The Honorable William R. Wilson, Jr., United States District 1

Judge for the Eastern District of Arkansas, adopting the report and

recommendations of the Honorable John F. Forster, Jr., United

States Magistrate Judge for the Eastern District of Arkansas.

___________

No. 95-3444

___________

Anthony Devose, *

 *

Appellant, *

 *

v. *

 *

David Rittenhouse, CO-1, *

Diagnostic Unit, Arkansas *

Department of Correction; James * Appeal from the United States

Massey, CO-1, Diagnostic Unit, * District Court for the 

Arkansas Department of * Eastern District of Arkansas.

Correction; A. L. Lockhart, * [UNPUBLISHED]

Arkansas Department of *

Correction; Willis H. Sargent, *

Warden, Diagnostic Unit, *

Arkansas Department of *

Correction; John Byus, Medical *

Services Adm., *

 *

Appellees, *

 *

PHP Healthcare Corporation, *

originally sued as PHP *

Healthcare Services, *

 *

 Defendant. *

___________

 Submitted: July 1, 1996

 Filed: July 30, 1996

___________

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Anthony Devose, an Arkansas inmate, appeals from the district

court's dismissal of his 42 U.S.C. § 1983 claim against various 1
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prison officials for violating his Eighth Amendment rights. Devose alleged

that he was beaten with a broken broom handle by a fellow inmate, that

defendants made no effort to stop the attack, and that as a result he

suffered severe and permanent injuries. We affirm.

After an evidentiary hearing before a magistrate judge, the district

court found Devose was beaten by another inmate with a metal-tipped mop

handle and defendant correctional officers were on duty, present, and alert

in Devose's barracks at the time. The court determined that defendant

officers had no warning of the attack and responded as quickly as possible;

their inability to prevent the harm to Devose resulted from the rapidity

with which events took place. The court further concluded that there was

no clear evidence that Devose's attacker presented a risk to Devose of

which defendants should have been aware.

As Devose did not request a jury trial, we review "the district

court's findings of fact made after the court's de novo review of the

magistrate judge's findings under the clearly erroneous standard," Choate

v. Lockhart, 7 F.3d 1370, 1373 n.1 (8th Cir. 1993), and its legal

conclusions de novo, see Whitmore v. Gaines, 24 F.3d 1032, 1033 (8th Cir.

1994). The district court did not clearly err in determining defendant

officers responded as quickly and as reasonably as they could. The court

credited defendants' testimony that when the officers heard the first crack

of the mop handle they ran to help Devose while ordering his attacker to

stop, and that they both yelled for help and received it without delay.

See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (trial

judge's finding based on decision to credit testimony virtually never clear

error). It was uncontroverted that the officers had no warning and that

the attack was brief. In light of these findings, the district court

correctly concluded that defendants did not violate Devose's Eighth

Amendment rights. Cf. Farmer v. Brennan, 114 S. Ct. 1970, 1982-83 (1994)

(prison officials aware of a substantial risk to inmate safety may be free
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from liability if they responded reasonably to risk). Devose's contention

that prison policy required the mop be secured proves nothing more than

negligence, which is insufficient to support an Eighth Amendment claim.

See Falls v. Nesbitt, 966 F.2d 375, 377-78, 380 (8th Cir. 1992) (prison

official's violation of internal regulation does not give rise to Eighth

Amendment claim unless inmate shows something more than inadvertence or

negligence). 

We deny Devose's motion for appointment of counsel on appeal.

The district court's judgment is affirmed.

A true copy.

Attest:

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