Charles Richard Stone, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd.1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0571

Charles Richard Stone,
Respondent,

vs.

Kevin Moser, et al.,
Appellants.

Filed February 1, 2021
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Ramsey County District Court
File No. 62-CV-18-2581

Paul Applebaum, Scott W. Swanson, Andrew Irlbeck, Amanda Montgomery, St. Paul,
Minnesota (for respondent)

Keith Ellison, Attorney General, R.J. Detrick, Assistant Attorne y General, St. Paul,
Minnesota (for appellants)

Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellants Kevin Moser, Aaron Preston, and Benjamin Wallace , employees of the
Minnesota Sex Offender Program (MSOP), appeal the denial of their motion for summary
judgment based on qualified immunity. They argue that respondent Charles Richard Stone,
an MSOP resident, voluntarily endangered himself before another resident assaulted him ,
2
and that Stone’s complaint for damages does not rest on the violation of a “clearly
established constitutional right.” Because Stone has produced sufficient evidence, when
viewed in a light favorable to him, to show that appellants Preston and Wallace violated
his clearly established constitutional right to be protected from the MSOP resident, who
had repeatedly threatened Stone, we affirm in part and remand for further proceedings. But
because Stone has failed to establish a disputed factual issue in support of his
supervisor-liability claim against appellant Moser, we reverse in part.
FACTS
These facts summarize the evidence received on summary judgment, including
Stone’s deposition and video recordings of the assault.
Stone is civilly committed and resides at the MSOP facility in Moose Lake, where
he worked in a paid vocational program. His duties included cleaning the Omega 3 housing
unit at MSOP. On June 24, 2016, Stone was cleaning the shower room on the second tier
when M.B., an Omega 3 resident, exited his room next to the shower room, disrobed, and
told Stone, “I hear you like little boys. Do you want to play with a real man?”
Stone reported what happened to MSOP staff, who reviewed security videos and
confirmed that the incident occurred. MSOP staff recorded the incident on MSOP’s internal
electronic communication system, which circulates incident reports to all MSOP staff.
Stone also told Moser, the MSOP facility director, about the incident. Stone testified that
between the June 24 incident and July 25, 2016, M.B. threatened him daily, saying, “I’m
going to get you, you snitch, snitches get stiches.” Stone testified that Preston and Wallace,
3
MSOP security counselors on the Omega 3 unit, were within earshot as M.B. made these
threats.1
On July 25, 2016, Stone’s therapist organized a mediation session with M.B. and
Stone. M.B. again threatened Stone saying, “I ain’t done with him yet, I’m gonna kill
him.” M.B. told Stone that he hates child molesters, and that if Stone came back to the
Omega 3 unit, M.B. would “take [Stone] out.” Stone’s therapist recorded M.B.’s threats
through incident reports. One day later, M.B. threatened Stone while he was working at the
Omega 3 unit saying, “Snitches get stitches, come get your beating.” Stone later testified
that he told Preston and Moser about M.B.’s threats, and that Wallace was present when
M.B. threatened him.
Following the mediation session, Stone testified that MSOP staff established a new
protocol or practice of locking M.B. in his room on the second tier while Stone attended to
his cleaning duties in the Omega 3 unit. Stone stated that two security counselors
accompanied him while he cleaned M.B.’s tier.2
Stone continued to work on the Omega 3 unit almost daily until September 7, 2016.
Stone testified that MSOP staff members told him that if he ever felt unsafe working on
Omega 3, he should leave the unit. Stone also testified that his therapist said he could be

1 In their depositions, Preston and Wallace denied any knowledge of M.B.’s threats against
Stone.

2 Preston, Wallace, and Moser have denied MSOP adopted or followed this protocol. In the
district court and on appeal, they argue that MSOP lacked adequate resources to provide
one-on-one supervision of Stone, and that MSOP policy prohibited locking a resident in
his room, citing Wallace’s deposition testimony.
4
taken off the Omega 3 schedule, but she would not support him for any other vocational
placement. Stone testified that he told his therapist he felt safe and protected from M.B.
under the new protocol.
On September 7, 2016, Stone was cleaning the Omega 3 unit. Stone testified that he
saw Preston or Wallace look in M.B.’s room on the second tier, and noticed M.B.’s door
remained open. According to Stone, he asked why they had not secured M.B.’s door, and
Preston said that M.B. was not in his room.
Preston and Wallace then accompanied Stone to the second tier, where they
unlocked the janitor’s closet. Stone gathered his supplies and walked down the hall toward
the shower room, which is next to M.B.’s room. At about the same time, Preston and
Wallace turned and walked down the stairs to the first floor. Stone testified that he thought
Preston and Wallace were behind him; he could not hear because of squeaky wheels on his
mop bucket and noise from other units. As Stone approached the end of the hall, he turned
to greet another resident. Stone testified that he could not see into M.B.’s room at the very
end of the hall because the window which opens to the hall was “blackened” out.
When Stone reached the end of the hall, M.B. stepped out of his room and punched
Stone in the face. Stone suffered “a fractured orbital socket, fractured jaw bone, fracture
down his deviated septum, and a fracture from his temple area to his jaw, loss of vision in
his right eye, cross-eyed and blurred vision, and exacerbated glaucoma.”
Security cameras captured the assault from two vantage points. The first video
begins after Preston and Wallace unlocked the janitor’s closet, and shows Stone turn his
head toward Preston and Wallace as they start down the stairs, though it is not clear whether
5
Stone can see either Preston or Wallace. As Stone walks down the hall, a man, presumably
M.B., is visible in his room, though it is not clear whether Stone sees him. M.B.’s room
window does not appear to be blacked out because light is visible.
The second video shows Stone walking down the hall, but does not capture Stone
above his shoulders, and does not show which way he is facing. Stone appears to be facing
M.B.’s room as he keeps walking toward the shower room , but Stone turns slightly just
before M.B. steps out of his room and hits him. Neither video has an audio recording.
Stone sued, and his amended complaint alleged two counts: a section 1983 claim
against Preston, Wallace, and Moser, and a section 1983 supervisor-liability claim against
Moser. Moser, Preston, and Wallace moved to dismiss the amended complaint and for
summary judgment. During the hearing, the district court denied the motion to dismiss the
complaint on the record and heard arguments on the summary -judgment motion. During
arguments, Stone’s counsel agreed that the claims against Moser should likely be
dismissed. Stone’s counsel explained that MSOP adopted a procedure to “escort Mr. Stone
onto the unit, make sure M.B. [was] . . . either not on the tier or unit or that he’s secure[d]
in his room. Given that that was put in place, it would seem that— that Mr. Moser, any
supervisory capacity claim, we weren’t able to prove out.” Because he was unable to
consult Stone, counsel declined to voluntarily dismiss the claim and would “leave it to [the
district court] to dismiss.” At the close of the hearing, the district court took the
summary-judgment motion under consideration.
The district court denied summary judgment. The district court noted the undisputed
and disputed facts of the case, and determined that Preston, Wallace, and Moser were not
6
entitled to summary judgment. On Stone’s claims against Preston and Wallace, the district
court determined that whether Preston and Wallace “were deliberately indifferent to the
need to protect Stone from M.B., and if so, if that indifference resulted in Stone’s injuries,
are questions of fact for a jury.” The district court identified Stone’s deposition testimony
that MSOP staff knew about M.B.’s threats against him, adopted a new protocol to protect
him, and, on the day of the assault, Preston and Wallace did not follow the protocol. The
district court also noted Preston and Wallace’s testimony denying any new protocol. On
Stone’s claim against Moser, the district court cited disputed facts , for example, whether
Moser knew of constitutional violations by his subordinates and failed to take “sufficient
remedial action.”
After Preston, Wallace, and Moser filed a notice of appeal, this court questioned
whether the order denying summary judgment was immediately appealable. After briefing
by the parties, we determined that, under the collateral-order doctrine, the district court’s
order involved an abstract legal issue that is immediately appealable. See Behrens v.
Pelletier, 516 U.S. 299, 313, 116 S. Ct. 834, 842 (1996) (determining collateral-order
doctrine allowed immediate review of “abstract issue of law” related to qualified
immunity); see also Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006) (“An order
denying summary judgment on immunity grounds is immediately appealable.”).
This appeal follows.
DECISION
Preston, Wallace, and Moser argue that the district court erred when it denied
summary judgment for two reasons: (1) no constitutional violation occurred because Stone
7
“put himself in the position he claims [a] ppellants should have prevented,” there was no
imminent threat of harm by M.B., and no evidence proves deliberate indifference by
Preston and Wallace; and (2) the record evidence and caselaw do not establish that
appellants violated a clearly established constitutional right. Stone argues that the district
court correctly identified disputed fact issues and this court should affirm the denial of
summary judgment as to Preston and Wallace —Stone does not defend his
supervisor-liability claim against Moser, as explained below.
Appellate courts “review the grant of summary judgment de novo to determine
‘whether there are genuine issues of material fact and whether the district court erred in its
application of the law.’” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628
(Minn. 2017) (quoting Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746,
754 (Minn. 2005)). The applicability of immunity to a government official’s actions is a
legal question subject to de novo review. Anderson v. Anoka Hennepin Indep. Sch. Dist.
11, 678 N.W.2d 651, 655 (Minn. 2004). When reviewing a n order granting or denying
summary judgment, appellate courts “must consider the evidence in the light most
favorable to the nonmoving party.” Mumm, 708 N.W.2d at 481 (affirming denial of
qualified immunity on summary judgment).
A government official sued for a civil-rights violation under 42 U.S.C. § 1983 may
raise the affirmative defense of qualified or “good faith” immunity. Elwood v. County of
Rice, 423 N.W.2d 671, 674 (Minn. 1988). Under the doctrine, officials are immune from
suit when “their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
8
800, 818, 102 S. Ct. 2727, 2738 (1982). Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341,
106 S. Ct. 1092, 1096 (1986). “On summary judgment, a defendant is entitled to qualified
immunity unless (1) the facts, viewed in the light most favora ble to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right; and (2) the right was
clearly established at the time of the deprivation.” Walton v. Dawson, 752 F.3d 1109, 1116
(8th Cir. 2014) (citations and quotations omitted). We use an objective lens and ask
“whether a reasonable officer could have believed [ their actions] to be lawful, in light of
clearly established law and the information [they] possessed.” Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040 (1987).
Because the applicability of qualified immunity depends on the two elements
identified above, we address appellants’ arguments in the context of these two elements.
Because the allegations agains t Preston and Wallace differ substantially from the
supervisor-liability claim against Moser, we discuss the qualified-immunity arguments,
first, as to Preston and Wallace, and second, as to Moser.
I. The district court did not err in denying summary judgment on qualified
immunity for Preston and Wallace because the facts, viewed favorably to
Stone, support a violation of his clearly established constitutional rights.

A. Violation of constitutional rights
“Prison officials have a duty to protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833, 114 S. Ct. 1970, 1976 (1994)
(quotation omitted). “[T]he [E]ighth [A]mendment’s prohibition against cruel and unusual
punishment requires prison officials to ‘take reasonable measures to guarantee’ inmate
9
safety by protecting them from attacks by other prisoners.” Young v. Selk, 508 F.3d 868,
871 (8th Cir. 2007) (quoting Brennan, 511 U.S. at 832, 114 S. Ct. at 1976). Although the
Eighth Amendment applies only to convicted prisoners, Bell v. Stigers, 937 F.2d 1340,
1342 n.4 (8th Cir. 1991), the Fourteenth Amendment provides civilly committed persons,
such as Stone, “at least as many protections as does the Eighth Amendment.” Hott v.
Hennepin County, 260 F.3d 901, 905 (8th Cir. 2001).3 Thus, we analyze Stone’s
failure-to-protect claim under the same standard applicable to a convicted prisoner. See
Nelson v. Shuffman, 603 F.3d 439, 446 n.3 (8th Cir. 2010) (detainee in Missouri Sexual
Offender Treatment Center); see also Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.
2005) (pretrial detainee held at correctional facility).
To survive summary judgment on his failure-to-protect claim, Stone must offer
evidence that the “official was deliberately indifferent to a ‘substantial risk of serious
harm.’” Young, 508 F.3d at 872 (quoting Brennan, 511 U.S. at 828, 114 S. Ct. at 1974).
There are two requirements to proving deliberate indifference: “The first requirement tests
whether, viewed objectively, the deprivation of rights was sufficiently serious. The second
requirement is subjective and requires that the inmate prove that the prison officials had a

3 Appellants note that the Fifth Amendment’s Due Process Clause only applies to the
federal government, and is “therefore inapplicable here.” We agree. See Dusenbery v.
United States, 534 U.S. 161, 167, 122 S. Ct. 694, 699 (2002) (noting Fifth Amendment
Due Process “prohibits the United States” from “depriving any person of property” without
due process, while the Fourteenth Amendment prohibits the state from committing similar
deprivations). We therefore analyze the application of qualified immunity only as to the
Fourteenth Amendment.
10
‘sufficiently culpable state of mind.’” Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008)
(quoting Brennan, 511 U.S. at 834, 114 S. Ct. at 1977).
Appellants make three arguments why Stone’s claims against Preston and Wallace
cannot survive summary judgment: (1) Stone voluntarily approached M.B. on the day of
the assault; (2) no evidence establishes an imminent threat against Stone at the time of the
assault; and (3) no evidence allows a jury to find deliberate indifference by Preston and
Wallace. We discuss each argument in turn.
1. Stone’s “voluntary conduct”
As to Preston and Wallace’s liability, appellants argue that “[b]ecause video
evidence indisputably shows that [Stone] himself created the situation he now claims
[a]ppellants failed to protect him f rom, he cannot show that [a]ppellants violated his
constitutional rights.”4
Looking at the evidence appellants rely on to argue that Stone voluntarily placed
himself in a position to be attacked, we conclude that summary judgment is not appropriate.
Appellants rely on the two security-camera videos, contend that Stone’s testimony should

4 Appellants cite cases in which federal appellate courts affirmed a grant of summary
judgment for the defendant on a section 1983 claim based, at least, in part on the plaintiff’s
voluntary act. See, e.g., Haas v. Weiner, 765 F.2d 123, 124 (8th Cir. 1985) (affirm ing
summary judgment on section 1983 claim because plaintiff’s use of marijuana and alcohol
while in jail was voluntary). The caselaw is, at best, persuasive. But most, if not all of these
cases, address whether the plaintiff offered sufficient evidence of causation to survive
summary judgment. See id. In Minnesota, causation is typically a question of fact for the
jury that precludes summary judgment. See, e.g., Henson v. Uptown Drink, LLC,
922 N.W.2d 185, 193 (Minn. 2019) (“[W]hether proximate cause exists in a particular case
is a question of fact for the jury to decide.”). Thus, we do not find it helpful to closely
analyze this line of cases.
11
be disregarded, and cite Supreme Court precedent to support their position: “When
opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of
the f acts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007). According to appellants, the video
evidence “blatantly contradicts” Stone’s testimony that he did not know Preston and
Wallace were on the first tier and that he could not see M.B. in his room.
We disagree with appellants’ characterization of the video evidence. The security
videos do not indisputably show that Stone “knew that he was walking toward M.B. and
knew that staff [were] not following him.” Rather, when we view the evidence in a light
favorable to Stone, as we must do on summary judgment, the videos show that Stone briefly
turned his head and likely saw Preston and Wallace lock the janitor’s closet door; it is not
clear what Stone saw of Preston and Wallace after this point. The videos also show Stone
walking toward M.B.’s room, but they do not show in which direction Stone was looking
as he approached the room.
Finally, because the videos lack audio and begin as Preston and Wallace are opening
the janitor’s closet, the videos do not provide evidence of any communication s between
Preston, Wallace, and Stone about whether M.B. was in his room or why his door was not
locked. At best, the videos only contradict Stone’s testimony that M.B.’s room window
was “blackened out.” But the video evidence does not indisputably show that Stone could
or did see M.B. in his room as he walked down the second-tier hallway. Thus, whether
12
Stone voluntarily encountered M.B. on the day of the assault is a question of fact for the
jury.
2. Imminent threat of harm
To lose qualified immunity, an “official 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.” Brennan, 511 U.S. at 837, 114 S. Ct. at 1979. Appellants contend that
the evidence does not establish a constitutional violation because M.B.’s July 25 threat
against Stone was six weeks before the assault. Appellants also argue that “the district
court’s findings . . . fail to show that they were aware that M.B. posed any imminent threat
of serious harm to [Stone] on September 7, 2016.”
Appellants point to Prater v. Dahm, 89 F.3d 538 (8th Cir. 1996), where the Eighth
Circuit reversed an or der denying qualified immunity on a motion for judgment on the
pleadings. There, Prater, a prisoner, admitted in his pleadings that “prison officials had
assurances from both inmates that there would be no trouble,” and Prater and his assailant
“were incarcerated together for a substantial period of time without incident.” Id. at 542.
The Eighth Circuit held that “[u]nder the circumstances, the two- week period between
Prater’s return to [the correctional facility] and the altercation was in itself a sufficient time
for prison officials to believe that Prater was not, in fact, in danger.” Id. Given Prater,
Preston and Wallace argue that “there is no authority that would have put [them] on notice
that they were required to protect [Stone] from M.B. because of a threat that occurred as
many as six weeks earlier.”
13
Prater is not analogous or persuasive authority. Appellants’ argument ignores that
Stone testified that M.B.’s threats were ongoing after the initial threat on June 24 and after
the mediation session on July 25. Stone testified that M.B. told him he “hate[d]” him after
Stone reported M.B.’s threat on June 24, and that, later, M.B. told Stone “I’m going
to . . . take you out.” Stone also testified that he com municated his fears about M.B. to
MSOP officials, who created incident reports circulated by the internal communication
system. According to Stone, Preston and Wallace were within earshot and likely heard
some of M.B.’s threats. Unlike in Prater, no evidence establishes that either Stone or M.B.
told officials “there would be no trouble.” Prater, 89 F.3d at 542. And, according to Stone,
M.B. did not assault him earlier because of the new protocol to protect him after the
mediation session. Although several weeks had passed after M.B.’s July 25 threat without
incident, there is no evidence that M.B.’s hostility toward Stone had ceased. Thus, there is
sufficient evidence that M.B. posed an imminent harm to Stone to create a fact issue for
the jury.
3. Evidence of deliberate indifference by Preston and Wallace
“[P]rison officials who actually knew of a substantial risk to inmate health or safety
may be found free from liability if they responded reasonably to the risk, even if the harm
ultimately was not averted.” Brennan, 511 U.S. at 844, 114 S Ct. at 1982-83. Under the
circumstances, we take as true Stone’s testimony that M.B.’s threats were ongoing, MSOP
adopted a new protocol to protect Stone after the mediation session, and the new protocol
was a reasonable response to M.B.’s threats. Viewing the evidence in a light favorable to
Stone, Preston and Wallace failed to follow the new protocol on the day M.B. attacked
14
Stone. We recognize that Preston and Wallace dispute Stone’s testimony about the new
protocol. Thus, like the district court, we conclude that disputed facts make summary
judgment inappropriate.
Alternatively, Preston and Wallace argue that “according to [Stone]’s own account
of the events leading up to the assault on September 7, 2016, Preston and Wallace could
not have been deliberately indifferent.” They “believed M.B. was not on the Omega 3 Unit
[therefore, M.B] could not have posed a ‘known risk’ to [Stone] and there was no reason
to follow the purported protocol to protect [Stone] from M.B.” Viewing the evidence in a
light favorable to Stone, as required on summary judgment, Stone relied on assurances
from Preston and Wallace that M.B. was not present and the new protocol required Preston
and Wallace to determine whether M.B. was present. Thus, Stone offers sufficient evidence
of deliberate indifference to defeat summary judgment.
B. Clearly established constitutional right
Even assuming Stone has offered evidence sufficient to pass summary judgment on
a violation of his rights, appellants argue that “no [legal] authority put them on notice that
they were required to stop [Stone] from continuing his work on M.B’s unit.” Under the
second prong of the qualified-immunity analysis, Stone’s constitutional right must be
“clearly established” at the time of the alleged violation. Pearson v. Callahan, 555 U.S.
223, 232, 129 S. Ct. 808, 816 (2009). This argument, therefore, is an independent basis for
granting summary judgment on qualified immunity.
The “clearly established law” must not be “at a high level of generality.” Ashcroft
v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011). “Mere statements of
15
constitutional principles are too vague to offer guidance to [] officers in the field; the
plaintiff must show that the contours of the right were sufficiently clear that a reasonable
official would understand that his actions violated that right.” Baker v. Chaplin,
517 N.W.2d 911, 914 (Minn. 1994) (citing Anderson, 483 U.S. at 639-40, 107 S. Ct. at
3038-39). “While [the Supreme Court’s] case law does not require a case directly on point
for a right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017)
(quotations omitted). “The very action in question need not have previously been held
unlawful, but its unlawfulness must have been ‘apparent’ in light of pre-existing law.”
Baker, 517 N.W.2d at 914 (quoting Anderson, 483 U.S. at 639-40, 107 S. Ct. at 3038-39).
Stone’s brief to this court points to Nelson v. Shuffman, 603 F.3d 439 (8th Cir.
2010), and argues it is “dispositive on this issue.” We agree. There, Nelson, a resident of
Missouri Sexual Offender Treatment Center, brought a section 1983 suit against employees
of the center for failing to protect him from another inmate. Id. at 442-43. Nelson was
assigned to share a room with D.D., who was described as “very violent,” “out of control,”
and “explosive.” Id. at 443. D.D.’s threatening and inappropriate behavior was well known
and documented at the treatment center. Id. After Nelson was assigned to room with D.D.,
one of D.D.’s former roommates, who had filed two complaints against D.D., feared for
Nelson’s safety. Id. at 444. Shortly after Nelson’s new room assignment, D.D. sexually
assaulted him, and Nelson brought a section 1983 failure-to-protect action. Id. at 444-45.
Defendants moved for summary judgment based on qualified immunity, which the
district court denied for some of the defendants. Id. On appeal, the Eighth Circuit affirmed
16
the denial of summary judgment noting, “[w]hether Nelson is ultimately able to prove the
alleged factual bases for his claims is a matter left for the finder of fact—not the appellate
court on interlocutory appeal.” Id. at 448.
Appellants argue that Nelson “bears no resemblance to the key facts here,” noting
that Stone “chose to place himself in contact with M.B. for months after M.B.’s initial
exposure and alleged subsequent threats b y working on the Omega 3 Unit where M.B.
lived.” Appellants also point out that Stone admits that he “was told by staff to leave if he
felt unsafe.” They argue this contrasts “sharply” with Nelson, “where D.D. assaulted
Nelson shortly after the defendants placed Nelson in the same room as D.D.”
As seen in our analysis of the record evidence above, we disagree with appellants’
framing of the record on summary judgment. Stone is the nonmoving party , so we view
the record evidence in his favor. See Mumm, 708 N.W.2d at 481. While appellants are
correct that the facts here do not precisely mirror the facts in Nelson, they bear enough
similarity to put appellants on notice of the “unlawfulness” of their failure to protect Stone
from M.B. Thus, appellants’ duty was “apparent in light of pre-existing law.” See Baker,
517 N.W.2d at 914 (quotation omitted).
Stone has presented evidence that Preston and Wallace knew about M.B.’s repeated
threats against Stone, either by direct observation or by circulation of incident reports
through MSOP’s internal communication system. Stone’s work duties required that he
clean the shower room directly next to M.B.’s room. We agree with Stone that, at this stage
of the case, “it is not this court’s function to resolve factual disputes on interlocutory
appeal. Therefore, the defendants’ claim th e policies were not in effect cannot be
17
considered.” See Nelson, 603 F.3d at 450. Thus, Stone’s evidence that Preston and Wallace
failed to follow the new protocol on the day M.B. assaulted Stone defeat s summary
judgment based on the “clearly established constitutional right” recognized in Nelson.
Longstanding caselaw recognizes the duties of prison officials to protect inmates.
“[A]s the lower courts have uniformly held, and as we have assumed, prison officials have
a duty to protect prisoners from violence at the hands of other prisoners.” Brennan,
511 U.S. at 833 , 114 S. Ct. at 1976 (quotations omitted). 5 Similarly, MSOP officials are
duty-bound to protect Stone, a civilly committed person, from a known, substantial risk of
assault by M.B.
This does not mean that “every injury suffered by one prisoner at the hands of
another translates into constitutional liability for prison officials responsible for the
victim’s safety.” Id. at 834, 114 S. Ct. at 1977. Rather, as we have discussed above, Stone
must prove to a jury that he was committed “under conditions posing a substantial risk of
serious harm” and that the defendants acted with “deliberate indifference to inmate health
or safety.” See id. An official directly supervising a plaintiff’s confinement may be held
liable if he “knows that [the plaintiff] face[s] a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Id. at 847, 114 S. Ct.
at 1984.

5 See also Walton, 752 F.3d at 1114 (affirming denial of summary judgment in
section 1983 claim where jail officials left cell doors unlocked overnight, leading to sexual
assault of plaintiff by an inmate who had a history of assaults); Reece v. Groose, 60 F.3d
487, 491 (8th Cir. 1995) (affirming denial of summary judgment in section 1983 claim
where jail officials failed to take reasonable measures to protect plaintiff, a “snitch,” from
prisoner with “a propensity for violence”).
18
Preston and Wallace misconstrue the issue by asking what legal authority put them
on notice that “they were required to stop [Stone] from approaching M.B.” Rather,
established caselaw requires Preston and Wallace to protect Stone from M.B. because they
knew M.B. posed an ongoing serious danger to Stone’s safety. As discussed above, Stone
has offered evidence that Preston and Wallace knew of the significant risk of harm M.B.
posed to Stone. Accepting Stone’s evidence that MSOP officials adopted a new protocol
after the mediation session, Preston and Wallace’s failure to follow the protocol on the day
of M.B.’s assault was evidence that they were deliberately indifferent to a known
substantial risk. Thus, Preston and Wallace are not entitled to summary judgment on
qualified immunity.
II. The district court erred in denying summary judgment on qualified immunity
for Moser, because Stone has not alleged a violation of his constitutional rights
by Moser.

Appellants argue that Moser is entitled to qualified immunity, even if Preston and
Wallace are not. Stone has not alleged, and the record does not show, that Moser was
present during the September 7 assault, thus Moser may only be held liable as Preston and
Wallace’s supervisor. A supervisor may be liable for the acts of his subordinates “if he
(1) had notice of a pattern of unconstitutional acts committed by subordinates ; (2) was
deliberately indifferent to or tacitly authorized those acts; and (3) failed to take sufficient
remedial action; (4) proximately causing [ the injury to the inmate].” Livers v. Schenck,
700 F.3d 340, 355 (8th Cir. 2012) (alteration and quotation omitted).
The district court denied summary judgment to Moser because “[w]hether Moser
[1] was on notice of unconstitutional acts committed by subordinates, [2] was deliberately
19
indifferent to or tacitly authorized those acts, [3] failed to take sufficient remedial action,
and [4] proximately caused Stone’s injuries are all disputed facts for a jury to decide.”
Moser contends that the district court erred and, on appeal, Stone does not respond to
Moser’s argument.6 We address each of the district court’s four reasons for denying
summary judgment to Moser.
First, Stone offered no evidence that Moser was on notice of unconstitutional acts
by his subordinates, Preston and Wallace, and their adherence to the new protocol . Stone
has testified to facts showing that Moser knew about M.B.’s threats, but Stone has also
testified that MSOP adopted a new protocol to address those threats. Thus, Stone’s
failure-to-protect claim against Moser turns on what Moser knew about how his
subordinates implemented the new protocol. Stone did not offer any evidence on this point.
Second, Stone offered no evidence that Moser was deliberately indifferent to, or
authorized unconstitutional acts by Preston and Wallace. Again, Stone’s testimony and
legal theory is that Preston and Wallace failed to follow the new protocol on the day of
M.B.’s assault. Thus, the new protocol shows Moser and MSOP responded to M.B’s
threats, evidence that contradicts deliberate indifference.
For the same reason, the district court’s third and fourth reasons to deny summary
judgment also fail: Stone offered no evidence that Moser failed to take sufficient remedial

6 During the district court’s hearing on summary judgment, Stone’s counsel conceded that
“we weren’t able to prove out” any supervisory claim against Moser, and “[left] it to [the
district court] to dismiss” the claim against Moser because he had not yet discussed the
matter with Stone. When asked at oral argument before this court about Stone’s claim
against Moser, his counsel responded that he was “not including [Moser] in my argument.
I think we can ignore him.”
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action, or that Moser was the proximate cause of Stone’s injury. Moser does not contend
or offer evidence that the new protocol was inadequate. And no record evidence suggests
that Moser was on the scene when Preston and Wallace failed to follow the new protocol.
There is thus no record evidence, which when viewed favorably to Stone, establishes a
constitutional violation as to Moser. See Pearson, 555 U.S. at 232, 129 S. Ct. at 816. For
this reason, we reverse the district court’s order denying summary judgment as to Moser
on the ground of qualified immunity.
In conclusion, Stone has offered evidence of facts that, when viewed favorably to
him, show Preston and Wallace violated Stone’s clearly established constitutional right to
protection from a known, substantial risk. Similarly, viewing the record evidence favorably
to Stone, Preston and Wallace acted with deliberate indifference to that risk by failing to
follow the new protocol adopted to protect Stone from M.B. While the jury may reject
Stone’s evidence and claims against Preston and Wallace, we cannot dismiss Stone’s
claims against Preston and Wallace at summary judgment. Thus, we affirm the district
court’s order denying summary judgment as to Preston and Wallace. Still, the facts alleged,
even when viewed favorably to Stone, do not show a constitutional violation by Moser; we
therefore reverse the district court’s summary judgment as to Moser because he is entitled
to qualified immunity. We thus remand the case to the district court for further proceedings
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.