## Facts

- Roderick Keith Johnson, a Black, gay Texas prisoner, entered the prison system in 2000 and was transferred to the Allred Unit.
- Johnson alleged officials knew he was homosexual and vulnerable and that prison policies allowed “safekeeping” placement for inmates at risk of victimization, including those with a history of homosexuality.
- At classification, Johnson requested safekeeping based on prior protective housing; he alleged a committee member stated, “we don’t protect punks on this farm,” and he was placed in general population.
- Johnson alleged he was raped almost immediately and, over roughly 18 months, was repeatedly raped and beaten by gang members while officials failed to protect him despite repeated complaints.
- Johnson filed multiple grievances and requests for transfer or protective housing; he alleged some officials refused to document injuries, investigate, or provide adequate medical attention, and that responses often left him in general population.
- Johnson sued 15 prison officials under 42 U.S.C. § 1983, asserting (1) Eighth Amendment failure-to-protect and (2) Equal Protection violations based on sexual orientation (and also race-based theories).

## Issues

1. Whether Johnson properly exhausted administrative remedies under the PLRA for his Eighth Amendment and equal protection claims, including which theories and which defendants, and whether defendants could raise exhaustion after not pleading it initially.
2. Whether defendants were entitled to qualified immunity on the failure-to-protect and sexual-orientation equal protection claims.
3. Whether the interlocutory appeal from the denial of qualified immunity was immediately appealable despite some discovery having occurred.

## Decision

- The court affirmed in part, reversed in part, and remanded.
- The court held defendants could assert PLRA exhaustion despite not pleading it in their original answer, where the late assertion was excusable and nonprejudicial.
- The court held Johnson did not exhaust: (a) race-based equal protection claims, (b) claims based on incidents occurring more than 15 days before his first timely grievance, and (c) failure-to-protect claims against two specific guards.
- The court held Johnson did exhaust Eighth Amendment failure-to-protect and sexual-orientation equal protection claims tied to an alleged continuing failure to protect him after his grievances, and that the grievances sufficiently identified relevant classification-committee participants for those claims.
- The court granted qualified immunity to certain supervisory officials due to insufficient allegations/evidence of personal involvement or deliberate indifference.
- The court denied qualified immunity to certain classification-committee members and other officials alleged to have known of ongoing sexual assault risk and to have done nothing, on both the Eighth Amendment and sexual-orientation equal protection claims.
- The court held the denial of qualified immunity was immediately appealable as presenting legal questions within the collateral-order doctrine.

## Legal Principles

- PLRA exhaustion is treated as an affirmative defense that may be raised late if the delay is excusable and the plaintiff shows no prejudice.
- Proper exhaustion requires compliance with prison grievance rules, including filing deadlines; untimely incidents are not exhausted.
- Grievances may exhaust claims concerning an ongoing or continuing failure to protect when they give notice of the continuing problem and seek protective action.
- For § 1983 liability, supervisory status alone is insufficient; a plaintiff must show personal involvement or conduct meeting the deliberate-indifference standard.
- The Eighth Amendment prohibits deliberate indifference to a known substantial risk of serious harm, including sexual assault by other prisoners.
- An equal protection claim may be stated where officials allegedly deny protection because of sexual orientation; officials are not entitled to qualified immunity where alleged discriminatory conduct was objectively unreasonable under clearly established law.

## Conclusion

The Fifth Circuit limited the suit to properly exhausted, timely claims and affirmed that some officials could face liability for deliberate indifference to an ongoing risk of sexual assault and for alleged denial of protection based on sexual orientation, while dismissing unexhausted theories and granting qualified immunity to supervisory defendants lacking sufficient personal involvement.


Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)