[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14205

____________________

JERRY NELSON,

as Personal Representative of the Estate 

of deceased Eddie Lee Nelson, Jr.,

MICHELE DUSHANE,

as surviving spouse of Eddie Lee Nelson, Jr.,

Plaintiffs-Appellees,

versus

DONNA TOMPKINS, 

TROY CULPEPPER,

LIEUTENANT LARRY MITCHELL,

GLENDA HALL,

SGT. ALFREDO TORRES, et al.,

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2 Opinion of the Court 22-14205

Defendants,

C.O. KEYVON SELLERS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 4:20-cv-00213-CDL

____________________

Before WILLIAM PRYOR, Chief Judge, and ABUDU and ED CARNES, 

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This interlocutory appeal involves the constitutional obligation of jailers to protect foreseeable victims from violent detainees. 

After watching news reports of white police officers shooting black 

men, Jayvon Hatchett decided that “somebody has to do something.” So he walked into an AutoZone store and stabbed a white 

store clerk. When he arrived at the county jail on charges of aggravated assault, Hatchett told intake officer Keyvon Sellers that the 

police shootings inspired him to stab a white man, but Sellers failed 

to tell other officers of that confession. Classification officers, unaware of Hatchett’s motivation for racial violence, assigned 

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22-14205 Opinion of the Court 3

Hatchett to a shared cell with a white man, Eddie Nelson, whom

Hatchett later strangled to death. Nelson’s survivors sued Sellers 

for deliberate indifference to a substantial risk of serious harm in 

violation of the Fourteenth Amendment. See 42 U.S.C. § 1983. The 

district court denied Sellers’s motion for summary judgment based 

on qualified immunity. Because a reasonable jury could find that 

Sellers violated Nelson’s clearly established constitutional right by 

failing to protect him from a known risk of harm, we affirm.

I. BACKGROUND

On August 25, 2020, Jayvon Hatchett, a black man, walked 

into an AutoZone store in Columbus, Georgia, posing as an interested shopper. When the white store clerk turned his back, Hatchett stabbed him multiple times with a knife. Columbus police officers arrested Hatchett the next day on charges of aggravated assault 

and possession of a weapon during the commission of a crime. 

Hatchett’s arrest warrant and arrest report stated that Hatchett 

“did assault . . . with a deadly weapon one Michael Hunt” but made 

no mention of the victim’s race or the motive for the assault.

After the arrest, transportation officer Antonio Burgess 

drove Hatchett to the Muscogee County Jail. When they arrived at 

the jail, Hatchett told Burgess that he stabbed the store clerk because he saw a video of cops killing black people. Intake officer 

Keyvon Sellers was not present during that conversation and did 

not overhear any of those statements. Hatchett also told the nurse 

who performed his intake medical screening that he stabbed the 

store clerk because he was “just upset” and felt that “somebody has 

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4 Opinion of the Court 22-14205

to do something.” Sellers was not present during that conversation 

either. And the nurse did not tell anyone about it because she believed intake nurses were not “supposed to know” why a detainee 

was in jail.

The first time that Sellers heard anything about why Hatchett had stabbed the store clerk was after the medical screening. Burgess accompanied Hatchett to the booking area to meet with 

Sellers for intake processing. Sellers gave Hatchett a pat down without incident. Then, surveillance footage captured Burgess tell 

Hatchett, “Go on, tell him what you said to me. Tell him what you 

did.” Hatchett smirked and mumbled something about “see[ing] a 

video” of cops killing black men and “decid[ing] [he] was gonna 

stab a white guy.” Burgess jumped in and added, “So he went to 

the AutoZone and stabbed a white man in the back.” Sellers said 

nothing in response, but he shook his head in apparent disapproval.

Burgess removed Hatchett’s handcuffs without incident. Burgess 

later told investigators that he made a point to tell Sellers what 

Hatchett admitted because the information was not included in the

arrest report and he “felt that some precautions needed to be 

taken.” Sellers interpreted Hatchett’s statement to him to mean 

that Hatchett had “seen all the white cops killin’ black people, so 

[he] wanted to stab a white guy”—“[n]o particular white guy”—

and that he stabbed the store clerk “because he was white.”

Sellers failed to tell any jail employees what he knew about 

Hatchett’s racial motive. He testified that if he had thought Hatchett posed a risk of harm to others, he would have notified a 

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classification officer charged with inmate housing assignments. 

Sellers explained that classification officers are ordinarily receptive 

to these suggestions: “they’ll move” an inmate if given “a good reason.” But Sellers testified that he did not view Hatchett as “a potential threat” to anyone and that Hatchett was polite and cooperative 

during their interactions. 

The survivors submitted an expert report disputing Sellers’s 

testimony that he was unaware of Hatchett’s risk to other inmates. 

The expert determined, based on the record and his own extensive 

experience in police management and training, that “Sellers had direct knowledge of the risk Hatchett posed to a white person” and 

“should have notified someone” of that risk. The expert testified 

that Sellers’s contrary assertion was “perplexing” because the facts 

Sellers knew about Hatchett’s crime made it “obvious” that Hatchett posed “a threat to white inmates.”

Hatchett’s last stop before detention was with the jail’s classification officers, who assigned inmates cells based on a detailed 

procedure. An officer would first review the detainee’s arrest report and criminal history. Then, the officer would ask the detainee

a list of standard questions, including whether the detainee was an 

assault risk and whether he should be isolated from anyone. These 

form questions did not inquire about the motive for the detainee’s

alleged crime or whether he had racial prejudices. Using this information, the classification officer would designate the detainee as 

requiring minimum, medium, or maximum security. Detainees 

charged with aggravated assault were assigned a maximumUSCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 5 of 37
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security classification. The classification officer would assign the 

detainee an appropriate cell based on his security classification and 

any other relevant information. After the classification process was 

complete, an intake officer would escort the inmate to his assigned 

cell.

Hatchett met with two classification officers on the day of 

his arrest, but neither learned of the racial motive for his assault.

One officer completed a portion of Hatchett’s classification paperwork, asked him the standard interview questions, and assigned 

him a maximum-security classification because of his aggravated

assault charge. The other officer finished Hatchett’s classification 

paperwork, though she never met with him. The form the officers

completed neither flagged Hatchett as an “Assault Risk” nor specified that he should be “Separated” from any other inmates. Both 

classification officers testified that had someone told them the details of Hatchett’s assault, they would not have housed him with a 

white cellmate.

On August 26, officers assigned Hatchett to cell 3E6, where 

he joined inmate Rae Nolan, a white man. Eddie Nelson—another 

white inmate and Hatchett’s victim—joined Hatchett and Nolan 

the next day. Nolan told investigators after Nelson’s death that 

Hatchett had told his white roommates that he was in jail because 

he stabbed “the first white guy he s[aw]” after watching a “cop 

shooting video[]” that “pissed him off.” But Nolan otherwise described Hatchett as “real quiet” and said there was no tension between the three cellmates. The three men lived together without 

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reported incident until August 31, when Nolan was transferred to 

a different cell. The next day, inmate Clifford Sheppard, a black 

man, joined Hatchett and Nelson in 3E6. The men were housed 

together without incident until September 4, when Sheppard was 

relocated, leaving Hatchett and Nelson alone in 3E6. 

Early on the morning of September 5, an officer found

Hatchett strangling Nelson in their shared cell. The officer ordered 

Hatchett to stop, but Hatchett refused, exclaiming, “He put a hair 

in my sandwich.” Backup officers arrived and immediately moved 

Hatchett to an isolated cell. Nelson was pronounced dead at the 

scene.

Hatchett completed a psychological evaluation later that 

day. The accompanying doctor’s note explained that Hatchett 

“[s]tates he is here for aggravated assault. Mentioned about his 

roommate talking about racial things. Vague about the sequence 

of events occurred between the two. Later the incident occurred.” 

The record contains no other evidence of violence or threatened 

violence between Hatchett and Nelson during their eight days as 

cellmates.

Nelson’s brother, as the representative of Nelson’s estate, 

and Nelson’s spouse sued Sellers for deliberate indifference to a 

substantial risk of serious harm to Nelson in violation of the Fourteenth Amendment. Nelson’s survivors also asserted state and federal claims against other officials and their employers, but those defendants are not parties to this appeal.

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Sellers moved for summary judgment. He argued that the 

survivors’ constitutional claim failed as a matter of law and that he 

was entitled to qualified immunity. The district court denied 

Sellers’s motion. It determined that a reasonable jury could find 

that Sellers violated Nelson’s clearly established constitutional 

right.

II. STANDARDS OF REVIEW

“We review our own jurisdiction de novo.” Tillis ex rel. 

Wuenschel v. Brown, 12 F.4th 1291, 1296 (11th Cir. 2021). We also 

review a denial of qualified immunity de novo and, on a motion for 

summary judgment, view the evidence in the light most favorable 

to the nonmoving party. Id.

III. DISCUSSION

We divide our discussion into three parts. First, we explain 

that we have jurisdiction to review this denial of qualified immunity. Second, we explain that the evidence viewed in the light most 

favorable to the survivors could lead a reasonable jury to find that 

Sellers violated Nelson’s constitutional right. Third, we explain 

that Nelson’s right was clearly established when Sellers’s challenged conduct occurred.

A. We Have Jurisdiction to Decide This Interlocutory Appeal.

“Whether we have interlocutory jurisdiction to review the 

denial of summary judgment on qualified immunity grounds depends on the type of issues involved in the appeal.” English v. City 

of Gainesville, 75 F.4th 1151, 1155 (11th Cir. 2023) (citation and 

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22-14205 Opinion of the Court 9

internal quotation marks omitted). We lack jurisdiction where the 

only issues appealed are “evidentiary sufficiency” issues—that is, 

fact-related disputes about “whether the evidence could support a 

finding that particular conduct occurred.” Behrens v. Pelletier, 516 

U.S. 299, 313 (1996); accord Plumhoff v. Rickard, 572 U.S. 765, 772 

(2014) (explaining that we lack interlocutory jurisdiction if the district court “merely decided ‘a question of “evidence sufficiency”’” 

(quoting Johnson v. Jones, 515 U.S. 304, 313 (1995))); see also Behrens, 

516 U.S. at 312–13 (“Denial of summary judgment often includes a 

determination that there are controverted issues of material fact, 

and Johnson surely does not mean that every such denial of summary 

judgment is nonappealable. Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a 

qualified immunity case.” (internal citation omitted)). 

If, by contrast, the parties debate not only evidentiary sufficiency issues but also an “abstract issue of law” related to qualified 

immunity, “typically, the issue whether the federal right allegedly 

infringed was ‘clearly established,’” Behrens, 516 U.S. at 313 (alteration adopted) (quoting Johnson, 515 U.S. at 317), we may decide 

both questions, see, e.g., Stanley v. City of Dalton, 219 F.3d 1280, 

1286–87 (11th Cir. 2000) (holding that “when, as here, an interlocutory appeal presents both ‘evidence sufficiency’ and clearly established law issues,” we may decide both questions because “the factual issue of what conduct the defendant engaged in . . . is a necessary part of the core qualified immunity analysis of whether the 

defendant’s conduct violated clearly established law.” (quoting 

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McMillian v. Johnson, 88 F.3d 1554, 1563 (11th Cir.), amended on other 

grounds on reh’g, 101 F.3d 1363 (11th Cir. 1996))).

When both the evidentiary sufficiency and clearly established issues are raised on appeal, “the appellate court has two options regarding how to deal with the factual issue.” Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996). We may accept the district 

court’s findings of fact “if they are adequate.” Cottrell v. Caldwell, 85 

F.3d 1480, 1486 (11th Cir. 1996). “Or, we may conduct our own 

analysis of the facts in the light most favorable to the plaintiff.” 

Stanley, 219 F.3d at 1287. Even if we chose the latter course, “we 

will not disturb a factual finding by the district court if there is any 

record evidence to support that finding.” Id.

Because the parties here dispute not only whether the evidence is sufficient to create a jury question about whether Sellers 

violated Nelson’s constitutional right, but also whether that right 

was clearly established when Nelson allegedly violated it, we have 

jurisdiction over both issues. And we “choose to conduct our own 

factual analysis” and review the first question anew “because ‘such 

a determination is part of the core qualified immunity analysis.’” 

Id. (quoting Johnson, 74 F.3d at 1091).

B. A Reasonable Jury Could Find That Sellers Violated Nelson’s Right.

Because the survivors do not dispute that Sellers acted

within his discretionary authority, they must establish that a reasonable jury could find that Sellers violated Nelson’s constitutional 

right, and that his right was “clearly established” when Sellers violated it. Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019)

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(citation and internal quotation marks omitted). The survivors argue that Sellers was “deliberate[ly] indifferen[t] to a known, substantial risk of serious harm to [Nelson]” by doing nothing to isolate Hatchett from white inmates after learning the racial motive 

for his violent crime. Goodman v. Kimbrough, 718 F.3d 1325, 1331 

(11th Cir. 2013) (quoting Cottone v. Jenne, 326 F.3d 1352, 1358 (11th 

Cir. 2003)). “A prison official’s deliberate indifference to a known, 

substantial risk of serious harm to an inmate [that causes serious

harm to that inmate] violates the Fourteenth Amendment.” Id. (citation and internal quotation marks omitted); see Cottone, 326 F.3d 

at 1358 (“[A] plaintiff [claiming deliberate indifference] must show 

that the constitutional violation caused the injury.”).

We first consider whether the jail detainee faced a substantial risk of serious harm. We ask whether a reasonable jury could 

find that the detainee encountered “a strong likelihood, rather than 

a mere possibility,” of grievous injury. Brown v. Hughes, 894 F.2d 

1533, 1537 (11th Cir. 1990) (citation and internal quotation marks 

omitted). Proof of the attacker’s “generally problematic nature” or 

“propensity to misbehave” will not suffice to prove that he posed a 

substantial risk of serious harm to the detainee. Bowen v. Warden, 

Baldwin State Prison, 826 F.3d 1312, 1322 (11th Cir. 2016) (citation 

and internal quotation marks omitted). The evidence must establish a greater “degree of specificity in the risk of harm posed to [the 

victim.]” Id. Compare Cottone, 326 F.3d at 1355–58 (detainee plausibly alleged that cellmate posed substantial risk of serious harm to 

all others based on cellmate’s “violent tendencies,” “history of 

schizophrenia,” and prior assault on “another inmate”), and 

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Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 n.12 (11th Cir. 

2007) (evidence of specific death threats from other prisoners sufficient to survive summary judgment), with Brown, 894 F.2d at 1537 

(prisoner’s report of unspecified “racial problem” in his shared cell 

insufficient).

Drawing all factual inferences in the survivors’ favor, Hatchett’s underlying offense made the risk of serious harm he posed to 

white detainees, including Nelson, obvious. Because Hatchett was 

being detained for stabbing “the first white guy he s[aw]” based 

solely on his race, a jury could reasonably find that there was a 

“strong likelihood” that Hatchett would seriously injure a white 

cellmate for the same reason. Brown, 894 F.2d at 1537 (citation and 

internal quotation marks omitted). The survivors’ expert testified 

that it was “obvious . . . that the racial motivation of [Hatchett’s] 

pre-arrest assault . . . indicated a threat to white inmates.” And the

classification officers stated that they would have taken steps to isolate Hatchett from white inmates had the officers known of his racial motive. The record establishes more than “some unspecified 

risk of harm,” Marbury v. Warden, 936 F.3d 1227, 1238 (11th Cir. 

2019)—Hatchett’s unprovoked stabbing of a random white man 

solely because of the man’s race evidenced the deadly risk he posed 

to a white detainee.

The survivors also provided enough evidence from which a 

jury could reasonably find that Sellers was deliberately indifferent 

to the substantial risk of serious harm Nelson faced. This element 

“has two components: one subjective and one objective.” Mosley v. 

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Zachery, 966 F.3d 1265, 1270 (11th Cir. 2020) (citation and internal 

quotation marks omitted). The subjective component requires evidence that the defendant officer “actually (subjectively) knew” of 

the risk to the plaintiff inmate. Id. at 1270–71 (alterations adopted) 

(quoting Bowen, 826 F.3d at 1320). This standard is one of “subjective recklessness as used in the criminal law,” Farmer v. Brennan, 511 

U.S. 825, 839–40 (1994), and it is “a difficult burden for a plaintiff to 

meet,” West v. Tillman, 496 F.3d 1321, 1327 (11th Cir. 2007) (citation 

and internal quotation marks omitted). The objective component 

requires evidence that the officer “disregard[ed] th[e] known risk 

by failing to respond to it in an (objectively) reasonable manner.” 

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 

2014) (first alteration in original) (quoting Rodriguez, 508 F.3d at 

617).

Sellers challenges only the subjective component of the deliberate indifference standard. That is, he does not meaningfully 

dispute that if a reasonable jury could find that he knew the risk 

Nelson faced, his failure to act was objectively unreasonable. He 

disputes only that a reasonable jury could find that he did, in fact, 

know of that risk.

To evaluate this challenge, we recount what Sellers knew, 

viewing the evidence in the light most favorable to the survivors. 

See id. at 1100. Sellers knew that Hatchett stabbed a white man in 

the back after watching videos of white-on-black police shootings;

that Hatchett stabbed the man solely because he was white; that 

classification officers assigned Hatchett to a cell with Nelson, a 

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white man; that Hatchett was polite and cooperative with officers 

Sellers and Burgess during the booking process; that Hatchett 

never threatened anyone in the jail; and that Nelson never reported 

feeling threatened.

A jury faced with this evidence could reasonably infer that 

Sellers knew of the obvious risk of serious harm Hatchett posed to 

Nelson. Hatchett’s composure during his interactions with Burgess 

and Sellers, two police officers, reveals little about Hatchett’s risk 

to white inmates. The Supreme Court also has expressly rejected 

the argument that an injured inmate must have “expressed” to 

prison officials a “concern for his safety.” Farmer, 511 U.S. at 848 

(“[T]he failure to give advance notice [of a cellmate attack] is not 

dispositive.”). And a jury would be free “to disregard” Sellers’s

“self-serving (and unsupported)” testimony that he did not perceive Hatchett to pose a risk of violence to a white detainee. See 

United States v. Stein, 881 F.3d 853, 858 (11th Cir. 2018) (en banc). 

Indeed, a jury could reasonably discount that testimony in view of 

the abundant circumstantial evidence to the contrary. See, e.g., Marbury, 936 F.3d at 1237 (holding plaintiff can prove subjective component using “circumstantial evidence” (citation and internal quotation marks omitted)). But cf. Goodman, 718 F.3d at 1333–34 (summary judgment for defendants was warranted when “the only evidence of what Officers . . . were actually aware of [wa]s their own 

adamant denials of the fact that they ever feared for [the inmate]’s 

safety in any way” (emphasis added)). Indeed, “a factfinder may 

conclude that a prison official knew of a substantial risk from the 

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22-14205 Opinion of the Court 15

very fact that the risk was obvious,” Farmer, 511 U.S. at 842, and a 

jury could reasonably find that the risk here was. 

The survivors must also prove “a causal connection between [Sellers’s] conduct and the [Fourteenth] Amendment violation.” Bowen, 826 F.3d at 1320. This causal element requires proof 

that the officer “(1) had the means substantially to improve the inmate’s safety, (2) knew that the actions he undertook would be insufficient to provide the inmate with reasonable protection from 

violence, and (3) had other means available to him which he nevertheless disregarded.” Rodriguez, 508 F.3d at 622 (alterations 

adopted) (citation and internal quotation marks omitted).

This record would permit a reasonable jury to find the “necessary causal link” between Sellers’s inaction and Nelson’s death.

Id. at 623 (internal quotation marks omitted). Sellers had the means 

to protect Nelson from Hatchett: he could have told a classification 

officer about the risk of harm Hatchett posed to white inmates. Although the classification officers, not the intake officers, bore final 

inmate-placement responsibility, “proof of causation . . . does not 

turn on the ultimate placement or classification decision.” See id. at 

624 n.20; accord Farmer, 511 U.S. at 850. It is enough to prove that

the official “had the authority to make . . . recommendations with respect to placement and classification decisions.” Rodriguez, 508 F.3d 

at 624 n.20 (emphasis added). Sellers admitted that he had authority 

to make housing recommendations and that classification officers 

were receptive to such recommendations and would move an inmate if given a good reason. Hatchett’s classification officers 

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confirmed that they would have acted on those recommendations. 

A reasonable jury could find too that Sellers knew his actions 

would be insufficient to protect Nelson because, as Sellers concedes, he did nothing to limit Hatchett’s exposure to white detainees. See id. at 623. 

C. Nelson’s Right Was Clearly Established.

All that remains is “the clearly established prong of the qualified immunity inquiry.” Helm v. Rainbow City, 989 F.3d 1265, 1275 

(11th Cir. 2021). A right is “clearly established” if controlling law 

gave the official “fair warning” that his conduct violated that right. 

Hope v. Pelzer, 536 U.S. 730, 741 (2002); accord, e.g., Wade v. United 

States, 13 F.4th 1217, 1225 (11th Cir. 2021). Fair warning can be established by identifying “a materially similar case,” Mercado v. City 

of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005), appealing to “a 

broader, clearly established principle [that] should control the 

novel facts” at hand, id., or establishing that the challenged conduct 

“so obviously violates the Constitution that prior case law is unnecessary” to clarify its lawlessness, Waldron v. Spicher, 954 F.3d 

1297, 1305 (11th Cir. 2020) (alterations adopted) (citation and internal quotation marks omitted). 

The survivors rely upon only a broader, controlling principle that Nelson’s right was clearly established. For a right to be 

clearly established under this method, “the principle must be established with obvious clarity by the case law” such that it would have 

been “apparent” to every reasonable officer that the defendant’s 

conduct was unlawful. Terrell v. Smith, 668 F.3d 1244, 1256 (11th 

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Cir. 2012) (citations and internal quotation marks omitted). We 

agree with the survivors that the broad principles of our deliberate

indifference precedents clearly control the facts of this case.

When Nelson died, it was clearly established that “prison officials have a duty” under the Constitution to take reasonable action “to protect prisoners from violence at the hands of other prisoners.” Bowen, 826 F.3d at 1320 (quoting Farmer, 511 U.S. at 833)

(applying the Eighth Amendment to a convicted prisoner’s deliberate indifference claim); see Goodman, 718 F.3d at 1331 n.1 (“[T]he 

standards [for deliberate indifference claims] under the Fourteenth 

Amendment [for pretrial detainees] are identical to those under the 

Eighth [for convicted prisoners].” (citation and internal quotation 

marks omitted)). And it was clearly established that an officer violates this duty if he “knows that one prisoner poses a substantial 

risk of serious harm to another, yet fails to take any [reasonable] 

action” to separate them. Caldwell, 748 F.3d at 1102 (first citing Cottone, 326 F.3d at 1358–60; then citing Hale v. Tallapoosa County, 50 

F.3d 1579, 1584 (11th Cir. 1995); and then citing LaMarca v. Turner, 

995 F.2d 1526, 1536–38 (11th Cir. 1993)); see Cottone, 326 F.3d at 

1358 (“A Fourteenth Amendment violation occurs when a substantial risk of serious harm, of which the official is subjectively aware, 

exists and the official does not respond reasonably to the risk,”

causing serious harm to the inmate.). 

Sellers had fair warning that it was unconstitutional not to 

prevent the placement of a white detainee alone in a cell with another detainee who, the day before, stabbed a stranger solely for 

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being white. See Patel v. Lanier County Georgia, 969 F.3d 1173, 1190 

(11th Cir. 2020) (holding, before Hatchett’s arrest, that “broad [deliberate indifference] principle[s] ha[ve] put all law-enforcement officials on notice that if they actually know about a condition that 

poses a substantial risk of serious harm and yet do nothing to address it, they violate the Constitution.”). Because controlling 

caselaw placed the illegality of Sellers’s conduct “beyond debate”

by the time of Hatchett’s arrest, Sellers is not immune from suit for

that conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

IV. CONCLUSION

We AFFIRM the denial of qualified immunity.

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22-14205 Abudu, J, Concurring 1

ABUDU, Circuit Judge, Concurring:

I agree with the majority’s decision to affirm the district 

court’s denial of Keyvon Sellers’s motion for summary judgment 

on qualified immunity grounds. At the summary judgment stage, 

there is evidence, albeit barely more than a scintilla, supporting a 

reasonable jury’s determination that Eddie Lee Nelson’s killing was 

racially motivated. I write separately to highlight that the evidence 

of that motivation, however, is extremely thin. What the record 

does show though is that jail can be a violent, dangerous place. The 

majority’s decision cements the legal principle that incarcerated individuals may bring a race-based failure to protect claim even on a 

record as bare bones—again as to that motivation—as Nelson’s estate presented in this case. To clarify, the law that this Circuit has 

now clearly established is this: “prison officials have a duty” under 

the Fourteenth Amendment to take reasonable action “to protect 

prisoners from violence at the hands of other prisoners” when officials have a reasonable belief that another inmate might have racial 

animus and, thus, is dangerous even when that inmate is housed 

with others of different races and ethnicities for several days without incident. Maj. Op. at 6-7; See Bowen v. Warden Baldwin State 

Prison, 826 F.3d 1312, 1320 (11th Cir. 2016).

“We review de novo a district court’s grant of summary 

judgment, applying the same standard that bound the district court 

and viewing the evidence and all reasonable inferences in the light 

most favorable to [Nelson’s estate].” Rodriguez v. Sec’y for Dep’t of 

Corr., 508 F.3d 611, 616 (11th Cir. 2007) (citing Drago v. Jenne, 453 

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2 Abudu, J., Concurring 22-14205

F.3d 1301, 1305 (11th Cir. 2006)). “[Then], [w]ith the plaintiff’s best 

case in hand, the court is able to move to the question of whether 

the defendant committed the constitutional violation alleged in the 

complaint without having to assess any facts in dispute.” Robinson 

v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005). In a Fourteenth 

Amendment due process case premised on a penal institution’s failure to reasonably protect its occupants, such as the one brought 

forth here, a plaintiff must show: “(1) a substantial risk of serious 

harm existed; (2) the defendant[] [was] deliberately indifferent to 

that risk, i.e., [he] both subjectively knew of the risk and also disregarded it by failing to respond in an objectively reasonable manner; 

and (3) there was a causal connection between the defendant[’]s[] 

conduct and the [constitutional] violation.” Bowen, 826 F.3d at 1320 

(citing Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th 

Cir. 2014)). The plaintiff must also show “that the constitutional 

right was clearly established at the time of [the] conduct.” Id. at 

1319 (alteration in original) (citing Perez v. Suszczynski, 809 F.3d 

1213, 1218 (11th Cir. 2016)). This Court has identified three ways 

in which a plaintiff can demonstrate that a constitutional right has 

been clearly established:

First, the plaintiff can point to a materially similar case 

decided at the time of the relevant conduct by the Supreme Court, the Eleventh Circuit, or the relevant 

state supreme court. . . . The prior case law need not 

be directly on point, but existing precedent must have 

placed the statutory or constitutional question beyond debate. Second, the plaintiff can identify a 

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22-14205 Abudu, J, Concurring 3

broader, clearly established principle that should govern the novel facts of the situation. Third, the plaintiff 

can show that the conduct at issue so obviously violated the Constitution that prior case law is unnecessary. 

J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259-

60 (11th Cir. 2018) (internal quotation marks and citations omitted). Thus, even if a plaintiff demonstrates that a reasonable jury 

could find a constitutional violation, this Court can and does deny 

relief on the basis of qualified immunity. See, e.g., Youmans v. Gagnon, 626 F.3d 557, 565-66 (11th Cir. 2010) (granting police officer 

qualified immunity after ruling that pretrial detainee’s right to 

medical care after being beaten and visibly bruised by other officers 

was not clearly established). This Court has also historically expressed that the third method of showing a law is clearly established—using a broader, controlling principle that applies with obvious clarity—“[is] rare and [doesn’t] arise often.” King v. Pridmore, 

961 F.3d 1135, 1146 (11th Cir. 2020) (citing Gaines v. Wardynski, 871 

F.3d 1203, 1209 (11th Cir. 2017)(collecting cases)); Coffin v. Brandau, 

642 F.3d 999, 1015 (11th Cir. 2011) (“Our case law has made clear 

that ‘obvious clarity’ cases will be rare”) (collecting cases); Santamorena v. Ga. Mil. Coll., 147 F.3d 1337, 1340 n.6 (11th Cir. 1998) (“these 

exceptional cases rarely arise”). 

This decision is, therefore, especially groundbreaking considering the number of qualified immunity cases in which plaintiffs 

have relied on a “broader controlling legal principle,” which this 

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4 Abudu, J., Concurring 22-14205

Court has rejected. See, e.g., Wade v. United States, 13 F.4th 1217, 

1229 (11th Cir. 2021) (granting correctional officer qualified immunity in ruling that plaintiff’s right to medical attention for a broken, bleeding hand prior to being transferred to another cell was 

not clearly established despite plaintiff’s argument that right was 

encompassed within a broader, clearly established principle); 

Gaines, 871 F.3d at 1214 (granting qualified immunity to Superintendent of school district, ruling that any prohibition against defendant denying teacher a promotion based on a family member’s 

public criticisms of the school district was based on “First Amendment principles at a high level of generality” and, thus, not clearly 

established); Dukes v. Deaton, 852 F.3d 1035, 1044 (11th Cir. 2017)

(granting a defendant officer accused of excessive force qualified 

immunity despite finding that a Fourth Amendment violation occurred because “the contours of the right were not clearly established”). 

We have also suggested that the broader, general principle

articulated in this case was not clearly established. See, e.g., Carter v. 

Galloway, 352 F.3d 1346, 1349, 1350 n.10 (11th Cir. 2003) (finding 

that plaintiff failed to satisfy subjective prong of deliberate indifference claim against officers for failure to protect him from physically 

abusive cellmate, but noting that claim would have failed in any 

event because right “was not clearly established in Plaintiff’s favor”).

Prisons and jails are widely known to be one of the most 

dangerous housing situations in the world. See, e.g., Keri Blakinger, 

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22-14205 Abudu, J, Concurring 5

Why So Many Jails Are in a ‘State of Complete Meltdown’, THE 

MARSHALL PROJECT, https://www.themarshallproject.org/2022/

11/04/why-so-many-jails-are-in-a-state-of-complete-meltdown 

(Nov. 4, 2022, 1:00 pm) (“[W]hile the infamous Rikers Island jail 

complex in New York City has been the focus of media coverage 

for its surging number of deaths, rural and urban lockups from 

Tennessee to Washington to Georgia are not faring much better.”); 

Matt Ford, The Everyday Brutality of America’s Prisons, NEW 

REPUBLIC (Apr. 5, 2019), https://newrepublic.com/article/153473/everyday-brutality americas-prisons (profiling a Justice 

Department report regarding “inmate deaths and violence across 

the country that, taken together, paint a grim picture of the brutality that occurs behind prison walls” and noting that “[j]ails hold a 

far greater number of people than prisons, and often include people 

who are awaiting trial and thus haven’t been found guilty of a 

crime. . . . It’s no surprise that funneling at-risk individuals into a 

hostile environment can have fatal consequences.”).

The Muscogee County jail created specific policies for classifying inmates who might be especially vulnerable to assault at the 

hands of other inmates. While in no way minimizing Nelson’s 

tragic death, the record shows that, at least on paper, and given that 

Hatchett was in pretrial detention and not yet convicted of any 

crime, Nelson arguably was a danger to Hatchett as well. 

Muscogee’s inmate classification system categorizes inmates 

as “high risk” if their current offense or previous conviction was for 

a violent charge. In this case, Nelson, who was 39, was incarcerated 

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6 Abudu, J., Concurring 22-14205

based on his failure to register as a sex offender. His classification 

documents noted he had a previous conviction for rape. He ultimately received a classification that reflected his status as a sex offender and his violent criminal history and was classified to be in 

“maximum” detention. The next question that this case poses is 

whether someone in Hatchett’s situation who was 19 years old and 

now alone in a cell with Nelson, could defeat a qualified immunity 

defense if Nelson had attacked and injured him instead. Perhaps 

the answer to that question is now definitively yes, which means 

victims of assault in jail are clearly entitled to heightened protections. 

While the Court has adopted the race-based claim that Nelson’s estate proffers as the reason for Nelson’s murder, a jury could 

instead find that there was another, non-racially motivated, reason 

for the assault. To underscore this point, one can simply look to 

Hatchett’s behavior when he was placed in a cell with two white 

detainees: Rae Nolan and Nelson. Hatchett spent his first day in 

detention alone with Nolan. Nelson joined their cell the next day. 

Hatchett, Nolan, and Nelson were cellmates together for five days. 

While Hatchett was in a cell with these two other white men, he 

never expressed any hate for white people, and he never made any 

racist comments to either Nolan or Nelson. In fact, Hatchett and 

Nolan got along. He traded Nolan his breakfast tray for Nolan’s 

cookies at night. After Nolan was moved out of their cell, Nelson 

and Hatchett remained cellmates for four more days without Nelson ever reporting to Sellers or anyone else that he felt like he was 

in danger in his cell or otherwise threatened by Hatchett. 

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22-14205 Abudu, J, Concurring 7

When Hatchett did attack Nelson, the words out of his 

mouth were not racial slurs or race-related comments—they were 

about hair in his food. In fact, Correctional Officer Sabrina Millison 

stated that, following the incident and while Hatchett was being 

held behind a cell door while other officers tried to resuscitate Nelson, Hatchett’s comments to her were: “he [Nelson] touched my 

food,” and “he [Nelson] put hair in my food.” 

Based on this constellation of facts, it is not clear whether 

Nelson faced “a strong likelihood,” Brown v. Hughes, 894 F.2d 1533, 

1537 (11th Cir. 1990) (citation and internal quotation marks omitted), of “a substantial risk of serious harm,” Bowen, 826 F.3d at 1322

(citation and internal quotation marks omitted), solely based on his 

race. However, again, when we view the limited evidence in the 

light most favorable to Nelson’s estate, that is a question for a jury 

to decide. 

Nevertheless, this Circuit has now recognized (1) the alleged 

constitutional violation of Nelson’s rights has been clearly established; and (2) any evidence of racial animus—even when there 

may be other motivations behind the assailant’s actions—is sufficient to overcome qualified immunity under these circumstances. 

I hope these tenants remain true for subsequent cases brought by 

plaintiffs regarding the threats and violence they have faced while 

incarcerated

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22-14205 Ed Carnes, J, Concurring 1

ED CARNES, Circuit Judge, joined by WILLIAM PRYOR, Chief Judge,

concurring:

We concur in all of the Court’s opinion and write separately 

to respond to some of the statements in the other concurring opinion. 

I.

This Court has often stressed that no decision can hold anything that goes beyond the facts of the case. See, e.g., Edwards v. 

Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed 

out many times that regardless of what a court says in its opinion, 

the decision can hold nothing beyond the facts of that case. All 

statements that go beyond the facts of the case . . . are dicta. And 

dicta is not binding on anyone for any purpose.”) (citations omitted); Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th 

Cir. 2006) (“The holdings of a prior decision can reach only as far 

as the facts and circumstances frame the precise issue presented in 

that case.”); Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 

(11th Cir. 2003) (“Whatever their opinions say, judicial decisions 

cannot make law beyond the facts of the cases in which those decisions are announced.”); United States v. Aguillard, 217 F.3d 1319, 

1321 (11th Cir. 2000) (“The holdings of a prior decision can reach 

only as far as the facts and circumstances presented to the Court in 

the case which produced that decision.”) (quoting United States v. 

Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J., concurring)); see also Moon v. Head, 285 F.3d 1301, 1318 (11th Cir. 2002) 

(Carnes, J., concurring) (“Those statements are dicta. They are 

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2 Ed Carnes, J., Concurring 22-14205

dicta because they go beyond the facts of the [earlier] case itself . . . .”); Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1265 

(11th Cir. 2007) (“Judicial opinions do not make binding precedents; judicial decisions do.”) (alteration adopted) (quotation 

marks omitted). 

Our colleague’s separate concurring opinion would take a 

more expansive approach by interpreting the Court’s decision to 

“recognize[]” that “any evidence of racial animus––even when 

there may be other motivations behind the assailant’s actions––is 

sufficient to overcome qualified immunity under these circumstances.” Abudu Concurrence at 7 (emphasis added). Our decision 

does not recognize or even imply that, and it certainly does not 

hold that. Reframing our decision in that way would defy all of our 

many precedents stressing that a holding reaches only as far as the 

facts and circumstances of the case. See, e.g., Chavers, 468 F.3d at 

1275. 

Let’s start with the most obvious point about race. This is 

not a case in which any prison guard or official is accused of racial 

discrimination. Race played only one role in this tragic tale: A jury 

could find that racial hatred motivated Hatchett, a black inmate, to 

murder Nelson, a white inmate, solely because he was white. The 

Constitution does not forbid inmates from discriminating against 

other inmates based on race, and Hatchett is not a defendant in this 

case. The defendant is Sellers, an intake officer at the detention 

center. The claim against him is not that he discriminated against 

any inmate based on race. The claim is that he was deliberately 

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22-14205 Ed Carnes, J, Concurring 3

indifferent to the substantial risk that Hatchett would attack a 

white inmate if he was put into a cell with one, and as a result, 

Hatchett was celled with a white inmate and murdered him. 

Even if we wanted to do so, we could not hold in this case 

that “any evidence” of racial animus by the inmate assailant is 

somehow enough to overcome an official’s qualified immunity, see

Abudu Concurrence at 7. We could not because those are not the 

only facts of this case. Instead, the facts of the case include a prison 

official being deliberately indifferent to a specific risk of violence 

that could have been avoided with minimal effort by him, but he 

did nothing to address it. A future panel cannot ignore some facts 

in this case to convert it into a broader precedent. And we can’t 

either. A decision in a case including facts A + B + C that concludes 

those facts together amount to a constitutional violation cannot be 

binding precedent for the proposition that either A alone, or A + B 

without C, is a constitutional violation. 

The specific facts at this stage, as the opinion of the Court 

recounts them, are that Sellers was an intake officer who helped 

process Hatchett into the detention center. See Maj. Op. at 4. And 

Sellers knew that Hatchett had been arrested for going into a store 

and stabbing a stranger in the back. See id. at 4, 13. And he knew 

that Hatchett, a black man, had stabbed that stranger solely because the man was white. See id. And Hatchett told Sellers that he 

had “seen a video” of cops killing black people and “decided [he] 

was gonna stab a white guy” in response. See id. at 4. And Sellers 

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4 Ed Carnes, J., Concurring 22-14205

knew that Hatchett had done exactly that the day before he was 

being processed into the detention center. See id. at 3–4.

Not only all of that, but both classification officers testified 

that had they known Hatchett’s unprovoked stabbing of a stranger 

the day before he was arrested was racially motivated, they would 

not have put him in a cell with a white detainee. See id. at 6. And 

Sellers himself admitted that he knew classification officers would 

move an inmate if “given a good reason.” See id. at 5. Yet, he “did 

nothing to limit Hatchett’s exposure to white detainees.” Id. at 16. 

“In deliberate-indifference cases, as in life, context matters.” 

Mosley v. Zachery, 966 F.3d 1265, 1272 (11th Cir. 2020). Based on 

the facts as presented at the summary judgment stage, our opinion

holds only that at the time of Nelson’s death it was clearly established that if a prison official actually knows about a condition that 

poses a substantial risk of serious harm to an inmate and does not 

take any reasonable steps to prevent that harm, causing the inmate 

injury, he violates the Constitution. See Maj. Op. at 17–18; Caldwell 

v. Warden, FCI Talladega, 748 F.3d 1090, 1100–03 (11th Cir. 2014); 

Cottone v. Jenne, 326 F.3d 1352, 1359–60 (11th Cir. 2003); Patel v. Lanier County Georgia, 969 F.3d 1173, 1190 (11th Cir. 2020). 

Our holding is not “groundbreaking,” see Abudu Concurrence at 3. Far from it. We’ve previously held that if a prison official was deliberately indifferent to a serious risk of harm that could 

have been (but wasn’t) avoided with a reasonable amount of effort, 

the officer may be held liable. See, e.g., Bowen v. Warden, Baldwin 

State Prison, 826 F.3d 1312, 1320–25 (11th Cir. 2016) (denying 

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22-14205 Ed Carnes, J, Concurring 5

qualified immunity and holding that the plaintiff had plausibly alleged a deliberate indifference claim against two prison officials 

who were aware that an inmate was “a severe paranoid schizophrenic who suffered from violent delusions, auditory hallucinations, and impulsive tendencies” and knew that he had committed 

a “High-Assault” against his previous cellmate but took no steps to 

protect the cellmate he killed); Caldwell, 748 F.3d at 1101–03 (denying qualified immunity and holding that where prison officials 

knew an inmate had a history of past prison violence and had 

started a fire in his cell using the plaintiff’s personal belongings, a 

jury could reasonably find that the officials “actually knew of a substantial risk” that the inmate “would seriously harm” the plaintiff); 

Cottone, 326 F.3d at 1358–60 (denying qualified immunity and holding that the plaintiff plausibly alleged deliberate indifference where 

the prison officials failed to monitor or supervise a visibly violent 

and mentally unstable inmate they knew posed a substantial risk of 

serious harm to other inmates); Rodriguez v. Sec’y for Dep’t of Corr., 

508 F.3d 611, 618–24 (11th Cir. 2007) (vacating a grant of summary 

judgment and judgment as a matter of law entered in favor of 

prison officials on a deliberate indifference claim where the officials 

were aware of specific gang-related threats against the plaintiff but 

did not take available steps to protect the plaintiff, who was later 

stabbed).

According to the facts as we take them at this stage, Sellers 

was put on notice during Hatchett’s intake that he was especially 

violent toward white people and had, only the day before, stabbed 

a total stranger in the back solely for being white. It would have 

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6 Ed Carnes, J., Concurring 22-14205

taken only a miniscule amount of effort for Sellers to prevent the 

danger that Hatchett posed to white detainees.1 All he had to do 

was tell one of the classification officers that Hatchett’s violent 

crime had been motivated by a desire to harm white people. And 

a jury could reasonably find that Sellers’ failure to act caused Nelson, Hatchett’s second victim, to be killed.2 . Concluding that those 

facts would establish deliberate indifference breaks no new ground; 

instead, the conclusion rests on well-ploughed ground and is entirely in keeping with our precedents. See Bowen, 826 F.3d at 1320–

24; Caldwell, 748 F.3d at 1100–02; Cottone, 326 F.3d at 1358–60; Rodriguez, 508 F.3d at 618–24. 

Our concurring colleague asserts that “it is not clear whether 

Nelson faced ‘a strong likelihood’ of ‘a substantial risk of serious 

harm’ solely based on his race.” Abudu Concurrence at 7 (internal 

citations omitted) (quoting first Brown v. Hughes, 894 F.2d 1533, 

1537 (11th Cir. 1990), then Bowen, 826 F.3d at 1322). But drawing 

1 As our colleague’s concurring opinion acknowledges, the reasonableness of 

the potentially preventative action is important. See Abudu Concurrence at 1;

Caldwell, 748 F.3d at 1099 (explaining that the objective component of deliberate indifference requires evidence that the officer disregarded the known risk 

by “failing to respond to it in an (objectively) reasonable manner”) (quotation 

marks omitted). 

2 Sellers disputes only the subjective component of deliberate indifference, arguing that no reasonable jury could find that he had actual, subjective 

knowledge of the risk Hatchett posed to Nelson. See Mosely v. Zachery, 966 

F.3d 1265, 1270–71 (11th Cir. 2020). But, as detailed in the majority opinion, 

there was enough evidence that Sellers did actually, subjectively know about 

it and that he disregarded that known risk. See Maj. Op. at 13–14.

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22-14205 Ed Carnes, J, Concurring 7

all reasonable inferences in the plaintiffs’ favor (as we must here), 

it is clear that Nelson did face a substantial risk of serious harm. See

Maj. Op. at 11–12. Hatchett had already shown that, seeking racial 

vengeance, he would violently attack someone solely because he 

was white. After all, it was only the day before he was processed 

into the detention center that Hatchett had been arrested for stabbing in the back “the first white guy he s[aw]” just because he was 

white.

The two classification officers testified that had they known 

the stabbing for which Hatchett was arrested was racially motivated, they would not have put him in a cell with a white detainee 

“for the safety” of that detainee. The plaintiffs’ expert agreed that 

because of the racial motivation behind the stabbing, Hatchett “obvious[ly]” posed a “threat to white inmates.” The evidence viewed 

in the light most favorable to the plaintiffs shows more than “some 

unspecified risk of harm to [Nelson’s] well-being,” see Marbury v. 

Warden, 936 F.3d 1227, 1238 (11th Cir. 2019), and more than the 

“mere possibility” of injury, see Brooks v. Warden, 800 F.3d 1295, 

1301 (11th Cir. 2015); it shows that Hatchett posed a “specific[]” 

and “particularized threat” to Nelson and other white inmates, see 

Bowen, 826 F.3d at 1322 (quotation marks omitted). 

The other concurring opinion asserts that the evidence of a 

racial motivation for the murder is “extremely thin,” Abudu Concurrence at 1. To the contrary, viewing the evidence in the light 

most favorable to the plaintiff, there is plenty of it. For example, 

the evidence shows that Hatchett told three different officers or jail 

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8 Ed Carnes, J., Concurring 22-14205

employees that he was there because he stabbed a stranger solely 

because of the stranger’s race, after watching videos about police 

violence against black people. He also told two of his cellmates 

that after watching “one of them cop shooting videos,” he got

“mad,” and he stabbed “the first white guy he seen.” And the day 

after killing his cellmate, in talking to a psychiatrist, Hatchett 

“[m]entioned about his [cellmate] talking about racial things.” 

More to the point, there is enough evidence from which a 

jury could reasonably find that there was a “strong likelihood” that 

Hatchett would seriously harm Nelson, see Brown, 894 F.2d at 1537, 

that Sellers actually knew about that substantial risk of serious 

harm, see Caldwell, 748 F.3d at 1102, that Sellers knew he could do 

something about it but did nothing, see Rodriguez, 508 F.3d at 622, 

and that his failure to act caused Nelson’s death, see id. at 617, 622–

24, 624 n.20. As we’ve mentioned, the other concurring opinion 

states that “any evidence of racial animus—even when there may 

be other motivations behind the assailant’s actions—is sufficient to 

overcome qualified immunity under these circumstances.” Abudu 

Concurrence at 7. But “any evidence of racial animus” by a prisoner, regardless of whether there are other motivations, is not 

enough to show a constitutional violation, much less to overcome 

qualified immunity. 

As the Supreme Court has stressed, “It is not . . . every injury 

suffered by one prisoner at the hands of another that translates into 

constitutional liability for prison officials responsible for the victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1970). Prisons 

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22-14205 Ed Carnes, J, Concurring 9

and jails are inherently dangerous places. See id. at 858 (Thomas, 

J., concurring in the judgment) (“Prisons are necessarily dangerous 

places . . . .”); Kincaid v. Williams, 143 S. Ct. 2414, 2419 n.2 (2023) 

(Alito, J., dissenting) (referring to “the uniquely dangerous context 

of prison”); United States v. Prevo, 435 F.3d 1343, 1346 (11th Cir. 

2006) (“Because of the character of prisoners and the nature of imprisonment, corrections facilities are volatile places, brimming 

with peril, places where security is not just an operational nicety 

but a matter of life or death importance.”); Florence v. Bd. of Chosen 

Freeholders of Cnty. of Burlington, 566 U.S. 318, 333 (2012) (“Jails are 

often crowded, unsanitary, and dangerous places.”); Ort v. White, 

813 F.2d 318, 322 (11th Cir. 1987) (in a prison discipline case, explaining that “in evaluating the challenged conduct of prison officials, a court must keep in mind the paramount concerns of maintaining order and discipline in an often dangerous and unruly environment”); Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (en 

banc) (“Prisons are dangerous and filled with law-breaking because 

that is where the criminals are. Even the most secure prisons are 

dangerous places for inmates, employees, and visitors.”); see also

Abudu Concurrence at 4 (“Prisons and jails are widely known to be 

one of the most dangerous housing situations in the world.”). 

“[T]hey house society’s most antisocial and violent people in close 

proximity with one another.” Farmer, 511 U.S. at 858; see also Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“Prisons, by definition, are 

places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct.”). 

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Given all of those decisions, our circuit law does not suggest, 

let alone establish, that any time an inmate assaults another inmate 

for racial reasons some prison official has in some way violated the 

Constitution. And our decision today does not suggest that either. 

A prison official violates the Constitution only when the inmate 

can show that he was “incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511 U.S. at 834 (majority 

opinion), and that the official knew of and consciously disregarded 

that substantial risk, id. at 837–38, and that the official’s action or 

inaction caused injury, see Bowen, 826 F.3d at 1320; Cottone, 326 F.3d 

at 1358; see also Brown, 894 F.2d at 1537 (“When officials become 

aware of a threat to an inmate’s health and safety, the Eighth 

Amendment’s proscription against cruel and unusual punishment 

imposes a duty to provide reasonable protection. Merely negligent 

failure to protect an inmate from attack does not justify liability 

under section 1983, however. Prison officials must have been deliberately indifferent to a known danger before we can say that 

their failure to intervene offended evolving standards of decency, 

thereby rising to the level of a constitutional tort.”) (citations and 

quotation marks omitted). 

Despite what the other concurrence suggests, victims of assault in jail are not entitled to any “heightened protections,” Abudu 

Concurrence at 6. Prison officials are not required to guarantee

inmates’ safety from another inmate, regardless of the other inmate’s motivation for violence. See Farmer, 511 U.S. at 834; see also 

Purcell ex rel. Est. of Morgan v. Toombs County, 400 F.3d 1313, 1321 

(11th Cir. 2005) (“[A] prison custodian is not the guarantor of a 

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22-14205 Ed Carnes, J, Concurring 11

prisoner’s safety.”) (quotation marks omitted). As the Court’s 

opinion in this case points out, “A prison official’s deliberate indifference to a known, substantial risk of serious harm to an inmate” 

is what violates the Constitution. See Maj. Op. at 11. It does not 

matter if the substantial risk that one inmate will seriously injure 

or kill another is motivated by race, religion, gang affiliation, or 

something else. The decisions of the Supreme Court and this 

Court draw the line based on deliberate indifference, not based on 

the specific motivation that created the substantial risk of harm. 

II.

One final note. To the extent that the concurring opinion’s 

last paragraph implies that the qualified immunity issue is out of 

this case, see Abudu Concurrence at 7, our circuit precedent establishes otherwise. At this summary judgment stage, we view the 

facts and draw all reasonable inferences in the plaintiffs’ favor. See 

Caldwell, 748 F.3d at 1103. But we recognize that even though a 

plaintiff gets past summary judgment, he “may not be able to prove 

such facts to the satisfaction of the jury” and “the jury may elect 

not to draw inferences from the circumstantial evidence in [the 

plaintiff’s] favor.” Id. The point is that “what we state as ‘facts’ in 

this opinion for purposes of reviewing the rulings on the summary 

judgment motion[] may not be the actual facts” decided at trial. 

Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995); see Farrow 

v. West, 320 F.3d 1235, 1239 n.2 (11th Cir. 2003) (same). 

“Any qualified immunity defenses that do not result in summary judgment [for the defendant] before trial may be renewed at 

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12 Ed Carnes, J., Concurring 22-14205

trial,” Swint, 51 F.3d at 992, where the jury can “find the relevant 

facts bearing on the qualified immunity issue,” Simmons v. Bradshaw, 879 F.3d 1156, 1164–65 (11th Cir. 2018). At trial Sellers can 

“urge the jury to view the record as []he has framed it, seek special 

interrogatories to resolve historical facts underlying [his] immunity 

argument, and then resubmit the issue to the district court for decision.” Butler v. Smith, 85 F.4th 1102, 1118 n.6 (11th Cir. 2023); see 

also Kelly v. Curtis, 21 F.3d 1544, 1546–47 (11th Cir. 1994) (“[A] defendant who does not win summary judgment on qualified immunity grounds may yet prevail on those grounds at or after trial 

on a motion for a judgment as a matter of law.”). 

If Sellers does renew the qualified immunity defense at trial, 

and if the evidence at trial could support a jury finding on the facts 

that would support qualified immunity, the district court can, and 

when needed should, “use special verdicts or written interrogatories to the jury to resolve disputed facts before the judge rules on 

the qualified-immunity question.” Cottrell v. Caldwell, 85 F.3d 1480, 

1487 (11th Cir. 1996) (quotation marks omitted). 

USCA11 Case: 22-14205 Document: 37-1 Date Filed: 01/05/2024 Page: 37 of 37