                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-7606


ADIB EDDIE RAMEZ MAKDESSI,

                 Plaintiff – Appellant,

           v.

LT. FIELDS; SGT. KING; CAPT. GALLIHAR; DAVID BELLAMY; GLEN
BOYD; JANE DOE; THOMAS HALL,

                 Defendants – Appellees,

           and

HAROLD W. CLARKE, Director of Virginia Corrections; TIMOTHY
SUMPTER; BRANDON WOODWARD; CLARENCE SHUPE; DENNIS SLUSS,

                 Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:11−cv−00262−GEC−PMS)


Argued:   October 28, 2014                   Decided:   March 12, 2015


Before MOTZ, SHEDD, and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge Wynn wrote the
majority opinion, in which Judge Motz joined. Judge Motz wrote
a separate concurring opinion.     Judge Shedd wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Stephen William Kiehl, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant. Trevor Stephen Cox, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Daniel Suleiman, COVINGTON & BURLING LLP,
Washington, D.C., for Appellant.     Mark R. Herring, Attorney
General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney
General, Stuart A. Raphael, Solicitor General of Virginia, Linda
L. Bryant, Deputy Attorney General, Richard C. Vorhis, Senior
Assistant Attorney General, Kate E. Dwyre, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.




                               2
WYNN, Circuit Judge:

      Plaintiff    Adib        Eddie     Ramez     Makdessi       lodged    numerous

complaints about repeated physical and sexual abuse he suffered

while    imprisoned       in     Virginia        Department       of     Corrections

facilities.       The    court    below       found     it    “clear”   that     prison

officials “should have been more diligent in handling Makdessi’s

claims   of    sexual    assault.”         J.A.        975.     Nevertheless,      the

magistrate judge recommended, and the district court adopted,

the view that because the prison officials named as defendants

in Makdessi’s suit did not actually know of the substantial risk

of harm Makdessi faced, his claims must fail.

      The Supreme Court has stated, however, that the subjective

“actual knowledge” standard required to find prison officials

deliberately indifferent to a substantial risk of serious injury

may be proven by circumstantial evidence.                     Prison officials may

not   simply   bury     their    heads    in     the    sand    and    thereby    skirt

liability.     Rather, they may be held accountable when a risk is

so obvious that it had to have been known.                      Because we do not

believe that the court below appreciated this nuance, we vacate

the dismissal of Makdessi’s claims against Defendants Fields,

King, and Gallihar.




                                          3
                                                I.

       Makdessi does not dispute the facts found as a result of

the    bench    trial    below.           Makdessi         is     a    five-foot-four-inch,

forty-nine-year-old man with physical and mental ailments that

make him “vulnerable to harassment and attacks” in prison.                                  J.A.

956.    Thus, Makdessi has been forced to pay for protection from

such abuse.

       Makdessi      testified          that    Defendant             Christopher       King,    a

prison official at Wallens Ridge State Prison, where Makdessi

was incarcerated, repeatedly called him names including “sand

nigger” and “bitch.”              Id.     Makdessi testified that as far back

as     2007,    he      complained         to        the     Assistant       Warden        about

mistreatment by his cellmate, that King accused him of being a

“snitch,”      and   that    no    one     ever      investigated          and    nothing       was

done.

       In 2010, Makdessi sent another complaint to the Assistant

Warden, stating that King hated him, refused to listen to him,

and     retaliated       against        him      when        he       complained.       Makdessi

testified that this complaint, too, garnered no response.

       In August 2010, Makdessi was moved to a cell with a new

cellmate,      Michael      Smith,      who     was     an      aggressive       gang    member.

“Although Makdessi went to the floor correctional officer to

request that he be placed in a different cell or protective

custody, and the officer said he would advise Sgt. King, he

                                                4
remained in the same cell with Smith.”                      J.A. 957.          Makdessi also

testified    that      he    wrote   a    complaint        about     being      housed         with

Smith, which Smith destroyed.

     Per prison operating policy, offender enemies are to be

identified      and    separated.        Under      the    policy,    prison          officials

“shall   take    appropriate         measures        to    protect     those          offenders

involved,” and an enemy is defined as an offender who “pose[s] a

significant threat to the life of another offender.”                             J.A. 962.

     Makdessi         testified      that   he      was    physically          and     sexually

assaulted by Smith and his Gangster Disciple associates numerous

times.     On one such occasion, December 8, 2010, Smith beat and

raped Makdessi, Makdessi “tried to report this incident to Sgt.

King, but King told him to ‘get the hell away’ from him, and no

investigation         occurred.”         J.A.       957.     Within        a    day       of    the

December    8   attack,       Makdessi      wrote     a    letter     to       the    Assistant

Warden about it but received no response.

     Makdessi         also    reached       out      to    the     Federal           Bureau     of

Investigation         on    December     20,       2010,   stating     that          he   feared

prison staff and prison gang members had teamed up to end his

life.    In the letter to the FBI, Makdessi also underscored that

despite the multiple attacks and his telling Defendant Tracy

Fields and others that he was in danger and needed to be placed

in protective custody, he remained unprotected in the cell with

Smith.

                                               5
       Makdessi testified that on December 20, 2010, he met with

Defendant Fields regarding an informal complaint he had filed.

During    that    meeting,    Makdessi       told      Defendant     Fields     that    he

feared for his life due to his cellmate Smith, a gang leader,

and that he wanted to be placed in protective custody.                         Makdessi

testified that Defendant Fields said he would advise Defendant

King.

       The   following      day,     December         21,    2010,    Smith    attacked

Makdessi.       According to Makdessi, Smith confronted him with the

letter    Makdessi    had     sent    to   the    Assistant       Warden      about    the

December 8 attack and told him that “[b]efore the day is over,

we’re going to kill you.”              J.A. 959.            Smith punched and beat

Makdessi, called him a “snitch,” flushed the letter down the

toilet, and then raped Makdessi.                 Id.        Makdessi testified that

he screamed loudly, yelled for help, and tried—but failed—to

push the emergency button in his room.                      “Makdessi testified that

his screams could have been heard.”                     Id.      Makdessi testified

that    Smith    ejaculated    onto    the     bed,     cleaned      himself    up,    and

ordered Makdessi to clean himself.

       The prison was on “restricted movement” that day, meaning

that    inmates    had   to   eat     lunch      in    their    cells.        J.A.    959.

Nevertheless, inmates were allowed out, four cells at a time, to

retrieve lunch trays.          Makdessi testified that Smith refused to

let him leave the cell when the doors opened.                          And when they

                                           6
shut, Smith forced Makdessi to perform oral sex, during which

Makdessi    bit    Smith.       Smith    again    beat     Makdessi.     Makdessi

testified that Smith’s gang associates came by the cell, and

prison guards performed their rounds, but no one intervened.

      Makdessi    testified     that    Smith    packed    his    television    and

other personal items in a laundry bag for a gang associate to

retrieve.        When   the   cell     door    opened,    while    Smith     placed

Makdessi’s things outside the cell, Makdessi escaped.                   Smith and

a gang associate chased and caught him, and Smith again began

punching Makdessi.       A warning shot was fired, Smith and his gang

associates hit the floor, but Makdessi continued to run away.

      Makdessi was taken to medical, where he required stitches

to his face and an x-ray of his ribs.                  Blood was also found in

Makdessi’s anorectal sample and inside the back of Makdessi’s

underpants.       Despite     Makdessi’s      report    that   Smith   ejaculated

into the bed sheets, those were never analyzed.                  Neither was the

blood found under Makdessi’s fingernails.                 After discharge from

the   hospital,    Makdessi     spent    forty-seven      days    in   the   mental

health infirmary.        Smith refused medical treatment after the

December 21 altercation and denied the rape allegation.

      Makdessi testified that while he was in the mental health

infirmary, Defendant King came by and said “‘I told these guys

to go ahead and kill you’” and that “‘[y]ou need to stop filing

all these grievances because what happened to you is nothing

                                         7
compared to what’s going to happen to you.’”                         J.A. 961.         Soon

thereafter, Makdessi was transferred to another prison, where he

was placed in protective custody.

      Defendants      contradicted              much       of     Makdessi’s       story.

Defendant King, for example, testified that he “never threatened

Makdessi.”    J.A. 969.        Defendant Fields testified that Makdessi

did not complain of problems with his cellmate on December 20,

2010, nor did Makdessi “indicate[] that he was in fear for his

life from anyone, that he was being sexually assaulted or that

he   feared   being    sexually      assaulted         by       anyone.”      J.A.     970.

“Likewise,    Sgt.    King   testified          he   was    never    made    aware     that

Makdessi feared for his life or that he feared being sexually

assaulted.”     J.A. 971.       Defendant Arvil Gallihar, whose duties

included being responsible for the overall operations of all the

prison buildings, testified that “Makdessi never informed him

that he feared for his life, and he never made any allegations

of being raped to him.”          Id.        And Defendants King and Gallihar

both denied having seen any grievances Makdessi made involving

sexual assault.

      A half year later, in June 2011, Makdessi brought this suit

against   various     prison    officials,           alleging      violations     of    his

Eighth    Amendment    right    to     be       free    from      cruel     and   unusual

punishment.    After Makdessi amended his complaint and some named

defendants were dismissed, the case proceeded to trial before a

                                            8
magistrate   judge.      The     magistrate      judge      issued    a     report   and

recommendation finding that “Makdessi clearly suffered serious

physical    injuries”    and     that   “the   evidence       admitted       at     trial

undoubtedly shows that Makdessi filed numerous grievances and

complaints to various departments, and he wrote letters to the

Assistant Warden and the Director of the [Virginia Department of

Corrections], alleging that he had been sexually assaulted on

multiple occasions while incarcerated . . . . [I]t is clear to

the undersigned that the staff . . . should have been more

diligent in handling Makdessi’s claims of sexual assault.”                           J.A.

964, 974-75.

      Nevertheless,     the    magistrate      judge     found       that    “Makdessi

cannot show that defendants failed to protect him . . . in

violation    of   the   Eighth      Amendment”    and     recommended        that    the

district court enter judgment in Defendants’ favor.                          J.A. 975-

76.     Makdessi    specifically        objected       to    only     some     of    the

magistrate judge’s determinations.               The district court adopted

in    its    entirety         the     magistrate         judge’s          report     and

recommendation, and Makdessi appealed.



                                        II.

      As an initial matter, the parties dispute what claims are

actually before us.        Makdessi contends that he has challenged

all claims dismissed per the magistrate judge’s recommendation

                                         9
and   report   as    adopted     by    the    district     court.           By   contrast,

Defendants argue that Makdessi failed to specifically object to

the     magistrate    judge’s      determination         that     Defendants          David

Bellamy, Glen Boyd, and Thomas Hall should be dismissed from the

case.       Accordingly,         per    Defendants,        Makdessi          waived    any

challenge to Bellamy’s, Boyd’s, and Hall’s dismissal.

      “[T]o preserve for appeal an issue in a magistrate judge’s

report, a party must object to the finding or recommendation on

that issue with sufficient specificity so as reasonably to alert

the   district      court   of    the   true      ground    for       the    objection.”

United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).

This preservation requirement conserves “judicial resources and

makes certain that appellate courts have well-formed records to

review[.]”     United States v. Benton, 523 F.3d 424, 428 (4th Cir.

2008).     Where an appellant has failed to preserve an issue, it

is deemed waived.       Id.

        Here, the face of Makdessi’s objections to the magistrate

judge’s    recommendation        and    report     speaks       for    itself.         The

objections     repeatedly        mention      Defendants     King,          Fields,    and

Gallihar—each of those names appears in Makdessi’s objections

more than twenty times.           By contrast, Bellamy’s and Hall’s names

appear in the entirety of the objections only once each, and

Boyd’s name appears only twice.                   In essence, they are absent

from the objections.

                                             10
     Makdessi         tries      to     attach           significance     to    his     general

contention    that        another       inmate’s          claim   that    the     December    21

assault    was     loud        enough    that        a    guard   would     have      heard   it

warranted “examination.” 1                   J.A. 980-81.          But that contention,

included in a list of “undisputed facts that were absent from

the Report and Recommendation,” understandably did not put the

district     court         on      notice       that        Makdessi       challenged         the

recommended dismissal of Defendants Bellamy, Boyd, and Hall.

     Accordingly, Makdessi failed to preserve any objection to

the dismissal of his claims against Defendants Bellamy, Boyd,

and Hall.        And Makdessi does not argue, e.g., for plain error

review.       We      therefore         do     not       review   the    waived       arguments

regarding the claims against Defendants Bellamy, Boyd, and Hall.

In re Under Seal, 749 F.3d 276, 292 (4th Cir. 2014) (refusing to

undertake plain error review in a civil case where appellant

failed to argue that the elements for plain error review had

been satisfied).



                                               III.

     Moving      on       to    what    is     before       us,   we     review    “judgments

stemming    from      a    bench       trial    under       a   mixed    standard:      factual

     1
       Makdessi’s claims against Bellamy, Boyd, and Hall related
specifically to the December 21, 2010 attack and not to earlier
events such as Makdessi’s prior complaints and grievances.



                                                11
findings are reviewed for clear error, whereas conclusions of

law are reviewed de novo.”        Helton v. AT&T, Inc., 709 F.3d 343,

350 (4th Cir. 2013).

       As the district court noted, “Makdessi complains that the

magistrate judge’s report [which the district court adopted in

its entirety] offers only two paragraphs about the applicable

legal standard and fails to discuss the nuanced legal theories

under which he believes he has proved defendants’ subjective

knowledge     through     circumstantial     evidence.”        J.A.       1001.

Makdessi contends that “[n]o direct evidence of an official’s

knowledge of the risk is necessary when a risk is obvious . . .

.”     Appellant’s Br. at 32.       Upon careful consideration of the

controlling law, we agree.

                                    A.

       “In its prohibition of ‘cruel and unusual punishments,’ the

Eighth Amendment places restraints on prison officials, who may

not,    for    example,    use   excessive     physical     force     against

prisoners.”     Farmer v. Brennan, 511 U.S. 825, 832 (1994).               The

Amendment     also   imposes   duties   on   these    officials,    who   must

provide humane conditions of confinement.            Id.

       “The Constitution does not mandate comfortable prisons, but

neither does it permit inhumane ones . . . .”              Farmer, 511 U.S.

at   832   (citation    omitted).       Prisons   house    “persons   [with]

demonstrated proclivit[ies] for antisocial criminal, and often

                                    12
violent, conduct[,]” and at the same time “strip[s]” inmates “of

virtually every means of self-protection . . . .”                         Id. at 833

(citation omitted).           “[T]he government and its officials are not

free    to     let     the   state    of   nature     take     its     course[,   and]

gratuitously allowing the beating or rape of one prisoner by

another       serves    no    legitimate        penological      objective.”       Id.

(citations and alteration omitted).

       Prison        officials      are,    therefore,        obligated     to    take

reasonable measures to guarantee inmate safety.                       “In particular,

. . . prison officials have a duty . . .                     to protect prisoners

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

marks omitted).

       That being said, not every injury suffered by a prisoner at

the hands of another “translates into constitutional liability

for prison officials responsible for the victim’s safety.”                        Id.

at 834.       Rather, liability attaches only when two requirements

are    met.     First,       “a   prison   official’s      act   or    omission   must

result in the denial of the minimal civilized measure of life’s

necessities.”          Id.        (quotation marks and citations omitted).

For a claim based on a failure to prevent harm, the plaintiff

must show that he was “incarcerated under conditions posing a

substantial risk of serious harm.”                   Id.      No one disputes the

lower     court’s      finding      here   that    “Makdessi      clearly    suffered



                                           13
serious    physical     injuries”      and     thus   meets     this   first      prong.

J.A. 964.

      Second,   the     prison      official      must    have    a    “sufficiently

culpable state of mind” to be held liable.                    Farmer, 511 U.S. at

834 (citations omitted).            “In prison-conditions cases that state

of mind is one of ‘deliberate indifference’ to inmate health or

safety . . . .”        Id.     It is this second deliberate indifference

prong that is at the heart of Makdessi’s appeal.

      In   Farmer,     the   Supreme      Court    explained     that     “deliberate

indifference” entails “more than ordinary lack of due care for

the    prisoner’s      interests     or      safety,”     and    “more     than    mere

negligence,” but “less than acts or omissions [done] for the

very purpose of causing harm or with knowledge that harm will

result.”    Id. at 835 (citation omitted).                 “The Court held that

deliberate indifference in this context lies somewhere between

negligence and purpose or knowledge: namely, recklessness of the

subjective type used in criminal law.”                   Brice v. Virginia Beach

Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995).

      “Nevertheless,         even   under      this     subjective       standard,    a

prison official cannot hide behind an excuse that he was unaware

of a risk, no matter how obvious.”                Brice, 58 F.3d at 105.           This

is    because   even    a    subjective        standard    may    be     proven     with

circumstantial evidence:



                                          14
       Whether a prison official had the requisite knowledge
       of a substantial risk is a question of fact subject to
       demonstration in the usual ways, including inference
       from circumstantial evidence, and a factfinder may
       conclude that a prison official knew of a substantial
       risk from the very fact that a risk was obvious.

Farmer, 511 U.S. at 842 (citations omitted).                          “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 (citations omitted).

       A    prison       official’s      subjective      actual      knowledge          can    be

proven      through       circumstantial        evidence     showing,        for    example,

that the “substantial risk of inmate attacks was longstanding,

pervasive,         well-documented,         or       expressly       noted     by       prison

officials in the past, and the circumstances suggest that the

defendant-official being sued had been exposed to information

concerning         the    risk    and    thus    ‘must      have    known’     about      it.”

Farmer,      511     U.S.    at   842    (quotation      marks      omitted).           Direct

evidence of actual knowledge is not required.                          See id. at 842-

43.

       Accordingly,         prison      officials     may    not    simply     bury      their

heads in the sand and thereby skirt liability.                         “[E]ven a guard

able to prove that he was in fact oblivious to an obvious injury

of    sufficient         seriousness     may    not   escape       liability       if    it    is


                                               15
shown, for example, that he merely refused to verify ‘underlying

facts      that   he    strongly     suspected        to    be    true,’”         or    that    he

“‘declined        to    confirm     inferences        of    risk      that    he       strongly

suspected to exist.’”              Brice, 58 F.3d at 105 (quoting Farmer,

511 U.S. at 843 n.8).              And “it does not matter whether the risk

comes from a single source or multiple sources, any more than it

matters whether a prisoner faces an excessive risk of attack for

reasons      personal      to     him    or     because      all      prisoners         in     his

situation face such a risk.”                  Farmer, 511 U.S. at 843.                   Nor is

it dispositive that the prisoner did not give advance warning of

the risk or protest his exposure to the risk.                         Id. at 848-49.

       A   prison      official     remains        free    to    rebut      the    deliberate

indifference        charge,     even     in     the   face       of    an    obvious         risk.

“Prison      officials      charged      with      deliberate         indifference           might

show, for example, that they did not know of the underlying

facts indicating a sufficiently substantial danger and that they

were    therefore        unaware    of   a    danger,       or    that      they       knew    the

underlying facts but believed (albeit unsoundly) that the risk

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

Id. at 844.            But absent successful rebuttal, they may be held

liable for obvious risks they must have known.                         Id. at 842.

                                              B.

       We find a close reading of Farmer illuminating for how to

apply the deliberate indifference standard both generally and

                                              16
specifically to Makdessi’s case.             In Farmer, the plaintiff was a

young transsexual serving a twenty-year sentence for credit card

fraud.      511 U.S. at 829.       Although a biological male, Farmer had

undergone some sex change treatments, including silicone breast

implants       and     unsuccessful    testical-removal       surgery.            Id.

Despite a feminine appearance, Farmer was incarcerated in male

prisons.

      For      disciplinary      reasons,    prison     officials    transferred

Farmer to a higher-security facility, where Farmer was housed in

the general population.          Id. at 830.      Farmer voiced no objection

about    the    transfer    or   placement.       But   within     two    weeks    of

arrival, Farmer was beaten and raped by a cellmate.                 Id.

      Farmer sued, alleging that the transfer of a transsexual

with feminine characteristics to a high-security prison with a

history of inmate assaults amounted to deliberate indifference

in violation of the Eighth Amendment.                   Id. at 830-31.            The

district court ruled in favor of the prison officials, holding

that there could be no constitutional violation in the absence

of actual knowledge of a potential danger.                  In so ruling, the

district       court   focused    on   Farmer’s    failure    to    protest       the

transfer or alert prison officials to any danger.                    Id. at 831-

32.     The Seventh Circuit affirmed, but the Supreme Court granted

certiorari and unanimously reversed.



                                        17
         After      laying    out     Eighth        Amendment          law    and        defining

deliberate indifference, the Supreme Court explained that the

lower courts had placed undue weight on the fact that Farmer had

not complained about the transfer to the general population at

the    higher-security        prison.            “[T]he    failure       to       give    advance

notice    is     not      dispositive”      if     it     could    be       shown        that    the

plaintiff’s condition and appearance, coupled with the knowledge

of violent assaults in the prison, made it reasonable to believe

that    the    defendants       were      aware     of     a    serious           risk    to     the

plaintiff but took no protective action.                          Id. at 848-49.                 The

case, therefore, was remanded for reconsideration.                                Id. at 849.

       In this case, Makdessi is a short, middle-aged prisoner

with physical and mental problems that make him “vulnerable to

harassment and attacks by other inmates.”                         J.A. 956.         For years,

Makdessi complained to prison officials, including in the form

of numerous written letters and grievances, about physical and

sexual    abuse      he    suffered    in    prison.           Those    complaints             often

garnered       no   response,       and     one     response—to         a     December          2009

complaint        expressly     mentioning          sexual       assault—simply             stated

“Hopefully you will be well soon.”                  J.A. 974.

       Despite      Makdessi’s      stature,        vulnerability,                and    repeated

complaints, Makdessi was placed in a cell with an aggressive

prison    gang      member,    Smith,       in    August       2010.         By    the     end    of

October 2010, Makdessi filed a report “stating that he had been

                                             18
sexually assaulted by his cellmate.”                     Id. 2     Yet “the standard

protocol of separating inmates alleging sexual assault was not

followed when Makdessi filed” the October 2010 report.                           Id.     He

was left in the cell with Smith until his physical and mental

injuries      from    the     December    21,    2010    attack    sent    him    to    the

prison infirmary for a month and a half.                          Makdessi was then

transferred to another prison and placed in protective custody.

       Despite       these    facts,     the    magistrate       judge    and    district

court determined that Makdessi had failed to meet the subjective

standard for deliberate indifference, i.e., that Makdessi had

failed to show that Defendants King, Fields, and Gallihar had

actual       knowledge       of   the    substantial      risk     of    serious       harm

Makdessi faced.              The report and recommendation so concluding

contained a total of two paragraphs setting forth the applicable

law.

       The     paragraph          dealing       with     deliberate        indifference

correctly recognized that to be liable, a prison official “must

actually have perceived” the risk to the prisoner.                              J.A. 964.

But absent from the court’s abbreviated discussion of the law,

as   well     as     its     application       thereof   to      the    facts,    is    the

recognition that actual knowledge can be shown by circumstantial


       2
       Defendants disputed that the report as originally filed
stated that Smith had sexually assaulted Makdessi.



                                            19
evidence that the risk was so obvious that the Defendants had to

know it.        See, e.g., Farmer, 511 U.S. at 842; Brice, 58 F.3d at

105.

       Additionally,          in   rejecting      Makdessi’s           claims,         the      court

below focused on some factors that, in light of Farmer, may be

irrelevant.        For example, the court seized on the fact that

Makdessi    did       not     “‘personally        inform[]        Capt.          Gallihar,       Lt.

Fields or Sgt. King that he feared for his life or safety.’”

J.A. 1003 (quoting J.A. 976).                    Neither did Farmer—and yet, in

reversing the lower courts, which had seized on just that, the

Supreme    Court       made     plain    that     “the     failure          to    give     advance

notice     is    not        dispositive”    if       it    can        be     shown       that     the

circumstances made it reasonable to believe that the defendants

were   aware     of     a    serious     risk   to    the      plaintiff           but    took     no

protective action.            Farmer, 511 U.S. at 848-49.

       Similarly, the court below focused on the fact that “only

one of the documents filed before [the] December 21 [attack]

stated    that     Makdessi        had    previously           been        assaulted       by    his

current roommate.”             J.A. 1003.         Yet Farmer makes clear that “a

prison     official          [cannot]      escape         liability          for       deliberate

indifference by showing that, while he was aware of an obvious,

substantial risk to inmate safety, he did not know that the

complainant       was       especially     likely         to     be        assaulted      by     the

specific        prisoner       who      eventually         committed             the     assault.”

                                             20
Farmer,   511       U.S.    at     843.      Indeed,       under       the    circumstances

described      in    Farmer,       “it     would    obviously          be    irrelevant      to

liability      that        the     officials       could    not        guess       beforehand

precisely who would attack whom.”                  Id. at 844.

     Furthermore,          the     court   below    underscored             that   Makdessi’s

“written complaints and grievances often sought mental health

treatment or a single cell assignment, rather than expressly

requesting     protection.”           J.A.     1006.       Even    assuming         that    the

court’s characterization of Makdessi’s complaints and grievances

is accurate, it seems apparent that both of those requests can

be construed as forms of seeking protection.                                And regardless,

Farmer makes plain that whether a prisoner protests or complains

before he is injured may be irrelevant.                    511 U.S. at 848-49.

     Finally,        the     court        below    focused        on        the    fact    that

Defendants played no role in “assigning” cellmates, suggesting

that Defendants therefore could not be liable for any risk to

Makdessi arising from his being housed with Smith.                                 J.A. 1007.

That Defendants did not initially assign Smith to Makdessi’s

cell, however, does not necessarily shield them from liability

if they knew that the undisputedly vulnerable Makdessi shared a

cell with an undisputedly aggressive gang member, knew—perhaps

because   it    was    so        obvious   that     they    had    to        know—that     this

continued arrangement constituted a substantial risk of serious

harm to Makdessi, yet did nothing.                  Farmer, 511 U.S. at 842.

                                             21
                                       C.

       In sum, the magistrate judge and then the district court,

which adopted the magistrate’s recommendation and report in its

entirety,    failed     to    appreciate     that   the   subjective   “actual

knowledge” standard required to find deliberate indifference may

be proven by circumstantial evidence that a risk was so obvious

that   it   had   to   have   been   known.     Further,    the   court   below

focused on factors that, under Farmer, may be irrelevant.                  The

dismissal of Makdessi’s claims against Defendants Fields, King,

and Gallihar, is thus vacated, and the case is remanded for

reconsideration using the proper legal framework.

       Whether Makdessi succeeds with his claims remains an open

question.     And even if Makdessi shows that the risk of serious

harm he faced was so obvious that Defendants Fields, King, and

Gallihar must have known it, Defendants may still be able to

successfully rebut the charge.              But regardless of the outcome,

the proper legal framework must be applied to address Makdessi’s

claims.

       Finally, we echo the district court that “[n]o matter what

an inmate’s crime, his prison sentence should not include the

sort of victimization described in Makdessi’s many complaints

and grievances.        Prison officials, from the security officers to

the mental health professionals and grievance coordinators, have



                                       22
an   ongoing   constitutional   obligation   to   protect   inmates   from

each other.”    J.A. 1009.



                                  IV.

      For the reasons stated above, the dismissal of Makdessi’s

claims against Defendants Fields, King, and Gallihar is vacated,

and the matter is remanded for reconsideration in light of this

opinion.

                                                   VACATED AND REMANDED




                                   23
DIANA GRIBBON MOTZ, Circuit Judge, concurring:

       I concur in Judge Wynn’s opinion for the court.                   On remand,

Adib Eddie Ramez Makdessi may not prevail, but the judgment of

the district court rejecting his claim in its entirety cannot

stand.       I write separately to explain why I believe governing

legal principles require this relief.

       The     Supreme    Court     has   painstakingly       explained    that   an

inmate      can    establish    a   violation   of    the    Eighth   Amendment   by

offering evidence that a prison official “knew of a substantial

risk” that the inmate would suffer “serious harm” or that the

official “must have known” about this risk.                   Farmer v. Brennan,

511 U.S. 825, 842 (1994) (emphasis added).                      And a court may

conclude that the official must have known of that substantial

risk based on “the very fact that the risk was obvious.”                          Id.

Here, Makdessi undoubtedly suffered serious harm when he was

assaulted by his cellmate. 1              The remaining question is whether

Defendants Fields, King, and Gallihar (“the Defendants”) must

have       known   of   the    substantial     risk   that    Makdessi    would   be

assaulted by a fellow prisoner.




       1
       The Defendants offer no argument that Makdessi failed to
demonstrate that he suffered “serious harm,” and, given the
prison’s own medical records, such an argument would be
frivolous.



                                          24
      The       district       court    expressly     recognized          the     “contrasts

between     Makdessi          himself    (5    feet      4     inches     tall,     age     49,

physically       hindered       by     back   problems       and    asthma,       depressed,

security        level     3,    no     gang   affiliation,          two    minor      prison

infractions)” and the prisoner who beat Makdessi, Michael Smith

“(a   ‘Gangster         Disciple,’       disciplinary          record     of      almost     30

charges,        including       masturbating       and       making      sexual     advances

toward      a     non-offender,         numerous      aggravated          assaults,        and

fighting with another inmate).”                     J.A. 1007. 2          Notwithstanding

these significant differences in age, size, health, disciplinary

record,     and        gang    affiliation,        however,        the    district        court

rejected Makdessi’s contention that in permitting Makdessi to

reside in the same cell as Smith, the Defendants ignored an

obvious risk of serious harm to Makdessi.

      The district court offered a very limited rationale for so

holding.        The court simply stated that because the Defendants

testified that they did not “assign[] cellmates,” it could not

“find that the physical and disciplinary differences” between

Makdessi         and      Smith        undermined        the       magistrate        judge’s

determination that the Defendants lacked “prior knowledge that

Smith would likely victimize Makdessi.”                        J.A. 1007-08 (emphasis



      2
       Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.


                                              25
added). 3    For the following reasons, I cannot conclude that this

rationale provides an adequate basis for rejection of Makdessi’s

obvious risk claim.

     First, the district court’s explanation evidences a belief

that Makdessi had to prove that the Defendants had actual “prior

knowledge” of the risk that he would be assaulted.                     The law, of

course, is quite different.          The Supreme Court has clearly held

that “a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious,”

as   where    the     official    “had        been    exposed    to    information

concerning the risk and thus must have known about it.”                    Farmer,

511 U.S. at 842 (internal quotation marks and citation omitted).

     Second,    the    district    court       also   seemed    to    believe   that

Makdessi had to prove that the Defendants knew of a substantial

risk that Smith, in particular, rather than any other inmate,

might assault Makdessi. 4         But Farmer also forecloses a specific

risk requirement of this sort.                 See id. at 843 (“Nor may a

     3
       The magistrate judge herself offered no rationale for
recommending   rejection of Makdessi’s  obvious risk   claim.
Indeed, the magistrate judge failed to address Makdessi’s
obvious risk claim at all.
     4
       Further indicating that the district court held this
erroneous view is the significance it attached to the fact that
in Makdessi’s “dozens” of written “complaints and grievances”
only once prior to December 21 did he state that he had
“previously been assaulted by his current roommate,” Smith. See
J.A. 1003.



                                         26
prison official escape liability for deliberate indifference by

showing that, while he was aware of an obvious, substantial risk

to    inmate    safety,         he    did   not     know     that    the     complainant        was

especially likely to be assaulted by the specific prisoner who

eventually committed the assault.”).

       Third,       the    district         court      apparently      reasoned      that       the

Defendants’ testimony that they had no role in cell assignment

absolved them from liability even if they knew (or should have

known)       that    Makdessi         was    housed      with       Smith    and    that    this

subjected Makdessi to an obvious risk of serious harm.                                   But the

Defendants testified only that they played no role in assigning

cellmates.          They offered no testimony or other evidence that

they did not know that Makdessi and Smith were cellmates.                                       And

evidence in the record suggests that the Defendants did indeed

know of this. 5           As we explained in reversing the judgment after

trial for a prison guard in another Eighth Amendment case, “even

a    guard    able    to    prove       that   he      was   in     fact    oblivious      to    an

obvious       injury       of        sufficient        seriousness          may    not     escape

liability if it is shown, for example, that he . . . ‘declined

       5
       Fields testified that he remembered when Makdessi and
Smith were celled together.       J.A. 778.    Moreover, as the
district court noted, Gallihar testified that he, Fields, and
King, were “the officers responsible for the safety of inmates
in Makdessi’s pod,” J.A. 1005; this suggests that all three
Defendants knew that Makdessi and Smith were celled together –-
and would have been aware of the dangerous mismatch.



                                                  27
to   confirm   inferences       of    risk   that    he    strongly   suspected    to

exist.’”   Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th

Cir. 1995) (quoting Farmer, 511 U.S. at 843 n.8).

      Finally, the district court appears not to have considered

the obvious risk in housing Makdessi with Smith in the context

of   Makdessi’s    many   grievances         documenting     prior    physical    and

sexual assault at the prison.                The magistrate judge found (and

the district court agreed) that “the evidence admitted at trial

undoubtedly shows that Makdessi filed numerous grievances and

complaints to various departments, and he wrote letters . . .

alleging   that    he     had    been     sexually        assaulted    on    multiple

occasions while incarcerated at Wallens Ridge.”                   J.A. 974. 6     The

district   court    properly         recognized     that   knowledge    of    serious

risk of harm could be inferred by demonstrating a “longstanding,

pervasive, [and] well-documented” risk, Farmer, 511 U.S. at 842

(internal quotation marks and citation omitted).                      But the court

discounted Makdessi’s evidence of exactly such “well-documented”

risk for two, equally unpersuasive, reasons.


      6
       The magistrate judge also found Makdessi’s credibility
undermined by the attendance records that contradicted his
testimony that he spoke with defendant Boyd on a particular
date.     J.A. 971.      Of course, we defer to credibility
determinations of a trial court.     But this finding does not
undermine Makdessi’s credibility as to his “numerous grievances
and complaints” to prison officials, which the magistrate judge
expressly found believable. J.A. 974.



                                          28
       Initially, the court relied on the Defendants’ testimony

that “[s]ecurity matters or sexual assault allegations might be

directly assigned to . . . a higher-ranking officer” and so the

Defendants       “would           not    necessarily           see       [them].”          J.A.     1005

(emphasis added).                The Defendants, however, offered no evidence

that     this        is    in     fact       what     happened            in     Makdessi’s        case.

Testimony       that         serious         allegations            of     assault        “might    be”

assigned        to        other       officers        does     not        establish         that    the

Defendants had no knowledge of the risk of substantial harm to

Makdessi.             This       is     particularly           so        given      the    number    of

Makdessi’s       complaints             of   abuse,      the    written          policy      requiring

notification of all such abuse, see J.A. 494-501, and the fact

that the face of some of the complaints expressly state that

they were forwarded directly to one or more of the Defendants.

See, e.g., J.A. 246; J.A. 517.

       The    other         reason       that    the       district            court      offered    for

discounting Makdessi’s multiple written grievances was that they

were “general” and “often sought mental health treatment or a

single       cell         assignment,         rather         than         expressly        requesting

protection.”              J.A.     1006.        But      examination           of   the     grievances

themselves belies this conclusion.                           See, e.g., J.A. 256, 259-60,

263, 266, 274, 276, 277.                     Many are specific; few are limited to

expressions           of     mental          illness      or        single-cell           assignment;

crucially, nearly all express ongoing fear of physical harm or

                                                    29
retaliation.       Moreover, those instances in which Makdessi did

simply plead to be assigned to a single cell to avoid further

sexual   assault    would    seem,   contrary   to   the    district    court’s

conclusion, to qualify as “expressly requesting protection.”

     On remand, the district court will have an opportunity to

apply these governing principles.           The court will be able to

determine, in light of Makdessi’s undisputed vulnerability and

his multiple written complaints of abuse at the hands of other

prisoners, if the risk of serious harm to Makdessi in housing

him with an aggressive gang member who had committed numerous

assaults while imprisoned was so obvious that the Defendants

must have known of the risk, appreciated its seriousness, and

yet failed “to take reasonable measures to abate it.”                   Farmer,

511 U.S. at 847. 7

     “The Constitution does not mandate comfortable prisons, but

neither does it permit inhumane ones,” no matter how abhorrent a

prisoner’s crimes.          Id. at 832 (internal quotation marks and

citation   omitted).         A   prisoner   faces    a     daunting    task   in

establishing an Eighth Amendment violation.              But when an inmate

     7
       Of course, “it remains open to the officials to prove that
they were unaware even of an obvious risk to inmate health or
safety.”    Farmer, 511 U.S. at 844.      But when the risk is
obvious, the burden shifts to the prison official to rebut the
inference that he must have known about it.          Id.    Naked
assertions of ignorance that defy prison procedure and logic
cannot satisfy this burden.



                                      30
has   “take[n]      advantage      of    internal      prison     procedures     for

resolving inmate grievances” and these actions “do not bring

constitutionally required changes, the inmate’s task in court

will obviously be much easier.”                Id. at 847.      Most importantly,

the Supreme Court has been clear that the Eighth Amendment does

not allow prison officials “to take refuge in the zone between

ignorance of obvious risks and actual knowledge of risks.”                       Id.

at 842 (internal quotation marks and citation omitted).                        Thus,

prison officials may not escape liability simply by offering a

blanket denial of any knowledge of an obvious risk.                       They “are

not free to let the state of nature take its course” within

their prisons but rather “have a duty to protect prisoners from

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

quotation marks and citation omitted).

      For   these      reasons,    I    join    in    the   order   vacating     the

judgment    of   the    district       court    and   remanding     the   case   for

further proceedings.




                                         31
SHEDD, Circuit Judge, concurring in part and dissenting in part:

     I agree that Makdessi waived his appellate challenge to the

judgment     in   favor    of    defendants       Bellamy,       Boyd,   and    Hall.

However, I disagree that the judges below improperly analyzed

Makdessi’s    Eighth      Amendment     claim    against        defendants     Fields,

King, and Gallihar. In my view, the majority’s consideration of

the judgment in favor of the latter three defendants is more

akin to a summary judgment review than a bench trial review, and

it fails to adequately account for the factual findings made by

the magistrate judge and reviewed de novo by the district judge. 1

                                            I

     For     purposes     of    this    appeal,       it   is    established      that

Makdessi was assaulted and injured by his cellmate, Smith, on

December    21,   2010.    The    unfortunate      reality        is   that    prisons

housing    inmates   convicted         of   violent    crimes     are    “inherently

dangerous places,” United States v. Tokash, 282 F.3d 962, 970

(7th Cir. 2002), 2 where “acts of violence by inmates against

inmates are inevitable,” Shrader v. White, 761 F.2d 975, 980

     1
       I disagree with much of my colleague’s separate concurring
opinion. However, because she has joined the majority opinion,
which speaks for the Court, I will limit my comments to that
opinion.
     2
        Makdessi is certainly an inmate convicted of violent
crimes. He is serving two life sentences for the murders of his
wife and a third-party. See Makdessi v. Watson, 682 F.Supp.2d
633 (E.D.Va. 2010). Before being prosecuted, he collected
$700,000 from his wife’s life insurance policies. See J.A. 658.



                                            32
(4th    Cir.     1985),      and     the    elimination            of    such     violence         is

“virtually impossible,” Taylor v. Freeman, 34 F.3d 266, 273 n.6

(4th Cir. 1994). Although the Eighth Amendment imposes a duty on

prison officials to protect inmates from violence, Farmer v.

Brennan,       511    U.S.     825,      832-33       (1994),       “[n]ot      every       injury

suffered    by       [an   inmate]     at    the      hands   of        another    establishes

liability against a prison official,” Brown v. N.C. Dept. of

Corr.,    612    F.3d      720,    723     (4th      Cir.    2010).       Rather,       a   prison

official       violates      the      Eighth       Amendment        only     if     he      has     a

“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834

(internal punctuation and citation omitted).

       “The burden is on the [inmate] to demonstrate that prison

officials violated the Eighth Amendment, and that burden is a

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

2014).     Pertinent         here,       “[a]      prison     official’s           ‘deliberate

indifference’ to a substantial risk of serious harm to an inmate

violates    the       Eighth      Amendment.”         Farmer,      511     U.S.    at       828.    A

prison    official         “demonstrates          deliberate        indifference            if     he

knows of and disregards an excessive risk to inmate health or

safety;”    stated         otherwise,       “the      test    is    whether       the       [prison

official knows] the plaintiff inmate faces a serious danger to

his safety and . . . could avert the danger easily yet . . .

fail[s] to do so.” Brown, 612 F.3d at 723 (internal punctuation

and citations omitted).

                                                33
      Deliberate indifference “is a very high standard,” Grayson

v. Peed, 195 F.3d 692, 695 (4th Cir. 1999), which “make[s] it

considerably more difficult for [an inmate] to prevail than on a

theory      of   ordinary     negligence,”         Correctional       Servs.     Corp.    v.

Malesko, 534 U.S. 61, 73 (2001). It is a subjective standard,

Farmer, 511 U.S. at 829, that requires an inmate to prove “that

the prison official had actual knowledge of an excessive risk to

[his] safety,” Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir.

2014). The prison 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.

      “Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration

in    the    usual    ways,    including           inference     from     circumstantial

evidence, and a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was

obvious.” Id. at 842. Thus, if a prisoner “presents evidence

showing      that     a     substantial        risk       of     inmate       attacks    was

longstanding, pervasive, well-documented, or expressly noted by

prison officials in the past, and the circumstances suggest that

the    defendant-official             being        sued    had     been       exposed     to

information concerning the risk and thus must have known about

it, then such evidence could be sufficient to permit a trier of

                                              34
fact to find that the defendant-official had actual knowledge of

the    risk.”       Id.    at    842-43      (internal         punctuation        and    citation

omitted).

       However, “[t]hat a trier of fact may infer knowledge from

the obvious . . . does not mean that it must do so.” Id. at 844.

Therefore, prison officials may defeat an Eighth Amendment claim

by    showing,       “for       example,         that      they    did     not    know   of    the

underlying      facts       indicating           a    sufficiently       substantial      danger

and that they were therefore unaware of a danger. . . .” Id.

This is true even “if the risk was obvious and a reasonable

prison official would have noticed it.” Id. at 842. Moreover,

although       the        inmate      may    prove         deliberate       indifference       by

circumstantial            evidence,         he       may    not    rely     on    “unsupported

speculation.” Danser, 772 F.3d at 348 n.10.

                                                     II

       Makdessi did not invoke his jury trial right; therefore,

the district judge referred this case to the magistrate judge

“for    appropriate             proceedings           and     preparation         of     proposed

findings       of     fact      and     conclusions           of     law    and     recommended

disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).” J.A. 997. As

Makdessi notes, the evidentiary hearing before the magistrate

judge was “‘the equivalent of a bench trial.’” Opening Brief for

Makdessi, at 28 (quoting Hicks v. Norwood, 640 F.3d 839, 842

(8th    Cir.    2011)).         The    majority            appears   to     agree      with   this

                                                     35
characterization. See Majority Op., at 12 (noting standard of

review from a bench trial judgment).

      In this posture, we must accept the trial judge’s factual

findings unless they are clearly erroneous, but we review the

judge’s legal determinations de novo. F.T.C. v. Ross, 743 F.3d

886, 894 (4th Cir.), cert. denied, 135 S.Ct. 92 (2014). The

majority primarily bases its decision to vacate the judgment on

its conclusion that the judges below “failed to appreciate that

the   subjective     ‘actual      knowledge’    standard         required   to   find

deliberate indifference may be proven by circumstantial evidence

that a risk was so obvious that it had to have been known.”

Majority Op., at 22. The record belies this conclusion.

                                          A.

      Prior to the bench trial, the district judge denied these

defendants’       summary   judgment      motion.   At    the     summary   judgment

stage, the district judge was required to view the facts in the

light most favorable to Makdessi, the nonmoving party. Ricci v.

DeStefano, 557 U.S. 557, 586 (2009). In essence, the district

judge     was   required    to   accept    as   true     Makdessi’s      version   of

events. 3   The    district      judge    expressly      noted    that   deliberate


      3
       The majority recounts Makdessi’s testimony in detail, see
Majority Op., at 4-8, but devotes only one paragraph to the
defendants’ version of events, see id. at 8. Notably, much of
Makdessi’s self-serving testimony was not credited by the judges
below and does not constitute the “facts” of the case. For
(Continued)
                                          36
indifference may be proven by circumstantial evidence, J.A. 226,

and he concluded that “Makdessi’s allegations and evidence are

sufficient to present disputed issues of material fact as to

whether each of these defendants must have known facts before

December    21,    2010,      on    which   they    must    have     perceived      that

housing    Makdessi      in    the     same      cell     with   Smith      created    a

substantial and imminent risk that Smith would cause Makdessi

serious harm,” J.A. 229. The summary judgment ruling faithfully

applied the Farmer deliberate indifference standard.

      This case thereafter proceeded to the bench trial before

the magistrate judge, and Makdessi bore the burden of proving

his Eighth Amendment claim. The magistrate judge made specific

and detailed factual findings based on the evidence presented.

The   magistrate      judge        recognized      that    Makdessi      argued     that

Fields,    King,   and     Gallihar      failed     to     protect    him    from     the




example, the majority notes that Makdessi testified that on the
day before Smith assaulted him, he told defendant Fields “that
he feared for his life due to his cellmate Smith, a gang leader,
and that he wanted to be placed in protective custody.” Majority
Op., at 6. However, the magistrate judge specifically rejected
this testimony, finding it to be “incredible.” J.A. 972. The
majority also states that Makdessi testified that Smith raped
him on December 21, 2010. See Majority Op., at 6. However, one
witness (Dr. Thompson) testified that Makdessi expressly denied
that Smith raped him. See J.A. 731-32, 738-39. Ultimately, the
magistrate judge made no finding that Makdessi was raped.




                                            37
December      21,   2010,    assault      “based    on    information        they    had

received      either   verbally        directly    from      Makdessi    or    through

grievances Makdessi had filed prior to that time, from which

they learned Smith posed a substantial risk to his safety.” J.A.

969. Addressing these arguments, the magistrate judge found that

(1) Makdessi did not personally inform Fields, King, or Gallihar

before December 21, 2010, that he feared for his safety, J.A.

972, 976; and (2) Makdessi failed to prove that these defendants

knew of his prior grievances before December 21, 2010, J.A. 973-

74,    976.    In   light   of    these       findings,   the    magistrate         judge

recommended that judgment be entered in these defendants’ favor.

       Makdessi     objected      to   the     magistrate     judge’s       report   and

recommendation, and the district judge extensively reviewed de

novo   Makdessi’s      objections.       In    doing   so,    the     district      judge

properly      recognized    the    controlling      legal     standard,       see    J.A.

1000    (noting     that    deliberate        indifference      may    be    shown    by

circumstantial evidence), and he thoroughly detailed his bases

for overruling Makdessi’s objections.

       The district judge first explained that Makdessi failed to

object to the magistrate judge’s specific factual finding that

he did not personally inform Fields, King, or Gallihar before

December 21, 2010, that he feared for his safety. J.A. 1003. The

district judge then examined Makdessi’s objections regarding the

magistrate judge’s consideration of “other evidence that Smith

                                          38
posed a risk to Makdessi.” J.A. 1003. Pointing directly to the

magistrate judge’s factual findings and other evidence in the

record, the district judge specifically considered and rejected

Makdessi’s arguments that (1) he proved deliberate indifference

by showing that the risk of harm was longstanding and well-

documented, and the circumstances suggest that the defendants

had been exposed to information concerning the risk, J.A. 1004;

(2)    judgment        in    Makdessi’s      favor     is     proper       because      the

defendants’ response was so patently inadequate that they must

have known of the risk, J.A. 1006; (3) the risk to Makdessi was

so obvious that the defendants knew of it because they could not

have   failed     to    know    of   it,    J.A.   1007;      and    (4)    because     the

defendants knew Makdessi had been labeled as a snitch, they must

have known how that the label exposed him to retaliation or risk

of assault, J.A. 1008. Accordingly, the district judge overruled

Makdessi’s       objections,      adopted    the     report    and    recommendation,

and entered judgment against Makdessi.

                                            B.

       As   noted,     the     majority    concludes     that       the    judges    below

failed      to   appreciate      that   Makdessi      could    prove       his   case    by

circumstantial evidence. Explaining its decision, the majority

identifies several “facts” that it believes are sufficient for a

factfinder to find that the risk of harm Smith posed to Makdessi

was so obvious that defendants Fields, King, and Gallihar must

                                            39
have known of it. See Majority Op., at 18-19. Specifically, the

majority states:

     (1) “Makdessi is a short, middle-aged prisoner with
     physical and mental problems that make him ‘vulnerable
     to harassment and attacks by other inmates;’” 4

     (2)   “For  years,   Makdessi complained  to  prison
     officials, including in the form of numerous written
     letters and grievances, about physical and sexual
     abuse he suffered in prison;”

     (3) “Those complaints often garnered no response, and
     one response – to a December 2009 complaint expressly
     mentioning sexual assault – simply stated ‘Hopefully
     you will be well soon;’”

     (4) “Despite Makdessi’s stature, vulnerability, and
     repeated complaints, Makdessi was placed in a cell
     with an aggressive prison gang member, Smith, in
     August 2010;”

     (5) “By the end of October 2010, Makdessi filed a
     report ‘stating that he had been sexually assaulted by
     his cellmate;’”

     (6) “Yet ‘the standard protocol of separating inmates
     alleging sexual assault was not followed when Makdessi
     filed’ the October 2010 report;” and

     (7) Makdessi “was left in the cell with Smith until
     his physical and mental injuries from the December 21,
     2010 attack sent him to the prison infirmary for a
     month and a half.”

The majority then acknowledges that even if Makdessi shows on

remand “that the risk of serious harm he faced was so obvious


     4
        The magistrate judge actually stated that Makdessi
"described himself as a 5’4”, 49-year-old man with both physical
and mental ailments rendering him vulnerable to harassment and
attacks by other inmates.” J.A. 956 (emphasis added).



                               40
that [the defendants] must have known it, [the defendants] may

still be able to successfully rebut the charge.” Majority Op.,

at 22.

      If this was an appeal from the grant of summary judgment

(like Farmer), then I might agree with the majority’s analysis

that further consideration is merited. However, the record makes

it   clear   that        this   inquiry      has    already       occurred:    the    judges

below    considered          this    evidence      and    made     appropriate       factual

findings         by     which       these     defendants          completely     rebutted

Makdessi’s claim.

      “To    establish          that   a    risk    is    ‘obvious’       in   this    legal

context,     a    plaintiff         generally      is   required     to   show   that    the

defendant ‘had been exposed to information concerning the risk

and thus must have known about it.’” Danser, 772 F.3d at 348

(quoting Farmer, 511 U.S. at 842). Most of the facts identified

by the majority involve the grievances and complaints Makdessi

filed before December 21, 2010. As the district judge implicitly

recognized in denying summary judgment, the number of Makdessi’s

prior grievances might well be sufficient to permit a factfinder

to conclude that the defendants knew of a substantial risk to

him. However, based on the trial evidence presented (both direct

and circumstantial), the magistrate judge and the district judge

found that the defendants did not have actual knowledge of the

grievances.           This   finding    is    not       clearly    erroneous,     and    the

                                              41
majority       does      not        contend     otherwise.           Therefore,       further

consideration           of   the      prior      grievances          is     irrelevant       to

Makdessi’s claim against these defendants. See Danser, 772 F.3d

at 348-49 (rejecting Eighth Amendment claim because there was no

evidence       that      prison       official      was      exposed        to   information

concerning risk to the inmate). 5

     Removing the prior grievances from the analysis leaves only

the following facts identified by the majority: Makdessi’s self-

description        of    his        physical     and      mental      problems       and    his

assertion that he was vulnerable to harassment and attacks by

other       inmates;    Makdessi’s       placement        in    a    cell    with    a     known

prison gang member, Smith, in August 2010; and Smith’s December

21, 2010, assault on Makdessi. Of course, it should be self-

evident that the fact that Smith assaulted Makdessi on December

21, 2010, does nothing to suggest that any defendant knew (or

should have known) before that day that Smith posed a risk of

serious harm to Makdessi.

     The       majority        is     thus     left    with         the   fact      that    the

“vulnerable” Makdessi was housed in a cell with the “aggressive

prison      gang   member”      Smith     before       the     assault      occurred.      This

        5
       The majority does not point to any evidence tending to
establish that these defendants deliberately blinded themselves
to Makdessi’s grievances. Moreover, as I have noted, Makdessi
cannot rely on unsupported speculation to establish deliberate
indifference. Danser, 772 F.3d at 348 n.10.



                                               42
fact, without more, does not suggest that the defendants were

deliberately      indifferent       to     Makdessi’s           safety.     See,    e.g.,

Shields v. Dart, 664 F.3d 178, 181 (7th Cir. 2011) (explaining

that “a general risk of violence in a maximum security unit does

not by itself establish knowledge of a substantial risk of harm”

for purposes of the Eighth Amendment); Ruefly v. Landon, 825

F.2d 792, 794 (4th Cir. 1987) (affirming in a pre-Farmer case

the   dismissal     of    an    Eighth    Amendment        complaint       because      the

plaintiff    only     alleged     that    the   prison          officials    “generally

knew” that the inmate who assaulted him was a violent person).

In any event, the district judge explained that “[e]ach of the

defendants testified that he had no involvement in assigning

cellmates.” J.A. 1007. Therefore, the decision to house Makdessi

and Smith together has no bearing as to whether these defendants

violated the Eighth Amendment. See Wright v. Collins, 766 F.2d

841, 850 (4th Cir. 1985) (“In order for an individual to be

liable under § 1983, it must be affirmatively shown that the

official    charged      acted    personally       in    the     deprivation       of   the

plaintiff’s rights.” (internal punctuation omitted)).

                                           C.

      In denying the summary judgment motion, the district judge

recognized     that      Makdessi        alleged        facts     and     circumstances

sufficient to permit a trier of fact to find that defendants

Fields,     King,     and      Gallihar    were     deliberately          indifferent.

                                           43
However, at the subsequent bench trial, the magistrate judge –

sitting      as       the    factfinder         –    and      the   district       judge    –   who

reviewed      the      objections          to   the       report     and    recommendation        -

carefully considered the evidence presented, and they concluded

that       Makdessi         failed    to    meet          his   high      burden    of     proving

deliberate indifference. The decision is amply supported by the

evidence presented, the factual findings, and the controlling

legal      standard,         and     neither        Makdessi        nor    the     majority     has

presented         a    sufficient      reason            to   set   aside    that     decision. 6

Accordingly, the judgment in favor of Fields, King, and Gallihar

should be affirmed.

                                                    III

       Based on the foregoing, I concur in Part II of the majority

opinion, but I dissent from the remainder.




       6
       As a second reason for vacating the judgment, the majority
states that “the court below focused on factors that, under
Farmer, may be irrelevant.” Majority Op., at 22. When the
decision below is viewed in its entirety and in its proper
context, it is clear that the judges fairly considered, and
decided the case on, all of the evidence presented.



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