NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0467n.06 No. 16-2039 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MAURICE MOORE, Plaintiff-Appellee, v. CARMEN PALMER, et al., Defendants-Appellants

. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges. CLAY, Circuit Judge. Defendants Kenneth Niemisto and Shane Place bring this interlocutory appeal challengi ng the district court’ s order denying them qua lified immunity in Plaintiff Maurice Moore’s prison er’s civil rights suit brought pursuant to 42 U.S.C. § 1983. Moore asserts that Defendants vi olated his Eighth Amendment ri ghts by failing to protect him from the violent acts of the other inmates at the Marquette Branch Prison, where Moore was incarcerated. For the reasons set forth below, we DISMISS the appeal for lack of jurisdiction. BACKGROUND Plaintiff Maurice Moore is a former inmate of the Michigan Depart ment of Corrections (“MDOC”), where he was serving a sentence of twenty-five to fifty years for second-degree murder. On August 13, 1995, when Moore was incar cerated at the Adrian Correctional Facility, a riot began in Moore’s wing of the facility. During the riot, Moore overheard other inmates discussing how they planned to a ssault a correctional officer. Thes e inmates were alleged to be members of a gang called the Latin Counts. Upon hearing of the inmates’ plans, Moore decidedNo. 16-2039

2 to warn the correctional officer a nd direct her to a safe location. As a result, Moore alleges that he became a target of the Latin Counts. Over the next four years, Moore was transf erred to a number of different correctional facilities. During that peri od, Moore was attacked twice by other inmates who were also allegedly members of the Latin Counts. After the latter of these two attacks, Moore apparently continued to serve his sentence fo r another ten years without inci dent. Then, in 2010, when he was housed at the Michigan Reformatory (“RMI” ) in Ionia, Michigan, Moore discovered that another prisoner had gained possession of some w eapons. This inmate was also a member of the Latin Counts. Undeterred, Moore informed pris on officials about the w eapons. As a result, Moore learned that he was again a target of the gang. On June 12, 2010, Moore was attacked with a shank and sliced from “inside [his] right ear down the right side of his neck toward the throat area,” requiring twen ty-three to twenty-five stitches. (R. 70-8, Critical Incident Report, Pa geID #322.) After recovering from his injuries, Moore was transferred to the Ma rquette Branch Prison (“MBP”). Upon his arrival, the prison convened a meeting of the Security Classifi cation Committee, on which Defendants Kenneth Niemisto, a residential unit manager at the pris on, and Shane Place, an assistant deputy warden, served. During this meeting, Moore informed Niemisto and Place that he feared for his safety because he was being targeted by the Latin Count s. However, Moore was placed in general population instead of protective segregation or some other more secure environment. On March 11, 2011, during his incarceration at MBP, Moore was assaulted in the prison kitchen by another inmate, who punched him repeat edly. Defendants Niemisto and Place were among those individuals provided copies of the resulting Assault Investigation Report, whichNo. 16-2039

3 also explained that Moore thought he was targ eted because he had provided information to prison officials about a possible hit on an officer. Approximately one month later, on April 24, 2011, Moore was attacked again while in the prison auditorium. During this attack, another inmate struck Moore in the face and neck repeatedly and punctured Moore’s right eye with a pencil. Moore needed surgery as a result of this attack to remove the pencil lead lodged in the bone behind his eye. During the period between the prison riot in 1995 and this final a ttack, Moore had requested protection from prison officials at least fifty times. Based on the incident involvi ng the pencil, on October 29, 2012, Moore filed a complaint in district court agai nst twenty-eight MDOC Defendants pu rsuant to 42 U.S.C. § 1983. Moore’s complaint asserted claims for violations of hi s First and Eighth Amendment rights, as well as various state law claims. One Defendant was voluntarily dismissed, and the remaining Defendants moved for summary judgment. Following a Repor t and Recommendation issued by the Magistrate Judge and objectio ns filed by Defendants, the di strict court granted summary judgment to eleven Defendants. The parties then stipulated to the dismissal of seven more Defendants, as well as to one of the claims. On March 15, 2016, the nine remaining Defendants, including Niemisto and Place, the two Defendants relevant to this appeal, m oved again for summary judgment. Among other grounds, Defendants moved for summary judgment based on qualified immunity. At a hearing held on June 3, 2016, the district court granted su mmary judgment to all Defendants on the First Amendment retaliation claim, as we ll as the state law claims for gross negligence and intentional infliction of emotional distress. The district court further granted the motion for summary judgment on Moore’s Eighth Amendment claim, base d on the prison official’s failure to protectNo. 16-2039

4 Moore from attacks by other prisoners, as to thr ee Defendants, denied it as three others, and took it under advisement as to Niemisto and Place, as well as one other Defendant, Matthew Macauley. ( Id. at 1071–72.) The district court entered an order to that effect on June 6, 2016. A few days later, on June 13, 2016, the district co urt issued an opinion granting summary judgment to Macauley, but denying summary judgment to Niemisto and Place on Moore’s Eighth Amendment claim. This timely appeal followed. 1
DISCUSSION Defendants Niemisto and Place moved for su mmary judgment claiming they were entitled to qualified immunity on Moore’s Eighth Amendment claim alleging that they failed to protect him from the violence inflicted by ot her prisoners. “Qualified immunity protects government officials sued under § 1983 from damages liability ‘insofar as their conduct does not violate clearly established stat utory or constitutional rights of which a reasonable person would have known.’” Kindl v. City of Berkley , 798 F.3d 391, 398 (6th Cir. 2015) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009)). Moore asserts that Defendants vi olated his right to be protect ed from violence inflicted at the hands of other prisoners. Th is right has been well-established since before the events giving rise to Moore’s claim. This Court has held that: The [E]ighth [A]mendment, which prohi bits infliction of “cruel and unusual punishment,” encompasses the proscripti on of “deliberate indifference” to the serious needs of prisoners. See, e.g. , Estelle v. Gamble , 419 U.S. 97 102–05 (1976). On several occasions, we have he ld that “deliberate indifference” of constitutional magnitude may occur when prison guards fail to protect one inmate

1 The notice of appeal also stated that Defendants James Alexander, Chad LaCount, and Lincoln Marshall were appeali ng the district court’s order de nying them qualified immunity. However, at oral argument, Defendants’ counsel conceded that the notic e of appeal for these three Defendants was untimely and, as a result, abandoned their appeal. Therefore, the only Defendants to consider at this stage of the proceedings are Niemisto and Place.No. 16-2039

5 from an attack by another. See, e.g. , Roland v. Johnson , 856 F.2d 764, 769–70 (6th Cir. 1988); McGhee v. Foltz , 852 F.2d 876, 880–81 (6th Cir. 1988). Walker v. Norris , 917 F.2d 1449, 1453 (6th Cir. 1990) (foo tnote omitted). The Supreme Court later clarified that right, holding that the Ei ghth Amendment encompasses a duty for prison officials “to protect prison ers from violence at the hands of other prisoners.” Farmer v. Brennan , 511 U.S. 825, 833 (1994). To establish a violation of th at right, Moore has “t he burden of presenting evidence from which a reasonable juror could conclude that the individual defenda nts were deliberately indifferent to a substantial risk of serious harm to [him] and that they disregarde d that risk by failing to take reasonable measures to protect him.” Richko v. Wayne Cty. , 819 F.3d 907, 915 (6th Cir. 2016) (citing Farmer , 511 U.S. at 842). This test encompasses “both an objective and a subjective component.” Id. (citing Farmer , 511 U.S. at 835–38.) The objective component requires proof that “absent reasona ble precautions,” Moore was “expos ed to a substantial risk of serious harm.” Id. (citation omitted). The subjective component requires Moore to establish that “(1) ‘the official being sued s ubjectively perceived facts from whic h to infer a substantial risk to the prisoner,’ (2) the official ‘did in fact dr aw the inference,’ and (3) the official ‘then disregarded that risk.’” Id. (quoting Rouster v. Cty. of Saginaw , 749 F.3d 437, 446 (6th Cir. 2014)). This Court generally has jurisdiction over “app eals from all final decisions of the district courts,” including collateral orders. 28 U.S.C. § 1291; see also Brown v. Chapman , 814 F.3d 436, 443 (6th Cir. 2016). An order denying qualified im munity is considered a final, appealable order “because it is conclusive, separable from th e merits of the action, and, as the purpose of qualified immunity is to provide officers with ‘ immunity from suit rather than a mere defense toNo. 16-2039

6 liability,’ is effectively unreviewabl e on appeal from a final judgment.” Brown , 814 F.3d at 443–44 (quoting Mitchell v. Forsyth , 472 U.S. 511, 526–29 (1985)). However, we can only review a denial of qualified immunity insofar as “the appeal presents a ‘neat abstract issue[] of law.’” Kindl , 798 F.3d at 398 (quoting Johnson v. Jones , 515 U.S. 304, 317 (1995)). “A circuit court’s jurisdiction ove r denials of qualified immunity ‘does not extend to appeals that merely quibble w ith the district court’s reading of the factual record, as opposed to appeals that challenge the legal premises of the district court’s decision.’”
Brown , 814 F.3d at 446 (quoting Leary v. Livingston Cty. , 528 F.3d 438, 441 (6th Cir. 2008)). Therefore, for this Court to exercise jurisdiction over an appeal of a district court’s denial of qualified immunity, “the defendant appealing a denial of qualified immunity must concede the plaintiff’s facts.” Id. at 844 (citing Johnson , 515 U.S. at 319–20). Failure to concede the plaintiff’s version of the facts results in this Court lacking jurisdiction over the appeal. Younes v. Pellerito , 739 F.3d 885, 888 (6th Cir. 2014) (citing Thompson v. Grida , 656 F.3d 365, 367 (6th Cir. 2011)). Moreover, “[m]ere conclusory statements th at the officers construe the facts in the light most favorable to the plaintiff ca nnot confer jurisdiction upon this Court.” Thompson , 656 F.3d at 368. In this case, Defendants claim that they are conceding the facts in the light most favorable to Moore for the purposes of this appeal. However, in reality, De fendants’ arguments are predicated on rejecting Moor e’s deposition testimony. Defendants claim that the issue they present on appeal is “whether it is clearly established that a co rrectional official must provide protection where a prisoner make s vague and ambiguous statements about his safety, but does not submit a written request for prot ection.” (Defs.’ Br. at 23.) Ho wever, as is clear from this framing of the issue, Defendants are debating whet her there is sufficient evidence for a jury toNo. 16-2039

7 conclude that they actually drew an inference about the risk to Moore’ s safety based on Moore’s complaints. Indeed, Defendants re peatedly refer to the “vague nature” of Moore’s fears and his “vague allegations in the absence of a formal written request for protection.” ( Id. at 25.) Moreover, they argue that, “[t]o the extent that Moore had any contact w ith [Defendants], they were fleeting and distant in time.” ( Id. ) This characterization stands in marked cont rast to Moore’s versio n of the facts, as supported by his deposition testimony, that he rela yed his fears to both De fendants. Indeed, as Moore testified, Niemisto and Place both participated in the initia l security screening when he arrived at MBP after being attacked at RMI. At this meeting, Moore informed the prison staff that he had just been stabbed and that he continued to fear for his safety. Niemisto even admitted that he was aware that Moore feared gang activity in prison, especially th at of the Latin Counts, though Niemisto claimed that Moore had downplayed the extent of his fear. Furthermore, when Moore was subsequently attacked in the kitche n by another prisoner, De fendants received the incident report. Moore also testified that, over the course of his imprisonme nt, he asked the prison staff for protection over fifty times at the various prisons where he was incarcerated. He also stated that he filled out written reque sts for protection at MBP and at another prison. Furthermore, Moore wrote a letter to the Directors of M DOC, after the March 11, 2011 beating, asking for protection because he feared for his safety. We construe Defendants’ appe al as arguing the factual issu e of whether Defendants were sufficiently aware of the danger to Moore from ot her prisoners such that they may be liable for violating Moore’s Eighth Amendmen t rights. Indeed, because Defe ndants argue that the issue on appeal relates to Moore’s failure to file written requests, but Moore testifie d that he did, in fact,No. 16-2039

8 submit such requests, this appeal essentially invo lves a factual dispute. As explained above, we lack jurisdiction to consider factual disputes on an interlocutory appe al concerning qualified immunity. See Johnson , 515 U.S. at 313. We therefore di smiss this appeal for lack of jurisdiction. CONCLUSION For the reasons stated above, we DISMISS Defendants’ appeal for lack of jurisdiction, inasmuch as Defendants have failed to concede th e facts in the light most favorable to Moore.