United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3840

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Lonell Newman; Hoseia Chestnut, *

*

Plaintiffs - Appellees, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Levi Holmes, *

*

Defendant - Appellant, *

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Submitted: May 22, 1997

Filed: September 3, 1997

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Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN, Circuit

Judge.

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LOKEN, Circuit Judge.

In this § 1983 action, Arkansas inmates Lonell Newman and Hoseia Chestnut

sued Correctional Officer Levi Holmes for violating their Eighth Amendment rights by

failing to protect them from an attack by another inmate. The jury returned a verdict

for plaintiffs and awarded Newman and Chestnut damages of $500 each. Holmes

appeals the denial of his motion for judgment as a matter of law. We affirm. 
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I.

On May 7, 1994, inmate Johnson was housed in Barracks 4 at the Tucker

Maximum Security Unit prison. Johnson was on disciplinary court review status

(“DCR”), charged with violating prison rules. DCR is a type of isolated confinement.

The inmate is fed in his cell and is not allowed out of the cell unless handcuffed and

escorted by a prison official. One reason for isolating DCR inmates in this manner is

to protect other inmates and guards from a presumptively dangerous prisoner until his

disciplinary hearing is completed. The record does not reflect the disciplinary issue

that caused Johnson to be on DCR status. 

On May 7, Newman and Chestnut were in the general prison population but were

also housed in Barracks 4. At about 4:15 P.M., Newman and Chestnut were watching

TV in the cell block day room when Johnson attacked first Newman and then Chestnut,

cutting both with a homemade knife. They escaped the day room and alerted prison

officials, who subdued Johnson after a struggle. The attack was unanticipated.

Newman had never had any other problem with Johnson. Chestnut testified that he and

Johnson had exchanged heated words playing basketball the previous day, but “it

wasn’t nothing but talk.” 

Officer Holmes was assigned to the Barracks 4 control booth on May 7 and was

responsible for opening and closing the doors in Johnson’s cell block. At trial, Holmes

testified that he knew of Johnson’s DCR status, which was shown on the cell block

roster. He also knew that DCR inmates may not leave their cells unescorted because

they are presumptively dangerous to others. When he began his shift that morning, he

placed a prominent DCR tag on the switch controlling Johnson’s cell door, the standard

reminder to the control booth operator not to open a DCR inmate’s cell door. Holmes

flatly denied opening Johnson’s cell door but admitted that his supervisor, Lieutenant

Curtis Hampton, had accused Holmes of being responsible for Johnson’s escape. 
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The cell block log for May 7 was a trial exhibit. It reflects that a routine check

at 4:00 P.M. showed Johnson’s cell door closed, and that he was fed in his cell at 4:01

P.M. The normal procedure for feeding a DCR inmate is to handcuff him through the

cell bars, open the cell door, place his food tray inside, and then secure the cell door

before uncuffing the inmate. The log does not reflect who fed Johnson at 4:01, and that

prison official did not testify. There was testimony that escapes from isolated

confinement are not uncommon, that inmates in isolation are clever at wedging

obstructions that keep their cell doors from fully closing or locking, and that Johnson’s

cell block nickname was “Houdini.” Lieutenant Hampton testified that he investigated

the incident and concluded that Johnson most likely escaped because Holmes

inadvertently opened the cell door, for example, by hitting an “override” button that

opens seventeen cell doors at once. The jury was told that Holmes and another officer

were subjects of a disciplinary hearing, but it was not told the results of that hearing.

II.

Holmes argues that the evidence was insufficient to support a finding that he

violated plaintiffs’ Eighth Amendment right to be free from cruel and unusual

punishment by failing to protect them from Johnson’s unprovoked attack. The jury

necessarily found that Johnson escaped because Holmes for some reason opened

Johnson’s cell door, and the evidence is clearly sufficient to support that finding. The

question is whether the evidence supports the additional finding of an Eighth

Amendment violation. We view the facts and all reasonable inferences in the light most

favorable to the jury’s verdict. “Negligence, however, is not enough to establish [an

Eighth Amendment] violation.” Stephens v. Johnson, 83 F.3d 198, 201 (8th Cir. 1996).

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court confirmed that

a prison official violates the Eighth Amendment if he is deliberately indifferent to the

need to protect an inmate from a substantial risk of serious harm from other inmates.
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The Court then undertook to define more precisely the concept of deliberate

indifference. Because the Eighth Amendment bans cruel and unusual punishment, suits

against prison officials must satisfy a subjective requirement, an inquiry into the prison

official’s state of mind. The Court concluded that deliberate indifference in this context

means actual intent that the inmate be harmed, or knowledge that harm will result, or

reckless disregard of a known excessive risk to inmate health and safety. See 511 U.S.

at 835-40.

On appeal, Holmes first argues that there was insufficient evidence of an

excessive risk of harm because there was no evidence that inmate Johnson was a risk

to attack Newman or Chestnut unless they were kept separated. We disagree. There

was testimony that prison officials isolate all DCR inmates because they are a potential

danger to others. No doubt some prison rule violations suggest a greater propensity

toward violence than others. But when prison administrators conclude that all inmates

charged with rule violations should be isolated as dangerous, it would encroach upon

the administrators’ greater knowledge of prison conditions for us to hold as a matter

of law that release of such inmates to the general prison population does not create a

substantial risk that they will attack others. 

Holmes next argues that there was insufficient evidence that he was deliberately

indifferent to an excessive risk of harm to plaintiffs. This issue requires more lengthy

consideration. In Farmer and our prior Eighth Amendment cases applying Farmer, the

defendant prison officials consciously decided not to provide the plaintiff inmate greater

protection, or to disregard her medical complaints. See, e.g., Coleman v. Rahija, 114

F.3d 778 (8th Cir. 1997); Prater v. Dahm, 89 F.3d 538 (8th Cir. 1996). This case is

somewhat different. It is undisputed that prison officials took elaborate steps to isolate

Johnson from other inmates, procedures that included Holmes putting a DCR tag on

Johnson’s cell door switch in the control room. Johnson escaped to attack Newman

and Chestnut because these procedures failed. Though he denied opening the cell door,

Holmes was found responsible for that failure. Knowledge of the risk is not in issue --
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Holmes admitted knowing that he should not open Johnson’s cell door without a guard

escort because DCR inmates are a danger to others. The critical question is whether

Holmes was merely negligent, or did his conduct manifest the requisite deliberate

indifference for an Eighth amendment violation.

Plaintiffs argue that Holmes should be liable because he “knowingly released

Johnson from his cell.” But the Eighth Amendment issue is whether Holmes

disregarded a known risk that other inmates would be harmed. If Holmes had ignored

the procedures for isolating Johnson and intentionally opened Johnson’s cell door for

the purpose of assisting Johnson in assaulting others, that intent to cause harm would

clearly constitute deliberate indifference for Eighth Amendment purposes. Likewise,

if Holmes had opened Johnson’s cell door knowing that harm to other inmates would

almost certainly result, Holmes’s conduct would constitute deliberate indifference. But

there is nothing in the record supporting a finding of malicious intent, and nothing

approaching knowledge of harm given the complete absence of evidence that Holmes

knew anything about Johnson other than the fact that he was on DCR status, a status

that includes a wide range of rule violations that do not suggest a propensity to assault

other inmates. 

That leaves the question whether the jury could reasonably find that Holmes

nonetheless recklessly disregarded a known excessive risk to inmate safety by opening

the cell door of a DCR inmate. In Prater, where the issue was knowledge of the risk,

we restated the Farmer standard as being whether “prison officials failed to act

reasonably despite knowledge of a substantial risk of serious harm.” 89 F.3d at 541.

But the duty to act reasonably is a negligence standard, and Farmer stands for the broad

proposition that deliberate indifference includes something more than negligence but

less than actual intent to harm. If Holmes was merely negligent in creating a known

risk by opening Johnson’s cell door, he is not liable under the Eighth Amendment, like

the prison guard who failed to prevent an inmate assault because he left his post in

McGill v. Duckworth, 944 F.2d 344, 350-51 (7th Cir. 1991), cert. denied, 503 U.S. 
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907 (1992), or the prison doctor who negligently mistook a heart attack for indigestion

in Bellecourt v. United States, 994 F.2d 427, 431 (8th Cir. 1993), cert. denied, 510

U.S. 1109 (1994). See also Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995)

(“[d]eliberate indifference, i.e., the subjective intent to cause harm, cannot be inferred

from a prison guard’s failure to act reasonably”), cert. denied, 116 S. Ct. 167 (1995).

Having thus defined the appropriate standard, we find the question to be very

close, particularly because it is well-settled that Holmes’s violation of an internal prison

regulation does not by itself give rise to an Eighth Amendment claim. See Falls v.

Nesbitt, 966 F.2d 375, 379-80 (8th Cir. 1992). But we owe great deference to the

jury’s view of the evidence. Holmes’s testimony lacked credibility because he denied

ever opening Johnson’s cell door, whereas the Barracks 4 log showed that Johnson was

fed a few minutes before his escape. In addition, despite obvious access to prison

records, the defense failed to explain why Johnson was on DCR status. These

unexplained holes in the defense may well have persuaded the jurors that the defense

had not been candid with them. On balance, we conclude that the circumstantial

evidence of deliberate indifference is sufficient to require that the jury verdict be

upheld.

The judgment of the district court is affirmed. 

A true copy.

Attest:

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