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### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
T RAC I G REENE ,

Plaintiff- Appellant

,

v.

G AYLE B OWLES , et al.,

Defenda nts,

ANTHONY J. B RIGA NO , Defendant-Appellee. X

- - - -
> , - - - - - - N No. 02-3626

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Cincinnati. No. 98-00476—Sandra S. Beckwith, District Judge.

Argued: October 29, 2003
Decided and Filed: March 16, 2004

Befor e: RYAN, M OORE, and ROGERS, Cir

cuit Judge s.

_________________ COUNSEL

ARG UED: Alphonse A. Gerhardstein, LA UFMAN & GERHARDSTEIN, Cincinnati, Oh io, for Appellan t. Elise W. Por ter, OFF ICE O F TH E AT TOR NEY GEN ER AL O F 2 Greene v. Bowles

, et al. No. 02-3626

OHIO, Col u mbus, Ohio, for Appellee. ON BRI EF: Alphons e A . Gerhardstein, Jennifer L. B ranch, LAUF MAN & GERHARDSTEIN, Cincinnat i, Ohio, for

Appellan t. Elise W. Porter, OFFICE OF

THE AT TORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in wh ic h RYAN, J., joined. ROGER S, J. (pp. 9-12), delivered a separate dissenting opinion.

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Traci Greene (“Greene”) appeals from the grant of summar y judgmen t in favor of De fe nd an t- Ap pe ll ee Wa rd en An th on y J . Bri gano (“Warden Brigano”) in Greene’s § 1983 suit against Warden Brigano and other

prison of ficialsresulting out of an attack on Green e by ano ther inmate. Because we conc lude that the districtcourt er

red in de

termining that no issue of fact remains as to whethe

r Warden Briga no acted with delib erate indifference to Greene ’s safety, we REVERSE the district court’s judgme

nt AND REMAND for fur ther p roceed ings consistent with this opinion.

I. BACKGROUND

Greene is a male- to-fema le transsexual. At the time of her incarceration

at Warren

Correctional Institution (“WCI”), she
was preoperative, but

stil l display

ed fema le char acteris tics, including developed breasts and a feminine demeanor , and
was und ergoing hormone therapy . Because of her feminine appearance, Greene was place d in the Pr otective Custody Unit (“PCU”) to guard

aga in st att ack s fr om ot her in mat es. In July 1996, a second

inmate in t

he PCU , Hiawatha Frezze ll (“Frezzell”), assaulted Gre e ne on sev eral oc casions, culminating in a seve

re attac k on July 12 in which Frezzel lNo. 02-3626 Greene v. Bowles

, et al. 3

1 W hen Greene origi nall y fi led sui t, s he moved to do so anon ymou sly, but that motion was with drawn in the wake of press reports prior t o tri al revealing her identit

y. The interl ocutory appeal that thi s court heard was thu s st yl ed Doe v. Bowles

. beat Greene with a mop handle an

d then st ruck her with a fifty-pound

fire ex tinguisher. Frezzell had a long history of assaults on other inmates and was classified as a maximum

security prisoner; at the time of the attack, Greene wa s classified as medium-secur ity . By Warde n Brigano’s own admiss ion, Frezzell was a “predatory inmate.” Joint Appendix (“J.A.”) at 408. Fre zze ll had been placed in the PCU at WCI, howe ve r, in order to protect him from the repercussions of

his testimony

agains t his fellow prisone rs in the Lu cas ville pris on riot; F rezzell ha d been him self
conv ict ed of aggravated a ssault for beating two prisoners during that riot. Nonethe less, for Frezzell’s protection from others, Frezzell was placed in PCU with Greene, amediumsecurity and vulne

rable inmate.

After the attack, Frezzell

was tran sferre d from the

PCU to the segre gation u

nit, and criminally

charg ed with

atte mpted murder. Greene filed suit against Warden Br igano and other prisonofficials under 4 2 U.S. C. § 1983, a lleging deliber ate indifference to her safety in violation of the Eighth and Fourtee nth A mendments. Warden Brigano moved for summary judgment arguing that Gre ene could not as a matter of law demonstrate that he was aware of a substan tial risk to her safety ; the othe

r defen dants move d for summa

ry j udgment
onthe basis of

qualified immunity. Summary judgment was granted as to Warden Brigano and denied a s to the oth er defenda nts; they appea

led that decision to this cour t, wh ich affirmed the denial as to two defendant s and revers ed as to
one. See Doe v. Bo wl es , 254 F.3d 617 (6th Cir. 2001). 1 When summary

judgmen t was g ranted to Warden Brigano, Greene had filed a motion pursuant to Fed. R. C iv. P. 54(b) asking the distri ct court

to allow a cross-appeal

on that issue at the same time as the remaining defendants’ appea l from the 4 Greene v. Bowles

, et al. No. 02-3626

denial of su mm ar y ju dg me nt ba se d o n q ua li fi ed im mu ni ty, whichmotion the district court denied. A jury trial followed, inwhich a verdict

was rendered for

all rema ining de fendant s. After the entry of

final judg

ment, Greene timely

appealed the grant of summary

judgment to Warden Brigano.

II. ANALY SIS

A. Jurisdiction

T he underlying

civil rights action was brought und er 4 2 U.S.C. § 1983. T he district court had original jurisdiction under 28 U.S.C. § 1331. This court has jurisdiction under 28 U.S.C. § 1291.

B. Standard of Review

We review

de novo a grant of summary judgment. Darrah v. City of O

ak Park , 255 F.3d 301, 305 (6th Cir. 2001).

C. Deliberate Indifference
The dist rict c ourt gr anted summ ary judgm ent to Warden Brigano on the narrow

ground that Greene failed to introduce evidence from whic

h a reas onable

trier of fact could conclude that Warden Br iga no knew of a substantial risk of serious harm to Greene. Specifically , the court held fi rst that as Frezzell’s attack on Greene wasn’ t s ex ual, Greene’s status
was irrelevant to the determination of a substantial risk, and second, that

Greene had not

offered “evidence from whic h a trier of fact could conclude that [Warden Briga no ] knew of Mr. Frezzell’s history of violence and, specifically , of attacks uponother inmates.” Doe v. Bowles , No. C-1-98-476, slip op. at 14 ( S. D . Ohio Ja

n. 2 5, 2 000 ), J. A. a t 242. The district court did find that Greene had “offere d evidence from which
a trier of the fac ts could c onclude t hat Hiaw atha Fr

ezzell ’ s presence in the pro tective c ustody unit , wi thout segregation
or oth er pro tective measures, presented a substantial risk of inmateattacks in that unit.” Id. We reject the district court’sNo. 02-3626 Greene v. Bowles

, et al. 5

ultimate conclusion for

two reasons: first, evidence had been offered from which a trier

of fact could concludethat Greene
was vulnerable, not just to se xual assau

lt, but also

to physical assaults from her fellow inmates, such that her presence in the PCU with other inmates without segregation or protect iv e measures presented a substantial risk to h er saf ety of which W arden Brigano was aware ; and second, Greene ha s presented evidence from which

a trier of fact

could conclude that Warden Brigano wasin fact aware of the sub stantial r

isk Frezzell posed to any

inmate with whomhe was placed in the PCU.

Inorder to

establish liability under

the Eighth Amendment for a prison official’s failure to prot ec t her, an inmate mus t demonstr ate that the officia

l was deli berate ly in

differe nt “to
a substantial risk of serious harm” t o the inmate. Farmer v. Brennan , 511 U.S. 82 5, 828 (19 94). To de monstrate deliber ate indifference, an inmate must present evidence f rom whicha trier o f f

act could conclude “that the official was subjectiv ely

aware of the risk” and “disregard[ed] that risk by failing to take reasonable measures to abate it.” Id at 8 29, 847. As noted above, th e o nl y issue bef ore this c ourt is whether Greene introduc ed suffi cient evidence t o convince a trier of fact that Warden Brigano wa s aware of a substanti al risk of seri ous h arm to Greene. That awarene ss can be demonstr at ed through “inference from c ircumstantial evidence,” and a prison official cannot “ escape liability . . . by showing that, while he was aware of an obvious, substantial risk to in ma te sa fe ty, h e did not know that the complainant was especially

likely to be

assaulted by the spec ific prisoner who eventually committed the assa ult.” Id. at 8 42-43. Our
cases following Farmer

demonstrate that the converse is true
as well: where a specific individual poses a risk t o a large class of inmate s, that risk can als o support a finding of liability even where the particular pr isoner at risk is not knownin advance. See Curry v. Scott, 249 F.3d 493, 507-08 (6th Cir. 2001) (where particular prison gua rd had history

of raciall y motivated harassment of African American

inmates, deli bera te indifference could be demonstrated by factual 6 Greene v. Bowles

, et al. No. 02-3626

record, without t

hreat t o partic

ular inma te). The refore , to defeat Warden Brigano’s summary judgment motion, Greene need only point to evidence fr

om whicha finder

of fact could conclude th at he r v ul ne ra bi li ty made h er placement in the PCU with high -secur

ity i nmates a substantia

l risk to he r sa fe ty, of which Warden Brigano wa s aw ar e, or al te rn at el y, evidence from which that finder of fact could conclud e that Frezzell’s placement in the PCU without segregation or other protective measures presented a substantial risk to other inmates in the PCU, of whi c h Warden Brigano was awa re. We conclude that she has done so.

Onthe issue of her vulnerability , Greene has present e d evidence which includes the following: a Protective Control Screening form signed by

Warden Brigano on M ar ch 17, 1994, noting that Greene was placed in the PCU for he r personal safety ; numerou s Protect ive Contro l Review f

orms s igned by Warden B rigano noting Greene’s phy sical appear ance as the reason for her placement in the PCU; Wa rden Brigano’s own deposition testimony tha t transgendered

inmates are often

placed in protective custody because of the greater like liho od of their being attacked by th eir fe llow inmates; Warden Brigano’s admission that the universe of harm that can befall inmates likeGreene includes attempted assault, assault, attempted murd er, and murder; and Warden Brigano’s concessions that Gree ne was plac ed in

the PCU to protect her from serious harm and t hat that se

rio u s harm could come from a fellow PCU inmate as well as a n inmatein the ge neral population. On the issue of Frezzell’s predatory nature, Greene has presented to the district c ourt: Frezzell’s lengthy

prison misc ond uct record, including Frezzell’s two convictions for felonious assault arising out of the Lucasville prison riot; Warden Brig ano’ s adm ission of Frezzell’s status as a

predatory

in mate; Warden Brigano’s concessions that

Frezzell had “a

long institutional history of being a disruptive, violent inmate,” J.A. a t 40 9; and the fact that Frezzell was a maximum -secur ity i nmate. Whil e contrary and conflicting evidence

was presented

to the district court by Wa rden Br igano, we must, w

hen revi e win g aNo. 02-3626 Greene v. Bowles

, et al. 7

2 The plaintiff also raised a hostile -work -envi ronment cl aim whi ch

was dispo sed o f as to all d efend ants on summ ary jud gme nt and is therefore unimp ortant for our ana lysis. summary judgmen t, resolv e all que stio ns of fa ct in favor of the non-m oving pa

rty . Greene has ra

ised an is sue of fa

ct a s to Warden Brigano’s knowledg e of a risk t o her saf ety because of her status as a vulnerable inmate and b ecause of Frezzell’s status as a predatory inmate. D. Effect of the Jury Verdict Below

Finall y, w e reject Warden Briga no’s assertion that the jury’sverdict

below fin

ding tha t his su bord inates were not liableto Greene precludes Warden Brigano’ s ownliability to her. In order to p revail on her cl aim of de liberate indifference, Greene must show that Warden B rigano

himself
was aware of a substantial risk to her safety and did not take
reasona ble steps to g

uard ag ainst that

risk. Nei

ther of th ose elements was bef o re the jury be low, and its verdict can therefore have no preclusive effect on Gree ne’s cla im agai nst Warde nBrigano. Warden Brig ano’s reliance on Klemenc i c v. Ohio State

Universi ty , 263 F.3d 504 (6th Cir. 2001), i s unava ilin g. Klemenc ic dealt with a Title IX cl aim of qu idpro-quo sexual harrassment against a coach and his university employer. 2 The district court had granted summary judgment infa vor of the

universi ty, and a jur

y ha d given a verdict in favor of the defendant coach. The plaintiff appe aled from the grant of summary judg

men t, and a panel of this court found that the jury verdictprecluded a c la im ag ai ns t t he un iv er si ty. Indoing so, however , the cour t clearl y r elied on t he eleme nts of a claim a

gainst a n educa tional inst

itution: 1) that a plaintiff was subject to harassmen t; 2 ) that she provided actual notice to

the institu

ti on; and 3) that the institution’s response amounted to deliberate indifference. See id. at 510 (citing Gebser v. Lago Vista I ndep. Sch. Dist. , 524 U.S. 274 (1998)). The jury

verdict, which had preclusive effec ton the issue of whether the coach ha d subject

ed the pla

intiff to 8 Greene v. Bowles

, et al. No. 02-3626

sexual harassment, therefore went right to the heart

of the fir st element for Title IX liability . In Gr eene’s claim ag ainst Ward enBriga

no’s subor

dinates that went to

trial bel ow, th e elements Greene would hav e had toshow to succeed related only to the mental state of those subordinates, a nd not to Warden Briga no’s m ental sta

te. Neither of the

elements Greene m ust sh ow to succeed on her claim aga inst Warden Brigano were before the jury, and its verdict can therefore have no preclusiv e effe ct on that claim.

III. CONCL USION

Becau se material questions of fact remain as to Warden Brigano’s knowledge of a substantial risk to Greene, we conclude the district court erre d in granting summary judgment to Warden Brigano. We therefore REVERSE the districtcourt’s j udgmen t AND REMAND for further proceedings consistent with this opinion.No. 02-3626 Greene v. Bowles

, et al. 9

_________________ DISSENT

_________________ ROGERS, Circuit Judge, dissenting . Althoug h the Eig hth Amendment

requires prison officials to maintain humane conditions o f c onfinement, a prison official’s actions do not violate the Eighth Amendment unless they are sh own to be deliber ately indiffer ent. Deli berat e indifference means that the prison of

ficial ha d actual knowledg e of a sub stantial r isk to inmate health or safety and ignored that

risk or proceeded inthe face of it. Because Gr eene ha s f

ailed to show that Warden Brigano was deliberately

indifferent

to the risk posed to her by Frezzell’s presence in the protective custody unit, I respectfully dissent.

The Eighth Amendment’s prohibition on crueland unusual punishmentimposes a duty on prison offici als to provide humane conditions of conf ineme nt and to ta

ke reas onable
measures to guar a ntee the safety of inmates. Farmer v. Bre n nan , 511 U.S. 825, 832 (1994). As the Supreme Court has ex pla ined, however, a prison official’s actions or omissions do not trigger liability under th e Eighth Amendment

without a f

inding of deli bera te indifference, whichis the equivalent of “recklessly disregarding ” a risk. Id

. at 835. Un

der the Su

preme Cou

rt’s cle ar instru

ction in Farmer , Greene must establish not only that Warden Br igano was aware of facts from

which one

could raise the inference of a s ubstantial risk of harm to her safety , but also t ha t Warden Brigano, in fact, drew

that inference. Id . at 837. This requirement

exists beca

use the Ei ghth

Amendment

does not extendl iabi lity to a prison official’s fa ilure to exercise due care, but only extends liability to such willful disregard as can be considered the infliction of punishment.

The on ly e vi de nc e c it ed by Gre ene that suggests that Warden Brigano actually

drew the inference that Gree n e faced a substantia

l risk of harm in

the prote ctive cu stody

unit 10 Greene v. Bowles

, et al. No. 02-3626

is Warden Brigano’s admission t hat harm s may

befall protective custo dy inmates. Such a statement can hardly be enough to create a triable issue of fact as to Warden Brigano’s
aware ness of the risks facing

Greene. At most, this admission is a concession that prison life is inher e ntly dange rous, and particularly

so for transgendered inmates. The f act that Warden Brigano recog

nized t he existence of certain risks attendant with the placement

of certain categories of inmate s inprotective custody, however, does not amount to an
aware ness of a significant risk of harm to Greene’s health or
sa fe ty. The Eig

hth Amend

me n t require s, instea

d, that a warden actually re cognize a significant risk of h arm arising fromparticular facts. While the majority properl y st ates tha t, insome contexts, a particular victim, or a particular perpetrator, need not be known, gener al reco gnition o f some risks is not enough.

This is borne o

ut by th e v er y e xample given by the Supreme C ourt as sufficien t to raise a triable issue of f act:

For example, if

an Eigh th Amendme

nt plaintif f prese nts evidence showing

that a substantia

l risk of in mate attacks
was longsta

nding, p ervasiv e, well- documen ted, or expressly noted by prison officia

ls in the past, and the circumstances suggest that the defendant-off icial being sued had been exposed to i nformation concerning the risk and thus must have known about it, then such evidence could be suf

ficient t o permit a

trier of fact to find that the defendant-official had actual knowledge of the risk.

Id . at 842-43 (internal quotations omitted). The evidence in this case cannot

fairly be characterized as comparable to the Supreme Court’s example.

Greene first contends that her feminine appearance made it obvious that she w as vulner able to a ttack by other inma

tes. Warden Brigano wa s aware of this risk, and that was the

r eason that Gre ene was

assigne d to prote ctive cu sto dy

.No. 02-3626 Greene v. Bowles

, et al. 11

Greene then alleges that Hiawatha Frizzell’s prior conduct and sexual advances in her direction made it obvious that she
was at a substantial risk t o her hea lth and safety . While Greene has adduced facts indicating the existence of the risk, she certainly ha s failed to show that Warden Brigano ever drewthe inference that these facts constituted such a risk. As to Frizz ell’s condu ct, al thou gh W arden Brigano was a ware th at Frizzell had a disciplinary re cord indicating som e predatory conduct, Warden B rig ano a lso indica ted that h is impression of Fri zzell’ s demeanor was “nothing out of the ordinary.”

As to Greene’s allegations of Fr izz ell’s sexual advances , she has not indicated that Brigano was eve r even aware of Frizzell’s conduct in that regard. Without showing
some particu

lar facts that shou

ld have tr igge red ala rm bells in Warden Brigano’s mind, based on hi s knowledge and experience, Greene

has not ra

ised a ma terial is s u e of fact as to Warden Brigano’s aware ness of the risk to her safety

. Mor eove r, although the majority doe s not reach the issue, Greene’s claim should fail if she cannot show t hat Warden Brigano actually disreg

arded the risk. Greene maintains that Warden Brigano’s reco gnition of the risks she faced in the general popu l ation should have triggered an a wareness of
commensu

raterisks in protective custody and tha t when he failed to provide additional pr o tections, he was de liberate ly indiffer ent. This claim must fail, because Farmer makes it clear th at a p ri so n o ff

ic ia l’ s d ut y under

the Eigh

th Amendme ntis only

to insure “reasonable safety ,” and thi s standard “incorp orates d

ue reg ard for

prison of

ficials’ ‘unenvia ble task of keeping dan ger ous men in safe custody under humane conditions.’” Farmer , 511 U.S. at 844-45.

The effect of the majority ’s opinion in t his case is to imposean objective standa rdof deliberate indifference—a position e xplic itly rejected by the Supreme Court. See Farmer , 511 U.S. at 837 . Althoug h a reas onable

person may wellhave reached

the conclusion based on

this body of fact s tha t Greene was in danger, the appropriate te st is whether Warden Brigano reache d the conc lusion tha t Greene was in 12 Greene v. Bowles

, et al. No. 02-3626

particular danger

. Greene has clearly failed to establish a tria ble issue as to Warden Brigano’s awar eness in this cas e

. Moreover, the major

ity tak es a posit

ion that wi ll make it
more difficul

tfor prison officia

ls to deal with the complicated issues involved in incarce rating pre-operative transsexual inmates. Theseinmates may not be well-suited to the general populations of either men’s or women’s institutions, and protective custody may

be a warden’s best alternat i ve to provide for the s afety

and secu rity of trans sexual inma

tes. The majority’s broad position that protective custody pose s
o bvio us harms to transsexual inmates could impel correctional offic i als to avo id liability for har ms to these inmates by either plac ing all transsexual inmates in individual isolation or by

building prisons so lely

for tran ssexuals. The Eighth Amendment cannot be read to c omp el such a result.