           Case: 18-10259    Date Filed: 09/20/2018   Page: 1 of 8


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10259
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:17-cv-00049-JRH-RSB


CAROL WINSTEAD,

                                                           Plaintiff - Appellant,

                                   versus

WARDEN STANLEY WILLIAMS,
UNIT MANAGER JACKSON,
WARDEN MARTY ALLEN,

                                                        Defendants - Appellees.

                      ________________________

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

                            (September 20, 2018)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
                Case: 18-10259       Date Filed: 09/20/2018       Page: 2 of 8


         Carol Winstead, a Georgia state prisoner represented by counsel, appeals the

dismissal of his 42 U.S.C. § 1983 civil-rights lawsuit alleging that Warden Stanley

Williams, Unit Manager Jackson, and Warden Marty Allen were deliberately

indifferent to a substantial risk of serious harm posed to him by a violent cellmate.1

The district court dismissed the complaint for failure to state a claim, Fed. R. Civ.

P. 12(b)(6), concluding that Winstead failed to allege specific facts showing that

the defendants knew about the risk to Winstead. After careful review, we affirm.

                                               I.

         Winstead alleges that on June 8, 2016, while incarnated at Georgia State

Prison, he was physically and sexually assaulted by his cellmate. Due to the

assault, he suffered a one-inch gash on his chin, permanent scarring on his lip

where he was punched repeatedly, bruises all over his back, and scratches on his

hip and buttocks.

         Winstead claims that he made the defendants aware of the threat posed by

his “sexually violent and threatening” cellmate five weeks earlier when he

submitted a grievance asking to be moved to a different cell. In the grievance,

submitted on April 27 and denied one day later by Defendant Jackson, Winstead

wrote,
         1
         Winstead’s complaint also asserted a retaliatory-transfer claim, but on appeal, Winstead
has not addressed the district court’s dismissal of that claim. Accordingly, we deem that claim
abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014)
(issues not raised on appeal are abandoned).

                                               2
              Case: 18-10259    Date Filed: 09/20/2018   Page: 3 of 8


      I need to be moved to a one man cell please. . . . I am always having
      problems with my roommate . . . and I have problems with a lot of
      people in the dorm period. . . . Please move me A.S.A.P. before I get
      in trouble. . . . I keep getting roommates that I have a lot of trouble
      with. I want to go home. I don’t want no trouble. Please move me as
      fast as you can.

      Prison officials took no action to separate Winstead and his cellmate. Five

weeks later, Winstead was assaulted. He then filed this counseled lawsuit, alleging

that the defendants were deliberately indifferent to a substantial risk of serious

harm based on their failure to protect him from his cellmate.

      The district court granted the defendants’ motion to dismiss the complaint

for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P.        The court

concluded that Winstead failed to allege specific facts showing that the defendants

had subjective knowledge of a serious risk of harm. Specifically, according to the

court, Winstead’s grievance did not identify any particular threat from the cellmate

and did not “even indicate that he was in fear for his safety.” Winstead now

appeals.

                                        II.

      We review de novo a district court’s dismissal for failure to state a claim

under Rule 12(b)(6), accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff. Hunt v. Aimco Props.,

L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). To survive a motion to dismiss, the

complaint must include enough well-pleaded facts to state a claim to relief that is
                                         3
              Case: 18-10259     Date Filed: 09/20/2018   Page: 4 of 8


plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a

claim to be facially plausible, a plaintiff must go beyond merely pleading the

“sheer possibility” of unlawful activity by a defendant, and instead must offer

sufficient “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “[M]ere conclusory statements[] do not suffice” to meet the

plaintiff’s burden. Id.

                                        III.

      To make out a claim of deliberate indifference to a risk of serious harm

based on a prison official’s failure to protect an inmate, the inmate must show,

among other things, that the prison official was subjectively aware of a substantial

risk of serious harm. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099

(11th Cir. 2014).

      To have subjective knowledge, “the prison official must be aware of specific

facts from which an inference could be drawn that a substantial risk of serious

harm exists.” Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003); see

Farmer v. Brennan, 511 U.S. 825, 837 (1994). The plaintiff “must show more

than a generalized awareness of risk.” Caldwell, 748 F.3d at 1101–02 (quotation

marks omitted).




                                         4
              Case: 18-10259     Date Filed: 09/20/2018    Page: 5 of 8


      Here, the district court correctly dismissed Winstead’s complaint for failure

to state a claim because the allegations do not plausibly show the defendants’

subjective knowledge of a substantial risk of serious harm. Winstead’s grievance

did not, as he asserts, “articulate[] a specific fear of harm from his roommate.”

Rather, the grievance said only that Winstead was having unspecified “problems”

and “trouble” with his cellmate. But it does not explain what those problems were.

And those problems, according to the grievance, did not appear to be any different

than the problems he had with other past cellmates, Doc. 6 at 13 (“I keep getting

roommates that I have a lot of trouble with.”), or with other people in the dorm, id.

(“I have problems with a lot of people in the dorm period.”). Standing alone, the

grievance’s vague refences to “problems” and “trouble” with the cellmate, even

when combined with a plea for urgent action, were not specific enough to make the

defendants subjectively aware of a substantial risk of serious harm. See, e.g.,

Carter, 352 F.3d at 1349–50 (rejecting a deliberate-indifference claim where the

plaintiff told a guard that his cellmate had said the plaintiff would help him fake a

hanging “one way or another” because the statement “[did] not provide a sufficient

basis to make the inferential leap that a substantial risk of serious harm to Plaintiff

existed”).

      Nor does the complaint allege other facts known to the defendants from

which they could have inferred with some specificity what the “problems” might


                                          5
              Case: 18-10259    Date Filed: 09/20/2018   Page: 6 of 8


have been. For instance, the complaint offers no information about the cellmate’s

background and disciplinary history, Winstead’s prior interactions with the

cellmate, or the dorm in which they were housed. Leaving aside the vague nature

of Winstead’s grievance, the absence of facts along these lines distinguishes this

case from the cases Winstead cites where we have found enough to establish a

prison official’s subjective knowledge. See, e.g., Bowen v. Warden Baldwin State

Prison, 826 F.3d 1312, 1322–24 (11th Cir. 2016) (prison official knew of the

“volatile and dangerous nature” of the inmate’s mental condition and that he had

committed a “High-Assault” against his previous cellmate); Caldwell, 748 F.3d at

1101 (prison officials knew that inmate “had a violent past, was very disruptive,”

and had started a fire that endangered the plaintiff one day before he assaulted and

stabbed the plaintiff); Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 621–22

(11th Cir. 2007) (prison official knew that the plaintiff had renounced his gang

membership, that the general population was heavily populated with members of

the gang, and that the plaintiff had asked not to be transferred to the general

population due to death threats from the gang).

      Winstead’s reliance on his sworn declaration, which he submitted in

response to the defendants’ motion to dismiss, is unavailing. The district court

properly disregarded the declaration because it was not attached to the complaint,

and the scope of review for a Rule 12(b)(6) dismissal is ordinarily “limited to the


                                         6
                 Case: 18-10259       Date Filed: 09/20/2018        Page: 7 of 8


four corners of the complaint.” 2 Speaker v. U.S. Dep’t of Health & Human Servs.,

623 F.3d 1371, 1379 (11th Cir. 2010) (quotation marks omitted).

       In any case, even if we considered Winstead’s sworn declaration to be part

of the complaint, the declaration does not plausibly establish that the defendants

were “aware of specific facts from which an inference could be drawn that a

substantial risk of serious harm exists.”             Carter, 352 F.3d at 1349.             In the

declaration, Winstead broadly asserts that he made prison staff “very aware of [his]

unsafe living situation” and “begged” them to move him to a safer living

environment. But he does not identify when he contacted prison staff or what he

told them, apart from the April 27 grievance. As a result, the declaration offers

nothing more than “mere conclusory statements” that the defendants were

subjectively aware of a substantial risk of serious harm, which “do[es] not suffice”

to state a plausible claim for relief. See Iqbal, 556 U.S. at 678.

       Finally, in his reply brief, Winstead argues for the first time that the

defendants had a duty to investigate his grievance, which would have made them
       2
          Typically, “[i]f matters outside the pleadings are presented by the parties and considered
by the district court, the Rule 12(b)(6) motion must be converted into a Rule 56 summary
judgment motion.” Speaker v. U.S. Dep’t of Health & Human Servs., 623 F.3d 1371, 1379 (11th
Cir. 2010). An exception to this rule applies where an extrinsic document is “(1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged.” Id. (quotation marks omitted). If
those requirements are met, the court can consider the extrinsic document when ruling on a
motion to dismiss. Id. This exception does not apply to the declaration, but the district court
concluded that the grievance, which also was submitted in response to the motion to dismiss, met
these requirements because its authenticity was undisputed and it was central to Winstead’s
claim that the defendants had notice of a substantial risk of serious harm. Winstead has
abandoned any challenge to that decision by failing to address it on appeal, see Sapuppo, 739
F.3d at 680, and we see no error in the court’s consideration of the grievance.
                                                 7
               Case: 18-10259     Date Filed: 09/20/2018    Page: 8 of 8


aware of the specific threat posed to him. This argument fails for two reasons.

First, it was raised for the first time in the reply brief, so it is not properly before

us. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005)

(“As we repeatedly have admonished, [a]rguments raised for the first time in a

reply brief are not properly before a reviewing court.” (quotation marks omitted)).

Second, the fact that prison officials may have failed to investigate does not show

their knowledge of specific facts from which an inference of a substantial risk of

serious harm could be drawn, and “merely negligent failure to protect an inmate

from attack does not justify liability under section 1983.” Carter, 352 F.3d at 1350

(quotation marks omitted).

      For the reasons stated, we affirm the dismissal of Winstead’s complaint.

      AFFIRMED.




                                           8
