United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3980NI

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Jeffrey A. Massick, *

*

Appellant, *

*

v. *

* On Appeal from the United

* States District Court for

North Central Correctional Facility; * the Northern District of

John A. Thalacker; Terry Hawkins; * Iowa.

Kim Courters; Richard Walters; *

Fred Seabetta; Patricia A. Young; *

Sally M. Chandler-Halford; and *

Unknown Defendants, *

*

Appellees. *

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Submitted: October 9, 1997

Filed: February 13, 1998

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Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.

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RICHARD S. ARNOLD, Chief Judge.

This is an action by an inmate against employees of the Iowa Department of

Corrections. The complaint, brought pursuant to 42 U.S.C. § 1983, alleges that prison

officials violated Jeffrey Massick’s Eighth Amendment rights when he was
The Hon. Mark W. Bennett, United States District Judge for the Northern

1

District of Iowa.

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placed in a cell with another inmate who tested positive for the human

immunodeficiency virus (HIV). Mr. Massick alleged that the inmate had been involved

in a fight and was bleeding from open wounds. During the eight days the inmates

shared an administrative segregation cell, Mr. Massick cleaned the cell, picking up

towels, pillow cases, and sheets stained with his cell-mate’s blood, and cleaning blood

off the sink. When Mr. Massick learned that his cell-mate was HIV-positive, he

demanded to be moved to another cell, and prison officials complied promptly with this

request. So far as anyone knows, Mr. Massick was not infected with the virus. He

alleges, however, that defendants have refused his request to be tested.

The District Court dismissed the complaint. The Court held that Mr. Massick’s 1

allegations lacked an arguable basis in fact and law. In addition, the Court held that the

defendants were entitled to qualified immunity, on the ground that their conduct, at the

time that it occurred, did not violate a clearly established constitutional right.

We affirm on the ground of qualified immunity. Eighth Amendment claims of

this type are fact-intensive. The legal standard requires a plaintiff to show that

defendants knew that he faced a substantial risk of serious harm and disregarded that

risk by failing to take reasonable measures to abate it. See Farmer v. Brennan, 511

U.S. 825, 847 (1994). Certainly the right, thus abstractly stated, was clearly

established. However, “[t]he mere assertion of such a right . . . will not be adequate:

‘[t]he contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’ ” Latimore v. Widseth, 7 F.3d

709, 712 (8th Cir. 1993), cert. denied, 510 U.S. 1140 (1994), quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Here, there is no doubt that placing the HIV-
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positive inmate in the cell with Mr. Massick exposed the latter to a risk. On the other

hand, the exposure was brief, and the inmates were separated as soon as Mr. Massick

specifically complained about being placed with someone who was HIV positive.

Situations like this are inherently matters of degree, and we cannot say that the risk was

so substantial, and the defendants’ reactions to it so unreasonable, as to negative a

defense of qualified immunity. Accordingly, the judgment dismissing the complaint is

Affirmed.

A true copy.

Attest:

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