_________________________

Nos. 95-1105NE, 95-1115NE

_________________________

Jerry Jensen, on behalf of *

himself and all others *

similarly situated; Reginald *

Pierce; Richard Duff; Al *

Wilson; Harold Crisp; Laddie *

Dittrich; Gus Dawson; Victor *

Carter; George Carter; Michael *

Kane; Ernest L. Sims; Mohamed *

Abdul Hafiz El-Tabech; and *

and Victor Luna, *

*

* On Appeal from the United

 Appellees/Cross-Appellants, * States District Court

* for the District of

v. * Nebraska.

*

*

Harold W. Clarke, individually *

and in his official capacity *

as Director of the Nebraska *

Department of Correctional *

Services; and Frank X. Hopkins, *

individually and in his *

official capacity as Warden of *

the Nebraska State *

Penitentiary, *

*

 Appellants/Cross-Appellees. *

___________

 Submitted: October 16, 1995

 Filed: January 11, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit

Judges.

___________

RICHARD S. ARNOLD, Chief Judge.
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This case began in 1987 when the plaintiff class, inmates in

the Nebraska State Penitentiary (NSP), filed suit challenging their

conditions of confinement. They assert that the practice of double

celling, placing two inmates in a cell designed for one, under

conditions as they existed prior to this case in the NSP, violated

the Eighth Amendment to the United States Constitution. These

proceedings have included a hearing on liability, a premature

appeal to this Court, hearings and an order on a remedial plan, and

an order on attorneys' fees. Unfortunately, we must remand the

case for further consideration in light of Farmer v. Brennan, 114

S. Ct. 1970 (1994).

I.

The plaintiffs are the class of inmates housed or to be housed

in the four main housing units of the Nebraska State Penitentiary.

They brought this case under 42 U.S.C. § 1983 (1988) to challenge

the conditions of their confinement in two respects. First, they

contended that the practice of double celling at the NSP violated

the Eighth Amendment. Second, they contended that the policy of

holding both inmates responsible for contraband found in a double

cell violated the Due Process Clause of the Fourteenth Amendment.

An 18-day evidentiary hearing was held before a magistrate judge

regarding the validity of the plaintiffs' claims. The District

Court, adopting the report and recommendations of the magistrate

judge, rejected the due-process claim, but held that, while the

practice of double celling inmates did not in itself violate the

Constitution, the manner in which the defendants were conducting

that practice did. Jensen v. Gunter, 807 F. Supp. 1463 (D. Neb.

1992). 

The NSP, opened in 1981, is a maximum security prison, housing

the State's most violent offenders. At the time this case was
 1

A fifth main housing unit was constructed during the

pendency of this case.

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tried, it consisted of six housing units. Units one through four,1

the main housing units, are at issue in this case. The statistics

and testimony introduced during the 18-day bench trial in this case

portrayed the NSP as a violent place. Moreover, testimony from

inmates persuaded the District Court that the violence had carried

over to the double cells. Several conditions enhanced the level of

tension in the double cells, including noise, exposure to smoke and

offensive odors due to poor ventilation, lack of privacy, and the

contraband rule, under which both cellmates can be punished when

contraband is found in a cell.

That double celling and overcrowding at the NSP are involved

has the potential of overshadowing the real issues. The District

Court did not hold that either double celling or overcrowding at

the NSP in themselves violated the plaintiffs' Eighth Amendment

rights. In fact, it specifically rejected those claims. Rather,

the District Court found that the inmates in the double cells in

the four main housing units faced a substantial risk of harm in the

form of violence at the hands of their cellmates. The defendants,

moreover, had been deliberately indifferent to that risk. That

indifference was exemplified by the policy of randomly assigning

incoming inmates to double cells without considering whether the

cellmates would be compatible. Stated differently, we read the

District Court's order as holding that, while the practice of

double celling in the NSP is not itself unconstitutional, the

manner in which that practice was being carried out prior to this

lawsuit violated the Eighth Amendment by exposing some prisoners to

a risk of violence that was avoidable. Therefore, the issues in

this case are whether the plaintiffs were exposed to a substantial

risk of physical harm in the form of assaults by cellmates, and, if

so, whether the defendants were deliberately indifferent to that

risk. We do not reach the first issue, because we must remand this
 2

Briefly put, the remedy in this case was to order the

defendants to adopt a plan that put an end to randomly assigning

incoming inmates to double cells without considering whether the

new cellmates would be compatible. That injunction is still in

force.

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case for further findings on the second.

This case was not final and appealable following the District

Court's liability determination, a point that was made clear when

the defendants attempted to take an appeal directly to this Court.

See El-Tabech v. Gunter, 992 F.2d 183 (8th Cir. 1993). The

defendants were ordered to propose a remedial plan. Some time

passed before that plan was proposed and the defendants were

ordered to adopt it.2 Then in yet another order, the District

Court awarded fees to the plaintiffs' attorneys. See El-Tabech v.

Gunter, 869 F. Supp. 1446 (D. Neb. 1994). More than two years

passed between the time that the District Court found that the

defendants were liable and the District Court's final order.

During that time, the Supreme Court decided a case, Farmer v.

Brennan, that directly impacts the liability determination.

II.

The Eighth Amendment to the United States Constitution

proscribes the infliction of "cruel and unusual punishments." The

Supreme Court counsels that this amendment imposes upon prison

officials the duty to "provide humane conditions of confinement."

Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994). That duty, among

other things, requires those officials to take reasonable measures

to "`protect prisoners from violence at the hands of other

prisoners.'" Ibid. (quoting Cortez-Quinones v. Jimenez-Nettleship,

842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)).

The Eighth Amendment imposes this duty because being subjected to

violent assaults is not "part of the penalty that criminal

offenders pay for their offenses." See Rhodes v. Chapman, 452 U.S.
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337, 347 (1981).

In order to prevail on an Eighth Amendment failure-to-protect

claim, inmates must make two showings. First, they must

demonstrate that they are "incarcerated under conditions posing a

substantial risk of serious harm." Farmer, 114 S. Ct. at 1977.

The second requirement concerns the state of mind of the prison

official who is being sued. It mandates that the plaintiffs show

that the official "knows of and disregards an excessive risk to

inmate health or safety; the 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." Id. at

1979. This subjective requirement is necessary because "only the

unnecessary and wanton infliction of pain implicates the Eighth

Amendment." Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal

quotation marks, emphasis, and citations omitted).

Before Farmer, this Court analyzed failure-to-protect cases in

a somewhat different manner. Under our prior cases, deliberate

indifference, or reckless disregard, of a risk to inmate safety

required proof of a pervasive risk of harm to inmates and a failure

to respond reasonably to that risk on the part of prison officials.

Porm v. White, 762 F.2d 635, 637 (8th Cir. 1985); Martin v. White,

742 F.2d 469, 474 (8th Cir. 1984). A "pervasive risk of harm," in

turn, was said to exist when "violence and sexual assaults

occur . . . with sufficient frequency that . . . prisoners . . .

are put in reasonable fear for their safety and to reasonably

apprise prison officials of the existence of the problem and the

need for protective measures." Martin, 742 F.2d at 474 (quoting

Withers v. Levine, 615 F.2d 158, 161 (4th Cir.), cert. denied, 449

U.S. 849 (1980)).

This approach allowed inmates to prevail upon a lesser showing

than that mandated by Farmer. All that a plaintiff needed to prove

was that prison officials, given the sufficient frequency of
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assaults, "knew or should have known" of a substantial risk to

inmate safety. Randle v. Parker, 48 F.3d 301, 304 (8th Cir. 1995).

This standard was applicable when the District Court made its

liability determination in this case in 1992. We read the District

Court's opinion as applying this standard. This approach, however,

does not comply with the subjective-state-of-mind component of

deliberate indifference described in Farmer. We must, as a result,

remand this case to the District Court for application of the

Farmer standard for establishing deliberate indifference.

It is true, as the plaintiffs point out in their briefs, that

some language in the District Court's order appears to apply

something akin to the Farmer standard. When addressing reckless

disregard, the Court wrote that "an inmate must show that prison

officials were aware of a pervasive risk of harm to an inmate and

failed to reasonably respond to that risk." Jensen, 807 F. Supp.

at 1481. That statement, however, loses its force when placed in

the context of the rest of the opinion.

Later in its order the District Court moved away from the

standard it initially seemed to apply, writing that the risk of

harm faced by the plaintiffs was "of such magnitude as to put

defendants on notice of its existence." Id. at 1483. Likewise, in

a subsequent order addressing the nature of the remedy to be

imposed, the District Court characterized the requirement as a

"risk . . . of sufficient magnitude to place prison officials on

notice." El-Tabech v. Gunter, No. CV87-L-377, slip op. at 4 (D.

Neb. Aug. 23, 1994). Farmer, however, specifically rejects the

idea that liability may be found when a risk is so "obvious that it

should [have been] known." Farmer, 114 S. Ct. at 1978. We

conclude that the District Court has yet to determine whether the

defendants were subjectively aware of a substantial risk of harm to

the plaintiffs, as is required by Farmer.

III.
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This cause is remanded to the District Court with instructions

to find whether the defendants actually knew of and disregarded a

substantial risk to the safety of the plaintiffs. We retain

jurisdiction over this matter in order to review the findings of

the District Court on remand. That Court will certify its findings

to us as soon as it makes them.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.