United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-4184

___________

Harold Lowell Curry; Patricia Lynn *

Spitzack-Havlish, individually, and as *

co-trustees for the heirs of Edwin Hugh *

Curry, *

*

Plaintiffs - Appellants, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

David Crist, individually and in his *

official capacity as Warden of the *

Stillwater Correctional Facility, *

*

Defendant - Appellee. *

___________

Submitted: June 16, 2000

Filed: September 28, 2000 

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Before LOKEN, ROSS, and HANSEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

On November 27, 1997, Minnesota inmate Edwin Curry was brutally murdered

at the Stillwater Correctional Facility by fellow inmate Craig Bjork. Curry’s heirs filed

this § 1983 action against Warden David Crist and other prison officials, alleging that

they violated Curry’s Eighth Amendment rights by failing to protect him from the fatal
1The HONORABLE ANN D. MONTGOMERY, United States District Judge

for the District of Minnesota.

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assault. Curry’s heirs appeal the district court’s1 decision to grant Crist summary

judgment based on qualified immunity. We affirm.

I. Background.

In 1982, Bjork murdered his two sons, his girlfriend, and a prostitute. He was

sentenced by a Minnesota court to three consecutive life sentences for first degree

murder and a consecutive 242-month sentence for second degree murder. During the

1980s, Bjork was a difficult inmate, and other inmates harassed him for being a child

killer. The Minnesota Department of Corrections eventually transferred him to the

Montana prison system, from which he tried to escape. He was returned to Minnesota

in 1989 and spent five years at the maximum security facility in Oak Park Heights.

Bjork received above average work evaluations and no disciplinary reports in 1991,

1992, and 1993 and was transferred in 1994 to Stillwater, a “close custody” facility.

He received three or four disciplinary reports and segregation sentences in 1994 and

1995 for disorderly conduct, disobeying orders, and substance abuse.

In May 1996, Bjork was sentenced to seventy-five days in segregation for

threatening to throw hot water on two correction officers. On July 14, 1996, while in

segregation, Bjork sent a kite (memorandum) to Warden Crist stating that “Stillwater

is not a healthy environment for me.” Bjork described himself as “homicidal” and

depressed, and concluded:

I’m very close to committing mass murder in Stillwater. Trust me

minimum of 3 bodies, I’d go for 10 & come real close. So how do we

handle this? (I’m for real) I’d like to work it out. But you can blow me

off.
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Crist immediately referred the threatening kite for investigation. Case Manager

Debra Nelson interviewed Bjork. She reported he appeared capable of following

through on his threat and requested a psychological evaluation. On July 30, Nelson

issued a formal Notice of Violation for Threatening Others, which prevented Bjork’s

release from segregation. A staff psychologist interviewed Bjork on August 1. Bjork

denied threatening anyone, said “he was merely trying to get people to take him

seriously,” but also “indicated that some officers might get hurt because of their

attitude.” A few days later, Bjork wrote Crist a lengthy kite explaining that his July 14

kite was “an emotional release & cry for help,” not a threat; complaining that further

segregation was unnecessary and he had not been properly charged; and concluding,

“I really want to stay at [Stillwater] . . . so let me show you how I want to do my time

quiet & easy.” Warden Crist responded in writing that the Threatening Others charge

was deserved but would be withdrawn because of undue delay in bringing it. Bjork

was then released to the general prison population. In January 1997, Bjork was

assigned to work in the prison kitchen with Curry. He was also transferred to Cell Hall

D, a “service unit” where inmates receive additional privileges and amenities. 

In October 1997, at his request, Bjork was transferred to a new tier in Cell Hall

D. Soon after, he asked to move again, complaining that other inmates controlled use

of the telephone on his new tier. On November 12, Bjork sent a letter to Crist

complaining of the telephone situation. The complaint was investigated, and two

inmates who were improperly controlling use of the phone were transferred to another

tier. However, Bjork’s request for a transfer was denied because of concern he was

manipulating the situation to effect an unwarranted second transfer. When Crist spoke

to Bjork briefly on November 21, Crist did not perceive that Bjork was distressed or

noticeably angry with prison staff or other inmates. Unit Director Tim Lanz spoke to

Bjork about the telephone situation on November 26 and did not perceive that he was

distressed or agitated or felt he was being treated unfairly. Lanz was “extremely

shocked” when Bjork murdered Curry the next day with a stolen plumber’s pipe. 
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Bjork consented to an investigative interview the day after the attack. He

admitted killing Curry in their basement work area during a one-half hour period

between guard patrols. Bjork said he had no reason to kill Curry other than the fact

that Curry was the nearest available victim. Bjork said he had planned to leave the

kitchen area and kill other inmates and staff that day, but he was discovered hosing

down the murder area by a patrolling guard. Bjork fled but was quickly captured.

II. Discussion.

Qualified immunity protects government officials performing discretionary

functions from liability for damages so long as “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. 800, 818 (1982). Prison inmates have a

clearly established Eighth Amendment right to be protected from violence by other

inmates. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). A prison official violates

this right when “he is deliberately indifferent to the need to protect an inmate from a

substantial risk of serious harm from other inmates.” Newman v. Holmes, 122 F.3d

650, 652 (8th Cir. 1997). A failure-to-protect claim has an objective component,

whether there was a substantial risk of harm to the inmate, and a subjective component,

whether the prison official was deliberately indifferent to that risk. See Jackson v.

Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). 

Although the failure-to-protect cause of action has a subjective component, the

critical inquiry for qualified immunity purposes is whether it was “objectively legally

reasonable” for the prison official to believe that his conduct did not violate the

inmate’s clearly established Eighth Amendment right. Anderson v. Creighton, 483 U.S.

635, 641 (1987). Consistent with that standard, the Supreme Court observed in Farmer

v. Brennan that “prison 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.” 511 U.S. at 844. Qualified
2For example, a March 1984 Notice of Violation reported that Bjork had

threatened to kill a prison officer and commented, “What can they do give me more

time,” no doubt a reference to Minnesota’s lack of the death penalty.

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immunity protects “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 

In this case, the district court granted Crist qualified immunity on two grounds:

“the record does not support an inference that Curry was under a substantial risk of

harm at the time he was attacked,” and “the record does not raise a factual question

suggesting that [Crist] knew of such a risk and deliberately disregarded it.” We review

the district court’s qualified immunity decision de novo. See Jackson, 140 F.3d at

1151. Because we are reviewing the grant of summary judgment, we view the facts

most favorably to Curry’s heirs, the nonmoving parties. See Prater v. Dahm, 89 F.3d

538, 539 (8th Cir. 1996). In this case, the facts are for the most part undisputed.

Curry’s heirs argue that “[a] reasonable prison official would not have allowed

Bjork, a five-time murderer and known psychopath who had repeatedly threatened to

commit mass murder at [Stillwater], to work alone with another inmate in an

unsupervised and unobservable area of the prison with access to weapons.” In essence,

they contend that Bjork should not have been given any prison job. Instead, he should

have been locked away in segregation or a maximum security facility at the time he

murdered Curry. Curry’s heirs cite three distinct factual bases for this contention. 

First, Curry’s heirs stress the multiple murders that led to Bjork’s lifetime

incarceration, and his violent threats and behavior during his early years in prison in the

1980s.2

 But prison officials are not required to segregate indefinitely all inmates whose

original crimes suggest they might be capable of further violence. Based upon their

general observation that inmates serving life sentences tend to avoid trouble, and their

specific observation of Bjork’s nonviolent conduct in the years following his return
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from Montana, Stillwater officials made the decision to reward Bjork with work

assignments and ultimately a transfer to Cell Hall D. They did not thereby violate the

Eighth Amendment rights of all inmates in the general population with whom Bjork

might come in contact. 

Second, the Curry heirs argue that Crist was deliberately indifferent to a

substantial risk of harm when he failed to segregate Bjork, or to return Bjork to the

maximum security facility in Oak Park Heights, after receiving Bjork’s July 1996 kite

threatening to commit mass murder at Stillwater. But Crist immediately responded to

that threatening communication, having Bjork interviewed by Case Manager Nelson,

who charged Bjork with a disciplinary violation, and by a prison psychologist. Crist

ultimately withdrew the charge and released Bjork to the general inmate population, but

only after Bjork recanted his threats and objected to further segregation, and after Crist

and the other investigators concluded that Bjork’s threatening kite was a successful cry

for attention by a manipulative, but nonviolent, inmate. Although Bjork’s July 1996

threat did appear to create a substantial risk of harm, Crist’s conduct after he received

the threatening kite was an objectively reasonable response to the perceptible risk to

prison staff and other inmates. Moreover, sixteen months then passed before Bjork’s

fatal assault on Curry. During that period, Bjork made no further threats and was not

disciplined for any reason. Crist was not objectively unreasonable in failing to perceive

in November 1997 a substantial risk of harm arising from Bjork’s recanted July 1996

threats. Curry’s heirs counter that Bjork would not have been working with Curry in

the Stillwater kitchen in November 1997 had the charge not been withdrawn in August

1996. But as the withdrawn charge carried a penalty of only up to 120 days

segregation, that argument is sheer speculation. 

Third, Curry’s heirs argue that Crist was deliberately indifferent to the

substantial risk of harm created when Bjork complained about phone usage in October

1997 and asked staff to transfer him within Cell Hall D. Again, Crist and prison staff

reacted promptly to Bjork’s complaint, investigating the telephone issue and
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transferring two inmates who were improperly controlling use of the telephone in

Bjork’s tier. When Bjork complained further about staff’s refusal to transfer him, Crist

spoke briefly with Bjork on November 21, and Lanz met with Bjork on November 26.

Bjork did not threaten prison staff or other inmates in any of these communications.

Thus, it was objectively reasonable that Crist (and other prison staff) did not perceive

this incident as creating a substantial risk of harm to other inmates. 

We have held in a number of cases that prison officials are entitled to qualified

immunity from § 1983 damage actions premised on an Eighth Amendment failure-toprotect theory when an inmate was injured in a surprise attack by another inmate. See

Jackson, 140 F.3d at 1152; Prosser v. Ross, 70 F.3d 1005, 1007 (8th Cir. 1995); Smith

v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990); see also Falls v. Nesbitt, 966 F.2d

375, 378-79 (8th Cir. 1992) (judgment for plaintiff on the merits reversed). In this

case, unlike Reece v. Groose, 60 F.3d 487 (8th Cir. 1995), where the assaulted inmate

was a known “snitch,” there is no evidence that Curry was a likely target of inmate

violence, or that Bjork harbored any animosity toward Curry. In late November 1997,

it was not objectively unreasonable for Crist and other officials to fail to detect that

Bjork’s anger at prison staff for refusing a transfer request would unleash the longdormant psychopathic demon lurking beneath his nonviolent exterior. Bjork’s decision

to murder a fellow inmate came without warning, and his selection of Curry as the

victim was a tragic fortuity. In these circumstances, the district court correctly

concluded that Crist is entitled to summary judgment on qualified immunity grounds.

 

The judgment of the district court is affirmed.

A true copy.

Attest:

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