[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12266

Non-Argument Calendar

____________________

MICHAEL D. POPE, JR., 

Plaintiff-Appellee,

versus

WARDEN ROBINSON,

Individual Capacity,

Defendant,

OFFICER DOZIER, 

Individual Capacity,

OFFICER SHOULDERS, 

Individual Capacity, 

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Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:20-cv-01399-RDP

____________________

Before WILLIAM PRYOR, Chief Judge, and NEWSOM and ANDERSON, 

Circuit Judges.

PER CURIAM:

Officers Shamarion Dozier and Merrill Shoulders appeal the 

denial of summary judgment based on qualified immunity from 

Michael Pope’s complaint that the officers failed to protect him 

from an inmate attack in violation of the Eighth and Fourteenth 

Amendments. 42 U.S.C. § 1983. The officers argue that Pope, an 

Alabama prisoner, failed to produce sufficient evidence to establish

a constitutional violation and, alternatively, that their alleged conduct did not violate clearly established law. Because we lack appellate jurisdiction over a denial of qualified immunity that turns on 

issues of evidentiary sufficiency, we dismiss this appeal for lack of 

jurisdiction.

According to Pope, on the night of June 28, 2020, three inmates at Limestone Correctional Facility stabbed and beat him in 

a cell while Dozier and Shoulders watched the attack from 10 to 15 

feet away. Earlier that day, several inmates broke the sprinklers,

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23-12266 Opinion of the Court 3

causing flooding in “D Dorm,” which housed maximum-security 

inmates. About eight to ten inmates were allowed to leave their 

cells to mop up the water. After Pope asked to help clean, Shoulders let him out of his cell. 

Pope further testified that before he could begin mopping, 

an inmate named Satarus Smith asked Pope if they could talk in 

Smith’s cell, which was about 10 to 15 feet away from a table where 

Dozier and Shoulders sat. Pope was not afraid to be out of his cell 

with other inmates, and he and Smith had no problem with each 

other. Pope watched Smith speak to Dozier before coming back to 

the cell. After Pope entered Smith’s cell, Smith and two other inmates entered behind him. Smith tried to stab Pope with an ice 

pick, but Pope blocked the strike and tried to escape. After Smith 

stabbed Pope in the back of his head, he fell to the ground and lost 

consciousness but woke up moments later to being kicked and 

stabbed in the back. Pope made it out of the cell and over to Shoulders, who walked Pope back to his cell. Pope did not go to the infirmary that night.

The parties dispute whether Shoulders or Dozier saw the attack. Pope testified that the officers were facing the back door next 

to Smith’s cell, which meant that they had a direct line of sight into 

the cell. When asked whether the officers were watching only Pope 

or whether they were watching the other inmates, Pope testified 

that the officers were “watching everybody” and could see everyone from where they sat. Pope also testified that he did not say anything to Shoulders immediately after the attack because Pope

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“was dizzy and confused,” and Shoulders had “seen what happened 

so [Pope] didn’t have to tell him anything.” 

Dozier and Shoulders testified that they released two to 

three inmates at a time, handcuffed only to the front, to help clean, 

but they refused Pope’s requests to be let out of his cell that night. 

Dozier denied letting Smith or the other two inmates who allegedly attacked Pope out of their cells. Shoulders recalled seeing one 

of the alleged attackers—Jaquan Fisher—out of his cell with a mop 

when Shoulders started his shift. Shoulders could not recall letting

Smith out of his cell but denied letting the third alleged attacker

out of his cell. Another inmate, Michael Peeks, testified that he saw 

both Pope and Smith out of their cells that night after hearing them 

exchange words about the flooding causing damage to Pope’s 

property. Neither officer recalled any incident besides the flooding 

that night, but Shoulders noticed marks and bruises on Pope’s body 

two or three days later. 

About four days after the alleged attack, Pope asked Shoulders to take him to the infirmary and reported that he was suicidal 

only because he would need to explain his wounds and did not 

want to be labeled a “rat.” Medical records and photographs recorded about 20 “superficial” and “pinpoint” puncture wounds on 

Pope’s body and bruising around his right eye, all of which were 

beginning to heal. According to Pope’s medical expert, the wounds 

were consistent with an assault and did not appear to be self-inflicted. 

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Prison officials investigated the cause of Pope’s injuries. In a

recorded prison call, Smith admitted, “Man, I shot another 

one. . . . an inmate this time.” Smith explained that the inmate he 

“shot,” which in prison jargon could mean stabbed, was “talking 

crazy behind the doors,” and he referenced “pulling the sprinklers” 

and inmates being let out of their cells. About a week later, one of 

the wardens sent an email discussing Smith’s phone call and stated 

that based on the investigation, the officers “appear[ed] to have lied 

during an investigation” and that “Pope was assaulted by another 

[close] custody inmate.” 

The officers moved for summary judgment based on qualified immunity. The district court granted the motion in part as to 

other claims but denied the motion as to the failure-to-protect 

claim. It ruled that the evidence was sufficient to permit a reasonable jury to find that the officers watched and made no attempt to 

stop the alleged attack, such as by requesting backup, ordering the 

alleged attackers to stop, or using pepper spray to stop the attack. 

It also ruled that, viewing the evidence in the light most favorable 

to Pope, it was clearly established that the alleged conduct of failing 

to take reasonable measures to protect Pope from an inmate-on-inmate attack was unconstitutional. 

“We review our own jurisdiction de novo.” Nelson v. Tompkins, 89 F.4th 1289, 1295 (11th Cir. 2024). The denial of qualified 

immunity is an appealable “final decision,” 28 U.S.C. § 1291, when

it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530 

(1985). Although “a claim of immunity is conceptually distinct 

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from the merits of the plaintiff’s claim, purely factual questions of 

whether a defendant violated the plaintiff’s rights are not separable 

from the merits of his claim.” Hall v. Flournoy, 975 F.3d 1269, 1275

(11th Cir. 2020) (citation omitted). And we are barred from reviewing “whether or not the pretrial record sets forth a ‘genuine’ issue 

of fact for trial.” Id.

The officers argue that the evidence is insufficient to establish a violation of the Eighth Amendment and that the district court 

erred in ruling that their alleged conduct violated clearly established law. Pope asks us to dismiss this appeal for lack of jurisdiction. We agree with Pope that we lack jurisdiction.

The officers’ argument that it was not clearly established 

that they were required to endanger themselves by “leap[ing] into 

the fray” to protect Pope challenges the decision by the district 

court that a jury could find that the officers were able to take reasonable measures to intervene, such as by calling for backup or ordering the attack to cease, and failed to do so. The officers ask us 

to accept their version of the evidence—a chaotic scene with dangerous inmates loose throughout the dorm that would have made 

intervening too dangerous—instead of the evidence viewed in the 

light most favorable to Pope. See Simmons v. Bradshaw, 879 F.3d 

1157, 1163–64 (11th Cir. 2018) (“If a government official moves for 

summary judgment asserting entitlement to qualified immunity, 

then the relevant facts are construed in the light most favorable to 

the non-movant—i.e., the plaintiff—and the court should decide 

the issue based on those facts.” (emphasis added)). Because the 

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officers’ argument requires us to accept their version of events, we 

lack jurisdiction over this interlocutory appeal. See Hall, 975 F.3d at 

1277–79. The officers’ other arguments, including disputing the determination that the record supports Pope’s complaint about the 

officers’ subjective awareness of the attack, the duration of the attack, and their ability to intervene, also raise factual issues. It is not 

for us to decide, at this juncture, whose version of the facts should 

prevail. A jury will need to decide.

We DISMISS this appeal for lack of jurisdiction.

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