Jamie Mangum v. Gary Repp

                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0008n.06

                                           No. 15-4292

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                               Jan 05, 2017
                                                                               DEBORAH S. HUNT, Clerk

JAMIE MANGUM,                                             )
                                                          )
       Plaintiff-Appellant,                               )
                                                          )
                                                                 ON APPEAL FROM THE
               v.                                         )
                                                                 UNITED STATES DISTRICT
                                                          )
                                                                 COURT FOR THE NORTHERN
GARY REPP; JASON WISE; and RAY BOWMAN,                    )
                                                                 DISTRICT OF OHIO
                                                          )
       Defendants-Appellees.                              )
                                                          )
                                                          )



BEFORE: GUY, BOGGS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       In 2007, Darrel Saxon sexually assaulted plaintiff Jamie Mangum at the Marion Juvenile

Corrections Facility. Mangum brought a claim under 

42 U.S.C. § 1983

 against seven Marion

staff members in their individual capacities, alleging deliberate indifference to his safety needs in

violation of the Eighth Amendment. Mangum dismissed four defendants and proceeded against

Jason Wise, Gary Repp, and Ray Bowman, who moved for summary judgment. Defendants

asserted the defense of qualified immunity in their answer, but did not seek summary judgment

on that basis. The district court granted defendants’ motion and dismissed plaintiff’s case.

Finding no reversible error, we affirm.
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                                               I.

       On January 17, 2007, twelve-year-old Jamie Mangum was committed to the Ohio

Department of Youth Services (“DYS”) for felonious assault. He stood 4 feet 6 inches tall and

weighed approximately 96 pounds. During his initial assessment, plaintiff disclosed that an

older teen had sexually abused him in the past. Considered a “high-risk/need offender,” plaintiff

was transferred to the intensive mental health unit (the “unit”), or Unit 4B, at the Marion

Juvenile Correctional Facility.

       This was the only such unit in DYS, and it could only house up to 12 juveniles. The unit

was semi-octagonal in shape and accessible only via a hallway that led to the officers’ podium

facing out into the unit. Off that hallway were the TV room, mop closet with cleaning supplies,

and staff offices. There were two bathrooms, one to the left and one to the right of the podium.

The unit bathrooms and closets were to be kept locked at all times, to be opened only by a

corrections officer or other facility staff. Each youth had his own room with a door that locked

behind him.

       Eighteen-year-old Darrel Saxon was on the unit with Mangum. Saxon was committed to

DYS in 2003 for rape and gross sexual imposition. His victims included three children between

the ages of six and eight. While in DYS custody, Saxon was disciplined for sexual misconduct.

In April 2006, Saxon was transferred to the unit to address “severe self-injurious behavior.”

There, Mangum and Saxon had some interaction, including playing cards, and cleaning the unit

together.

       Defendant Jason Wise, a psychology assistant, treated Saxon and Mangum while they

were on the unit. Wise was responsible for clinical tasks such as treatment planning and risk

assessment. Wise, overseen by Psychology Supervisor Jane Welch, helped complete Saxon’s

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and Mangum’s intake assessments and met with each of them at least once a week. Wise knew

that Saxon was a sex offender.         Wise also knew that Mangum had a history of sexual

victimization.

       When Mangum arrived, Welch put him on a safety plan. Welch recommended that the

unit’s correctional officers “be within arm’s reach” of Mangum and “[b]e aware of the location

of [Mangum] at all times on the unit” to “prevent harm to [Mangum].” Welch also assigned

Mangum an initial precautionary status of “watch,” requiring constant one-on-one monitoring by

a staff member.

       A youth on the unit could be assigned one of three precautionary statuses: “watch,”

“observation,” or “behavioral.”     Watch was the most intensive and invasive status; it was

reserved for suicidal youth, and assigned to prevent self-injurious behaviors. Observation status

was a step down from watch, usually requiring safety checks every ten to fifteen minutes.

Behavioral status was least restrictive: safety checks were still required, but no particular staff

member was responsible for monitoring the youth. As a youth’s behavior improved, Wise and

Welch tried to step him down in precautionary status.

       A psychologist determined the precautionary status level and behavioral guidelines for

each youth on the unit, communicated it to Operations via a written precautionary status notice

and plan, and Operations would then disseminate the notice and plan to staff for implementation.

While a precautionary status plan was usually drafted to prevent self-injurious behavior, it could

include additional guidelines for staff that were unique to a certain youth, such as a safety plan or

steps staff should take if a youth were to fight with others.

       Mangum was assigned to Wise’s caseload, and Wise continued Welch’s safety plan.

Wise, in collaboration with Welch, reviewed and updated Mangum’s precautionary status and

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plan frequently as part of his treatment. Wise renewed plaintiff’s watch status on February 9,

2007, and February 13, adding new “safety precautions” to the guidelines—such as having

Mangum always sit nearest a staff member while in the cafeteria, the unit, or a classroom, be

within arm’s length of an officer while moving in line, and ask to use the restroom “[i]n order to

know [Mangum’s] location at all times.”

       The next day, Welch changed Mangum’s precautionary status from watch to observation,

requiring safety checks every fifteen minutes rather than one-on-one monitoring, but with the

same safety plan.     On February 15, Wise changed Mangum’s status from observation to

behavioral, and included lengthy behavioral guidelines in the precautionary status plan. Wise

required staff to check on Mangum every ten to fifteen minutes, and kept Mangum on the safety

plan “to prevent other youth from harming him.” In addition to the existing seating, line

movement, and restroom use restrictions, Wise also required Mangum to “inform staff if he is

threatened by others.” Plaintiff remained on this safety plan for at least another four weeks.

       While Mangum was on the unit, Saxon was almost always assigned some degree of

precautionary status and additional monitoring as well. For example, Saxon was on suicide

watch with one-to-one staff monitoring on February 16, 20-23, and 28, and March 13-14. He

was on behavioral status on February 15, and March 1, 2, 6, 8 and 10. On February 27, Saxon

was on observation status.

       On March 1, Wise met with Mangum to discuss “rumors that other youth have been

approaching [Mangum] for oral sex.” Mangum admitted that “a certain youth approaches him

for oral sex, while another youth periodically grabs his buttocks,” and identified Saxon as the

“certain youth.” Although plaintiff “denied engaging in sexual activity,” he did not feel safe, so

Wise and Mangum talked about “ways to maintain safety.”

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       Wise wrote a clinical contact note that same day documenting his conversation with

Mangum. Clinical contact notes were same-day documentation of what a psychologist had

discussed with a youth during a session; afterward, the clinician created a note in a database, and

then printed and signed it before giving it to the department secretary to file in the youth’s

psychology file. In the March 1 note, Wise states he notified Officer Spears and Operations

Manager Gilchrist of Mangum’s allegations and refers to completing an incident statement.

       Wise wrote incident statements to notify Operations of threats against Mangum or other

youth. Operations oversaw day-to-day unit security. Incident statements were hand-delivered to

Operations staff, who would decide if or how to respond. In some cases, Operations generated

an incident report for the superintendent, but not always. Wise documents in the corresponding

March 1 incident statement that he informed Officer Spears of what Mangum reported that day

regarding Saxon. Wise recalls hand-delivering the incident statement to Gilchrist in Operations.

       On March 8, Mangum told Wise that Saxon had threatened to rape him in the bathroom.

In response, Wise completed another incident statement and a risk assessment update that same

day. A risk assessment update could substitute for a clinical contact note, and documented the

youth’s mood, relationships with others, and his general adjustment. Wise and Welch both

signed the March 8 risk assessment update in which Wise notes Mangum reported feeling unsafe

because “[a]nother youth allegedly threatened to rape” him, but had “denied any inappropriate

sexual contact.” Also on March 8, Wise issued an updated precautionary status notice for

Mangum that kept him on the same safety plan.           Finally, Wise and Welch renewed their

recommendation that Saxon be transferred off the unit to complete sex offender programming.

       Like Wise, defendants Gary Repp and Ray Bowman also worked at Marion while

Mangum and Saxon were housed there together.           Repp was a juvenile corrections officer

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assigned to the unit. He had “a pretty good working relationship with all the youth” in the unit.

Repp knew that Saxon was a sex offender. He also knew that Mangum was “very young” and

“very small in stature.” Repp, however, was unaware of anyone being sexually targeted on the

unit or that Saxon was approaching anyone for sex.

       Bowman was a unit manager once in charge of Unit 4B, although it is unclear when. In

general, the unit manager was an administrator who “deal[t] with the day-to-day issues on a unit”

like keeping the youth on schedule, maintaining the unit, and implementing treatment plans. On

March 11, Bowman became involved in an altercation between Saxon and Mangum. After

Saxon suddenly ran towards Mangum “in a threatening manner,” Saxon was placed in isolation.

Bowman was the administrator on call. Saxon later stated in an interview with David Haynes, an

inspector for DYS, that Bowman came to see him “a couple of hours” later. According to Saxon,

Mangum told Bowman that Saxon had been asking him for sex, and in response Bowman

warned Saxon that if he went near Mangum, Bowman would have him “charged as an adult and

bound over.”     Saxon also told Harvey Culbreth, another youth in the unit, about this

confrontation.

       Haynes noted in his 2007 investigation report that Bowman remembered a “similar

conversation” with Saxon, but neither Saxon nor Mangum had told Bowman that “there was any

inappropriate contact taking place.” Plaintiff recalls telling Bowman sometime in March 2007

that Saxon was sexually targeting him and he felt unsafe, but did not tell Bowman at that time

that he had been assaulted. As for Bowman, when he was deposed in 2015, he did not recall any

exchange with Saxon or Haynes, and did not recall Mangum at all.

       Two days after the fight, on March 13, Saxon told Wise that Mangum had agreed to give

him “lifetime blow jobs” as payment for outstanding gambling debts. Wise wrote in his clinical

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contact note that Saxon was considering the offer “because he has been incarcerated for a long

time” but “remained ambivalent about his intent.” Wise also completed an incident statement

that day reporting to Operations what Saxon had said.           Wise then issued an updated

precautionary status plan for Mangum on March 16 that kept the same safety plan.

       On March 20, Mangum first reported that Saxon had sexually assaulted him.              At

approximately 10:00 a.m., Repp overheard a youth ask Saxon whether Mangum had performed

oral sex on Saxon for snacks. Saxon replied that it was true, and Repp immediately reported the

incident. That afternoon, Mangum told Wise that he had performed oral sex on Saxon “multiple

times, with the last time occurring a ‘few’ days ago.” Wise completed an incident statement,

writing “cc. J Welch” in the lower left-hand corner. Gilchrist in Operations then generated an

incident report notifying the administrator on call and the Ohio State Highway Patrol. Saxon

was moved off the unit.

       Per DYS standard operating procedures, defendants were required to notify Operations if

they received a report of sexual assault or possible sexual assault. Defendants also had to

communicate with Operations if they became aware that a youth was in danger of being harmed

by someone else. A written report was not required. No defendant had the authority to move a

youth on or off the unit (only psychology supervisors, the Clinical Services Director, or the

Program Deputy could move a youth on or off the unit).

       In 2007, a jury convicted Saxon of sexually assaulting plaintiff in the unit’s mop closet.

At trial, Mangum testified that he told Wise about the assaults one to three weeks after the last

assault occurred. Mangum has never remembered the date of any assault. Another youth,

Damian Cash, testified that he had witnessed an incident in the mop closet during unit cleaning

and had told Repp that “Darrel and Jamie Mangum’s doing something in the utility closet.”

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Cash said this happened “during Christmas or something like that.” Repp does not recall this

incident.

       Mangum sued Wise, Repp, and Bowman in their individual capacities under 

42 U.S.C. § 1983

 for violating his Eighth Amendment rights by failing to protect him from Saxon.

Defendants moved for summary judgment, and plaintiff opposed. The district court granted

defendants’ motion and dismissed plaintiff’s case. Mangum appeals.

                                                II.

       We review a district court’s grant of summary judgment de novo. Moran v. Al Basit

LLC, 

788 F.3d 201, 204

 (6th Cir. 2015). Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). When considering whether to grant summary judgment,

all reasonable inferences must be made in favor of the non-moving party. Little Caesar Enters.,

Inc. v. OPPCO, LLC, 

219 F.3d 547

, 551 (6th Cir. 2000). “[A]t the summary judgment stage the

judge’s function is not himself to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 249

 (1986). We do not make credibility judgments or weigh the evidence. Moran, 

788 F.3d at 204

.

                                                A.

       As a threshold matter, both parties raise evidentiary objections. Defendants argue that

trial testimony from Saxon’s 2007 criminal trial, and Saxon’s, Culbreth’s, Bowman’s, and

Haynes’ statements taken from Haynes’ 2007 investigation report should be disregarded as

hearsay. Plaintiff questions the authenticity of Welch’s signature on the March 8 risk assessment



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and notes the document itself has not been verified as a true and accurate copy of the original.

These objections fail for two reasons.

        First, the parties did not raise these objections in district court. Although defendants filed

a motion to strike below, it pertained to deposition certifications. For his part, plaintiff merely

observed in his response brief to defendants’ dispositive motion that the March 8 risk assessment

was unauthenticated. The district court relied on this evidence without question. It is well

established that “[i]f a party fails to object before the district court to the affidavits or evidentiary

materials submitted by the other party in support of its position on summary judgment, any

objections to the district court’s consideration of such materials are deemed to have been waived,

and we will review such objections only to avoid a gross miscarriage of justice.” Wiley v. United

States, 

20 F.3d 222, 226

 (6th Cir. 1994) (citation omitted).

        Second, it would not be a gross miscarriage of justice to decline to address the merits of

the parties’ objections. As amended in 2010, Federal Rule of Civil Procedure 56 provides that

parties asserting a genuinely disputed fact need only “cit[e] to particular parts of materials in the

record.” Fed. R. Civ. P. 56(c)(1)(A). It then permits a party to “object that the material cited to

support or dispute a fact cannot be presented in a form that would be admissible in evidence.”

Fed. R. Civ. P. 56(c)(2). Once an objection is properly made, the proponent must “show that the

material is admissible as presented or . . . explain the admissible form that is anticipated.” Fed.

R. Civ. P. 56(c) advisory committee’s note to 2010 amendment.

        Defendants do not object that plaintiff’s evidence “cannot be presented in a form that

would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Even if they had, plaintiff’s

evidence taken from the trial transcripts would be admissible as direct trial testimony. The same

is true for the statements in Haynes’ report.

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       Regarding the March 8 risk assessment, Rule 56 no longer draws a clear distinction

between authenticated and unauthenticated evidence for purposes of summary judgment. The

“requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be

attached to the affidavit or declaration” has been “omitted as unnecessary.” Fed. R. Civ. P. 56(c)

advisory committee’s note to 2010 amendment; see also Ganesh v. United States, 

658 F. App’x 217, at *2

 (6th Cir. 2016) (deeming waived plaintiffs’ objection to “unverified and unsworn”

documents). Accordingly, the district court did not err in considering plaintiff’s or defendants’

evidence, and we will consider the same.

                                                 B.

       Plaintiff claims Wise, Repp, and Bowman were deliberately indifferent to his safety

needs despite their awareness that, as a small twelve-year-old susceptible to sexual abuse,

plaintiff was particularly vulnerable to attack by Saxon in the intensive mental health unit

setting. The Supreme Court has established that “prison officials have a duty . . . to protect

prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 

511 U.S. 825, 833

(1994) (citation omitted). “It is not, however, 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.” 

Id. at 834

. A prison official violates an inmate’s rights only if the official is

“deliberate[ly] indifferen[t] to inmate health or safety.” 

Id.

 (internal quotation marks omitted).

        “Deliberate indifference is a stringent standard of fault.”        Connick v. Thompson,

563 U.S. 51, 61

 (2011) (internal quotation marks, brackets, and citation omitted). To establish

deliberate indifference, Mangum must satisfy an objective and subjective component. Farmer,

511 U.S. at 834

. Under the objective component, Mangum must show that he was exposed to a

“substantial risk of serious harm” to his safety. 

Id.

 The subjective component requires Mangum

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to show that the individual defendants (1) were “aware of facts from which the inference could

be drawn that a substantial risk of serious harm exist[ed]”; (2) actually drew the inference; and

(3) consciously disregarded the risk. See 

id. at 837, 839

. Plaintiff may satisfy the subjective

component through ordinary methods of proof, “including inference from circumstantial

evidence[.]” 

Id. at 842

.

                                                 1.

         Defendants do not dispute the objective component of plaintiff’s Eighth Amendment

claim, and there is little question plaintiff has satisfied it. Indeed, all Mangum must show is that

he was “incarcerated under conditions posing a substantial risk of serious harm.” Curry v. Scott,

249 F.3d 493, 506

 (6th Cir. 2001) (quoting Farmer, 

511 U.S. at 834

). The district court ruled

Mangum established via DYS and Highway Patrol records, as well as Saxon’s conviction, that

incarcerating him in a small unit with a convicted sex offender exposed Mangum to such a risk.

We agree that Mangum has satisfied the objective component.

                                                 2.

         The subjective component is the focus of this dispute. We ask whether Mangum has

presented facts that, if true, show how defendants (1) subjectively perceived facts from which to

infer a substantial risk of serious harm to plaintiff, (2) actually drew the inference that there was

a substantial risk, and (3) disregarded that risk. Farmer, 

511 U.S. at 837, 839

. We address each

defendant individually. See Garretson v. City of Madison Heights, 

407 F.3d 789, 797

 (6th Cir.

2005).

         Jason Wise. The district court properly granted summary judgment in favor of Wise.

There is little doubt Wise was subjectively aware of the substantial risk of serious harm that

Saxon posed to Mangum. As Saxon’s and Mangum’s treating psychologist, Wise had direct

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knowledge of their personal characteristics and vulnerabilities. See Taylor v. Mich. Dep’t of

Corrections, 

69 F.3d 76, 82

 (6th Cir. 1995) (“[T]he jury could find that [defendant] had direct

knowledge of plaintiff’s characteristics because he personally reviewed [plaintiff’s] file. . . .”).

Wise knew Saxon’s history as a sex offender, and that Saxon had not completed sex offender

treatment. He also knew that Mangum was young and had a history of sexual victimization.

       Wise also knew that Saxon had threatened Mangum. On March 1, Mangum told Wise

that Saxon was approaching him for sex and he did not feel safe. A few days later, Mangum told

Wise that Saxon had threatened to rape him in the bathroom. Saxon himself told Wise on

March 13 that he was thinking about accepting “lifetime blow jobs” from Mangum as payment

for outstanding gambling debts. Wise documented these threats in his clinical records and

reported them to Operations. He also recommended that Saxon be transferred off the unit so he

could resume sex offender programming. A reasonable juror could infer from Wise’s personal

knowledge of Saxon’s and Mangum’s clinical histories and their interactions while on the unit

that Wise was subjectively aware Saxon posed a substantial risk of harm to Mangum. Wise does

not argue otherwise.

       A reasonable juror could not infer, however, that Wise disregarded the risk. Wise “may

be held to be deliberately indifferent to a substantial risk to inmate safety if he is aware that an

inmate is vulnerable to assault and fails to protect him.” Bishop v. Hackle, 

636 F.3d 757, 767

(6th Cir. 2011) (citation omitted). But if Wise responded reasonably to the risk, he “may be

found free from liability . . . even if the harm ultimately was not averted.” Farmer, 

511 U.S. at 844

.

       Even when viewed in the light most favorable to Mangum, the record shows Wise took

reasonable steps in response to the risk Saxon posed. First, Mangum was always on a safety

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plan, even as Wise and Welch changed his precautionary status and other behavioral guidelines

in response to Mangum’s own conduct. When he arrived on the unit, Welch put Mangum on a

safety plan and assigned him suicide watch status, requiring one-on-one staff monitoring. Wise

continued that plan, maintaining Mangum’s watch status through mid-February.

       On February 13, Wise added new safety precautions to Mangum’s behavioral guidelines

“[i]n order to know [Mangum’s] location at all times,” including always having staff within

arm’s length of Mangum during line movement, always seating Mangum nearest an officer or

teacher, and requiring Mangum to ask for permission to use the restroom. On February 15, Wise

added the requirement that Mangum tell staff when he felt threatened by others.              Wise

implemented this safety plan to prevent sexual victimization and address “vulnerable” areas, and

Mangum remained on this plan for at least the next four weeks. Wise did not know that Saxon

had assaulted Mangum until March 20, and plaintiff points to no evidence indicating that Wise

knew before that date that his safety plan was failing to prevent sexual contact or that staff was

not following it.1

       Welch reduced Mangum’s precautionary status from watch to observation, and thus

eliminated one-on-one staff monitoring, on February 14. Wise did not restore Mangum to watch

status, but thereafter required staff to conduct safety checks every ten to fifteen minutes.

Plaintiff argues that Wise should have maintained consistent one-on-one monitoring of Mangum

       1
        Plaintiff argues the unit lacked leadership, had no safety plan for youth at risk of sexual
victimization, was plagued by turnover, and that staff was “under investigation for not following
safety plans.” These allegations, however, are based on a May 4, 2007, report by Mental Health
Coordinator Mike Gordon. Gordon visited the unit after the assault and does not attribute these
concerns to Wise. Wise testified at his deposition that Mangum’s “safety plan was being
followed and the safety plan was very thorough.” Plaintiff testified at his deposition that he did
not know he was ever on a safety plan, let alone whether it was followed or not. Plaintiff has
thus not created a triable dispute of fact regarding what Wise knew about the effective
implementation of Mangum’s safety plan while the assaults were occurring.
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and Saxon for safety reasons. Watch status, however, was a suicide-prevention tool. Wise’s

uncontroverted deposition testimony is that Mangum was taken off “suicide watch” because

“from a self-injury standpoint . . . he didn’t need to be on suicide watch.” Mangum’s safety plan

was in place to keep others from harming him.

       Second, Wise documented and reported what he knew. On March 1, Wise completed a

clinical contact note and an incident statement documenting Mangum’s admission that Saxon

was approaching him for sex. Wise wrote in his note that he notified Officer Spears and

Operations Manager Gilchrist. When Mangum reported on March 8 that Saxon threated to rape

him in the bathroom, Wise authored another incident statement and a risk assessment update that

Welch signed. He also submitted a request to transfer Saxon off the unit. Wise again completed

an incident statement on March 13, reporting what Saxon had disclosed regarding Mangum’s

offer of “lifetime blow jobs.” Finally, Wise submitted an incident statement on March 20

reporting that Mangum had disclosed multiple assaults at the hands of Saxon. By reporting this

information to Operations and his supervisor, and trying to transfer Saxon, Wise exercised the

limit of his authority as a psychology assistant.

       Plaintiff argues that there is no evidence corroborating Wise’s claim that he notified

others before March 20 about the threats plaintiff was reporting. Plaintiff, however, has not

produced any affirmative evidence refuting Wise’s recollection of reporting these events.

Plaintiff would bear the burden at trial of proving deliberate indifference, and as the non-moving

party “must present affirmative evidence in order to defeat a properly supported motion for

summary judgment.” Liberty Lobby, Inc., 

477 U.S. at 257

. Yet plaintiff did not depose anyone

Wise claims he reported to, and does not point to any place in the record where someone

questions whether or when Wise submitted a specific document. Instead, plaintiff relies almost

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exclusively on Assistant Superintendent Tracey Cornelli’s testimony at Saxon’s criminal trial to

show that a triable dispute of material fact exists.

        Cornelli testified that, in the administrative records she had with her at trial, she found no

record of any incident involving Mangum and Saxon being reported on March 8. Cornelli’s

testimony, however, does not create a genuine dispute of material fact with respect to whether

Wise wrote and submitted an incident statement to someone in Operations on March 8 because it

only speaks to whether Operations logged an incident in its database that day. Even if this

“scintilla” of evidence is sufficient to raise a question of fact as to whether Wise submitted an

incident statement to Operations on March 8 reporting that Saxon had threatened to rape

Mangum in the bathroom, there is no question he notified his supervisor Welch that day via the

updated risk assessment. See R. 43-1, ID 252 (“The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient [to defeat a properly supported motion for

summary judgment].”). Plaintiff’s argument that no incidents involving Mangum or Saxon

appear in the March 1, 8, and 13 shift reports is unpersuasive for the same reason.

        In short, plaintiff fails to create a triable issue. We focus on Wise’s response, not on that

of his superiors.    Alleging a lack of independent verification that Wise submitted certain

documents on specific dates does not create a genuine dispute of material fact regarding what

Wise testified he did do and the content of the documentary evidence he submitted in support of

his assertion.

        Plaintiff argues that Wise should have done more. Our inquiry, however, is not focused

on what Wise could have done differently, but whether his response was reasonable. See

Farmer, 

511 U.S. at 844

 (“[P]rison officials . . . may be found free from liability if they

responded reasonably to the risk. . . .” (emphasis added)). Indeed, his duty under the Eighth

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Amendment was only to insure “reasonable safety.” 

Id. at 844

. When viewed in the light most

favorable to Mangum, a reasonable juror could find that Wise perceived facts from which he

inferred a substantial risk of harm to plaintiff, but not that he disregarded that risk. Plaintiff’s

argument to the contrary sounds in negligence, not deliberate indifference.          See Reilly v.

Vadlamudi, 

680 F.3d 617, 624

 (6th Cir. 2012) (“Deliberate indifference is characterized by

obduracy or wantonness–it cannot be predicated on negligence, inadvertence, or good faith

error.”).

        Gary Repp. The district court also properly granted summary judgment in favor of Repp.

Mangum’s claim against Repp rests almost exclusively on Cash’s trial testimony. Resolving all

factual disputes in Mangum’s favor, the facts indicate Repp knew Saxon was a sex offender, and

Mangum was “very young” and “very small in stature.” At some point before March 20, Repp

was on duty with at least one other officer when Saxon assaulted Mangum in the mop closet

during unit cleaning.2 After witnessing the incident, Cash told Repp that “Darrel and Jamie

Mangum’s doing something in the utility closet.” Repp knew his charges were not supposed to

be in the mop closet unattended, although those on cleaning duty could, with staff permission

and supervision, retrieve supplies.

        Mangum argues a reasonable jury could infer that Repp disregarded an obvious threat to

Mangum’s safety when he did not check the mop closet in response to Cash’s statement. On

these facts, however, Mangum has not established a triable issue with respect to Repp’s

subjective awareness that a substantial risk to Mangum’s safety existed. In Bishop v. Hackel, we

found a dispute of material fact where a victim of sexual assault had presented evidence that a

        2
        Although the date of this assault has never been conclusively established, it must have
occurred prior to March 20, the day Mangum first reported that Saxon had assaulted him. Saxon
and Mangum were separated from that day forward.
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prison guard, who had had substantial interaction with the victim and the perpetrator, was aware

of the victim’s status as a vulnerable inmate and “aware that prisoners with [the victim’s]

characteristics are vulnerable to attack.” 

636 F.3d at 771

. In that case, the defendant testified

that he knew “there had been many sexual predators” in the mental health unit and “other

inmates complained about sexual pressure.” 

Id.

       Mangum points to no such evidence as it relates to Repp. Even assuming Repp had

“substantial interaction” with Saxon and Mangum, Mangum does not argue Repp knew that he,

or an inmate with his characteristics, was vulnerable to sexual assault. Nor that Repp was privy

to, or even aware of, anything in Wise’s clinical file on either youth other than Saxon’s sex

offender status. Repp’s uncontroverted deposition testimony is that he was not aware before

March 20 of “any specific situations . . . where there was somebody being sexually targeted” on

the unit, that Saxon was approaching anyone for sex, or that there were rumors to that effect.

When he finally became aware on March 20 of possible sexual contact between Saxon and

Mangum, he immediately reported it. Repp asserts that this was the “only time” he knew “of

anything directly sexual that had taken place between any youth, including [Saxon and

Mangum].”

       Mangum cites no facts from which a reasonable jury could infer otherwise. While Repp

cannot “escape liability” by “merely refus[ing] to verify underlying facts that he strongly

suspected to be true,” Farmer, 

511 U.S. at 843

 n.8, an official who is actually unaware of a

substantial risk to an inmate cannot be held liable merely because the risk was obvious “and a

reasonable prison official would have noticed it.” 

Id.

 at 841–42. It is thus not enough to show

that a reasonable person would have known of the risk, or even that Repp in particular should

have known. See 

id.

 at 843 n.8. As the Supreme Court has explained, a trier of fact can find

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actual knowledge of risk where “circumstances suggest that” a defendant was exposed to

“evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-

documented, or expressly noted by prison officials in the past” and thus the defendant “must

have known about it.” 

Id.

 at 842–43 (citation omitted). The evidence against Repp, however,

cannot fairly be characterized as similar to this example.

       To successfully establish deliberate indifference, Mangum must show not only that Repp

was “aware of facts from which the inference could be drawn that a substantial risk of serious

harm [to plaintiff] exists,” but also that he actually drew the inference, not just that he should

have done so. See 

id. at 837

 (the official “must also draw the inference”). The only evidence

Mangum cites suggesting that Repp drew such an inference is Cash’s vague statement to Repp

that Saxon and Mangum were “doing something” in the mop closet during the unit clean up.

       At most, Repp was on notice that two of his charges were in the mop closet, probably

unattended, and he was arguably negligent in not investigating this potential policy violation.

Deliberate indifference, however, requires the reckless disregard of a substantial risk of serious

harm; mere negligence is insufficient. See Farmer, 511 U.S. at 835–36. Accordingly, “[Repp’s]

failure to alleviate a significant risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the infliction of punishment.” 

Id. at 838

. Given the lack of evidence that Repp knew at the time the statement was made that

Mangum was vulnerable to attack, or that any sexual targeting had ever occurred on the unit,

Cash’s statement alone is not enough to create a triable issue of fact as to Repp’s subjective

awareness of a substantial risk of serious harm facing Mangum.

       Ray Bowman. Turning to Mangum’s claim against Bowman, the district court properly

granted summary judgment in his favor. Mangum claims he told Bowman that Saxon was

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pursuing him for sex, but Bowman disregarded the risk by confronting Saxon without also

reporting what Mangum had said. Resolving all factual disputes in Mangum’s favor, the facts

show that Mangum and Saxon had a fight on March 11, and Saxon was placed in isolation.

Bowman, the administrator on call that day, was notified.

       When Bowman asked him about the altercation, Mangum said Saxon was targeting him

for sex and he felt unsafe, but did not reveal at that time that Saxon had assaulted him. In

response, Bowman advised Mangum to stay away from Saxon and encouraged Mangum to tell

him if the problem persisted. Bowman then confronted Saxon, warning him that if he went near

Mangum, Bowman would have him charged as an adult. Saxon did not admit to any sexual

contact.

       Plaintiff argues that Bowman, like Wise, should have done more. But again the question

is whether Bowman’s response was reasonable, not what Bowman should have done differently.

See Farmer, 

511 U.S. at 844

. In Bishop v. Hackle, a nineteen-year-old inmate was sexually

assaulted by a forty-four-year-old charged with multiple counts of criminal sexual conduct while

both were housed in a small mental health unit. 

636 F.3d at 762

. The victim filed an Eighth

Amendment claim against several deputies, arguing that the deputies “were aware that due to his

personal characteristics, [plaintiff] was vulnerable in a jail setting, and particularly vulnerable to

attack by [defendant].” 

Id. at 767

. To succeed on his claim, this court cautioned the plaintiff that

he “must prove that each Deputy had enough personal contact with him to be subjectively aware

of his vulnerability to attacks or the abuse that he alleges he was suffering.” 

Id. at 768

.

       Here, plaintiff alleges only one opportunity for Bowman to perceive and assess the

seriousness of the situation between plaintiff and Saxon.            Mangum claims no personal

relationship with Bowman, who was “just a unit manager,” and says he did not go to Bowman’s

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office with any frequency. Moreover, there is no evidence Bowman was aware of Saxon’s status

as a sex offender beyond what Mangum told him, or that he perceived Mangum to be young,

small, or otherwise vulnerable. Thus, Mangum has not established that he had enough contact

with Bowman to allow Bowman to perceive Mangum’s status as a vulnerable inmate. See 

id. at 770

 (finding no triable issue of fact where defendant lacked sufficient contact with victim to

“perceive his asserted status as a vulnerable inmate”).

       Plaintiff argues on appeal that Bowman should have reported what Mangum told him

about Saxon. Although DYS standard operating procedures require staff who “become aware

that a youth is in danger of injury by others” to report that information to Operations, these

procedures do not define the contours of the Eighth Amendment and a failure to follow them

does not in itself constitute deliberate indifference. See Bonner-Turner v. City of Ecorse, 

627 F. App’x 400, 407

 (6th Cir. 2015). Bowman acted on his concern for Mangum by encouraging

Mangum to keep him informed and by confronting Saxon, warning him to stay away from

Mangum, and threatening to have Saxon tried as an adult should any sexual contact occur. Like

Wise and Repp, Bowman could not move either youth off the unit. Given his limited contact

with, and personal knowledge of, Saxon and Mangum, and the fact that neither youth told him

there had been any sexual contact, no reasonable juror could infer that Bowman callously

disregarded a known risk to Mangum’s safety. The district court thus properly granted summary

judgment in favor of Bowman, as well as Wise and Repp.

                                                        III.

       Finding no reversible error, we affirm.




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       BOGGS, Circuit Judge, concurring in part and dissenting in part. I concur with the

majority’s opinion with respect to defendants Wise and Bowman. However, with respect to

defendant Repp, I believe that our case law indicates that Mangum has shown sufficient facts to

permit a reasonable jury to find that Repp was subjectively aware of the substantial risk Saxon

posed to Mangum in the juvenile-corrections unit. Thus, I would reverse the district court’s

grant of summary judgment as to Repp.

       The majority relies upon an erroneous interpretation of our decision in Bishop v. Hackel,

636 F.3d 757

 (6th Cir. 2011), where we held that summary judgment was not appropriate in an

analogous prisoner sexual-assault case. The majority attempts to distinguish Bishop, noting that

the defendant in that case, in addition to regularly interacting with the prisoners in question, also

testified that he knew that there had been many sexual predators on the unit and that other

inmates had complained about sexual pressure. Proposed Op. at 18–19. As Repp was not

similarly aware of such widespread problems in the juvenile-corrections unit in this case, the

majority concludes that a reasonable jury could not find him to be subjectively aware of the

specific threat Saxon posed to Mangum.

       But those observations in Bishop are plainly dicta. The court in that case had already

concluded that a reasonable jury could find that the defendant was subjectively aware of the risk

that the particular prisoner posed to the plaintiff “because of [Plaintiff’s] status as a vulnerable

inmate and [Perpetrator’s] status as a predatory inmate.” Bishop, 

636 F.3d at 771

. The facts that

the Bishop court used to reach that conclusion are remarkably similar to the facts of the instant

case: “(1) [Perpetrator] was four inches taller than [Plaintiff]; (2) [Perpetrator] was charged with

various sex-based offenses; (3) [Plaintiff] was young, had a history of mental illness, appeared to

be confused during his intake evaluation, and was thought to be mentally ‘slow.’” 

Id. at 767

. As

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the majority notes in its opinion, “the facts indicate Repp knew Saxon was a sex offender, and

Mangum was very young and very small in stature.” Proposed Op. at 18 (internal quotations

omitted). Even more important, the facts alleged also indicate that another juvenile in the unit

explicitly told Repp that Mangum and Saxon were “doing something in the utility closet.” 

Ibid.

And this was at a time that Repp was on duty at the unit podium, only a few steps from the utility

closet, and yet he allegedly did nothing. [See R.58 at ID#1811, R.57 at ID#1565–67]. Repp

denies having had such notice, but the juvenile’s statements, in sworn testimony at Saxon’s

criminal trial, are more than sufficient to create a genuine issue of material fact on this point.

       Although it is true that “[i]t is not enough merely to find that a reasonable person would

have known, or that the defendant should have known” that a prisoner was at risk to find Eighth

Amendment liability, Farmer v. Brennan, 

511 U.S. 825

, 843 n.8 (1994), it is also true that “a

factfinder may conclude that a prison official knew of a substantial risk from the very fact that

the risk was obvious.”      

Id. at 842

 (emphasis added).        The specific information allegedly

conveyed to Repp at the very time and place that he could have intervened adds to the ability of a

reasonable jury to find that the risk was indeed perceived and then disregarded. Therefore, I

respectfully dissent.




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