          Case: 18-13619   Date Filed: 12/04/2019   Page: 1 of 9


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 18-13619
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:13-cv-23013-DPG



PLEADRO J. SCOTT,

                                                             Plaintiff-Appellee,


                                 versus



R. GOMEZ, C. WESTON,

                                                      Defendants-Appellants.

                     ________________________

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

                           (December 4, 2019)
                Case: 18-13619      Date Filed: 12/04/2019      Page: 2 of 9


Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

       Corporal Rolando Gomez and Lieutenant Constantina Weston, employees of

the Miami-Dade Department of Corrections and Rehabilitation (“Department”)

appeal from the district court’s denial of summary judgment to them on the

grounds of qualified immunity. 1 The plaintiff in this case, Pleadro Scott, alleged

that Gomez and Weston violated the Eighth Amendment by failing to protect him

from violence at the hands of other inmates while he was in custody at the Turner

Guilford Knight Detention Center, run by the Department. We conclude that we

are without jurisdiction to address the issues raised by Gomez and Weston and

dismiss this appeal.

       Our jurisdiction under 28 U.S.C. § 1291 is generally limited to “final

decisions” of district courts. For the most part, an order that denies a motion for

summary judgment is not a “final decision.” Johnson v. Jones, 515 U.S. 304, 309

(1995). The collateral order doctrine exempts from this rule orders that deny

qualified immunity, because “such orders conclusively determine whether the

defendant is entitled to immunity from suit.” Plumhoff v. Rickard, 134 S. Ct.

2012, 2019 (2014).


       1
         Our references in this opinion to the district court generally refer to rulings of the
Magistrate Judge, because the district court adopted the report of the Magistrate Judge without
additional substantive comment.
                                              2
              Case: 18-13619     Date Filed: 12/04/2019    Page: 3 of 9


      However, as we explained in Koch v. Rugg, “Our jurisdiction to review a

denial of qualified immunity depends on the type of issue involved.” 221 F.3d

1283, 1295 (11th Cir. 2000). Where there are “legal issues underlying the

qualified immunity determination,” which is part of the “‘core qualified immunity’

analysis,” we properly exercise jurisdiction over the appeal. Id. (quoting Cottrell

v. Caldwell, 85 F.3d 1480, 1484 (11th Cir. 1996)). But where the challenge is only

to “sufficiency of the evidence relative to a ‘predicate factual element of the

underlying constitutional tort,’” we may not exercise jurisdiction. Id. (quoting

Dolihite v. Maughon ex rel. Videon, 74 F.3d 1027, 1033 n.3 (11th Cir. 1996)); see

also Johnson v. Jones, 515 U.S. at 313. This includes, among other things, whether

the district court properly determined “what factual issues are ‘genuine’” under

Rule 56(c). Johnson, 515 U.S. at 313.

      We note at the outset that, because we determine that we are without

jurisdiction to hear this case, we need not adjudicate the merits of Scott’s claims.

Insofar as the nature of his claims is illustrative of Gomez and Weston’s appeal,

however, we note that the Eighth Amendment imposes duties on prison officials to,

inter alia, “take reasonable measures to guarantee the safety of the inmates.”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 .S.

517, 526–27 (1984). Specifically, “prison officials have a duty . . . to protect




                                          3
                Case: 18-13619     Date Filed: 12/04/2019   Page: 4 of 9


prisoners from violence at the hands of other prisoners.” Id. at 833 (quotation

omitted).

         Accordingly, the key issue in this case—that is, the question on which

liability will likely be determined—is whether Gomez and Weston actually took

“reasonable measures” to guarantee Scott’s safety. Scott’s argument is essentially

that he warned many Department employees, including Gomez and Weston, about

the threat posed to him by fellow inmates at the Detention Center, and that they

failed to make the proper notation of his concern on his prison documentation.

This failure, he contends, ultimately led to a violent attack from another inmate

when he was impermissibly housed with that inmate in a cell. Gomez and Weston

dispute this argument on two grounds—first, they argue that the proper notation

was made on Scott’s documentation, and second, they argue that even if Scott’s

version of the facts is to be believed, it does not state a viable Eighth Amendment

claim.

         After unsuccessfully moving to dismiss Scott’s claims, Gomez and Weston

moved for summary judgment on the grounds of qualified immunity. In ruling on

this motion, the district court—through accepting the magistrate judge’s report and

recommendation—voluminously recounted each party’s factual allegations and

arguments. It repeatedly noted that the parties differed on what the defendants’

conduct was at various points in the underlying chain of events, and concluded,


                                           4
               Case: 18-13619     Date Filed: 12/04/2019    Page: 5 of 9


“Defendants correctly argue that the version of events on which they rely do not

support an endangerment claim and warrant summary judgment in their favor

based on qualified immunity.” Ultimately, in denying summary judgment to

defendants, the district court noted that, “accepting the plaintiff’s version of events

as true, the defendants violated the plaintiff’s clearly established constitutional

right.”

      In their appeal to us, Gomez and Weston frame their argument in two parts.

First, they argue that the district court misunderstood the facts—namely, the

documents used by the Department and the policies that govern the Department’s

activities—and therefore made “irrelevant and immaterial” findings of fact.

Accordingly, if these factual errors are corrected, they are entitled to summary

judgment as a matter of law. Second, they argue that even if Scott’s version of the

facts is accepted, they are still entitled to qualified immunity because he fails to

state a cognizable violation of the Eighth Amendment.

      However, after a careful reading of their briefs, we determine that Gomez

and Weston misstate their actual arguments—they solely challenge the factual

determinations made by the district court, though they cloak their challenges in the

guise of legal issues. After ostensibly assuming that Scott’s version of the facts is

true, they purport to raise two legal arguments that are actually backdoor means of

relitigating the district court’s assumptions of fact. First, they argue that “the most


                                           5
                 Case: 18-13619      Date Filed: 12/04/2019    Page: 6 of 9


that [Corporal] Gomez and [Lieutenant] Weston’s actions amount to is

negligence.” Second, they argue that the constitutional violation alleged by Scott

was not “clearly established law.”

         If this were the substance of what they actually argued, it is clear that they

would be challenging more than the district court’s determination of evidentiary

sufficiency—they would be challenging the legal conclusions made by the district

court, thereby conferring the jurisdiction we need to hear their arguments. But this

is not the case. The substance of their actual arguments does not match how they

label their arguments. They do not, in fact, take Scott’s version of events as true.

Instead, they explicitly assume their version of a critical disputed fact—that they

“made a keep separate notation on [Scott’s] safety cell profile prior to the incident

in question”—on the basis that Scott did not properly dispute the fact under Rule

56(c).

         Rule 56(c) requires that a party “asserting that a fact . . . is genuinely

disputed must support the assertion by: (A) citing to particular parts of materials in

the record, . . . or (B) showing that the materials cited do not establish the absence .

. . of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.” Gomez and Weston argue that Scott merely

responded to this fact by stating that he was “without knowledge as to weather




                                              6
               Case: 18-13619     Date Filed: 12/04/2019     Page: 7 of 9


[sic] Defendant Weston updated any document,” and that such a response is

inadequate under Rule 56(c).

      We disagree with defendants’ characterization of Scott’s response. As we

have repeatedly held, “Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally construed.”

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). With that in

mind, Scott sufficiently articulated the nature of his dispute of that fact. It is true

that, as Gomez and Weston note, Scott stated that he was “[w]ithout knowledge” as

to whether Weston updated his safety cell profile. However, Scott went on to raise

a more specific dispute, which noted that the sheet was inauthentic because “it

does not have a seal as being filed in Miami Dade Corrections files, at the time of

its filing” and was untrustworthy because it misstated Scott’s date of birth. Within

a liberally construed pro se filing, this statement is clearly sufficient for Rule 56(c)

purposes.

      Moreover, Rule 56(e) grants district courts broad discretion when a party

fails to properly address another party’s assertion of fact. See generally Fed. R.

Civ. P. 56 advisory committee’s note to 2010 amendment of subdivision (e). One

option at the district court’s disposal is that it may deem that fact undisputed. Fed.

R. Civ. P. 56(e)(2). However, the district court here did not consider it undisputed




                                            7
               Case: 18-13619     Date Filed: 12/04/2019    Page: 8 of 9


that Gomez and Weston made the “keep separate” notation on Scott’s safety

profile.

       In addition, there was other evidence on the basis of which a jury could

conclude that there was no “keep separate” notation on Scott’s jail documents at

the crucial time on May 15, 2013. The Magistrate Judge assumed Scott’s version

of relevant facts, including that Scott complained to the transporting officer on

May 15, 2013, about being put in a holding cell with Dean, his attacker, and the

officer responded that his jail documents did not reflect the “keep separate”

notation. Moreover, the official response to Scott’s grievance about the incident

indicated that Scott was not a “keep separate” inmate at the time. As the

Magistrate Judge found, “Plaintiff states that the ‘keep separate’ notation on his

safety cell profile sheet, which defendants allege was attached to the jail card at the

time of the incident in this case, was not added until after he filed a grievance

about the incident.”

       In effect, Gomez and Weston say one thing—that they accept Scott’s version

of relevant events as true—and do another—namely, assume their own version of,

rather than Scott’s version of, a critical disputed fact, and then argue that, on such

facts, the district court was legally incorrect. In so doing, they misstate the law and

fail to demonstrate that we may properly exercise jurisdiction over their claims.

As mentioned previously, issues regarding the district court’s determination of


                                           8
                 Case: 18-13619       Date Filed: 12/04/2019        Page: 9 of 9


genuinely disputed issues of material fact are not reviewable by us in isolation. 2

See Johnson, 515 U.S. at 313. Holding otherwise would entirely undermine the

purpose of the collateral order doctrine and the exception created for denials of

qualified immunity.

       Accordingly, we reject this attempt to manufacture appellate jurisdiction

where it does not exist. Despite their assertions to the contrary, Gomez and

Weston’s appeal of the district court’s order is entirely concerned with the

sufficiency of the evidence. Accordingly, we may not exercise jurisdiction over

this case. We DISMISS this appeal and REMAND the case for further

proceedings in the district court.




       2
          It may well be the case that Scott did not properly dispute Gomez and Weston’s statement
of facts under Rule 56(c), but we are without jurisdiction to decide that issue at this stage of the
proceedings.
                                                 9
