The Honorable Beverly R. Stites, United States Magistrate

1

Judge for the Western District of Arkansas, to whom this case was

referred for final disposition by consent of the parties pursuant

to 28 U.S.C. § 636(c).

___________

No. 95-3713

___________

Guy C. Barnes, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Gary Grimes; Jim Rush, * [UNPUBLISHED]

*

Appellees. *

___________

 Submitted: October 25, 1996

 Filed: October 31, 1996

___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Guy C. Barnes, formerly an inmate in the Sebastian County jail (the

jail), appeals from the district court's judgment in favor of defendants 1

following a bench trial in his 42 U.S.C. § 1983 action. We affirm.

Barnes filed this section 1983 action against Gary Grimes, the

Sheriff of Sebastian County, and Jim Rush, the Deputy Jail Administrator.

On August 23, 1994, Barnes was attacked with a broken-off broom handle by

Scott Scanlon, a federal detainee, while housed in BB pod in the jail.

Deputy Joseph Simpson intervened to stop the attack. Barnes alleged

failure to protect, in that Simpson did not intervene in a timely manner,

inmates' access to
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cleaning supplies was not properly supervised, and Barnes should not have

been housed with violent inmates or federal inmates. Barnes also alleged

that defendants denied him medical care following the assault and failed

to investigate and file charges against the attacker.

We conclude that the district court was correct in determining that

defendants were not liable on Barnes's failure-to-protect claim. See

Choate v. Lockhart, 7 F.3d 1370, 1373 (8th Cir. 1993) (findings of fact

reviewed for clear error; whether conduct violated Eighth Amendment

reviewed de novo). Barnes admitted that he had had no prior problems with

Scanlon, nor did he show any previous problems at the jail due to the

inmates' access to cleaning supplies. Also, Barnes made no showing that

defendants' classification system or housing arrangements created a

pervasive risk of harm. See Farmer v. Brennan, 114 S. Ct. 1970, 1977, 1979

(1994) (inmate must show that official knew of and disregarded substantial

risk of serious harm); cf. Jensen v. Clarke, 94 F.3d 1191, 1198 (8th Cir.

1996) (district court did not clearly err in finding inmates suffered

pervasive risk of harm by being randomly placed in double cells). Barnes

showed no basis for holding Grimes or Rush liable for Simpson's alleged

delay in responding. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)

(supervisor cannot be held liable on respondeat superior theory). In any

event, the district court credited Simpson's testimony that he responded

immediately when the attack occurred. Anderson v. City of Bessemer City,

470 U.S. 564, 575 (1985) (credibility determination virtually never clear

error). 

In light of Rush's testimony that he saw no immediate need for care,

the district court did not err in finding that Barnes did not have any

obvious injuries. See Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991)

(per curiam) (medical need "serious" if obvious or diagnosed); Anderson,

470 U.S. at 575. Barnes did not dispute that Rush left him in the charge

of other jailers who provided medical
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treatment, and he did not prove that defendants refused any subsequent

requests for medical attention, or that he suffered any serious

consequences from lack of treatment. See Beyerbach v. Sears, 49 F.3d 1324,

1326 (8th Cir. 1995) (injury must be objectively serious; lack of treatment

must have detrimental effect to satisfy objective component).

Finally, the district court correctly found that defendants were not

constitutionally liable for the failure to prosecute Scanlon for the

attack. As Barnes did not dispute Rush's testimony that Rush turned the

incident over to the county criminal investigation office for

investigation, he did not show that defendants intentionally failed to

investigate the attack. See Chapman v. Musich, 726 F.2d 405, 407 (8th

Cir.) (in § 1983 action for failure to investigate, defendant's actions

must be intentional), cert. denied, 469 U.S. 931 (1984).

The judgment is affirmed.

A true copy.

Attest:

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