The Honorable George F. Gunn, Jr., United States District

1

Judge for the Eastern District of Missouri.

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No. 95-2828

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Ricky Davis, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Helen Scott; Tom Villmer; *

James Purkett; Ian Wallace, *

*

Appellees. *

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 Submitted: May 13, 1996

 Filed: August 23, 1996

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Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN,

Circuit Judge.

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BOWMAN, Circuit Judge.

Ricky Davis, an inmate at the Farmington Correctional Center (FCC)

in Missouri, initiated this 42 U.S.C. § 1983 (1994) action pro se,

claiming, inter alia, that prison officials Helen Scott, Tom Villmer, James

Purkett, and Ian Wallace failed to protect him from an assault by another

inmate. The District Court granted summary judgment in favor of the

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prison officials, concluding that in the absence of any particularized

threat to Davis's safety, the prison officials had acted reasonably in

returning Davis to the general population. For reversal, Davis argues that

the District Court erred in: (1) granting the defendants' motion for

summary judgment on his claim that the prison officials were deliberately
 The FCC policy on protective custody states: 2

[A]n inmate request[ing] protective custody . . . must

present evidence or information which will support the

request. . . . [The evidence] must be sufficient to

warrant placement in protective custody as determined by

the protective custody committee and approved by the

institution head. 

Missouri Department of Corrections and Human Resources,

Institutional Services Policy and Procedure Manual, Procedure No.

IS21-1.3 § III. B.2 (1991). Evidence supporting a protective

custody request may include any or all of the following:

(a) description of the event leading to the request

. . ., (b) injuries sustained . . . (c) alleged enemy's

name, and/or number, (d) alleged enemy's work area, (e)

description of the alleged enemy, (f) picture

identification of the alleged enemy, (g) alleged enemy's

housing area, and/or, (h) other information which will

lead to solid evidence during the investigation. 

Id. 

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indifferent to his safety; and (2) refusing to appoint counsel. We affirm.

The facts relevant to this appeal are undisputed. Davis, a prison

informant, transferred to FCC from Jefferson City Correctional Facility in

1991. Upon his arrival at FCC, Davis was placed in protective custody

because he had known enemies in the general prison population. In

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February 1994, prison officials held a classification hearing to determine

whether Davis should be returned to the general population. At that

hearing, Davis could not name any specific enemies in the general

population, and it was determined that his known enemies were no longer

inmates at FCC. Davis nevertheless requested to stay in protective custody

because he believed that friends of his departed enemies remained at FCC

and might try to harm him if he were released to the general population;

he was unable, however, to provide prison officials with the names of any

such inmates. Davis thus having failed to show that there was any specific

threat to his safety, he was
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returned to the general population. On March 10, 1994, while standing

near the FCC gym, Davis was hit in the back of the head. He sustained

minor injuries including a bump and a small cut.

Davis argues that the District Court erred in granting summary

judgment to the defendant prison officials on his claim that they violated

his constitutional right to protection from assaults by other inmates. We

review de novo the decision to grant a summary judgment motion. Maitland

v. University of Minn., 43 F.3d 357, 360 (8th Cir. 1994). We will affirm

the grant of summary judgment if the record shows there is no genuine issue

of material fact and that the prevailing party is entitled to judgment as

a matter of law. Id.; see also Fed. R. Civ. P. 56(c). After carefully

reviewing the record, we are convinced that the District Court properly

granted summary judgment in favor of the defendants. 

The Eighth Amendment imposes upon prison officials, among other

things, the duty to take reasonable measures "`to protect prisoners from

violence at the hands of other prisoners.'" Farmer v. Brennan, 114 S. Ct.

1970, 1976 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d

556, 558 (1st Cir.) (internal quotation marks and citation omitted), cert.

denied, 488 U.S. 823 (1988)). "Being violently assaulted in prison is

simply not `part of the penalty that criminal offenders pay for their

offenses against society.'" Id. at 1977. Nevertheless, "[i]t is not . .

. every injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials responsible

for the victim's safety." Id.

To prevail on an Eighth Amendment failure-to-protect claim, an inmate

must make two showings. First, he must demonstrate "that he is

incarcerated under conditions posing a substantial risk of serious harm."

Id. at 1977. Second, the inmate must 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
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which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference." Id. at 1979. Thus, it is

not enough that a reasonable person would have been aware of the risk; the

prisoner must demonstrate by facts, and reasonable inferences therefrom,

that the particular defendant was aware of the substantial risk at issue.

Id. at 1981. The Supreme Court has cautioned, however, that under this

standard a prison official would not necessarily escape liability just

because he could not verify a particular risk, if he strongly suspected the

risk to exist. Id. at 1982. 

In this case, prison officials conducted a classification hearing to

determine whether it was appropriate to return Davis to the general

population. At the time of the hearing, the inmates on Davis's enemies

list were no longer incarcerated at FCC. While Davis explained that he

feared someone would attack him if he returned to the general population,

he could not provide prison officials with the names of any of his would-be

attackers. Davis's statements that friends of his enemies remained in the

general population were equally vague and unsubstantiated. As the Supreme

Court has reminded us, we do not take the duty of prison officials to

provide for the safety of inmates lightly. Id. at 1986 (Blackmun, J.

concurring). However, there being no solid evidence here of an

identifiable serious risk to Davis's safety, the prison officials were not

deliberately indifferent in returning him to the general prison population,

and they were entitled to summary judgment. See Robinson v. Cavanaugh, 20

F.3d 892, 895 (8th Cir. 1994) (per curiam) (affirming summary judgment in

favor of defendants on failure-to-protect claim where inmate failed to

demonstrate that prison officials acted with deliberate indifference by not

placing him in protective custody based on general fear for his safety).

Davis also argues that the District Court erred in denying his

multiple requests for appointment of counsel. We review such
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rulings under the abuse-of-discretion standard. Swope v. Cameron, 73 F.3d

850, 851-52 (8th Cir. 1996). "Indigent civil litigants do not have a

constitutional or statutory right to appointed counsel." Edgington v.

Missouri Dep't of Corrections, 52 F.3d 777, 780 (8th Cir. 1995). The trial

court has broad discretion to decide whether both the plaintiff and the

court will benefit from the appointment of counsel, taking into account the

factual and legal complexity of the case, the presence or absence of

conflicting testimony, and the plaintiff's ability to investigate the facts

and present his claim. Swope, 73 F.3d at 852; In re Lane, 801 F.2d 1040,

1043-44 (8th Cir. 1986). 

Here, Davis's claims were not factually or legally complex. There

was no material conflict in the evidence relevant to his failure-to-protect

claim. His written presentations to the court, including a lengthy

response to defendants' motion for summary judgment, were clear and

detailed, illustrating his ability to investigate the facts and present his

claims. In these circumstances, we cannot say that the District Court

abused its discretion in refusing to appoint counsel. See Phelps v. United

States Fed. Gov't., 15 F.3d 735, 737 (8th Cir.), cert. denied, 114 S. Ct.

2118 (1994).

For the foregoing reasons, the judgment of the District Court is

affirmed. 

A true copy.

Attest:

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