### The Honorable George F. Gunn, Jr., United States Distric t 1 

### Judge for the Eastern District of Missouri. ___________ No. 95-2828

___________ 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. *

___________ Submitted: May 13, 1996 Filed: August 23, 1996

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

___________ 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, Jame s Purkett, and Ian Wall ace failed to protect him from an assault by another inmate. T he District Court granted summary judgment in favor of th e 1 prison officials, concluding that in the absence of any particularize d threat to Davis's safety, the prison officials had acted reasonably i n returning Davis to the general population. For reversal, Davis argues tha t the District Court erred in: (1) granting the defendants' motion fo r summary judgment on h is claim that the prison officials were deliberately

### The FCC policy on protective custody states: 2 

### [A]n i nmate request[ing] protective custody . . . mus t pr esent evidence or information which will support th e request. . . . [The evidence] must be sufficient t o warrant placement in protectiv e custody as determined by the pr otective custody committee and approved by th e institution head. Missouri Department of Corrections and Human Resources , Institutional Services Policy and Procedure Manual, Procedure No. IS2 1-1.3 § III. B.2 (1991). Evidence supporting a protectiv e custody request may include any or all of the following: (a) description of the event leading to the reques t . . ., (b) injuries sustained . . . (c) alleged enemy's name, and/or number, (d) alleged enemy's work area, (e) description of the alleged enemy, (f) pictur e identification of the alleged enemy, (g) alleged enemy's ho using area, and/or, (h) other information which wil l lead to solid evidence during the investigation.
Id.
-2- indifferent to his safety; and (2) refusing to appoint counsel. We affirm

.

The fac ts relevant to this appeal are undisputed. Davis, a priso n informant, transferred to FCC from Jefferson Cit y Correctional Facility in 1991. Upon his arrival at FCC, Davis was placed in protective custod y because h e had known enemies in the general prison population. I n 2 February 1994, prison officials held a classific ation hearing to determine whet her Davis should be returned to the general population. At tha t heari ng, Davis could not name any specific enemies in the genera l population, and it was determined that his known enemies were no longe r inmates at FCC. Davis nevertheless requested to stay in protective custod y 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, howeve r, to provide prison officials with the names of any such inmates. Davis thus having failed to show that there was any specifi c threat to his safety, he was

### -3-

returned to the general population. On March 10, 1994, while standin g
near the FCC gym, Davis was hit in the back of the head. He sustaine d minor injuries including a bump and a small cut.

Davis argues that the District Court erred in granting summar y judgment to the defendant prison officials on hi s claim that they violated his constitutional right to protection from assa ults by other inmates. We review de novo the de cision 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 issu e of material fact and that the prevailing party is entitled to judgment as
a m atter of law. Id. ; see also Fed. R. Civ. P. 56(c). After carefull y
rev iewing the record, we are convinced that the District Court properl y granted summary judgment in favor of the defendants.

The Eighth Amendment imposes upon prison officials, among othe r things, the duty to t ake 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. Ji menez-Nettleship , 842 F.2d 556, 558 (1st Cir.) (internal quotation marks an d citation omitted), cert. denie d , 488 U.S. 823 (1988)). "Being violently assaulted in prison i s simply not `part of the penalty that criminal offenders pay for thei r offenses against soci ety.'" Id. at 1977. Nevertheless, "[i]t is not . .

. ever y injury suffered by one prisoner at the hands of another tha t translates into const itutional liability for prison officials responsible for the victim's safety." Id.
To prevail on an Eighth Amendment failure-to-protect claim, an inmate must ma ke two showings. First, he must demonstrate "that he i s incarcerated under co nditions 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 substa ntial 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 b een aware of the risk; the prisoner must demonstrate by facts, and reasonable inferences therefrom, that the particular d efendant was aware of the substantial risk at issue. Id. at 19 81. The Supreme Court has cautioned, however, that under thi s standa rd a prison official would not necessarily escape liability jus t because he could not verify a particular risk, if he strongly suspected th e risk to exist. Id. at 1982.
In this case, prison officials condu cted a classification hearing to determine whether it was appropriate to return Davis to the genera l populatio n. At the time of the hearing, the inmates on Davis's enemie s list were no longer incarcerated at FCC. While Davis explained that h e 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-b e attackers. Davis's statements that friends of h is enemies remained in the general population were equally vague and unsubs tantiated. As the Supreme Court has reminded us, we do not take the duty of prison officials t o pro vide for the safety of inmates lightly. Id. at 1986 (Blackmun, J

. concurrin g). However, there being no solid evidence here of a n 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 Ci r. 1994) (per curiam) (affirming summary judgment in favor of defendants on failure-to-protect claim where inmate failed t o demonstrate that prison officials acted with deliberate indifference by no t placing him in protective custody based on general fear for his safety).

Davis also argues that the District Court erred in denying hi s 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 consti tutional or statutory right to appointed counsel." Edgington v

. Missouri Dep't of Corrections , 52 F.3d 777, 780 (8th Cir. 1995). The tria l court has broad discretion to decide whether both the plaintiff and th e court will benefit from the appointment of counsel, taking into account th e fact ual and legal complexity of the case, the presence or absence o f conflicting testimony, and the plaintiff's ability to investigate the fact s and present his claim

. Swope , 73 F.3d at 852; In re Lane , 801 F.2d 1040, 1043-44 (8th Cir. 1986).

Here, Da vis's claims were not factually or legally complex. Ther e
was no material conflict in the evidence relevant to his failure-to-protec t claim. His written presentations to the court, including a length y respon se to defendants' motion for summary judgment, were clear an d detailed, illustrating his ability to investigate the facts and present hi s claim s. In these circumstances, we cannot say that the District Cour t abused its discretion in refusing to appoint counsel. See Phelps v. Unite d States Fed. Gov't. , 1 5 F.3d 735, 737 (8th Cir.), cert. denied , 114 S. Ct. 2118 (1994).

Fo r the foregoing reasons, the judgment of the District Court i s affirmed.

A true copy.

Attest:

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