*An official caption containing a complete list of parties is

on file and available for inspection in the Office of the Clerk of

the Court, United States Court of Appeals for the Eighth Circuit.

_______________________

Nos. 95-1341/1347/1354/

1356/1362/1369/1372

_______________________

Melvin Leroy Tyler, et al., *

*

Appellants, * Appeals from the United States

* District Court for the Eastern

v. * District of Missouri.

*

John Ashcroft, et al.,* * [UNPUBLISHED]

*

Appellees. *

_____________

Submitted: December 20, 1995

 Filed: January 8, 1996

_____________

Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________

PER CURIAM.

Inmates at the Farmington Correctional Center (FCC) filed a 42

U.S.C. § 1983 action claiming prison officials were deliberately

indifferent to their right to be free from an unreasonable risk of

exposure to tuberculosis and the AIDS virus, in violation of their

Eighth Amendment rights. The inmates want injunctive relief,

compensatory damages, and a jury trial.

The district court referred the matter to a magistrate judge

to conduct a hearing and recommend a disposition of all equitable

claims and to determine whether any inmate could survive a motion

for judgment as a matter of law on his damages claim. The

magistrate judge directed each inmate to file a list of witnesses
-2-

and exhibits and a summary of his testimony. Notwithstanding

virtually every inmate's request to call the prison officials as

witnesses, the magistrate judge allowed the inmates to present only

the testimony of themselves and three non-party witnesses. After

a six-day evidentiary hearing, the district court adopted the

magistrate judge's recommendations.

The district court denied injunctive relief. The district

court concluded the preventive measures taken since the FCC

instituted its policy of annual tuberculosis testing in May 1993

were sufficient to identify and treat those with infectious

tuberculosis. Thus, the inmates had failed to establish a threat

of irreparable harm of contracting tuberculosis. The district

court also concluded the inmates failed to prove the population in

general or any inmate in particular faced an excessive risk of

exposure to the AIDS virus. After careful review, we conclude the

district court did not abuse its discretion in denying injunctive

relief.

After refusing to allow the inmates to call the prison

officials as witnesses, the district court rejected the inmates'

tuberculosis-related damages claims, which predate the FCC's

policies for controlling contagious diseases, because the prison

officials were unaware inmates faced an excessive risk of exposure

to tuberculosis. We believe the district court committed error in

excluding the prison officials. The district court's ruling simply

made it impossible for the inmates to show a set of facts under

which the prison officials displayed deliberate indifference.

Likewise, the prison officials failed to support their qualified

immunity defense by showing their actions were objectively

reasonable. Thus, the district court committed error in holding

the prison officials were entitled to qualified immunity on the

tuberculosis damages claims. As for the inmates' risk of

contracting the AIDS virus, we agree with the district court's

conclusion that no reasonable juror could find any prison official
-3-

liable for damages because the AIDS virus was not sufficiently

prevalent to constitute an unsafe life-threatening condition.

The inmates also challenge the dismissal of other claims which

we need not discuss in detail. We affirm the dismissal of the

other claims and the denial of motions for consolidation, costs,

and appointment of counsel.

We thus affirm in part, reverse in part, and remand for

further proceedings on the tuberculosis damages claims.

A true copy.

Attest:

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