Doe’s allegations would be reasonable

unless it divested Tuft of his guard duties.4 We cannot accept this premise; to do

so would empower any prisoner at any time to dictate prison staffing. Penological


  4
   Plaintiff argues that GDOC policy and procedure required removal of a guard accused of sexual
misconduct from contact with the inmate population. But even if Plaintiff cites correctly GDOC
policy -- a point disputed by Defendants -- “failure to follow procedures does not, by itself, rise to
the level of deliberate indifference because doing so is at most a form of negligence.” Taylor v.
Adams, 221 F.3d 1254, 1259 (11th Cir. 2000).

                                                  8
interests must factor into the calculus of reasonable responses. See Chandler v.

Crosby, 379 F.3d 1278, 1290 (11th Cir. 2004) (“As judges, we lack carte blanche

to impose our own theories of penology on the nation’s prisons.” (Internal citation

and quotation omitted.)). It is true, in hindsight, that Tuft’s removal at the first

suggestion of misconduct likely would have prevented the assault Plaintiff alleges;

but “[w]e will not allow the advantage of hindsight to determine whether

conditions of confinement amounted to ‘cruel and unusual’ punishment.” Purcell

ex rel. Estate of Morgan v. Toombs County, GA, 400 F.3d 1313, 1320 (11th Cir.

2005).

      The district court dismissed the adequacy of the investigatory process

because, without additional affirmative measures to ensure safety, the possibility

of another attack by a possibly predatory guard loomed pending the investigation.

We think the district court misapprehended the deliberate indifference standard;

we cannot conclude that the immediate commencement of an investigatory process

into unsubstantiated and contested accusations constituted an indifferent and

objectively unreasonable response to John Doe’s claims.




                                           9
      Because we conclude that Plaintiff failed to show a constitutional violation,

we need not proceed further to consider the applicability of the defense of

qualified immunity.

      REVERSED.




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