The case is Ross v. Correction Officers John and Jane Does, a summary order decided on July 20. Although he was arrested on a misdemeanor charge, plaintiff was placed in the maximum security block because of his criminal history and disciplinary record from prior jailings. Five inmates slashed him in the face in the early afternoon one day. The sole guard assigned to the cellblock was not inside the cellblock at the time of the slashing, in violation of Department of Corrections policy. Plaintiff sues that officer, Mullings.
The district court denied the officers' motion for summary judgment on Ross's failure to protect claim, but the Court of Appeals taketh away that victory and rules for the officers. While prison officials must take reasonable measures to guarantee inmate safety, not every injury results in a constitutional violation. Mullings is off the hook. The Second Circuit finds there is no evidence that Mullings knew about the safety risk to Ross posed by the gang members who slashed him. Ross gets around this by arguing that Mullings is liable because he walked off his post, resulting in the violence.
Nice try, but not enough, the Second Circuit says. It reasons like this:
We are aware of no controlling precedent adopting such a broad standard. As an initial matter, there are numerous reasons for an officer to leave his or her post in a maximum security facility—some justified, others not. No decision of which we are aware rules that such an officer has committed a constitutional violation irrespective of the circumstances present in a given situation. Such a holding would run counter to the Supreme Court’s [precedent] and our Court’s precedent on this issue. Indeed, in the instant case, such a ruling would force us to ignore important contextual considerations that undermine the argument that Mullings “kn[ew] of and disregard[ed] an excessive risk to [Ross’s] health or safety” and yet still acted with “subjective recklessness.” These considerations include the fact that another corrections officer was still assigned to, and present at, the cellblock at the time of the slashing, and that neither officer had ever witnessed such an attack in their long careers. While Mullings may have exercised poor judgment in temporarily leaving his post, “deliberate indifference describes a state of mind more blameworthy than negligence.”