Norton v. Rodrigues

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
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 quasi-
protective 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 Bain-
Simon 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 non-
appealable 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 non-
appealable 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
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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 'two-
step 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.
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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
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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
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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
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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.
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