           Case: 12-16363     Date Filed: 06/04/2013   Page: 1 of 8


                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-16363
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:12-cv-00078-BAE-JEG

JESSE L. LOSEY,

                                                            Plaintiff - Appellant,

                                    versus

WARDEN,
TIFFANY NAIL,
LINDA BASS,
GWENDOLYN BROWN,
Correctional Officers,
                                                         Defendants - Appellees.

                         _______________________

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

                                (June 4, 2013)


Before BARKETT, WILSON, and ANDERSON, Circuit Judges.



PER CURIAM:
               Case: 12-16363      Date Filed: 06/04/2013   Page: 2 of 8


      Jesse Losey appeals district court orders granting the motion to dismiss of

Warden Dannie Thompson and the motion for judgment on the pleadings of

Correctional Officers Tiffany Nail, Linda Bass, and Gwendolyn Brown

(“Correctional Officers”). Mr. Losey brought suit against the Warden Thompson

and the Correctional Officers under the Eighth Amendment and 42 U.S.C. §1983

after he was raped by a fellow inmate at Smith State Prison in Glennville, Georgia.

Mr. Losey’s suit alleges that Warden Thompson and the Correctional Officers

were deliberately indifferent to the health and safety of the inmates in their

protection, which he claims was the direct and proximate cause of his rape.

Adopting the recommendations of the magistrate judge, the district court dismissed

Mr. Losey’s suit because his pleadings did not establish that any of the defendants

had knowledge of a substantial risk to Mr. Losey. Upon review, we affirm the

district court’s order as it relates to Warden Thompson and Correctional Officers

Bass and Brown. However, we reverse and remand with regards to the district

court’s order as it relates to Officer Nail.

                                    I.     Background

      On July 8, 2010, Mr. Losey, who is serving a sentence for attempted murder,

was raped by Reggie Whitehead, a fellow inmate at Smith State Prison. Before Mr.

Losey’s housing unit was locked down for the evening, Mr. Losey went to the cell

of a Mr. Whitehead to use his contraband cell phone. But Mr. Whitehead would

                                               2
              Case: 12-16363         Date Filed: 06/04/2013   Page: 3 of 8


not allow Mr. Losey to leave his cell and Mr. Losey was subsequently locked in

Mr. Whitehead’s cell for the night, whereafter Mr. Whitehead raped him. Mr.

Losey was unable to escape until the next afternoon.

      Mr. Losey’s complaint alleges that Warden Thompson and the Correctional

Officers were deliberately indifferent to his health and safety. Mr. Losey claims

that Warden Thompson was aware of the fact that Mr. Losey was improperly

classified and assigned to Smith State Prison alongside far more dangerous inmates

yet failed to exercise his discretionary authority to transfer Mr. Losey, exposing

Mr. Losey to the risk of being raped. Mr. Losey alleges that the Correctional

Officers failed to make mandated inmate counts on the night he was raped and

falsified records that indicated that they actually conducted such counts, thereby

failing to discover that he was being held against his will in another inmate’s cell.

Mr. Losey also claims that Officer Nail did a security check and either failed to

look into the cell in which he was being held or looked into the cell and refused to

intervene.

                               II.      Standard of Review

      We review a district court’s grant of a motion for judgment on the pleadings

and a motion to dismiss for failure to state a claim de novo. Ortega v. Christian, 85

F.3d 1521, 1524-25 (11th Cir. 1996) (motion for judgment on the pleadings);

Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1065 (11th Cir. 2004) (motion

                                             3
               Case: 12-16363      Date Filed: 06/04/2013     Page: 4 of 8


to dismiss). A motion to dismiss and a motion for judgment on the pleadings

should not be granted unless “the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Horsley v. Feldt, 304 F.3d 1125, 1131

(11th Cir. 2002)(motion for judgment on the pleadings standard)(quotations

omitted); Bragg, 374 F.3d at 1065 (motion to dismiss standard). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quotations omitted).


                                     III.   Discussion

      To make a failure to protect claim under the Eighth Amendment, Mr. Losey

must plead facts that establish “(1) a substantial risk of serious harm; (2) the

defendants' deliberate indifference to that risk; and (3) causation.” Hale v.

Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). Deliberate indifference

means that a prison official “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

      Mr. Losey’s complaint fails to state a claim against Warden Thompson

because it does not sufficiently allege that Warden Thompson had any knowledge

of a risk to Mr. Losey’s safety. Even assuming arguendo that Mr. Losey was

                                            4
              Case: 12-16363     Date Filed: 06/04/2013    Page: 5 of 8


misclassified and that his misclassification put him at substantial risk of serious

harm, his complaint, if true, does not establish that Warden Thompson was

deliberately indifferent to that risk of harm. That is because Mr. Losey’s

allegations that Warden Thompson had subjective knowledge that he was

misclassified are entirely conclusory and are therefore not afforded the

presumption of truth absent some factual support that make them plausible. Iqbal,

556 U.S. at 679 (2009). Here, Mr. Losey claims that Warden Thompson would

have known that he was misclassified “based on input from staff, review of inmate

records, and oversight of the classification process.” Such a statement based on the

general nature of Warden Thompson’s job does not make it plausible that Warden

Thompson had actual knowledge that Mr. Losey was misclassified, as required to

survive a motion to dismiss on a deliberate indifference standard. Id. Nor does Mr.

Losey’s complaint allege that Warden Thompson was aware of widespread

classification errors within his prison that would have put him on notice of a

substantial risk of serious harm to the inmates he supervised. Therefore, the

complaint does not sufficiently plead that Warden Thompson was deliberately

indifferent to the alleged risk that Mr. Losey faced from being incarcerated with

more dangerous convicts.

      Mr. Losey has also failed to state a claim against Officers Bass and Brown.

Mr. Losey’s complaint alleges that Officer Bass failed to conduct an official count,

                                           5
               Case: 12-16363     Date Filed: 06/04/2013   Page: 6 of 8


as required by internal prison policy and in which officers to go cell-to-cell with

each inmate standing by his bunk to determine that all inmates are accounted for.

Mr. Losey also claims that Officer Brown falsely documented that an official count

had been taken. However, even if these allegations are true, “failure to follow

procedures does not, by itself, rise to the level of deliberate indifference because

doing so is at most a form of negligence.” Taylor v. Adams, 221 F.3d 1254, 1259

(11th Cir. 2000). It would be a different situation if the policy that the Correctional

Officers failed to follow put them on notice that their actions would create a

substantial risk of serious harm to inmates, but Mr. Losey makes no such

allegation. As a result, he has failed to state a claim against Officers Bass and

Brown.

      On the other hand, we do think that Mr. Losey has stated a claim against

Officer Nail. Mr. Losey’s complaint alleges that Officer Nail conducted an

unofficial count on the night he was raped, walking directly past the cell in which

he was being held. According to the complaint, at the time that Officer Nail was

conducting the count, Mr. Whitehead was holding down Mr. Losey and covering

his mouth, which Officer Nail would have seen had she looked into the cell. Mr.

Losey also alleges that unofficial counts typically involve officers walking cell-to-

cell and looking into the window of each cell to check on the status and

whereabouts of each inmate. Finally, Mr. Losey claims that Officer Nail “either

                                           6
               Case: 12-16363     Date Filed: 06/04/2013    Page: 7 of 8


looked into the cell and did not care what she saw, or she did not care to look at

all[.]” If true, these allegations show that Officer Nail knew of a substantial risk of

serious harm to Mr. Losey and failed to intervene to prevent his rape. While we

recognize that Mr. Losey’s complaint alleges that Officer Nail either did not look

into Mr. Whitehead’s cell or ignored what she saw, this allegation, combined with

his allegation that the standard procedure for an unofficial count is for officers to

look into each cell window, is sufficient to show that it is plausible that Officer

Nail was deliberately indifferent to a known risk to Mr. Losey. Moreover, none of

the factual allegations in support of Mr. Losey’s claims against Officer Nail are

conclusory. Instead, his allegations rely upon events that Mr. Losey could have

observed himself, making them plausible and sufficient to survive a motion for

judgment on the pleadings. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253

(11th Cir. 2013) (drawing a distinction between conclusory statements and

statements that are based on observations and first-hand personal knowledge).

Therefore, we conclude that the district court erred in granting the motion for

judgment on the pleadings in favor of Officer Nail.

                                    IV.   Conclusion

      For the above reasons, we AFFIRM the district court’s order as it relates to

Warden Thompson and Officers Bass and Brown. However, we REVERSE the




                                           7
              Case: 12-16363    Date Filed: 06/04/2013   Page: 8 of 8


district court’s order as it relates to Officer Nail and REMAND for further

proceedings consistent with this opinion.




                                            8
