United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3743

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*

Randell Brown, *

*

Plaintiff-Appellee, * Appeal from the United States 

* District Court for the Western

v. * District of Missouri. 

*

Keith Fortner; Eugene Scott, *

*

Defendants-Appellants. *

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Submitted: September 27, 2007

Filed: March 4, 2008

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Before MURPHY, MELLOY, and SMITH, Circuit Judges.

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MELLOY, Circuit Judge.

Former Missouri Department of Corrections (MDOC) inmate Randell Brown

filed a 42 U.S.C. § 1983 suit against a number of MDOC employees, including Keith

Fortner and Eugene Scott. Brown alleged Fortner and Scott, both correction officers

with the MDOC, acted with deliberate indifference by failing to provide safe

transportation to Brown, thus violating Brown’s Eighth Amendment rights. The

district court granted the defendants’ motion to dismiss, and this court reversed in

part, concluding Brown stated a claim against Fortner, Scott, and the other

correctional officers involved in his transportation. Brown v. Mo. Dep’t of Corr., 353

F.3d 1038 (8th Cir. 2004). On remand, the district court denied Fortner’s and Scott’s

claims of qualified immunity and denied their motions for summary judgment.
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Fortner and Scott appeal. Brown argues this court lacks interlocutory appellate

jurisdiction to hear Fortner’s and Scott’s claims. We conclude we have jurisdiction to

consider this appeal and affirm in part and reverse in part.

I. Background

For purposes of summary judgment, we view the evidence in the light most

favorable to Brown, the non-moving party. Ngo v. Storlie, 495 F.3d 597, 599 (8th

Cir. 2007). 

Fortner and Scott were part of an MDOC transportation team transferring

Brown and other inmates from one MDOC facility to another in a five-vehicle

convoy. Fortner drove the second vehicle in the convoy, a van carrying Brown and

nine other inmates. Scott drove the third vehicle, a van carrying one inmate. 

Brown was fully shackled with belly chains, handcuffs, leg chains, and a black

box covering the handcuffs as officers loaded him into the van. The other inmates

were similarly restrained. These restraints prevented Brown and the other inmates

from securing their seatbelts without assistance. The restraints also would prevent the

inmates from bracing themselves in the event of a crash.

As correction officers loaded Brown into the van, Brown asked the officers to

fasten his seatbelt. The officers refused to secure Brown’s seatbelt and instead replied

with taunts. Other inmates also requested seatbelts and were rebuffed. Brown reports

hearing transportation officers say, “Ah, hell, you all will be all right,” “You all don’t

think we’re gonna wreck, do you?”, and “What, you all don’t trust our driving?”

Brown is unable to identify personally the officers who made the taunting comments

and has presented no evidence identifying either Fortner or Scott as one of the officers

who taunted the inmates. 
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Fortner denies being present when Brown was loaded into the van and denies

making any of the taunting comments recounted above. However, Fortner admits he

failed to fasten Brown’s seatbelt. When seatbelts are available, transporting inmates

without securing their seatbelts violates MDOC policy. Scott claims he was not

present when Brown was loaded into the van, explaining he was fifty feet away,

calling the names of the prisoners as they were loaded into the vans. Scott did not

fasten the seatbelt of the prisoner riding in his van; there is no evidence as to whether

the prisoner requested a seatbelt. 

After the officers placed the inmates in the vans, the convoy departed. Both

Fortner and Scott put on their own seatbelts. While driving in a convoy formation, the

convoy drivers purposely followed closely to prevent other cars from getting between

the convoy vehicles. The convoy passed other vehicles at inappropriate times. The

convoy traveled in excess of the speed limit (55 miles per hour), going up to 75 miles

per hour. Inmates in Fortner’s van repeatedly asked Fortner to slow down, but he did

not respond nor adjust his driving. After one request, Fortner turned up the radio. 

At one point, Fortner slammed on his brakes and swerved to avoid hitting the

convoy’s lead vehicle, which had slowed suddenly due to the actions of another car.

Scott, who was looking down at his speedometer, looked up and saw Fortner’s brake

lights. Scott slammed on the brakes and swerved. Scott’s vehicle skidded and

collided with the back of Fortner’s van while going approximately 30 miles per hour.

Brown suffered injuries as a result of the collision. 

The police investigation after the collision listed Scott’s inattentive driving as

causing the accident. MDOC also investigated the incident and concluded there was

insufficient spacing between the vehicles. 

Brown filed suit against multiple MDOC defendants pursuant to 42 U.S.C.

§ 1983. Brown alleged the acts described above constituted a violation of his Eighth
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Amendment right to be free from cruel and unusual punishment. The district court

granted the defendants’ motions to dismiss, and Brown appealed. On appeal, this

court upheld the dismissal of Brown’s claims against a number of defendants, but

reversed the district court as to the correction officers involved in Brown’s

transportation. This court concluded that “Brown stated a claim against the five

[correction officers] involved in transporting the inmates, as he alleged he asked them

all to fasten his seatbelt, but they refused.” Brown, 353 F.3d at 1040 (citing Fruit v.

Norris, 905 F.2d 1147, 1150 (8th Cir. 1990) (prison officials violate the Eighth

Amendment when they intentionally place prisoners in dangerous situations or

manifest deliberate indifference for their safety) and Brown v. Morgan, 39 F.3d 1184,

*1 (8th Cir. 1994)(unpublished) (per curiam) [hereinafter “Morgan”] (sheriff’s refusal

to let prisoner wear seatbelt, driving at high rate of speed in bad weather, and smiling

when he saw that prisoner was frightened was sufficient to support conclusion that

sheriff manifested deliberate indifference for prisoner’s safety)). 

On remand, all of the remaining defendants moved for summary judgment. The

district court granted summary judgment in favor of all the defendants except Fortner

and Scott. The district court found that Brown presented sufficient evidence for a

reasonable jury to conclude that Fortner and Scott violated Brown’s Eighth

Amendment rights. The court further held that the right Fortner and Scott allegedly

violated was clearly established and therefore concluded that Fortner and Scott were

not entitled to qualified immunity. Fortner and Scott appeal the denial of summary

judgment and the district court’s conclusion that they are not entitled to qualified

immunity. Brown argues that this court lacks interlocutory appellate jurisdiction to

hear Fortner’s and Scott’s claims.

 
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II. Analysis

A. Jurisdiction

We first address whether we have interlocutory appellate jurisdiction. “While

a denial of summary judgment is not generally reviewable on immediate appeal, we

may review a denial of summary judgment based on qualified immunity on immediate

appeal, ‘to the extent that it turns on an issue of law.’” Powell v. Johnson, 405 F.3d

652, 654 (8th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

“‘[I]f the issues relate to whether the actor actually committed the act of which he is

accused . . . or other similar matters that the plaintiff must prove, we have no

jurisdiction to review them in an interlocutory appeal of a denial of a summaryjudgment motion based on qualified immunity.’” Henderson v. Munn, 439 F.3d 497,

501 (8th Cir. 2006) (alteration in original) (quoting Miller v. Schoenen, 75 F.3d 1305,

1309 (8th Cir. 1996)). Thus, in an interlocutory appeal, we may not review a district

court’s finding of facts, but it is within our jurisdiction to “determine whether all of

the conduct that the district court deemed sufficiently supported for purposes of

summary judgment violated the plaintiff’s clearly established federal rights.”

Lockridge v. Bd. of Trs. of the Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en

banc) (quotation and citation omitted). 

In this appeal, Fortner and Scott question whether the uncontested evidence

demonstrates that they violated a clearly established constitutional right, thereby

foreclosing the protection of qualified immunity. We conclude this is a legal issue

falling squarely within our limited interlocutory appellate jurisdiction. However, in

making their argument, Fortner and Scott contest some facts Brown asserts. Such

factual disputes are not properly before the court. Craighead v. Lee, 399 F.3d 954,

960 (8th Cir. 2005). This does not strip us of jurisdiction. “We conduct our review

by accepting as true the facts that the district court specifically found were adequately

supported, along with those facts that the district court likely assumed.” Lockridge,
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315 F.3d at 1008 (quotation and citation omitted). Where there are questions of fact

the district court did not resolve, “we determine the facts that it likely assumed by

viewing the record favorably to the plaintiff as in any other summary judgment

motion.” Id. (citation and quotation omitted). 

B. Qualified Immunity

Fortner and Scott appeal the district court’s denial of their claims of qualified

immunity. “Qualified immunity protects a government official from liability in a

section 1983 action unless the official’s conduct violated a clearly established

constitutional or statutory right of which a reasonable person would have known.”

Henderson, 439 F.3d at 501. This court applies de novo review to the district court’s

denial of a motion for summary judgment on the issue of qualified immunity. Ngo,

495 F.3d at 601. In considering whether qualified immunity was properly denied, we

must consider the evidence “in the light most favorable to the party asserting the

injury.” Lockridge, 315 F.3d at 1008 (quotation omitted). As with any summary

judgment motion, while we are required to make all reasonable inferences in favor of

the non-moving party, we do not resort to speculation. Twymon v. Wells Fargo &

Co., 462 F.3d 925, 934 (8th Cir. 2006). 

Review of a denial of summary judgment based upon a rejection of a claim of

qualified immunity is a two-step process. First, we consider whether the evidence

demonstrates that the defendants’ conduct violated a constitutional right. See Saucier

v. Katz, 533 U.S. 194, 201 (2001); Powell, 405 F.3d at 654–55. If there was a

constitutional violation, we next consider whether the right violated was clearly

established. See Saucier, 533 U.S. at 201; Powell, 405 F.3d at 655. 
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1. Did the Defendants’ Conduct Violate a Constitutional Right?

The Supreme Court has interpreted the Eighth Amendment’s prohibition against

cruel and unusual punishment to include a right to safe and humane conditions of

confinement. See Farmer v. Brennan, 511 U.S. 825, 847 (1994). A denial of safe and

humane conditions can result from an officer’s deliberate indifference to a prisoner’s

safety. See Fruit v. Norris, 905 F.2d 1147, 1150 (8th Cir. 1990). A claim based on

deliberate indifference requires a substantial risk of harm to the inmate that an officer

knew of and disregarded. Farmer, 511 U.S. at 837. Deliberate indifference requires

“more than mere negligence,” but does not require acting “for the very purpose of

causing harm or with knowledge that harm will result.” Id. at 835. The Supreme

Court has stated that “acting or failing to act with deliberate indifference to a

substantial risk of serious harm to a prisoner is the equivalent of recklessly

disregarding that risk.” Id. at 836. This court has previously held that failure to

provide a seatbelt to a prisoner while driving in a manner that puts the prisoner at risk

of injury can constitute deliberate indifference to a prisoner’s safety and health.

Morgan, 39 F.3d 1184, *1. If the facts as alleged by Brown establish that 1) there was

a substantial risk of harm to Brown and 2) Fortner or Scott knew of and disregarded

the substantial risk to Brown, then their conduct demonstrated a deliberate

indifference to Brown’s safety and violated Brown’s Eighth Amendment rights.

Because claims under § 1983 cannot be based upon vicarious liability, see City of

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Otey v. Marshall, 121 F.2d 1150,

1155 (8th Cir. 1997), we must consider each defendant individually to determine

whether the evidence indicates a constitutional violation occurred.

a. Fortner

Fortner was driving the van transporting Brown. Fortner states in his brief,

“There is no dispute that Fortner did not place plaintiff in a seatbelt despite Brown,

and other inmates, requesting that he do so.” This admission acknowledges two facts:
1

Brown has also alleged that five of the nine officers in the transportation

convoy were gathered around his van as he was being loaded and that the officers

made taunting comments about the inmates’ requests for seatbelts. This court

originally relied upon this assertion in concluding that Brown stated a claim against

the transportation officers as a group. See Brown, 353 F.3d at 1040. A claim

pursuant to § 1983 cannot be based upon vicarious liability, however, so Fortner must

have made—or at least been aware of—the taunting comments to be held accountable

for them. See Canton, 489 U.S. at 385 (“Respondeat superior or vicarious liability

will not attach under § 1983.”). While Brown proceeds under the assumption that

Fortner was present or participated in the taunting, he has proffered no evidence

showing that Fortner was one of the five officers standing by the van, and Fortner

denies being there. The district court noted Brown’s testimony that the statements

were made, but did not address whether the evidence indicates that Fortner made or

heard the statements. The district court did not specifically rely on the alleged taunts

in reaching its conclusion that Fortner was not entitled to qualified immunity,

however, and we conclude that this omission demonstrates the district court did not

“likely assume[]” Fortner made or heard the statements. See Lockridge, 315 F.3d at

1008. Like the district court, we will not rely upon the alleged taunting as part of our

analysis as to whether Fortner violated Brown’s constitutional rights.

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1) Brown requested a seatbelt and 2) Fortner did not secure Brown with a seatbelt.

Fortner asserts these are the only facts on which Brown’s § 1983 claim rests and

argues that failing to secure a seatbelt is insufficient to constitute a constitutional

violation. Fortner’s characterization of the evidence is incorrect. In addition to the

failure to fasten Brown’s seatbelt, Brown presents evidence of Fortner’s reckless

driving. Brown has offered evidence that Fortner was driving in excess of the speed

limit, following too closely to the lead van, crossing over double-yellow lines, and

passing non-convoy cars when the road markings clearly prohibited doing so. Further,

Brown has presented evidence showing that the inmates riding in Fortner’s van asked

him to slow down, and Fortner ignored their requests.1

 

The evidence Brown presented makes the instant case quite similar to Morgan,

39 F.3d 1184,*1. In Morgan, the plaintiff alleged the officer transporting him in the
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rear of a patrol car refused to let him wear a seatbelt, drove at a high rate of speed in

bad weather, refused to slow down despite the requests to do so, and taunted him for

being scared under the circumstances. Id. This court found the plaintiff to have

alleged facts “sufficient to support a conclusion that [the transporting officer]

manifested deliberate indifference for [the inmate’s] safety, and thus entitle[d] [him]

to relief.” Id. Although Morgan is an unpublished per curiam opinion and we are not

bound to follow it under Eighth Circuit Rule 32.1A, the panel deciding the earlier

appeal in this case relied upon Morgan, see Brown, 353 F.3d at 1040, and we choose

to do so, as well. As in Morgan, the facts presented regarding Fortner’s conduct

provide sufficient grounds to conclude Fortner’s actions created a substantial risk of

harm to Brown, and Fortner knew of and disregarded the risk he created. 

The uncontested evidence indicates Fortner knew Brown was shackled and

restrained in a manner that prevented him from securing his own seatbelt.

Nonetheless, Fortner rejected Brown’s request for a seatbelt. Fortner drove recklessly

and ignored requests by the inmate passengers in his van for him to slow down. From

this evidence, a reasonable jury could conclude that there was a substantial risk of

harm to Brown and that Fortner knew of and disregarded the substantial risk harm.

As such, Brown has presented sufficient evidence that Fortner’s actions may have

violated the Eighth Amendment prohibition against cruel and unusual punishment. 

b. Scott

Scott was driving the van that crashed into Fortner’s van. Scott was looking

down at his speedometer when the convoy vehicles in front of him suddenly slowed

down. When he looked up and saw the brake lights, Scott responded by slamming on

his brakes and swerved in an attempt to avoid the van in front of him. He was

unsuccessful. Like Fortner, Scott was driving in excess of the speed limit, following

too closely to the van in front of him, and passing at inappropriate times as part of the
2

Brown cannot identify Scott as one of the officers who taunted him, and Scott

denies making or hearing the taunts. As explained in analyzing the claim against

Fortner, we cannot consider the taunts made by unidentified officers in determining

whether a specific officer violated Brown’s constitutional rights. See supra note 1.

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five-vehicle convoy. Scott’s driving proximately caused the accident that resulted in

Brown’s physical injuries. 

The critical difference between Fortner and Scott, however, is knowledge. “The

question of what was known to a person who might be shielded by qualified immunity

is reviewable.” Henderson, 439 F.3d at 501 (quotation omitted). There is no evidence

that Scott was asked to slow down and refused. Thus, Brown has not presented

evidence showing that Scott knew the inmate passengers were concerned for their

safety due to his driving or that he ignored those concerns. Further, Brown does not

provide evidence that Scott actually knew Brown was not in a seatbelt, or that Scott

knew Brown had requested and been denied a seatbelt.2

 The district court concluded

there was sufficient evidence that Scott had “knowledge that [Brown] was being

unrestrained by a seatbelt,” but does not state the evidence demonstrating Scott’s

knowledge. The evidence in the record that may, by inference, tend to support this

conclusion is the fact that the inmate in Scott’s van was not secured by a seatbelt; one

could infer Scott knew other inmates may not have been wearing seatbelts because his

inmate passenger was not. We conclude this evidence is insufficient for a reasonable

jury to conclude Scott actually knew Brown was unrestrained by a seatbelt and

therefore more vulnerable to injuries in the event of a crash. Deliberate indifference

requires actual knowledge of a substantial risk. Young v. Selk, 508 F.3d 868, 873 (8th

Cir. 2007) (“An official is deliberately indifferent if he or she actually knows of the

substantial risk and fails to respond reasonably to it.”). The inferential evidence on

which the district court’s conclusion apparently relies falls short of establishing

Scott’s required knowledge, as the lack of a requested seatbelt is a critical part of the

risk posed to Brown. 
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Considering the facts in the light most favorable to Brown, the evidence

demonstrates that Scott may have driven in a manner that increased the risk of harm

to the shackled inmates in the convoy, including Brown. Without more than reckless

driving, however, we cannot conclude that Scott’s conduct amounted to deliberate

indifference. 

2. Was the Right Violated Clearly Established?

The second question in considering the denial of qualified immunity is whether

the right violated was clearly established. Although we conclude there is insufficient

evidence that Scott’s conduct violated the constitution, because we conclude there is

sufficient evidence regarding Fortner’s conduct, this inquiry is necessary. See Scott

v. Harris, 127 S. Ct. 1769, 1774 (2007) (“If, and only if, the court finds a violation of

a constitutional right, the next, sequential step is to ask whether the right was clearly

established . . . in the specific context of the case.” (Quotation omitted, omission in

original)). 

A right is clearly established if “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. In

determining whether a right was clearly established, we must define the right allegedly

violated “at the appropriate level of specificity before [we] can determine whether it

was clearly established.” Craighead, 399 F.3d at 962. “The Supreme Court, however,

has made it clear that there need not be a case with materially or fundamentally similar

facts in order for a reasonable person to know that his or her conduct would violate

the Constitution.” Young, 508 F.3d at 875 (quotations omitted). A right is clearly

established if the law, as established at the time of the events in question, gave the

officials “fair warning that their alleged conduct was unconstitutional.” Id. (alteration

and quotation omitted). 
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We conclude that Fortner had “fair warning” that driving recklessly while

transporting a shackled inmate who had been denied the use of a seatbelt and ignoring

requests to slow down violated the constitutional prohibition against cruel and unusual

punishment. There is no question that it was clearly established that subjecting

inmates to unreasonable and substantial risk of harm constituted a constitutional

violation. See Farmer, 511 U.S. at 847; Fruit, 905 F.2d at 1150. While there are not

any published cases from our circuit directly addressing deliberate indifference in the

context of prisoner transportation, Morgan is on point. 39 F.3d 1184, *1. The court

in Morgan stated, “While a constitutional claim cannot be based on mere negligence,

when prison officials intentionally place prisoners in dangerous situations or manifest

deliberate indifference for their safety, the Eighth Amendment is violated.” Id.

(internal citation omitted). The facts in Morgan that were sufficient to support a

conclusion that an officer transporting an individual was deliberately indifferent are

sufficiently similar to the conduct alleged of Fortner to make it clear to a reasonable

officer that the conduct was unconstitutional. Moreover, even discounting Morgan’s

significance because it was unpublished, “‘officials can still be on notice that their

conduct violates established law even in novel factual circumstances.’” Craighead,

399 F.3d at 962 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Other cases

addressing deliberate indifference to the safety of prisoners provided notice that the

conduct engaged in by Fortner was unconstitutional, making the right clearly

established. Cf. id. (finding no prior cases presenting the same factual circumstances

in an excessive force claim, but concluding nonetheless that the right allegedly

violated was clearly established because the prior case law, while factually distinct,

would have put a reasonable officer on notice that the challenged conduct was

unconstitutional). 
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III. Conclusion

Accordingly, we affirm the district court’s order denying qualified immunity

to Fortner, and we reverse the denial of qualified immunity to Scott. We remand for

further proceedings consistent with this opinion. 

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