       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Greene v. Bowles, et al.                     No. 02-3626
    ELECTRONIC CITATION: 2004 FED App. 0078P (6th Cir.)
                File Name: 04a0078p.06                    OHIO, Columbus, Ohio, for Appellee. ON BRIEF:
                                                          Alphonse A. Gerhardstein, Jennifer L. Branch, LAUFMAN
                                                          & GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Elise
UNITED STATES COURT OF APPEALS                            W. Porter, OFFICE OF THE ATTORNEY GENERAL OF
                                                          OHIO, Columbus, Ohio, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                           MOORE, J., delivered the opinion of the court, in which
                                                          RYAN, J., joined. ROGERS, J. (pp. 9-12), delivered a
 TRACI GREENE,                    X                       separate dissenting opinion.
          Plaintiff-Appellant,     -
                                   -                                          _________________
                                   -  No. 02-3626
           v.                      -                                              OPINION
                                    >                                         _________________
                                   ,
 GAYLE BOWLES, et al.,             -                        KAREN NELSON MOORE, Circuit Judge. Traci Greene
                  Defendants, -                           (“Greene”) appeals from the grant of summary judgment in
                                   -                      favor of Defendant-Appellee Warden Anthony J. Brigano
 ANTHONY J. BRIGANO ,              -                      (“Warden Brigano”) in Greene’s § 1983 suit against Warden
          Defendant-Appellee. -                           Brigano and other prison officials resulting out of an attack on
                                   -                      Greene by another inmate. Because we conclude that the
                                  N                       district court erred in determining that no issue of fact
      Appeal from the United States District Court        remains as to whether Warden Brigano acted with deliberate
     for the Southern District of Ohio at Cincinnati.     indifference to Greene’s safety, we REVERSE the district
   No. 98-00476—Sandra S. Beckwith, District Judge.       court’s judgment AND REMAND for further proceedings
                                                          consistent with this opinion.
               Argued: October 29, 2003
                                                                              I. BACKGROUND
          Decided and Filed: March 16, 2004
                                                            Greene is a male-to-female transsexual. At the time of her
 Before: RYAN, MOORE, and ROGERS, Circuit Judges.         incarceration at Warren Correctional Institution (“WCI”), she
                                                          was preoperative, but still displayed female characteristics,
                  _________________                       including developed breasts and a feminine demeanor, and
                                                          was undergoing hormone therapy. Because of her feminine
                       COUNSEL                            appearance, Greene was placed in the Protective Custody Unit
                                                          (“PCU”) to guard against attacks from other inmates. In July
ARGUED: Alphonse A. Gerhardstein, LAUFMAN &               1996, a second inmate in the PCU, Hiawatha Frezzell
GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Elise W.   (“Frezzell”), assaulted Greene on several occasions,
Porter, OFFICE OF THE ATTORNEY GENERAL OF                 culminating in a severe attack on July 12 in which Frezzell

                            1
No. 02-3626                          Greene v. Bowles, et al.           3    4    Greene v. Bowles, et al.                     No. 02-3626

beat Greene with a mop handle and then struck her with a                     denial of summary judgment based on qualified immunity,
fifty-pound fire extinguisher. Frezzell had a long history of                which motion the district court denied. A jury trial followed,
assaults on other inmates and was classified as a maximum-                   in which a verdict was rendered for all remaining defendants.
security prisoner; at the time of the attack, Greene was                     After the entry of final judgment, Greene timely appealed the
classified as medium-security. By Warden Brigano’s own                       grant of summary judgment to Warden Brigano.
admission, Frezzell was a “predatory inmate.” Joint
Appendix (“J.A.”) at 408. Frezzell had been placed in the                                           II. ANALYSIS
PCU at WCI, however, in order to protect him from the
repercussions of his testimony against his fellow prisoners in               A. Jurisdiction
the Lucasville prison riot; Frezzell had been himself
convicted of aggravated assault for beating two prisoners                      The underlying civil rights action was brought under 42
during that riot. Nonetheless, for Frezzell’s protection from                U.S.C. § 1983. The district court had original jurisdiction
others, Frezzell was placed in PCU with Greene, a medium-                    under 28 U.S.C. § 1331. This court has jurisdiction under 28
security and vulnerable inmate.                                              U.S.C. § 1291.

   After the attack, Frezzell was transferred from the PCU to                B. Standard of Review
the segregation unit, and criminally charged with attempted
murder. Greene filed suit against Warden Brigano and other                      We review de novo a grant of summary judgment. Darrah
prison officials under 42 U.S.C. § 1983, alleging deliberate                 v. City of Oak Park, 255 F.3d 301, 305 (6th Cir. 2001).
indifference to her safety in violation of the Eighth and                    C. Deliberate Indifference
Fourteenth Amendments. Warden Brigano moved for
summary judgment arguing that Greene could not as a matter                      The district court granted summary judgment to Warden
of law demonstrate that he was aware of a substantial risk to                Brigano on the narrow ground that Greene failed to introduce
her safety; the other defendants moved for summary judgment                  evidence from which a reasonable trier of fact could conclude
on the basis of qualified immunity. Summary judgment was                     that Warden Brigano knew of a substantial risk of serious
granted as to Warden Brigano and denied as to the other                      harm to Greene. Specifically, the court held first that as
defendants; they appealed that decision to this court, which                 Frezzell’s attack on Greene wasn’t sexual, Greene’s status
affirmed the denial as to two defendants and reversed as to                  was irrelevant to the determination of a substantial risk, and
one. See Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).1                       second, that Greene had not offered “evidence from which a
When summary judgment was granted to Warden Brigano,                         trier of fact could conclude that [Warden Brigano] knew of
Greene had filed a motion pursuant to Fed. R. Civ. P. 54(b)                  Mr. Frezzell’s history of violence and, specifically, of attacks
asking the district court to allow a cross-appeal on that issue              upon other inmates.” Doe v. Bowles, No. C-1-98-476, slip op.
at the same time as the remaining defendants’ appeal from the                at 14 (S. D. Ohio Jan. 25, 2000), J.A. at 242. The district
                                                                             court did find that Greene had “offered evidence from which
                                                                             a trier of the facts could conclude that Hiawatha Frezzell’s
    1
      W hen Greene originally filed suit, she moved to do so anonymou sly,
                                                                             presence in the protective custody unit, without segregation
but that motion was withdrawn in the wake of press reports prior to trial    or other protective measures, presented a substantial risk of
revealing her identity. The interlocutory appeal that this court heard was   inmate attacks in that unit.” Id. We reject the district court’s
thus styled Doe v. Bowles.
No. 02-3626                      Greene v. Bowles, et al.       5    6    Greene v. Bowles, et al.                    No. 02-3626

ultimate conclusion for two reasons: first, evidence had been        record, without threat to particular inmate). Therefore, to
offered from which a trier of fact could conclude that Greene        defeat Warden Brigano’s summary judgment motion, Greene
was vulnerable, not just to sexual assault, but also to physical     need only point to evidence from which a finder of fact could
assaults from her fellow inmates, such that her presence in the      conclude that her vulnerability made her placement in the
PCU with other inmates without segregation or protective             PCU with high-security inmates a substantial risk to her
measures presented a substantial risk to her safety of which         safety, of which Warden Brigano was aware, or alternately,
Warden Brigano was aware; and second, Greene has                     evidence from which that finder of fact could conclude that
presented evidence from which a trier of fact could conclude         Frezzell’s placement in the PCU without segregation or other
that Warden Brigano was in fact aware of the substantial risk        protective measures presented a substantial risk to other
Frezzell posed to any inmate with whom he was placed in the          inmates in the PCU, of which Warden Brigano was aware.
PCU.                                                                 We conclude that she has done so.
   In order to establish liability under the Eighth Amendment           On the issue of her vulnerability, Greene has presented
for a prison official’s failure to protect her, an inmate must       evidence which includes the following: a Protective Control
demonstrate that the official was deliberately indifferent “to       Screening form signed by Warden Brigano on March 17,
a substantial risk of serious harm” to the inmate. Farmer v.         1994, noting that Greene was placed in the PCU for her
Brennan, 511 U.S. 825, 828 (1994). To demonstrate                    personal safety; numerous Protective Control Review forms
deliberate indifference, an inmate must present evidence from        signed by Warden Brigano noting Greene’s physical
which a trier of fact could conclude “that the official was          appearance as the reason for her placement in the PCU;
subjectively aware of the risk” and “disregard[ed] that risk by      Warden Brigano’s own deposition testimony that
failing to take reasonable measures to abate it.” Id at 829,         transgendered inmates are often placed in protective custody
847. As noted above, the only issue before this court is             because of the greater likelihood of their being attacked by
whether Greene introduced sufficient evidence to convince a          their fellow inmates; Warden Brigano’s admission that the
trier of fact that Warden Brigano was aware of a substantial         universe of harm that can befall inmates like Greene includes
risk of serious harm to Greene. That awareness can be                attempted assault, assault, attempted murder, and murder; and
demonstrated through “inference from circumstantial                  Warden Brigano’s concessions that Greene was placed in the
evidence,” and a prison official cannot “escape liability . . . by   PCU to protect her from serious harm and that that serious
showing that, while he was aware of an obvious, substantial          harm could come from a fellow PCU inmate as well as an
risk to inmate safety, he did not know that the complainant          inmate in the general population. On the issue of Frezzell’s
was especially likely to be assaulted by the specific prisoner       predatory nature, Greene has presented to the district court:
who eventually committed the assault.” Id. at 842-43. Our            Frezzell’s lengthy prison misconduct record, including
cases following Farmer demonstrate that the converse is true         Frezzell’s two convictions for felonious assault arising out of
as well: where a specific individual poses a risk to a large         the Lucasville prison riot; Warden Brigano’s admission of
class of inmates, that risk can also support a finding of            Frezzell’s status as a predatory inmate; Warden Brigano’s
liability even where the particular prisoner at risk is not          concessions that Frezzell had “a long institutional history of
known in advance. See Curry v. Scott, 249 F.3d 493, 507-08           being a disruptive, violent inmate,” J.A. at 409; and the fact
(6th Cir. 2001) (where particular prison guard had history of        that Frezzell was a maximum-security inmate. While
racially motivated harassment of African American inmates,           contrary and conflicting evidence was presented to the district
deliberate indifference could be demonstrated by factual             court by Warden Brigano, we must, when reviewing a
No. 02-3626                        Greene v. Bowles, et al.         7    8     Greene v. Bowles, et al.                     No. 02-3626

summary judgment, resolve all questions of fact in favor of              sexual harassment, therefore went right to the heart of the first
the non-moving party. Greene has raised an issue of fact as              element for Title IX liability. In Greene’s claim against
to Warden Brigano’s knowledge of a risk to her safety                    Warden Brigano’s subordinates that went to trial below, the
because of her status as a vulnerable inmate and because of              elements Greene would have had to show to succeed related
Frezzell’s status as a predatory inmate.                                 only to the mental state of those subordinates, and not to
                                                                         Warden Brigano’s mental state. Neither of the elements
D. Effect of the Jury Verdict Below                                      Greene must show to succeed on her claim against Warden
                                                                         Brigano were before the jury, and its verdict can therefore
   Finally, we reject Warden Brigano’s assertion that the                have no preclusive effect on that claim.
jury’s verdict below finding that his subordinates were not
liable to Greene precludes Warden Brigano’s own liability to                                 III. CONCLUSION
her. In order to prevail on her claim of deliberate
indifference, Greene must show that Warden Brigano himself                 Because material questions of fact remain as to Warden
was aware of a substantial risk to her safety and did not take           Brigano’s knowledge of a substantial risk to Greene, we
reasonable steps to guard against that risk. Neither of those            conclude the district court erred in granting summary
elements was before the jury below, and its verdict can                  judgment to Warden Brigano. We therefore REVERSE the
therefore have no preclusive effect on Greene’s claim against            district court’s judgment AND REMAND for further
Warden Brigano. Warden Brigano’s reliance on Klemencic                   proceedings consistent with this opinion.
v. Ohio State University, 263 F.3d 504 (6th Cir. 2001), is
unavailing. Klemencic dealt with a Title IX claim of quid-
pro-quo sexual harrassment against a coach and his university
employer.2 The district court had granted summary judgment
in favor of the university, and a jury had given a verdict in
favor of the defendant coach. The plaintiff appealed from the
grant of summary judgment, and a panel of this court found
that the jury verdict precluded a claim against the university.
In doing so, however, the court clearly relied on the elements
of a claim against an educational institution: 1) that a
plaintiff was subject to harassment; 2) that she provided
actual notice to the institution; and 3) that the institution’s
response amounted to deliberate indifference. See id. at 510
(citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274
(1998)). The jury verdict, which had preclusive effect on the
issue of whether the coach had subjected the plaintiff to


    2
      The plaintiff also raised a hostile-work-environment claim which
was dispo sed o f as to all defendants on summ ary jud gment and is
therefore unimp ortant for our ana lysis.
No. 02-3626                      Greene v. Bowles, et al.      9    10   Greene v. Bowles, et al.                    No. 02-3626

                    _________________                               is Warden Brigano’s admission that harms may befall
                                                                    protective custody inmates. Such a statement can hardly be
                        DISSENT                                     enough to create a triable issue of fact as to Warden Brigano’s
                    _________________                               awareness of the risks facing Greene. At most, this admission
                                                                    is a concession that prison life is inherently dangerous, and
   ROGERS, Circuit Judge, dissenting. Although the Eighth           particularly so for transgendered inmates. The fact that
Amendment requires prison officials to maintain humane              Warden Brigano recognized the existence of certain risks
conditions of confinement, a prison official’s actions do not       attendant with the placement of certain categories of inmates
violate the Eighth Amendment unless they are shown to be            in protective custody, however, does not amount to an
deliberately indifferent. Deliberate indifference means that        awareness of a significant risk of harm to Greene’s health or
the prison official had actual knowledge of a substantial risk      safety. The Eighth Amendment requires, instead, that a
to inmate health or safety and ignored that risk or proceeded       warden actually recognize a significant risk of harm arising
in the face of it. Because Greene has failed to show that           from particular facts. While the majority properly states that,
Warden Brigano was deliberately indifferent to the risk posed       in some contexts, a particular victim, or a particular
to her by Frezzell’s presence in the protective custody unit, I     perpetrator, need not be known, general recognition of some
respectfully dissent.                                               risks is not enough.
  The Eighth Amendment’s prohibition on cruel and unusual             This is borne out by the very example given by the
punishment imposes a duty on prison officials to provide            Supreme Court as sufficient to raise a triable issue of fact:
humane conditions of confinement and to take reasonable
measures to guarantee the safety of inmates. Farmer v.                For example, if an Eighth Amendment plaintiff presents
Brennan, 511 U.S. 825, 832 (1994). As the Supreme Court               evidence showing that a substantial risk of inmate attacks
has explained, however, a prison official’s actions or                was longstanding, pervasive, well-documented, or
omissions do not trigger liability under the Eighth                   expressly noted by prison officials in the past, and the
Amendment without a finding of deliberate indifference,               circumstances suggest that the defendant-official being
which is the equivalent of “recklessly disregarding” a risk.          sued had been exposed to information concerning the
Id. at 835. Under the Supreme Court’s clear instruction in            risk and thus must have known about it, then such
Farmer, Greene must establish not only that Warden Brigano            evidence could be sufficient to permit a trier of fact to
was aware of facts from which one could raise the inference           find that the defendant-official had actual knowledge of
of a substantial risk of harm to her safety, but also that            the risk.
Warden Brigano, in fact, drew that inference. Id. at 837. This
requirement exists because the Eighth Amendment does not            Id. at 842-43 (internal quotations omitted). The evidence in
extend liability to a prison official’s failure to exercise due     this case cannot fairly be characterized as comparable to the
care, but only extends liability to such willful disregard as can   Supreme Court’s example.
be considered the infliction of punishment.
                                                                      Greene first contends that her feminine appearance made it
  The only evidence cited by Greene that suggests that              obvious that she was vulnerable to attack by other inmates.
Warden Brigano actually drew the inference that Greene              Warden Brigano was aware of this risk, and that was the
faced a substantial risk of harm in the protective custody unit     reason that Greene was assigned to protective custody.
No. 02-3626                     Greene v. Bowles, et al.    11    12   Greene v. Bowles, et al.                     No. 02-3626

Greene then alleges that Hiawatha Frizzell’s prior conduct        particular danger. Greene has clearly failed to establish a
and sexual advances in her direction made it obvious that she     triable issue as to Warden Brigano’s awareness in this case.
was at a substantial risk to her health and safety. While
Greene has adduced facts indicating the existence of the risk,       Moreover, the majority takes a position that will make it
she certainly has failed to show that Warden Brigano ever         more difficult for prison officials to deal with the complicated
drew the inference that these facts constituted such a risk. As   issues involved in incarcerating pre-operative transsexual
to Frizzell’s conduct, although Warden Brigano was aware          inmates. These inmates may not be well-suited to the general
that Frizzell had a disciplinary record indicating some           populations of either men’s or women’s institutions, and
predatory conduct, Warden Brigano also indicated that his         protective custody may be a warden’s best alternative to
impression of Frizzell’s demeanor was “nothing out of the         provide for the safety and security of transsexual inmates.
ordinary.” As to Greene’s allegations of Frizzell’s sexual        The majority’s broad position that protective custody poses
advances, she has not indicated that Brigano was ever even        obvious harms to transsexual inmates could impel
aware of Frizzell’s conduct in that regard. Without showing       correctional officials to avoid liability for harms to these
some particular facts that should have triggered alarm bells in   inmates by either placing all transsexual inmates in individual
Warden Brigano’s mind, based on his knowledge and                 isolation or by building prisons solely for transsexuals. The
experience, Greene has not raised a material issue of fact as     Eighth Amendment cannot be read to compel such a result.
to Warden Brigano’s awareness of the risk to her safety.
   Moreover, although the majority does not reach the issue,
Greene’s claim should fail if she cannot show that Warden
Brigano actually disregarded the risk. Greene maintains that
Warden Brigano’s recognition of the risks she faced in the
general population should have triggered an awareness of
commensurate risks in protective custody and that when he
failed to provide additional protections, he was deliberately
indifferent. This claim must fail, because Farmer makes it
clear that a prison official’s duty under the Eighth
Amendment is only to insure “reasonable safety,” and this
standard “incorporates due regard for prison officials’
‘unenviable task of keeping dangerous men in safe custody
under humane conditions.’” Farmer, 511 U.S. at 844-45.
  The effect of the majority’s opinion in this case is to
impose an objective standard of deliberate indifference—a
position explicitly rejected by the Supreme Court. See
Farmer, 511 U.S. at 837. Although a reasonable person may
well have reached the conclusion based on this body of facts
that Greene was in danger, the appropriate test is whether
Warden Brigano reached the conclusion that Greene was in
