United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1591

___________

William, Irving, *

*

Plaintiff/Appellee, *

*

v. *

*

Dave Dormire; Campbell, previously *

named as Cambell, Captain-JCCC; *

Daniel Kempker, Functional Unit *

Manager-JCCC; Ed Rupple, * Appeal from the United States 

Caseworker-JCCC; Nina Branson; Raina* District Court for the

Martin, previously named as Baina * Western District of Missouri.

Morgan, Caseworker-JCCC, *

*

Defendants, *

*

Warren Cressey, previously named as *

Crissey, CO1-JCCC; Thomas Brigance, *

previously named as Birdgance, *

CO1-JCCC, *

*

Defendants/Appellants, *

*

Sgt. Blount, JCCC; Lt. King, JCCC, *

*

Defendants, *

*

Ronetta Hyer, Correctional Officer- *

JCCC; Leonard Neff, previously named *

as Neef, Correctional Officer-JCCC; *
1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota, sitting by designation.

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Hudson, Correctional Officer-JCCC, *

*

Defendant/s Appellants, *

*

Martin; Gregory Patrick; Ms. Ortbal; *

- Petis; Dittman; Jay Cassady; *

Gene James; Webster; - Murphy; *

R. Corser; - Thomas, *

*

Defendants, *

*

Debra Reed, *

*

Defendant/Appellant, *

*

Gregory Patrick, *

*

Defendant. *

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Submitted: November 15, 2007

 Filed: March 7, 2008

___________

Before WOLLMAN and BENTON, Circuit Judges, and DOTY,1

 District Judge.

___________

WOLLMAN, Circuit Judge.

William Irving, an inmate in the Missouri penal system, filed suit under 42

U.S.C. § 1983 against several employees of the Jefferson City Correctional Center,

alleging multiple violations of his constitutional rights of due process, access to the

courts, and freedom from cruel and unusual punishment. The district court granted
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the defendants’ motion for summary judgment on the due process and access to courts

claims, but denied the defendants’ request for qualified immunity on the Eighth

Amendment claim. Correctional officers Thomas Brigance, Warren Cressey, Ronetta

Hyer, and Leonard Neff remain as defendants, and they appeal the denial of their

motion for summary judgment based upon qualified immunity on that claim. We

affirm in part, reverse in part, and remand for further proceedings. 

I.

Irving alleges that he suffered cruel and unusual punishment at the hands of the

defendants over several months in 2004-2005. He alleges that these incidents were

in retaliation for his bringing an earlier version of this lawsuit and constituted an effort

to intimidate him from proceeding further with it. Specifically, Irving alleges that on

November 4, 2004, inmate Ephriam Prewitt requested that Hyer and Neff “pop” open

the cell doors so that he could assault Irving. In response to that request, Hyer and

Neff opened the doors, whereupon Prewitt rushed out of his cell and into Irving’s,

where he struck Irving in the face, injuring his jaw and nose. Although Irving

received medical treatment only once for the injury, he alleges that he was unable to

breathe properly for two months. On December 1, Brigance gave inmate Eric Hessler

a razor so that Hessler could use it to make a weapon with which to assault (in

Hessler’s words) “the nigger next door.” Irving overheard this exchange and was able

to bring it to the attention of Brigance’s supervisor, which caused Brigance to retrieve

the razor before Hessler could convert it to a weapon for use against Irving. On

March 3, 2005, Brigance offered inmate James Spann fifty dollars and cigarettes if

Spann would assault Irving, an offer that Spann did not accept. On April 6, Cressey

said that he would have Irving killed if Irving did not drop the lawsuit against him.

On April 11 and April 17, Brigance threatened to kill Irving or to have him killed. On

April 25, Brigance offered to give inmate Brian Vehlewald cash and cigarettes to

attack Irving, an offer that Vehlewald did not accept. A month later, Brigance said

that he would find someone to “beat [Irving’s] ass.” In mid-August, Brigance,
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Cressey, and Hyer promised Irving that they would get a chance to “off” him soon.

On August 23, Brigance, Cressey, and Neff told Irving, “sooner or later we will get

you,” and waved a can of mace threateningly at him either at that time or shortly

thereafter. On August 30, Brigance offered to pay inmate Jerome Powell to assault

Irvin. Instead, Powell warned Irving of Brigance’s offer. In September, Hyer told

Irving that she wanted him dead, and Brigance told him that he would get what was

coming to him. During the time period encompassing these events, Brigance

repeatedly told other inmates that Irving was a snitch in an effort to incite them to

assault Irving. In October, the district court entered a preliminary injunction moving

Irving out of Housing Unit No. 7 of the Jefferson City Correctional Center. 

Irving seeks nominal and punitive damages from Brigance, Cressey, and Hyer

for their threats and conduct. He seeks compensatory and punitive damages from

Hyer and Neff for physical and emotional injuries stemming from the Prewitt incident.

Irving also seeks an injunction transferring him to a correctional institution at which

none of the defendants are employed.

II.

A denial of a state official’s assertion of qualified immunity is immediately

appealable. Bearden v. Lemon, 475 F.3d 926, 929 (8th Cir. 2007). We review the

denial of qualified immunity de novo and consider the evidence in the light most

favorable to the nonmoving party. Id. We are not concerned with whether there is a

genuine issue of material fact, but rather with the legal question whether any clearly

established right was violated under the facts alleged by the nonmoving party. Crow

v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005). 

A state official is protected from suit by qualified immunity so long as the

official’s “conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Reece v. Groose, 60 F.3d
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487, 491 (8th Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

(internal quotation omitted). In analyzing whether an official is entitled to qualified

immunity, we ask first whether the alleged facts, when considered in the light most

favorable to the injured party, demonstrate that the defendant violated the injured

party’s rights. Bearden, 475 F.3d at 929 (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). If a violation occurred, we then ask whether the constitutional right was

clearly established from the perspective of a reasonable official in the defendant’s

position at the time of the defendant’s conduct. Id. 

To prove an Eighth Amendment violation, a prisoner must satisfy two

requirements, one objective and one subjective. The first requirement tests whether,

viewed objectively, the deprivation of rights was sufficiently serious. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). The second requirement is subjective and

requires that the inmate prove that the prison officials had a “sufficiently culpable

state of mind.” Id. Eighth Amendment cases are analyzed in light of the specific

claim raised. In excessive force claims, the subjective inquiry is whether the force

was used “‘in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.’” Arnold v. Groose, 109 F.3d 1292,

1298 (8th Cir. 1997) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In

prison conditions claims, which include threats to an inmate’s health and safety, the

subjective inquiry is whether the prison officials were deliberately indifferent to a

serious risk of harm to the inmate. Farmer, 511 U.S. at 834; Arnold, 109 F.3d at 1298.

 

Irving’s allegations satisfy the second, subjective requirement. Viewing these

allegations in the light most favorable to Irving, no legitimate penological purpose

could have been served by defendants’ conduct, and their actions toward Irving

demonstrated a state of mind that was not merely deliberately indifferent, but also

sadistic and malicious. Thus, the defendants’ subjective intent is sufficiently culpable

regardless of what type of Eighth Amendment claim is raised. 
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Determining what satisfies the sufficiently serious injury requirement is also

claim-dependent. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Excessive force

claims involve the direct infliction of harm upon inmates. Because the use of force

is sometimes required in prison settings, guards are liable only if they are completely

unjustified in using force, i.e., they are using it maliciously and sadistically. Id. at 9.

Even with such motivation, not every push or shove violates the Constitution, but any

use of force greater than de minimis, or any use of force that is “repugnant to the

conscience of mankind,” does. See id. at 9-10 (internal quotation omitted). Routine

discomfort is a part of the penalty that criminal offenders must pay, so only extreme

conditions that deprive inmates of a “civilized measure of life’s necessities” violate

the Eighth Amendment. Id. at 8-9. In cases involving a failure to protect an inmate,

there must be a “substantial risk of serious harm” to the inmate. See Farmer, 511 U.S.

at 834. Prison officials are bound by the Eighth Amendment to take “reasonable

measures to guarantee the safety of the inmates.” Id. at 832 (internal quotation

omitted). 

The allegations in this case do not fit neatly into either category because the

defendants’ malicious and sadistic schemes to use other prisoners to harm Irving

resulted in little physical harm to him. See Arnold, 109 F.3d at 1298. In Arnold, we

treated a conspiracy between guards and prisoners to murder a prisoner as a prison

conditions case and not an excessive force case because it did not arise from a

disciplinary situation, and thus the prison officials were not entitled to the protection

afforded by the higher subjective intent requirement. Id. Accordingly, we likewise

treat this case as a conditions of confinement case. 
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Irving alleges that he suffered sufficiently serious injury in three ways. First,

he suffered harm because Hyer and Neff opened the cell doors to enable Prewitt to

attack him. Second, he suffered prolonged fear for his life as a result of the

defendants’ death threats and their conduct that made those threats credible. Third,

he suffered the substantial risk of serious harm from other inmates as a result of being

publicly and repeatedly labeled by Brigance as a snitch.

A. Prewitt Incident

Irving charges that Hyer and Neff failed to protect him by opening the cell

doors so that Prewitt could attack him. To prove a sufficiently serious deprivation in

failure to protect claims, an inmate must prove that prison officials caused him to be

“incarcerated under conditions posing a substantial risk of serious harm.” Young v.

Selk, 508 F.3d 868, 872 (8th Cir. 2007) (internal quotation omitted); see also Taylor

v. Crawford, 487 F.3d 1072, 1079-80 (8th Cir. 2007) (stating that a substantial risk

of unnecessary infliction of pain is an unconstitutional condition of confinement). We

further note that “gratuitously allowing the beating . . . of one prisoner by another

serves no legitimate penological objectiv[e].” Farmer, 511 U.S. at 833 (alteration in

original, internal quotation omitted). “Being violently assaulted in prison is simply

not part of the penalty that criminal offenders pay for their offenses against society.”

Id. at 834 (internal quotation omitted). 

The allegation that Hyer and Neff opened the cell doors so as to enable Prewitt

to attack Irving portrays unjustifiable, actionable inmate-endangering conduct. We

have previously declared it “appalling” that prison officials would punish prisoners

for filing lawsuits, as is alleged here. See Martin, 742 F.2d at 472-73. Hyer and Neff

not only failed to take reasonable measures to guarantee Irving’s safety as required by

the Eighth Amendment, see Farmer, 511 U.S. at 832, they intentionally brought

danger to him. They themselves were a large part of the “conditions posing a

substantial risk of serious harm” to Irving. See id. at 834. Hyer and Neff concede that
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in light of their alleged behavior with respect to the Prewitt incident, they are not

entitled to qualified immunity. See, e.g., Young, 508 F.3d at 870-71, 875 (upholding

the denial of qualified immunity to guards who ignored an inmate’s request to be

protected from his new cellmate, who then attacked him); Newman v. Holmes, 122

F.3d 650, 653 (8th Cir. 1997) (upholding a jury’s finding that a guard who opened the

door to an isolated confinement cell created, and was deliberately indifferent to, an

excessive risk of harm to other inmates). 

Despite this concession, Hyer and Neff assert that Irving’s claimed injuries do

not support a § 1983 claim. Because a § 1983 action is a type of tort claim, general

principles of tort law require that a plaintiff suffer some actual injury before he can

receive compensation. Carey v. Piphus, 435 U.S. 247, 253-55 (1978). Claims under

the Eighth Amendment require a compensable injury to be greater than de minimis.

Cummings v. Malone, 995 F.2d 817, 822-23 (8th Cir. 1993); see Prater v. Dahm, 89

F.3d 538, 541 (8th Cir. 1996). In Prater, inmate Penn struck inmate Prater in the face,

loosening some of his teeth, after Prater had complained to prison officials that Penn

had threatened him. Id. The prison officials in Prater were not deliberately

indifferent, and we considered it a close question (one we did not decide) whether the

deprivation of protection and the resulting injury was sufficient to establish the

objective requirement in a failure to protect claim, i.e., whether the injury was greater

than de minimis. See id. No clear line divides de minimis injuries from others.

Compare Hudson, 503 U.S. at 10 (a cracked dental plate, loosened teeth, bruises, and

swelling were more than de minimis), and Foulk v. Charrier, 262 F.3d 687, 692,

700-01 (8th Cir. 2001) (use of pepper spray without cause was greater than de

minimis), and Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (stunning a prisoner

with a stun gun without sufficient cause was greater than de minimis), with Jones v.

Shields, 207 F.3d 491, 496-97 (8th Cir. 2000) (use of pepper spray on a large inmate

who refused to comply and who immediately received medical treatment for the spray

was de minimis and was not done with sadistic or malicious intent), and Wyatt v.

Delaney, 818 F.2d 21, 23 (8th Cir. 1987) (a light, accidental blow to the face that
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caused two small scratches inside the prisoner’s mouth was de minimis). Again

accepting Irving’s allegation as true, a blow to the face that resulted in a two-month

period of difficulty in breathing is greater than de minimis and therefore sufficiently

serious to justify a damages award, however nominal the amount. 

Accordingly, because the alleged deprivation of Irving’s right to be free from

assault by fellow inmates was sufficiently serious to support a failure to protect claim,

the district court properly denied qualified immunity to Hyer and Neff with respect

to this incident.

B. Death Threats

The defendants argue that verbal threats are normally insufficient to violate the

Constitution. Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992). We have

made an exception, however, when the state official engaged in a “brutal” and

“wanton act of cruelty” even though no physical harm was suffered. Id. (quoting

Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir. 1986)). In Burton, the officer

pointed a gun at Burton’s head and told him to run so that the officer would have an

excuse to shoot him. Id. at 99. Holding that Burton had stated a constitutional claim,

id. at 101 & n.2, we observed that “a prisoner retains at least the right to be free from

the terror of instant and unexpected death at the whim of his . . . custodians.” Id. at

100. Racial bigotry and anger at the prisoner’s use of the legal system were

implicated in the incident. Id. at 101 & n.1. In Hopson, we held to be insufficient for

Eighth Amendment claim purposes the allegation that officers seated in the front seat

of a patrol car threatened to knock out the back-seat occupant’s teeth if he did not start

talking. 961 F.2d at 1378. The officers did not threaten Hopson’s life, nor did they

raise any fist or weapon to Hopson or otherwise take any action to make the threat

seem credible. Id. at 1378-79. In Arnold, a conspiracy between guards and inmates

to kill Arnold was actionable only after an aborted attempt on Arnold’s life. 109 F.3d

at 1296. 
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Other circuits have also held that death threats are actionable. See Chandler v.

D.C. Dept. of Corr., 145 F.3d 1355, 1360 (D.C. Cir. 1998); Hudspeth v. Figgins, 584

F.2d 1345, 1348 (4th Cir. 1978). In Chandler, the D.C. Circuit held that an allegation

of a single death threat by a guard to an inmate without any resulting physical harm

stated an Eighth Amendment claim. 145 F.3d at 1361 (“[T]he risk that [the guard’s]

threat might be carried out . . . could amount to a sufficiently substantial risk of

serious damage to [the inmate’s] future health to be actionable as an unconstitutional

condition of confinement.” (internal quotations and citations omitted)). Chandler

recognized that “a threat accompanied by conduct supporting the credibility of the

threat” could violate the Eighth Amendment. Id. In Hudspeth, a prisoner sued a

guard, who then ordered the prisoner to drop the suit or else he would be transferred

to a work detail that was guarded with guns and would be “accidentally” shot. 584

F.2d at 1348. The prisoner was transferred as promised, though never shot. Id. The

Fourth Circuit found that “intentionally placing Hudspeth in fear for his life if he

pressed his court actions . . . would inflict such suffering as to amount to

unconstitutional punishment.” Id.

We conclude that, when viewed in the light of their retaliatory nature, their

objectively credible basis, and their fear-inducing result, the death threats allegedly

made by Brigance form the basis of an injury sufficiently serious to implicate the

Eighth Amendment.

1. Brigance

Regarding the allegations concerning Brigance’s conduct, the present case is

more like Burton than Hopson. Again accepting Irving’s allegations as true, Brigance

made several threats to kill Irving, to have him killed, or to have him beaten. Brigance

made three unsuccessful offers of payment to inmates to assault Irving. Brigance

labeled Irving a snitch in an effort to induce inmates to attack him, and even armed

Hessler with a razor blade for use in such an attempt. These are not instances of mere
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verbal abuse resulting only in hurt feelings, but rather are more properly analogized

to a case in which “a prison guard, without provocation, and for the apparent purpose

of retaliating against the prisoner’s exercise of his rights in petitioning a federal court

for redress, terrorized [the prisoner] with threats of death.” Burton, 791 F.2d at 100-

01. Although Brigance’s death threats to Irving were less immediate than, and

perhaps not as terror-inducing as the threat in Burton, their ongoing nature, combined

with Brigance’s concrete, affirmative efforts to persuade other inmates to assault

Irving and his attempt to arm Irving’s enemy, makes the claims sufficiently

comparable. Irving’s case is stronger than that of the inmate in Hudspeth because of

the greater number of threats made and the stronger confirmations of the threats’

credibility. As we held almost a quarter century ago, “Subjecting prisoners to . . .

constant fear of such violence[] shocks modern sensibilities and serves no legitimate

penological purpose.” Martin v. White, 742 F.2d 469, 474 (8th Cir. 1984). The

repeated and credible threats against Irving, if proved to be true, constituted brutal and

wanton acts of cruelty that served no legitimate penological purpose and posed a

substantial risk of serious harm to Irving’s future health. 

Defendants are properly denied qualified immunity only if the constitutional

right violated was clearly established at the time of the offense. Reece, 60 F.3d at

491. Defendants must be put on “fair warning” by the state of the law at the time of

the conduct. Hope v. Pelzer, 536 U.S. 730, 741(2002). Prior cases need not be

fundamentally or materially similar to provide fair warning. Id. An officer who acts

so far beyond the bounds of his official duties that “the rationale underlying qualified

immunity is inapplicable” can have fair warning even if there is no factually similar

case. Hawkins v. Holloway, 316 F.3d 777, 788 (8th Cir. 2003). It was clearly

established by Burton that a guard is not permitted to threaten an inmate with death

by means readily at hand. It should have likewise been clear that a guard may not

threaten an inmate with death by means of arming, bribing, and inciting other inmates

to accomplish that which the guard may not do directly. No reasonable prison guard
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would have believed that no constitutional right would be violated by such conduct,

and thus the district court correctly denied qualified immunity to Brigance.

2. Cressey, Hyer, and Neff

The alleged death threats made by the other defendants are less objectively

credible. Cressey is alleged to have made one death threat in April and later to have

been in two groups of guards (first with Brigance and Hyer, then with Brigance and

Neff) in which someone made threats against Irving (to “off” and to “get” him) in

August. Although such behavior, if it occurred, may properly be the subject of

disciplinary measures or other remedies, it did not constitute cruel and unusual

punishment. There is no indication from Cressey’s conduct at the time of the threats

or at any other time that they were credible. These alleged threats should have no

place in our prisons, but neither did they violate the Constitution. 

Neff’s only alleged verbal threat was made as part of one of the abovementioned groups, and he also allegedly threatened Irving with a can of mace. Hyer’s

first alleged threat is virtually identical to Neff’s—both were made with Brigance and

Cressey. Hyer is also alleged to have made an additional statement in September 2005

that she wanted Irving dead, which she gave as her reason for denying his request for

an ink pen. Hyer and Neff were both involved in the Prewitt incident more than nine

months earlier. The Prewitt incident might have been sufficient to render their later

threats credible had those threats occurred closer in time. We assume that Hyer’s

additional statement was a threat, but it is insufficiently credible as a matter of law.

Accordingly, Neff’s and Hyer’s death threats, however reprehensible and unjustified,

did not rise to the level of being objectively credible.
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C. Labeled a Snitch

Irving argues that Brigance was deliberately indifferent to his safety when he

falsely labeled Irving a “snitch” or a “rat.” Prison officials are bound by the Eighth

Amendment to take “reasonable measures to guarantee the safety of the inmates.”

Farmer, 511 U.S. at 832 (internal quotation omitted). “[P]rison officials have a duty

. . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833

(omission in original, citation omitted). They also have a duty to protect inmates from

unreasonable conditions that pose “a substantial risk of serious harm.” Young, 508

F.3d at 872 (quoting Farmer, 511 U.S. at 834) (internal quotation marks omitted). The

Eighth Amendment prohibits the foreseeable and unnecessary risk of the gratuitous

and wanton infliction of pain. Taylor v. Crawford, 487 F.3d 1072, 1079-80 (8th Cir.

2007).

Although we have previously recognized that an inmate who is considered to

be a snitch is in danger of being assaulted or killed by other inmates, we have not

specifically dealt with the issue presented by this case. See Reece v. Groose, 60 F.3d

487, 488 (8th Cir. 1995). At least three other circuits have agreed with Irving’s

position that labeling an inmate a snitch violates the guard’s duty to protect inmates.

See Benefield v. McDowall, 241 F.3d 1267, 1271-72 (10th Cir. 2001) (adhering to

its holding in Northington v. Marin, 102 F.3d 1564 (10th Cir.1996)); Valandingham

v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989); Harmon v. Berry, 728 F.2d

1407, 1409 (11th Cir. 1984). Likewise, another circuit is at least sympathetic to such

a contention. See Gullatte v. Potts, 654 F.2d 1007, 1009-12 (5th Cir. 1981)

(remanding to determine whether the defendant knew or should have known that an

inmate labeled a snitch is in danger and whether the defendant took reasonable steps

to protect the snitch from danger). 

Brigance points out that the Seventh Circuit has not looked with favor upon

Eighth Amendment claims involving the protection to which a snitch is entitled. See
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Doe v. Welborn, 110 F.3d 520, 525 (7th Cir. 1997) (a snitch’s fear of attack never

materialized and therefore was not a violation of the Eighth Amendment). Citing Doe,

an unpublished opinion of the Seventh Circuit held that “[f]ailure to protect from

actual physical injury, not failure to protect from the fear of injury, is what violates

the Eighth Amendment.” Brown v. Ellis, No. 97-1873, 1999 WL 197222, *2 (7th Cir.

Mar. 26, 1999).

It is true that we have on occasion afforded the protection of qualified immunity

in situations in which a split of authority exists on the constitutional question at issue,

see, e.g., Mo. Prot. & Advocacy Serv. v. Mo. Dep’t of Mental Health, 447 F.3d 1021,

1025 (8th Cir. 2006). Nevertheless, and notwithstanding the lack of a decision

squarely on point within our circuit, we conclude that, given the clear weight of

authority in the circuits that have ruled on the question, Brigance was on fair notice

that to falsely label an inmate a snitch is to unreasonably subject that inmate to the

threat of a substantial risk of serious harm at the hands of his fellow inmates. After

all, who better knows the opprobrium and consequent effect thereof that attaches to

the label of snitch than those who work daily within the inmate population. Thus, we

hold that a reasonable prison guard in Brigance’s position would have known that to

label Irving a snitch would violate his constitutional right to protection from harm.

Accordingly, the district court properly denied qualified immunity to Brigance on this

aspect of Irving’s case.

III.

We affirm that portion of the district court’s order which denied qualified

immunity to Brigance with respect to the death threats and to the labeling of Irving as

a snitch, as well as that portion which denied qualified immunity to Hyer and Neff

regarding the Prewitt incident. We reverse that portion of the order which denied

qualified immunity to Cressey, Hyer, and Neff with respect to the death threats they

made.
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The case is remanded to the district court for the entry of an amended order and

for further proceedings on the remaining claims. 

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