No. 94-3607

Christopher Lee Prosser * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Davis L. Ross, CO I, * * Appellant. *

Submitted: September 15, 1995 Filed: December 1, 1995

Before WOLLMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.

Da vid Ross appeals the district court's denial of his motion fo r summary judgment on his defense of qualified immunity. We reverse.

I. Appellee Christopher Prosser is an inmate at the Jefferson Cit y Correctional Center who sustained permanent injuries when inmate Charles Pilgrim attacked him. Prosser and Pilgrim were housed in adjoining cells in Housin g Unit 3-A. A few days prior to the incident, a disturbanc e (ch aracterized by both parties as a "small-scale riot") occurred in th e prison recreation yard. Because of the riot, pr ison officials placed Unit 3-A in "lock-down," that is, prisoners were forced to remain in their cell s twenty-four hours a day. On the day that Prosser was injured, the

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prison officials partially lifted the lock-down to allow the inmates to ea t in the cafeteria. When Prosser stepped out of his cell to file into the lunch line, Pilgrim hit him over the head with w hat witnesses described as a metal can concealed in a sock or towel. Pross er fell to the ground, and Pilgrim began to kick him in the stomach, chest, and face. The attac k ended when several guards forcibly intervened.

When the attack began, Ross was stationed as a prison guard in Unit 3-A. The evidence is uncontroverted that he was standing alone at the end of the walkway, near Prosser's and Pilgrim's cells. More than a doze n prisoners stood betwe en him and the other prison guards at the far end of the walkway. When Pilgrim hit Prosser, Ross did not intervene; instead, he ran to the other end of the walkway to seek h elp. A short while later, several guards arrived and pulled Pilgrim off Prosser, and Prosser wa s rushed to the hospital.

Prosse r filed this action under 42 U.S.C. § 1983 against Ross , claim ing that Ross violated his Eighth Amendment right to be free fro m cruel and unusual punishment. He maintains that Ross acte d
unco nstitutionally by failing to prevent Pilgrim's attack, by allowin g Pil grimto "lie in wait" outside his cell, by failing to interven e immediately to stop the attack, and by waiting t oo long to seek assistance from other guards. ( Prosser also offered evidence that Ross attempted to hire another inmate to kill him after he filed this lawsuit. We believe that this evidence, b esides being inherently improbable, is not probative on the question of Ro ss's animus at the time of Pilgrim's attack, even if that animus itself were somehow relevant to Prosser's claims.) Th e district court denied Ross's motion for summary judgment on his qualified immuni ty defense because it found that "material factual disputes o n plaintiff's claims against defendant Ross" precluded

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it. The district cou rt did not indicate in its order what material facts it believed were in dispute.

II. We must first determine whether this appeal is properly before us

. Althoug h some orders denying qualified immunity are appealable befor e trial, Mitchell v. Forsyth , 472 U.S. 511, 530 (1985), the Supreme Court ha s recently indicated that our jurisdiction in such cases extends only t o "abstract issues of law." Johnson v. Jones , --- U.S. ---, 115 S. Ct. 2151 , 2158 (1995). This limitation will sometimes make it difficult to determin e whether jurisdiction exists because deciding whether an officer is entitle d to qua lified immunity requires a "fact-intensive" inquiry. Reece v
. Groose , 60 F.3d 487, 490 (8th Cir. 1995). Here, however, we believe that the fac ts required to determine whether Ross is entitled to qualifie d immunity are not genuinely in dispute. We therefore have jurisdiction.

III. Ross is e ntitled to qualified immunity unless he violated Prosser's "clearly established" constitutional rights. Harlow v. Fitzgerald , 45 7 U.S. 800, 818 (1982); Johnson v. Boreani , 946 F. 2d 67, 69 (8th Cir. 1991). The r ight must be clearly established in a particularized sense: "Th e contours of the right must be sufficiently clear that a reasonable officia l would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 639 (1987).

The Supreme Court has made it clear that the Eighth Amendmen t encompasses an inmate's right to be protected fr om harm by fellow inmates. Farmer v. Brennan , 114 S. Ct. 1970, 1976 (1994). Prison officials violate this right, however, only when they exhibit a "deliberate or callou s indifference to inmate's safety." Davidson v. Cannon , 474 U.S. 344, 347 (1986); Andrews v. Siegel , 929 F.2d

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1326, 1330 (8th Cir. 1991) (holding prison official must have acted with "reckless disregard" for the inmate's safety).
Taken together, the cases indicate that Ross is entitled to qua lified immunity unless a reasonable official would have known that Ross's actions
cons tituted a deliberate, callous, or reckless disregard for Prosser' s safety. With this principle in mind, we review each of Prosser' s allegations in turn.

A. Prosser alleges first that Ross unco nstitutionally failed to prevent Pilgrim's attack. We find in the record no evid ence whatsoever to support this al legation. Prosser himself admitted in his deposition that th e attack took him by surprise. There was no evidence that the two inmates harbored any hostile feelings toward one another; indeed, the two had neve r had so much as a disagreement.
We have held that prison officials are entitled to qualified im munity from claims arising out of a surprise attack by one inmate on another. Se e Fa lls v. Nesbitt , 966 F.2d 375, 379-80 (8th Cir. 1992); Smith v

. Marcantonio , 910 F.2d 500, 502 (8th Cir. 1990). This is true even if the offi cial knows (as Prosser alleges) that the attacking inmate may b e dangerous or violent. Falls , 966 F.2d at 379. Given the surprise nature of the attack, Ross i s entitled to qualified immunity despite his failure to prevent the attack on Prosser.

B. Pross er also alleges that Ross allowed Pilgrim to "lie in wait " outside his cell and attack him as he exited. The record is again devoid of evid ence that Ross behaved recklessly. In his deposition, Prosse r speculated that because he was attacked immediat ely upon exiting his cell, Pilgrim must have been standing

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outside the cell when the doors opened. He further speculated that Ross recklessly allowed Pi lgrim to move against the flow of the lunch line and stand next to his cell door.

We regard all of Prosser's assertions as purely conjectural. Miller

v. Solem , 728 F.2d 1020, 1024 (8th Cir. 1984) ("Conclusive assertions of ultimate fact are entitled to little weight when determining whether a non

movant has shown a ge nuine issue of fact."); 10A Charles A. Wright et al, Federal Practice and Procedure , Civil 2d §§ 2727 , 2731. Prosser could not have seen the events leading up to the attack; he exited his cell after th e other inmates because he was dressing when the d oors opened. Furthermore, while it is true that Pilgrim had to move against the flow of the lunc h line to attack Prosser, Pilgrim's cell was located right next to Prosser's

. Prosser testified that the distance between the two cell doors was onl y three to four steps. He also testified that twenty to thirty other inmate s were standing on the walkway. Because the inmat es had been in "lock-down" for several days, an atmosphere of general commotion pervaded the housing unit. Given these circumstances a reasonable of ficial would have not have concluded that he was recklessly disregarding Pr osser's safety by allowing Pilgrim to take three steps toward Prosser's cell door.

C. Prosser's third claim is that Ross violated his Eighth Amendmen t rights by failing to intervene in the attack. Prosser asserts that th e situation posed no danger to Ross and that therefore the decision not to intervene violated hi s clearly established rights. But we have held that prison guards have no constitutional duty to intervene in the armed assaul t of on e inmate upon another when intervention would place the guards i n danger of physical harm. Arnold v. Jones , 891 F.2d 1370, 1373 (8th Cir. 1989). We have also held that prison guards are not

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constitutionally required to intervene in violent fights between inmates when the i nmates outnumber guards. Id. In this case, both of thes e princi ples are applicable. Prosser admits, and other witnesses ' deposi tions confirm, that Pilgrim was armed, and although the precis e nature of the weapon remains unclear, the weapon was formidable enough to inflict permanent inj uries. It is also undisputed that Ross was alone at the end of the walkway, with at least a dozen in mates standing between him and the other guards. The fact that inmate witnesses testi fied that Ross was not in danger cannot change these facts. These assertions, again, are merel y conje ctural. See Miller v. Solem , 728 F.2d at 1026. Even if they wer e taken a s true, however, Ross would be entitled to qualified immunity

. Given the facts as he observed them, his actions were not objectivel y unreasonable since a reasonable official might w ell have believed that the situation threatened his safety. Anderson v. Creighton , 483 U.S. at 639.

D. Finally, Prosser claims that Ross wa ited an excessive amount of time before he sought help. Prosser's only support for this claim is inmat e Dennis Blackman's dep osition testimony that Ross waited at the end of the walkway for thirty seconds after the attack began. Prosser argues tha t this testimony create s a genuine issue of fact on the question of whether Ross recklessly disregarded his safety. We disagree.

The difficulty with Blackman's testimony is that it contradict s Prosser's own characterization of the events. In his initial complaint, Prosser alleged that Ross ran away as soon as Pi lgrim began to attack him, and it was only in th e context of his response to Ross's summary judgment motion that Prosser claimed that Ross waited too long before seeking help. Prosser repeated his original description of the events in his deposition,

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testifying that "he [Pilgrim] only hit me one time before Ross ran." We have held that a part y cannot avoid summary judgment by contradicting his own earlier testimony

. Wilson v. Westinghouse Elec. Corp. , 838 F.2d 286, 289 (8th Cir. 1988); Camfield Tires, Inc. v. Mic helin Tire Corp. , 719 F.2d 1361, 13 65-66 (8th Cir. 1983). Wilson and Camfield Tires involve d slightly different situations from the one posed by the instant case; in both of those cases, the plaintiff sought to create a triable issue b y submitting an affidavit contradicting his own earlier testimony. Wilson , 838 F.2d at 289; Camfield Tires , 719 F.2d at 1365. Surely, however, the principle of these ca ses will extend to one in which a plaintiff attempts to avoid summary judgment by proffering testimon y from another person that contradicts the plaintiff's own testimony.

Our conclusion that Blackman's testimony cannot raise a materia l issue of fact is strengthened by the fact that Blackman's testimony i s itself fraught with contradictions. Blackman initially testified that Ros s sought help immediately:

Q: Okay. And what happened immediately after that? A: I stepped out. I saw the tall guy swing and hit Mr

. Prosser, and I looked up, and I was -- I see him go down, and I looked up, because I saw somebody just kind of moving pas t me, a nd I looked by, and it was like, you know, saw a brow n uniform and saw it was Ross.

Then, wh en he was asked how much time elapsed before Ross ran past hi m Blackman replied, "ab out thirty seconds, I'd say." On cross-examination, Blackm an again changed his testimony, indicating that less than thirt y seconds elapsed. Later yet, at Prosser's urging, Blackman indicated "it
was a lo ng time" before Ross sought assistance. We are mindful of ou r obligation to credit all of the evidence that favors the nonmovant, see, e.g., Anderson v. Liberty

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Lobby , 477 U.S. 242, 255 (1986), but we are not aware of any duty on our part to prune a witness's testimony so as to create a triable issue when the witness flatly contradicts himself in other parts of his testimony.
Summary judgment is proper unless "t he evidence, viewed in the light most favorable to [Prosser], is such that a reasonable jury could return a verdict in his favor." Foster v. MetropolitanAirports Comm'n , 914 F.2d 1076, 1081 (8th Cir. 1990). Because Blackman hi mself is at best uncertain about how much time, if any, passed before Ross sought help, we believ e that no r easonable jury could return a verdict for Prosser based on hi s testimony. Furthermore, Blackman's uncertainty indicates that his assertio n that Ross waited thirty seconds is mere speculation. As we have already stated, such speculat ion does not create a genuine issue of fact. Miller v. Solem , 728 F.2d at 1024.

IV. We conclude that a reasonable official in Ross's position at th e time the att ack occurred would not have believed that his actions violate d Prosser's clearly established constitutional rights. Ross is therefor e entitled to qualified immunity as a matter of law.

A true copy.

Attest:

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