United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3840

___________ Lonell Newman; Hoseia Chestnut, * * Plaintiffs - Appellees, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Levi Holmes, * * Defendant - Appellant, *

___________ Submitted: May 22, 1997 Filed: September 3, 1997

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

___________ LOKEN, Circuit Judge.

In this § 1983 action, Arkansas inmates Lonell Newman and Hoseia Chestnu t 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 forp laintiffs and awarded Newman and Chestnut damages of $500 each. Holme s appeals the denial of his motion for judgment as a matter of law. We affirm.-2- I.
On May 7, 1994, inmate Johnson was housed in Barracks 4 at the Tucke r Max imum

Security Unit prison. Johnson was on disciplinary court review statu s (“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 an d escorted b y a prison official. One reason for isolating DCR inmates in this manner is to protect other in mates and guards from a presumptively dangerous prisoner until his disciplinary hearing is completed. The record does not reflect the disciplinary issu e 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 an d then Chestnut, cutting both with a homemade knife. They escaped the day room and alerted priso n off icials, who subdued Johnson after a struggle. The attack was unanticipated

. Newman had never had any other problem with Johnson. Chestnut te stified that he and Johnson had exchanged heated words playing basketball the previous day, but “i t wasn’t nothing but talk.” Officer Holmes was assigned to the Barracks 4 con trol 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 bloc k roster. He also knew that DCR inmates may not leave their cells unescorted because they are presumptively dangero us to others. When he began his shift that morning, he placed a prominent DCR tag on the switch controlling Johnson’s cell do or, the standard reminder to the control booth oper ator 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.-3-

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 Johns on at 4:01, and that pris onofficial did not testify. There was testimony that escapes from isolate d confin ement

are not uncommon, that inmates in isolation are clever at wedgin g obstructions that keep their cell doors from fu lly closing or locking, and that Johnson’s cell block nickname was “Houdini.” Lieutenant Hampton test ified that he investigated the incid ent and concluded that Johnson most likely escaped because Holme s inadvertent ly opened the cell door, for example, by hitting an “override” button tha t 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.
Holme s argues that the evidence was insufficient to support a finding that h e violat ed plaintiffs’ Eighth Amendment right to be free from cruel and unusua l punishment by failing to protect them from Johnson’s unprovoked attack. The jury necessar ilyfound that Johnson escaped because Holmes for some reason opene d Johnson’s cell door, and t

he 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 t he 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 (8 th 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.-4-

The Court then undertook to define more precisely the concept of deliberat e indifference. Because the Eighth Amendment bans cruel and unusu al punishment , suits against prison officials must satisfy a subje ctive requirement, an inquiry into the prison official’s state of mind. The Court concluded that deliberate indiffer ence in this context
me ans actual intent that the inmate be harmed, or knowledge that harm will result, or reckless disregard of a known excessive risk to inmate healt h and safety. See 511 U.S. at 835-40.
On appe al, Holmes first argues that there was insufficient evidence of a n excessive ri sk of harm because there was no evidence that inmate Johnson was a risk to attack Newm an or Chestnut unless they were kept separated. We disagree. There was testimony that prison officials isolate all DCR inma tes because they are a potential danger to o thers. No doubt some prison rule violations suggest a greater propensit y toward violence than others. But when p rison 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 insuffici ent evidence that he was deliberately indifferent to an

excessive risk of harm to plaintiffs. This issue requires more lengthy consideration. In Farmer

and our pr

ior 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 i s somewhat different. It is undisputed that prison off icials took elaborate steps to isolate Johns onfrom other inmates, procedures that included Holmes putting a DCR tag o n 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 fa ilure. Knowledge of the risk is not in issue ---5-

Holmes admitted knowing that he should not open Johnson’s cell door without a guard escortbecause DCR inmates are a danger to others. The critical question is whether Holmes was merely negligent, or did his conduct manifest the requisite deliberat e indifference for an Eighth amendment violation.
Plai ntiffs argue that Holmes should be liable because he “knowingly release d Johnson from his cell.” But the Eighth Amendment issue is whether Holme s disregarded a known risk that oth er inmates would be harmed. If Holmes had ignored the proc edures for isolating Johnson and intentionally opened Johnson’s cell door for the p urpose of assisting Johnson in assaulting others, that intent to cause harm would clearl y constitute deliberate indifference for Eighth Amendment purposes. Likewise, if Holme s 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 nothin g approaching know ledge 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.
Tha t leaves the question whether the jury could reasonably find that Holme s nonetheless recklessly disregarded a known exce ssive risk to inmate safety by opening the cell doo r 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 ac t re asonably 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 i s not liable under the Eighth Amendment, like the pris on guard who failed to prevent an inmate assault because he left his post i n McGill v. Duckworth , 944 F.2d 344, 350-51 (7th Cir. 1991), cert. denied , 503 U.S.-6-

907 (1992), or the prison doctor who neglige ntly mistook a heart attack for indigestion in Bellecou rt v. United States , 994 F.2d 427, 431 (8th Cir. 1993), cert. denied , 51 0 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 pri son guard’s failure to act reasonably”), cert. denied , 116 S. Ct. 167 (1995). Having th us defined the appropriate standard, we find the question to be ver y close, particularly because it is well-settled that Holmes’s violation of an internal prison regulation doe s not by itself give rise to an Eighth Amendment claim. See Falls v

. Nesbitt , 9 66 F.2d 375, 379-80 (8th Cir. 1992). But we owe great deference to th e 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 th at Johnson was fed a few minutes before his escape. In addition, despite obvious access to priso n records, the defense failed to explain why Johnson was on DCR status. Thes e unexpla ined 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 circumstantia l evi dence of deliberate indifference is sufficient to require that the jury verdict b e upheld. The judgment of the district court is affirmed. A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.