United States Court of Appeals 

For the First Circuit 

No. 18-1784 

TYLER RAYMOND NORTON, 

Plaintiff-Appellee, 

v. 

MICHAEL RODRIGUES, SBCC Deputy Superintendent, 

Defendant-Appellant, 

OSVALDO VIDAL, SBCC Superintendent; BRIAN MCDONALD, SBCC 

Director of Security; STEVEN SILVA, SBCC Director of Operations; 

CHRISTOPHER PHELPS, SBCC Lt. Correction Officer of Inner 

Perimeter Security; BRIAN WOZNIAK, SBCC Correction Officer of 

Inner Perimeter Security; JEFFREY ALTERI, SBCC Sgt. Correction 

Officer of Assignments; GREGORY BEDARD, SBCC Lt. Correction 

Officer of Discipline; JOHN DOE-1, SBCC employee in charge of 

the Department Disciplinary Unit, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. George A. O'Toole, Jr., U.S. District Judge] 

Before 

Howard, Chief Judge, 

Thompson and Barron, Circuit Judges. 

Stephen G. Dietrick, Deputy General Counsel, with whom Nancy 

Ankers White, Special Assistant Attorney General, and the 

Department of Correction Legal Division were on brief, for 

appellant. 
John McKirachan Pavlos, with whom Law Office of John 

McKirachan Pavlos were on brief, for appellee. 

April 7, 2020 
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THOMPSON, Circuit Judge. This case was brought by Tyler 

Raymond Norton, who was living in a quasi-protective custody unit 

in Souza Baranowski Correctional Center ("SBCC") in March 2015 

when he was jumped by three fellow inmates. Prior to the attack, 

Norton told SBCC prison officials, including Appellant Michael 

Rodrigues, that the leader of a notorious prison gang had 

threatened his life while robbing him at knife point and that, as 

a result, he feared for his safety. At the summary judgment stage, 

the district court held that Rodrigues was not entitled to 

qualified immunity from the instant lawsuit, which alleges that 

Rodrigues and other SBCC officials (to whom the district court 

granted immunity and summary judgment) failed to protect Norton 

from a substantial risk of serious harm in violation of Norton's 

constitutional rights. Rodrigues challenges that ruling. Because 

we find that Rodrigues' challenge rests on factual, rather than 

legal grounds, we dismiss this interlocutory appeal for lack of 

appellate jurisdiction. See Johnson v. Jones, 515 U.S. 304, 313 

(1995) (holding that a district court's denial of summary judgment 

in a qualified immunity case is not a final, appealable order 

where, as here, the summary judgment record raises a genuine issue 

of fact). 

A. BACKGROUND 

Before turning to the jurisdictional framework that is 

dispositive here, we take a detour to rehearse pertinent facts 
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from the summary judgment record in the light most favorable to 

Norton, the nonmovant. See Galloza v. Foy, 389 F.3d 26, 28 (1st 

Cir. 2004). 

At all times relevant to this litigation, Appellant 

Michael Rodrigues served as the Deputy Superintendent for 

Classification and Treatment at SBCC, a maximum-security prison in 

Shirley, Massachusetts that houses approximately 1200 incarcerated 

men at any given time. From August 2012 to May 2013 and from 

November 2013 until late August 2015,1 Appellee Norton resided at 

SBCC under Rodrigues' care and supervision. 

1. SBCC's Housing Classification System 

As is relevant to Norton's claims and our review of this 

interlocutory appeal, members of SBCC's incarcerated population 

are regularly screened for and assigned a "security level," which 

in turn determines where they can live, work, eat, and exercise 

within the institution. Security levels (and, by extension, 

housing, work, and other assignments) are determined by SBCC's 

classification committee based on certain objective criteria.2 The 

 1 Norton did a short stint at MCI-Norfolk between May 15, 2013 

and November 15, 2013. 

2 The following information may be used when evaluating an 

incarcerated person's classification status: disciplinary 

reports; work and unit evaluations; compliance with assessed need 

areas; length of time served; escape history (if any); prior 

history of positive or negative adjustment in maximum, medium, and 

lower security; degree of responsibility taken for one's actions; 

nature of the offense and criminal history; the "Objective Point 

Base Score" ("OBPS") (which is not further defined in SBCC's 
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committee "consists of [either] one member or [a] three member 

board," including a chair person, a correction officer, and an 

assigned correction program officer. Before the committee reaches 

a classification decision, the incarcerated person at issue is 

interviewed by the correction program officer assigned to his case. 

During the interview, he is encouraged to share any pertinent 

information that might assist with his classification, including 

health, family, resolved legal issues, program or educational 

participation, and known enemies. The committee's classification 

recommendations are subject to review and approval by the Director 

of Classification (here, Rodrigues). Incarcerated people have the 

option to appeal their classification.3 

 Based on their classification, SBCC residents are then 

assigned to one of sixteen housing units. Those units fall into 

the following five categories: 

 General Population - Most of SBCC's incarcerated community 

reside in "General Population" units, where they can leave 

 

booklet); and review of active enemies at the institution and 

departmentally. 

3 The record does not provide additional information regarding 

the procedure for appealing classification decisions, which is 

distinct from the formal grievance and appeals process that 

incarcerated people may utilize to challenge other decisions 

related to their incarceration at SBCC. As a result, we do not 

know, for example, who is tasked with reviewing an incarcerated 

person's appeal or what occurs after an appeal is granted or 

denied. 
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their cells and travel to work, to the dining hall, and to 

the gym elsewhere in the facility in accordance with a daily 

movement schedule. 

 Special Housing Unit - The Special Housing Unit is SBCC's 

protective custody unit, which is a secure location for 

incarcerated people facing a risk to their health or safety 

(as determined by prison officials). 

 G1 Unit ("G1") - G1 is a 64-cell, quasi-protection housing 

unit that SBCC describes as "functioning between general 

population and the Special Housing Unit, SBCC's protective 

custody unit (SHU)." G1 is reserved for incarcerated people 

who would have difficulty in General Population for a variety 

of reasons, including the unpopular nature of the offense 

that landed them in prison (e.g., sex offenders), "physical 

weakness," documented conflicts with gang members on the 

outside or within the facility, drug or other debts, or other 

safety issues. Individuals housed in G1 are, for the most 

part, separated from the majority of SBCC's population at 

meal and recreational time. G1 residents also have the 

"option" to remain locked in their cells or otherwise limit 

their range of movement within the Unit. SBCC classification 

committee members screen incarcerated individuals to 

determine if G1 is a reasonable alternative to the Special 

Housing Unit or a prison transfer. 
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 Health Services Unit - The Health Services Unit provides 

infirmary care as well as outpatient services. The Unit's 

staff handle medical screening, physical examinations, lab 

work, daily sick calls, and emergencies. Incarcerated people 

must complete a form to request health-care services, except 

in the case of emergencies. 

 Special Management Unit - The Special Management Unit is set 

apart from the rest of the institution and is used primarily 

for incarcerated individuals who are awaiting classification 

(or reclassification) into other units, including 

"administrative segregation," "protective custody," or 

"disciplinary detention." 

2. Norton's Safety Concerns in General Population 

When Norton first arrived at SBCC to serve time for armed 

robbery, he was housed in General Population. While there, on 

more than one occasion prior to the assault central to Norton's 

claims, Norton was threatened by other folks incarcerated at SBCC. 

On May 15, 2013, for example, Norton refused to "lock into his 

general population cell" due to what SBCC described as "protection 

issues" with one or more unspecified incarcerated people to whom 

he allegedly owed money. Over a year later, on December 22, 2014, 

Norton was robbed at knife point by three documented gang members, 

including at least one member of the Gangster Disciples (also known 

as "GD"), which is a subset of the notorious street and prison 
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gang, Folk Nation. During the armed robbery, Louis Luiz, one of 

the SBCC Gangster Disciples' leaders, threatened to kill Norton if 

he ever told anyone about what happened that day. 

As Rodrigues tells it, at some point after being robbed 

and threatened with a deadly weapon in his cell, Norton "feigned 

a mental health crisis to get himself pulled out of his housing 

unit and sent to the Health Services Unit." (emphasis added). 

Norton reported the attack to a mental health professional in the 

Health Services Unit and, later, to Inner Perimeter Security 

Officer, Bryan Wozniak. Norton allegedly told Wozniak that he 

feared for his safety and wanted to be placed in protective 

custody.4 After Norton expressed his safety concern, he was 

transferred to a temporary protective custody cell in SBCC's 

Special Management Unit to enable prison officials to determine an 

appropriate permanent placement for him. 

After the attack on December 22, 2014, Norton penned the 

following letter from his Special Management Unit "To whom it may 

concern": 

Due to my enemy issues with the Boyos and the Folk/GD (I 

don't know the difference) [t]here is definitely a major 

issue with placing me on a unit. I would like to know 

if I could be sent back to my County Jail (Plymouth) to 

finish the rest of my time. I have no problems with the 

gangs in my county, and have about 1 year and a half 

 4 Wozniak has no memory of Norton requesting protective 

custody. Wozniak nonetheless states (and Rodrigues avers in his 

statement of material facts) that he "never told Norton that he 

could not be moved [to protective custody]." 
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left on my sentence and believe this would be the best 

way to resolve my situation. 

The document was date-stamped by SBCC "December 29, 2014," but 

it's not clear from the record whether that date reflects when 

Norton actually sent the letter or when prison officials received 

it. We do know that Norton remained in temporary protective 

custody from December 22, 2014 until January 5, 2015. 

Crucial to our review, Rodrigues acknowledges receipt of 

this letter and states that he did not receive any other 

correspondence from Norton after the events of December 22, 2014. 

Norton's account, of course, is quite different. Norton claims 

via an affidavit, dated September 9, 2016 and attached to his 

opposition to defendants' motion to dismiss or (in the alternative) 

for summary judgment, that he sent "numerous" letters to SBCC 

officials, including Inner Perimeter Security Officer Christopher 

Phelps and Brian McDonald (SBCC's Director of Security),5 regarding 

his safety concerns while he was in the Special Management Unit. 

In a supplemental affidavit, dated September 17, 2017 and attached 

to Norton's opposition to defendants' renewed dispositive motions, 

Norton asserts that he expressed ongoing safety concerns in "at 

least five (5) letters" addressed to Rodrigues, the Inner Perimeter 

 5 Phelps and McDonald are named defendants who were granted 

qualified immunity by the district court. Norton has not 

challenged the grant of summary judgment on qualified immunity 

grounds as to Phelps, McDonald, or the other prison officials named 

as defendants in this litigation. 
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Security team, and others after he was transferred from temporary 

protective custody in the Special Management Unit to G1, a quasiprotective custody unit, on January 5, 2015. Regardless of how 

many letters Norton sent and when he sent them, we know that he 

did not receive a response from any SBCC official regarding his 

safety concerns until January 7, 2015 (i.e., two days after he was 

transferred from temporary protective custody to quasi-protective 

custody in G1). Specifically, Rodrigues stated in a letter 

addressed to Norton (in relevant part): "In reviewing your status 

in IMS I find that you were moved to the G1 housing unit on 

01/05/15. If you encounter safety concerns, notify your Unit Team 

and or the IPS Department." 

As the "sole decisionmaker concerning Norton's G1 

placement,"6 Rodrigues believed that Norton's transfer to G1 would 

adequately address the "perceived" risk of harm to Norton stemming 

from the encounter with Gangster Disciples in December 2014. When 

asked whether he considered the risk of subjecting Norton to gang 

retaliation by placing him in a quasi-protective custody unit (as 

opposed to relocating Norton to permanent protective custody in 

SBCC's Special Housing Unit or transferring Norton to a different 

 6 Classification recommendations at SBCC during the relevant 

time were subject to review and approval by Rodrigues in his 

capacity as SBCC's Director of Classification. As is relevant 

here, Rodrigues acknowledges that he ordered Norton's transfer 

from the Special Management Unit to G1. 
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prison as he had requested in the December 2014 letter), Rodrigues 

explained that, in his experience, G1 was a safe place for 

incarcerated people who had issues with SBCC's various prison 

gangs. In addition, according to Rodrigues, any gang members 

residing in G1 likely required quasi-protective custody to be safe 

from their gangs. For this reason, as Rodrigues tells it, gang 

members in G1 did not tend to be "active" or "affiliated" with 

their organizations and thus Norton would be safe from gang 

violence while there. 

Around the time Norton was relocated to G1, two 

documented, but allegedly inactive, members of Gangster Disciples 

(the organization whose leadership robbed and threatened to kill 

Norton) were living there. They are identified in the record as 

Larry Pack and Dana Bain-Simon. Another incarcerated person by 

the name of Gary Burke, who had no known gang affiliation but had 

incurred more than one disciplinary report for violence, also lived 

in G1 at the time of Norton's transfer. Pack, Bain-Simon, and 

Burke together assaulted Norton on March 21, 2015, placing him in 

the hospital for nearly ten days. What transpired between Norton 

and his fellow G1 residents is described in detail below. 

3. The Assault 

On March 21, 2015, at approximately 7:00 pm, Burke called 

Norton into his cell in G1, where Burke and Pack were hanging out. 

Immediately prior to the assault, Bain-Simon entered Burke's cell, 
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blocking the doorway in the process. At some point, according to 

Norton, Burke punched and kicked him multiple times while BainSimon and Pack prevented Norton from leaving Burke's cell. Norton 

escaped in due course and took off down the hallway, darting into 

another cell and later walking back out into the hallway, where 

video footage of the altercation shows that Norton is eventually 

pursued by Bain-Simon. Bain-Simon (who was later joined by Pack 

in conducting the assault) caught up with Norton in the hallway, 

punching and hitting Norton in the head and abdomen several times 

before guards could intervene. The entire ordeal lasted less than 

five minutes. But afterwards, Norton was hospitalized for nearly 

ten days with internal bleeding, a broken nose, and injuries to 

his intestine. He underwent at least two surgeries as a result. 

4. The Aftermath 

Norton instituted the instant litigation against 

Rodrigues and other prison officials roughly six months after the 

assault. The defendants filed for summary judgment, which the 

court granted as to all SBCC officials except Rodrigues. The 

district court's pithy two-paragraph order states, in relevant 

part: "[t]here are material facts in genuine dispute as to key 

issues in the case, particularly with respect to whether Rodrigues 

knew of and disregarded a substantial risk of serious harm to 

Norton from gang retaliation." 
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Rodrigues filed a timely interlocutory appeal on August 

16, 2018, alleging the district court erred because the undisputed 

material facts indicate that Rodrigues was not deliberately 

indifferent to a substantial risk of serious harm to Norton and, 

even if he was, the violation was not at odds with clearly 

established law. On October 23, 2018, this Court directed 

Rodrigues to show cause as to why his appeal should not be 

dismissed for lack of jurisdiction. After considering Rodrigues' 

response filed on November 6, 2018, this Court allowed the matter 

to proceed to oral argument, citing Mlodzinski v. Lewis, 648 F.3d 

24, 28 (1st Cir. 2011) (exercising interlocutory jurisdiction over 

district court's rejection of a qualified immunity claim where the 

defendants "accept[ed] [the] plaintiffs' version [of the facts] in 

order to test the immunity issue"). 

B. OUR TAKE 

That brings us to the present. This Court reviews 

district court rulings on summary judgment motions de novo. 

McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017). However, 

for the reasons explained below, our authority to review summary 

judgment orders that do not fully dispose of the case, including 

the order at issue here, is very limited. Rodrigues nevertheless 

urges us to consider his interlocutory appeal because (in his view) 

his arguments are purely legal challenges to the district court's 

denial of qualified immunity. To help the reader understand why 
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Rodrigues is wrong, we'll begin by discussing the limited 

circumstances under which appellate jurisdiction is appropriate in 

this unique procedural context, and we'll end by explaining why 

Rodrigues' qualified immunity challenge does not fall within that 

limited set of circumstances. 

1. Jurisdictional Framework 

"Subject to only a handful of carefully circumscribed 

exceptions, our appellate jurisdiction is restricted to review of 

final orders and judgments." Id. (emphasis added). Because an 

order denying summary judgment allows the litigation to proceed, 

such orders are not considered final and thus are not typically 

appealable when first entered. See id. In play here, however, is 

a potentially applicable exception to that general rule requiring 

finality before our review. Specifically, this Court has 

recognized that questions regarding a government official's 

entitlement to qualified immunity, a doctrine which protects 

certain government actors from being liable for certain conduct 

under certain circumstances, ought to be resolved as soon as 

possible in litigation. Id. (noting that because "qualified 

immunity consists of both an immunity from suit and an immunity 

from damages" such claims "ought to be resolved at the earliest 

practicable time" (citing Mitchell v. Forsyth, 472 U.S. 511, 526 

(1985) and Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987))); 

see Ortiz v. Jordan, 562 U.S. 180, 188 (2011) ("Because a plea of 
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qualified immunity can spare an official not only from liability 

but from trial, we have recognized a limited exception to the 

categorization of summary-judgment denials as nonappealable 

orders." (citing Mitchell, 472 U.S. at 525–26)). Consistent with 

this principle and notwithstanding the lack of finality, "where, 

as here, a denial of summary judgment implicates a claim of 

qualified immunity, the dividing line between appealable and nonappealable denials of summary judgment is blurred." Morse v. 

Cloutier, 869 F.3d 16, 22 (1st Cir. 2017) (quotations and internal 

citations omitted). 

The crucial distinction between appealable and nonappealable summary judgment orders denying qualified immunity is 

this: "[p]urely legal rulings implicating qualified immunity are 

normally reviewable on an interlocutory appeal," id., but rulings 

"turn[ing] on either an issue of fact or an issue perceived by the 

trial court to be an issue of fact" are not. Stella v. Kelley, 63 

F.3d 71, 74 (1st Cir. 1995) (citing Johnson, 515 U.S. at 318). 

Therefore, "defendants who invoke our limited power of 

interlocutory review . . . must be prepared to accept the facts in 

the light most favorable to the plaintiff and 'develop the argument 

that, even drawing all the inferences as the district court 

concluded a jury permissibly could, they are entitled to judgment 
- 16 - 

as a matter of law.'"7 McKenney, 873 F.3d at 81 (quoting Cady v. 

Walsh, 753 F.3d 348, 359-60 (1st Cir. 2014)). "In applying these 

principles, the devil is in the details." Morse, 869 F.3d at 22. 

2. Qualified Immunity 

With our jurisdictional limitations in mind, we next 

turn to the qualified immunity standard. "When a defendant invokes 

qualified immunity, an inquiring court typically engages in a 'twostep pavane.'" McKenney, 873 F.3d at 81. First, "the court must 

determine whether the plaintiff's version of the facts makes out 

a violation of a protected right." Id. (quotations and citations 

omitted). Second, the court must determine "whether the right at 

issue was 'clearly established' at the time of defendant's alleged 

misconduct." Id. (quotations and citations omitted). The second 

step itself has two sub-parts. Sub-part one requires the plaintiff 

to "identify either 'controlling authority' or a 'consensus of 

cases of pervasive authority' sufficient to signal to a reasonable 

[official] that particular conduct would violate a constitutional 

right." Morse, 869 F.3d at 23 (quoting Wilson v. Layne, 526 U.S. 

603, 617 (1999)). Sub-part two requires us to consider "whether 

 7 The Supreme Court has carved out a narrow exception to this 

rule, which requires courts to disregard the nonmovant's version 

of the facts if that version is "blatantly contradicted by the 

record, so that no reasonable jury could believe it." Scott v. 

Harris, 550 U.S. 372, 380 (2007). Rodrigues does not argue that 

this exception applies and, even if he did, he would find no 

support in the summary judgment record. 
- 17 - 

a reasonable [official] in the defendant's position would have 

known that his conduct violated the established rule." Id. "These 

inquiries are carried out with the understanding that qualified 

immunity is meant to shield 'all but the plainly incompetent or 

those who knowingly violate the law.'" McKenney, 873 F.3d at 81 

(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)). 

We consider here whether the qualified immunity doctrine shields 

Rodrigues from liability for failing to protect Norton from a 

serious risk of harm in violation of the Eighth Amendment. 

Accordingly, the Eighth Amendment provides the legal backdrop for 

our evaluation of Rodrigues' quest for qualified immunity (here, 

for example, the operative questions include whether Rodrigues 

violated a right protected by the Eighth Amendment and whether 

that right was clearly established at the relevant time). 

The Eighth Amendment protects the incarcerated community 

from "cruel and unusual punishment." U.S. Const. amend. VIII. In 

so doing, the Amendment imposes a duty on prison officials to "take 

reasonable measures to guarantee the safety of the inmates." 

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. 

Palmer, 468 U.S. 517, 526-27 (1984)). Prison officials, therefore, 

"have a responsibility not to be deliberately indifferent to the 

risk to prisoners of violence at the hands of other prisoners." 

Burrell v. Hampshire Cty., 307 F.3d 1, 7 (1st Cir. 2002) (citing 

Farmer, 511 U.S. at 833 ("Having incarcerated persons with 
- 18 - 

demonstrated proclivities for antisocial criminal, and often 

violent, conduct, having stripped them of virtually every means of 

self-protection and foreclosed their access to outside aid, the 

government and its officials are not free to let the state of 

nature take its course." (quotations omitted))). 

Nevertheless, "[n]ot every injury suffered by a prisoner 

at the hands of another results in constitutional liability on the 

part of prison officials." Burrell, 307 F.3d at 7-8 (citing 

Farmer, 511 U.S. at 834). Instead, two requirements must be met 

for a prison official to have violated an incarcerated person's 

Eighth Amendment rights in the context of inmate-on-inmate 

violence. First, an incarcerated person, like Norton, must be 

"incarcerated under conditions imposing a substantial risk of 

serious harm," and, second, a prison official, like Rodrigues, 

must "possess[] a sufficiently culpable state of mind, namely one 

of 'deliberate indifference' to an inmate's health or safety." 

Id. at 8. 

Demonstrating deliberate indifference requires an 

additional two-part showing. At the first step, satisfying the 

"'deliberate' part of 'deliberate indifference' . . . requi[res] 

that a prison official subjectively '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.'" Id. 

(quoting Farmer, 511 U.S. at 837); see also Farmer, 511 U.S. at 
- 19 - 

842 (acknowledging that "a factfinder may conclude that a prison 

official knew of a substantial risk from the very fact that [the 

risk] was obvious"). At the next step, when considering what 

constitutes "indifference," this Court has explained that 

"[p]rison officials cannot be indifferent . . . if they are unaware 

of the risk" of harm and, if they are aware, they still may not be 

considered indifferent if "they responded reasonably to the risk" 

even though harm ultimately was not avoided. Burrell, 307 F.3d at 

8. In sum, deliberate indifference requires knowledge of a 

substantial risk of serious harm and an unreasonable response to 

the same. 

3. Application 

Having erected the jurisdictional framework and 

summarized the two-part test for qualified immunity (and its many 

relevant subparts), we make our way back to Norton's claims and 

Rodrigues' assertion that he is immune from them. Here, Norton 

alleges that Rodrigues, by placing him in G1 and failing to keep 

him safe from G1's residents, violated his clearly established 

Eighth Amendment rights and is therefore liable under 42 U.S.C. 

§ 1983. Rodrigues, in turn, contends that he is immune from 

Norton's Section 1983 claims because he reasonably understood that 

his decision to house Norton in G1 eliminated any substantial risk 

of serious harm to Norton and adequately addressed Norton's 

perceived risk of harm based on the information available to 
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Rodrigues at the time. In denying Rodrigues' motion for summary 

judgment, the district court concluded there were genuine disputes 

of material fact as to "whether Rodrigues knew of and disregarded 

a substantial risk of serious harm to Norton from gang 

retaliation." Norton v. Rodrigues, No. 15-cv-13216-GAO (D. Mass. 

July 13, 2018). Accordingly, to determine whether Rodrigues may 

have violated a clearly-established right and therefore may not be 

entitled to qualified immunity, we focus on the portions of the 

record that could reasonably be read to support the conclusion 

that Rodrigues knew about Norton's safety concerns but failed to 

take reasonable steps to address them. 

 Taking the facts in the light favorable to Norton, it 

is undisputed that in making the decision to transfer Norton to G1 

instead of to protective custody or another prison, Rodrigues knew 

about Norton's run-in with the Gangster Disciples while living in 

General Population in December 2014; Rodrigues understood from his 

years of experience as a prison official that the Gangster 

Disciples are a violent prison gang known for targeting other 

incarcerated people; and he also knew that Norton asked via letter, 

date-stamped December 29, 2014, to be transferred out of SBCC 

because of his issues with the Gangster Disciples. 

From Rodrigues' vantage, these facts, at most, indicate 

that there was a serious risk of substantial harm to Norton in 

General Population and that he took reasonable steps to address 
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that harm by transferring Norton to G1's quasi-protective custody. 

Continuing, Rodrigues says that G1 was a reasonable alternative to 

permanent protective custody or a prison transfer even though known 

members of Gangster Disciples were living in G1 because, among 

other things, these members were "inactive." At bottom, Rodrigues 

insists he was unaware of any additional information from Norton 

or anyone else from which he could have reasonably concluded that 

the decision to house Norton in G1 was "unsound." In support of 

this conclusion, Rodrigues tells us it is "undisputed" that Norton 

"submitted no correspondence that Rodrigues ever received, saw, or 

became aware of, challenging his placement in G1 or identifying an 

inmate in G1 as an enemy of conflict." 

But here's the rub: Rodrigues' characterization of the 

facts regarding what he did and didn't know about Norton's safety 

concerns as to G1 directly conflicts with Norton's take. As 

mentioned earlier, the parties dispute whether Norton circulated 

and Rodrigues (or a subordinate) received other correspondence, 

including correspondence post-dating Norton's December 2014 letter 

written from temporary protective custody. Crucially, Norton, who 

at this stage enjoys the benefit of having the facts viewed in the 

light most favorable to his claims, contends that he sent at least 

five letters to Rodrigues and prison officials under Rodrigues' 

authority after he was transferred to G1. Whether Rodrigues (as 

the Deputy Superintendent for Classification and Treatment at 
- 22 - 

SBCC) or a subordinate knew of these purported letters and whether 

Rodrigues knew the content of these letters8 would be directly 

relevant to the jury's consideration of the reasonableness of 

Rodrigues' decision to transfer and keep Norton in G1 despite the 

documented gang presence there. Rodrigues' account also collides 

head-on with the district court's account of the facts, which led 

the district court to conclude that there are genuine disputes as 

to what Rodrigues did or did not know about the risk of harm to 

Norton in the form of gang retaliation. In particular, Rodrigues' 

account depends on us accepting that the known gang members housed 

in G1 did not pose a risk because they were inactive. But the 

district court did not view as settled the question of whether 

gang members residing in G1 were inactive. 

Where, as here, the interlocutory challenge to a ruling 

denying qualified immunity invites us to "choos[e] among 

conflicting facts," Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir. 

2009), abrogated on other grounds by Reyes-Orta v. P.R. Hwy. and 

Transp. Authority, 811 F.3d 67 (1st Cir. 2016), or "to adopt a 

spin on the summary judgment record different from that taken by 

 8 Norton claims that in these letters he raised his ongoing 

concern about the Gangster Disciples, including while he was 

incarcerated in G1 along with its so-called inactive membership. 

These letters are not in the record. However, since Rodrigues has 

not challenged the admissibility of Norton's sworn statements 

regarding the existence of these letters or their content, we need 

not opine on the issue today. 
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the district court," McKenney, 873 F.3d at 84, we lack jurisdiction 

to accept the invitation. See Cady, 753 F.3d at 361 (declining to 

exercise jurisdiction over interlocutory appeal concerning denial 

of qualified immunity where, as here, "the defendants brief so 

clearly does not 'accept[] as true all facts and inferences 

proffered' by the plaintiff" (alteration in original) (quoting 

Mlodzinski, 648 F.3d at 28)); see also Ortiz, 562 U.S. at 190–91 

(holding that the qualified immunity defense asserted was not 

reviewable on interlocutory appeal because it did not present "neat 

abstract issues of law" (quoting Johnson, 515 U.S. at 317)). 

Because Rodrigues fails to pose the qualified immunity question 

"in a manner that would permit us to conclude that 'the answer to 

it does not depend on whose account of the facts is 

correct' . . . we lack the authority to provide an answer." 

Cady, 753 F.3d at 361 (quoting Stella, 63 F.3d at 75). We therefore 

conclude that Rodrigues' discontentment with the district court is 

not reviewable by this Court at this juncture. 

C. WRAP UP 

Given our lack of jurisdiction over the instant 

interlocutory appeal, we remand this matter back into the capable 

hands of the district court. 

Costs awarded to Norton.