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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0078P (6th Cir.)

File Name: 04a0078p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

TRACI GREENE,

Plaintiff-Appellant,

v.

GAYLE BOWLES, et al.,

Defendants,

ANTHONY J. BRIGANO,

Defendant-Appellee.

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No. 02-3626

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

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

Argued: October 29, 2003

Decided and Filed: March 16, 2004 

Before: RYAN, MOORE, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Alphonse A. Gerhardstein, LAUFMAN &

GERHARDSTEIN, Cincinnati, Ohio,forAppellant. Elise W.

Porter, OFFICE OF THE ATTORNEY GENERAL OF

2 Greene v. Bowles, et al. No. 02-3626

OHIO, Columbus, Ohio, for Appellee. ON BRIEF:

Alphonse A. Gerhardstein, Jennifer L. Branch, LAUFMAN

& GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Elise

W. Porter, OFFICE OF THE ATTORNEY GENERAL OF

OHIO, Columbus, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court, in which

RYAN, J., joined. ROGERS, J. (pp. 9-12), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Traci Greene

(“Greene”) appeals from the grant of summary judgment in

favor of Defendant-Appellee Warden Anthony J. Brigano

(“Warden Brigano”) in Greene’s § 1983 suit against Warden

Brigano and other prison officials resulting out of an attack on

Greene by another inmate. Because we conclude that the

district court erred in determining that no issue of fact

remains as to whether Warden Brigano acted with deliberate

indifference to Greene’s safety, we REVERSE the district

court’s judgment AND REMAND for further proceedings

consistent with this opinion.

I. BACKGROUND

Greene is a male-to-female transsexual. At the time of her

incarceration at Warren Correctional Institution (“WCI”), she

was preoperative, but still displayed female characteristics,

including developed breasts and a feminine demeanor, and

was undergoing hormone therapy. Because of her feminine

appearance, Greene was placed in theProtective Custody Unit

(“PCU”) to guard against attacks from other inmates. In July

1996, a second inmate in the PCU, Hiawatha Frezzell

(“Frezzell”), assaulted Greene on several occasions,

culminating in a severe attack on July 12 in which Frezzell
No. 02-3626 Greene v. Bowles, et al. 3

1When Greene originally filed suit, she moved to do so anonymously,

but that motion was withdrawn in the wake of press reports prior to trial

revealing her identity. The interlocutory appeal that this court heard was

thus styled Doe v. Bowles.

beat Greene with a mop handle and then struck her with a

fifty-pound fire extinguisher. Frezzell had a long history of

assaults on other inmates and was classified as a maximumsecurity prisoner; at the time of the attack, Greene was

classified as medium-security. By Warden Brigano’s own

admission, Frezzell was a “predatory inmate.” Joint

Appendix (“J.A.”) at 408. Frezzell had been placed in the

PCU at WCI, however, in order to protect him from the

repercussions of his testimony against his fellow prisoners in

the Lucasville prison riot; Frezzell had been himself

convicted of aggravated assault for beating two prisoners

during that riot. Nonetheless, for Frezzell’s protection from

others, Frezzell was placed in PCU with Greene, a mediumsecurity and vulnerable inmate.

After the attack, Frezzell was transferred from the PCU to

the segregation unit, and criminally charged with attempted

murder. Greene filed suit against Warden Brigano and other

prison officials under 42 U.S.C. § 1983, alleging deliberate

indifference to her safety in violation of the Eighth and

Fourteenth Amendments. Warden Brigano moved for

summary judgment arguing that Greene could not as a matter

of law demonstrate that he was aware of a substantial risk to

her safety; the other defendants moved for summaryjudgment

on the basis of qualified immunity. Summary judgment was

granted as to Warden Brigano and denied as to the other

defendants; they appealed that decision to this court, which

affirmed the denial as to two defendants and reversed as to

one. See Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).1

When summary judgment was granted to Warden Brigano,

Greene had filed a motion pursuant to Fed. R. Civ. P. 54(b)

asking the district court to allow a cross-appeal on that issue

at the same time as the remaining defendants’ appeal from the

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

denial of summary judgment based on qualified immunity,

which motion the district court denied. A jury trial followed,

in which a verdict was rendered for all remaining defendants.

After the entry of final judgment, Greene timely appealed the

grant of summary judgment to Warden Brigano.

II. ANALYSIS

A. Jurisdiction

The underlying civil rights action was brought under 42

U.S.C. § 1983. The 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 Oak Park, 255 F.3d 301, 305 (6th Cir. 2001).

C. Deliberate Indifference

The district court granted summary judgment to Warden

Brigano on the narrow ground that Greene failed to introduce

evidence from which a reasonable trier of fact could conclude

that Warden Brigano knew of a substantial risk of serious

harm to Greene. Specifically, the court held first that as

Frezzell’s attack on Greene wasn’t sexual, Greene’s status

was irrelevant to the determination of a substantial risk, and

second, that Greene had not offered “evidence from which a

trier of fact could conclude that [Warden Brigano] knew of

Mr. Frezzell’s history of violence and, specifically, of attacks

upon other inmates.” Doe v. Bowles, No. C-1-98-476, slip op.

at 14 (S. D. Ohio Jan. 25, 2000), J.A. at 242. The district

court did find that Greene had “offered evidence from which

a trier of the facts could conclude that Hiawatha Frezzell’s

presence in the protective custody unit, without segregation

or other protective measures, presented a substantial risk of

inmate attacks in that unit.” Id. We reject the district court’s
No. 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 conclude that Greene

was vulnerable, not just to sexual assault, but also to physical

assaults from her fellow inmates, such that her presence in the

PCU with other inmates without segregation or protective

measures presented a substantial risk to her safety of which

Warden Brigano was aware; and second, Greene has

presented evidence from which a trier of fact could conclude

that Warden Brigano was in fact aware of the substantial risk

Frezzell posed to any inmate with whom he was placed in the

PCU.

In order to establish liability under the Eighth Amendment

for a prison official’s failure to protect her, an inmate must

demonstrate that the official was deliberately indifferent “to

a substantial risk of serious harm” to the inmate. Farmer v.

Brennan, 511 U.S. 825, 828 (1994). To demonstrate

deliberate indifference, an inmate must present evidencefrom

which a trier of fact could conclude “that the official was

subjectively aware of the risk” and “disregard[ed] that risk by

failing to take reasonable measures to abate it.” Id at 829,

847. As noted above, the only issue before this court is

whether Greene introduced sufficient evidence to convince a

trier of fact that Warden Brigano was aware of a substantial

risk of serious harm to Greene. That awareness can be

demonstrated through “inference from circumstantial

evidence,” and a prison official cannot “escape liability . . . 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.” Id. at 842-43. Our

cases following Farmer demonstrate that the converse is true

as well: where a specific individual poses a risk to a large

class of inmates, that risk can also support a finding of

liability even where the particular prisoner at risk is not

known in advance. See Curry v. Scott, 249 F.3d 493, 507-08

(6th Cir. 2001) (where particular prison guard had history of

racially motivated harassment of African American inmates,

deliberate indifference could be demonstrated by factual

6 Greene v. Bowles, et al. No. 02-3626

record, without threat to particular inmate). Therefore, to

defeat Warden Brigano’s summary judgment motion, Greene

need only point to evidence from which a finder of fact could

conclude that her vulnerability made her placement in the

PCU with high-security inmates a substantial risk to her

safety, of which Warden Brigano was aware, or alternately,

evidence from which that finder of fact could conclude that

Frezzell’s placement in the PCU without segregation or other

protective measures presented a substantial risk to other

inmates in the PCU, of which Warden Brigano was aware.

We conclude that she has done so.

On the issue of her vulnerability, Greene has presented

evidence which includes the following: a Protective Control

Screening form signed by Warden Brigano on March 17,

1994, noting that Greene was placed in the PCU for her

personal safety; numerous Protective Control Review forms

signed by Warden Brigano noting Greene’s physical

appearance as the reason for her placement in the PCU;

Warden Brigano’s own deposition testimony that

transgendered inmates are often placed in protective custody

because of the greater likelihood of their being attacked by

their fellow inmates; Warden Brigano’s admission that the

universe of harm that can befall inmates like Greene includes

attempted assault, assault, attempted murder, and murder; and

Warden Brigano’s concessions that Greene was placed in the

PCU to protect her from serious harm and that that serious

harm could come from a fellow PCU inmate as well as an

inmate in the general population. On the issue of Frezzell’s

predatory nature, Greene has presented to the district court:

Frezzell’s lengthy prison misconduct record, including

Frezzell’s two convictions for felonious assault arising out of

the Lucasville prison riot; Warden Brigano’s admission of

Frezzell’s status as a predatory inmate; Warden Brigano’s

concessions that Frezzell had “a long institutional history of

being a disruptive, violent inmate,” J.A. at 409; and the fact

that Frezzell was a maximum-security inmate. While

contrary and conflicting evidence was presented to the district

court by Warden Brigano, we must, when reviewing a
No. 02-3626 Greene v. Bowles, et al. 7

2

The plaintiff also raised a hostile-work-environment claim which

was disposed of as to all defendants on summary judgment and is

therefore unimportant for our analysis.

summary judgment, resolve all questions of fact in favor of

the non-moving party. Greene has raised an issue of fact as

to Warden Brigano’s knowledge of a risk to her safety

because of her status as a vulnerable inmate and because of

Frezzell’s status as a predatory inmate.

D. Effect of the Jury Verdict Below

Finally, we reject Warden Brigano’s assertion that the

jury’s verdict below finding that his subordinates were not

liable to Greene precludes Warden Brigano’s own liability to

her. In order to prevail on her claim of deliberate

indifference, Greene must show that Warden Brigano himself

was aware of a substantial risk to her safety and did not take

reasonable steps to guard against that risk. Neither of those

elements was before the jury below, and its verdict can

therefore have no preclusive effect on Greene’s claim against

Warden Brigano. Warden Brigano’s reliance on Klemencic

v. Ohio State University, 263 F.3d 504 (6th Cir. 2001), is

unavailing. Klemencic dealt with a Title IX claim of quidpro-quo sexual harrassment against a coach and his university

employer.2 The district court had granted summary judgment

in favor of the university, and a jury had given a verdict in

favor of the defendant coach. The plaintiff appealed from the

grant of summary judgment, and a panel of this court found

that the jury verdict precluded a claim against the university.

In doing so, however, the court clearly relied on the elements

of a claim against an educational institution: 1) that a

plaintiff was subject to harassment; 2) that she provided

actual notice to the institution; and 3) that the institution’s

response amounted to deliberate indifference. See id. at 510

(citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274

(1998)). The jury verdict, which had preclusive effect on the

issue of whether the coach had subjected the plaintiff to

8 Greene v. Bowles, et al. No. 02-3626

sexual harassment, therefore went right to the heart of the first

element for Title IX liability. In Greene’s claim against

Warden Brigano’s subordinates that went to trial below, the

elements Greene would have had to show to succeed related

only to the mental state of those subordinates, and not to

Warden Brigano’s mental state. Neither of the elements

Greene must show to succeed on her claim against Warden

Brigano were before the jury, and its verdict can therefore

have no preclusive effect on that claim.

III. CONCLUSION

Because material questions of fact remain as to Warden

Brigano’s knowledge of a substantial risk to Greene, we

conclude the district court erred in granting summary

judgment to Warden Brigano. We therefore REVERSE the

district court’s judgment AND REMAND for further

proceedings consistent with this opinion.
No. 02-3626 Greene v. Bowles, et al. 9

_________________

DISSENT

_________________

ROGERS, Circuit Judge, dissenting. Although the Eighth

Amendment requires prison officials to maintain humane

conditions of confinement, a prison official’s actions do not

violate the Eighth Amendment unless they are shown to be

deliberately indifferent. Deliberate indifference means that

the prison official had actual knowledge of a substantial risk

to inmate health or safety and ignored that risk or proceeded

in the face of it. Because Greene has failed 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 cruel and unusual

punishment imposes a duty on prison officials to provide

humane conditions of confinement and to take reasonable

measures to guarantee the safety of inmates. Farmer v.

Brennan, 511 U.S. 825, 832 (1994). As the Supreme Court

has explained, however, a prison official’s actions or

omissions do not trigger liability under the Eighth

Amendment without a finding of deliberate indifference,

which is the equivalent of “recklessly disregarding” a risk.

Id. at 835. Under the Supreme Court’s clear instruction in

Farmer, Greene must establish not only that Warden Brigano

was aware of facts from which one could raise the inference

of a substantial risk of harm to her safety, but also that

Warden Brigano, in fact, drew that inference. Id. at 837. This

requirement exists because the Eighth Amendment does not

extend liability to a prison official’s failure to exercise due

care, but only extends liability to such willful disregard as can

be considered the infliction of punishment. 

The only evidence cited by Greene that suggests that

Warden Brigano actually drew the inference that Greene

faced a substantial risk of harm in the protective custody unit

10 Greene v. Bowles, et al. No. 02-3626

is Warden Brigano’s admission that harms may befall

protective custody inmates. Such a statement can hardly be

enough to create a triable issue of fact as to Warden Brigano’s

awareness of the risks facing Greene. At most, this admission

is a concession that prison life is inherently dangerous, and

particularly so for transgendered inmates. The fact that

Warden Brigano recognized the existence of certain risks

attendant with the placement of certain categories of inmates

in protective custody, however, does not amount to an

awareness of a significant risk of harm to Greene’s health or

safety. The Eighth Amendment requires, instead, that a

warden actually recognize a significant risk of harm arising

from particular facts. While the majority properly states that,

in some contexts, a particular victim, or a particular

perpetrator, need not be known, general recognition of some

risks is not enough. 

This is borne out by the very example given by the

Supreme Court as sufficient to raise a triable issue of fact:

For example, if an Eighth Amendment plaintiff 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 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 was vulnerable to attack by other inmates.

Warden Brigano was aware of this risk, and that was the

reason that Greene was assigned to protective custody.
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 to her health and safety. While

Greene has adduced facts indicating the existence of the risk,

she certainly has failed to show that Warden Brigano ever

drew the inference that these facts constituted such a risk. As

to Frizzell’s conduct, although Warden Brigano was aware

that Frizzell had a disciplinary record indicating some

predatory conduct, Warden Brigano also indicated that his

impression of Frizzell’s demeanor was “nothing out of the

ordinary.” As to Greene’s allegations of Frizzell’s sexual

advances, she has not indicated that Brigano was ever even

aware of Frizzell’s conduct in that regard. Without showing

some particular facts that should have triggered alarm bells in

Warden Brigano’s mind, based on his knowledge and

experience, Greene has not raised a material issue of fact as

to Warden Brigano’s awareness of the risk to her safety. 

Moreover, although the majority does not reach the issue,

Greene’s claim should fail if she cannot show that Warden

Brigano actually disregarded the risk. Greene maintains that

Warden Brigano’s recognition of the risks she faced in the

general population should have triggered an awareness of

commensurate risks in protective custody and that when he

failed to provide additional protections, he was deliberately

indifferent. This claim must fail, because Farmer makes it

clear that a prison official’s duty under the Eighth

Amendment is only to insure “reasonable safety,” and this

standard “incorporates due regard for prison officials’

‘unenviable task of keeping dangerous men in safe custody

under humane conditions.’” Farmer, 511 U.S. at 844-45. 

The effect of the majority’s opinion in this case is to

impose an objective standard of deliberate indifference—a

position explicitly rejected by the Supreme Court. See

Farmer, 511 U.S. at 837. Although a reasonable person may

well have reached the conclusion based on this body of facts

that Greene was in danger, the appropriate test is whether

Warden Brigano reached the conclusion that Greene was in

12 Greene v. Bowles, et al. No. 02-3626

particular danger. Greene has clearly failed to establish a

triable issue as to Warden Brigano’s awareness in this case.

Moreover, the majority takes a position that will make it

more difficult for prison officials to deal with the complicated

issues involved in incarcerating pre-operative transsexual

inmates. These inmates 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 alternative to

provide for the safety and security of transsexual inmates.

The majority’s broad position that protective custody poses

obvious harms to transsexual inmates could impel

correctional officials to avoid liability for harms to these

inmates by either placing all transsexual inmates in individual

isolation or by building prisons solely for transsexuals. The

Eighth Amendment cannot be read to compel such a result.