### *The HONORABLE JOHN F. NANGLE, United States Distric t

Judge for the Eastern District of Missouri, sitting b y designation. ___________ No. 95-3725

___________ Todd E. Prater, * * Appellee, * * Appeal from the United States v. * District Court for the District * of Nebraska. John Dahm; Harold W. Clarke; * Aaron Hall; Bobby C. Kilgore, * * Appellants. *

___________ Submitted: April 12, 1996 Filed: July 17, 1996

___________ Before BEAM and MURPHY, Circuit Judges, and NANGLE, District Judge. *

___________ BEAM, Circuit Judge.

Todd Prater, an inmate committed to the Nebraska Department o f Correctional Services , was assaulted by another inmate while incarcerated at the Omaha Correctional Center (OCC). Following the attack, Prater file d suit against prison officials under 42 U.S.C. § 1983, alleging that they failed to protect him from a substantial risk of attack and therefor e violated his Eighth Amendment rights. In a motion for judgment on th e pleadings, the prison officials requested dismissal for failure to state

a claim and asserted the defense of qualified immunity. The district cour t denied the motion and the prison officials appeal. We reverse.

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I. BACKGROUND

This lawsuit arose out of an alterca tion between Prater and a fellow OCC inmate, Robert Penn, in the summer of 1994. At this stage in th e proc eedings we view the facts in the light most favorable to Prater , National Car Rental Sys., Inc. v. Computer Assoc. Int'l, Inc. , 991 F.2 d 426, 428 (8th Cir.), cert. denied , 114 S. Ct. 176 (1993), and relate them accordingly.

On February 11, 1994, Prater became a prisoner at OCC. A few months later, defendant Bobby Kilgore, Prater's case manager, met with Prater to inform hi m that Penn could possibly be transferred to OCC. Kilgore wa s
aware tha t Prater had had a relationship with Penn's wife and wanted t o determine whether the transfer would create any problems between the two inmates. At this meeting, Prater completed an Interview Request Form , stati ng, "I personally don't have a problem with Robert Penn coming t o O.C.C. However, I will advise you, that I have a relationship with hi s separating wife." Ki lgore discussed the situation with his superiors and met with P rater again the following day. Prater reiterated his prio r stat ements, again writing that he did not have a problem with Penn' s transfer but noting his relationship with Penn's wife.

Penn's facility assignment was ultimately approved, and on May 31 , 1994, Pe nn was transferred to OCC. Upon arrival, Penn immediatel y threatened Prater. Prater reported the threats to Kilgore and sen t grieva nces regarding the incident to Harold Clarke, Director of th e Nebraska Department of Correctional Services, and John Dahm, Warden of OCC

. Kilgore informed Unit Manager Aaron Hall of the threat and advised Prater that he would also alert Deputy Warden West to the incident. West spoke to Penn, who assured West that there would be no more problems between the two inmates.

### We no te that some of Prater's pleadings allege that he wa s 1 

### bea ten on July 7, 1994. Although as a rule a judgment on th e plead ings requires that we accept as true all facts pled by th e nonmoving party, in this case the prison records clearly indicate that P rater was not in fact incarcerated at OCC on July 7, 1994

. Fu rthermore, when Prater filed grievances regarding the inciden t with officials at OCC, he stated that the attack took place on July 27, 1994. It appears, therefore, that Prater's pleadings contain some clerical errors. Neverth eless, the actual date of the attack does not alter our analysis of the substance of his complaint.
-3- On June 29, 1994, Prater was temporarily transferred to anothe r facility. He returned to OCC on July 13, 1994. Approximately two weeks later, o n July 27, 1994, Penn attacked Prater, punching Prater in th e 1 mouth and knocking hi s teeth loose. Prater sued Kilgore, Hall, Clarke, & Dahm(hereinafter "the prison officials"), alleging that they wer e deliberatelyindifferent to the substantial risk of harm he faced fro m Penn.
The prison officials moved for judgm ent on the pleadings pursuant to Rul e 12(c) of the Federal Rules of Civil Procedure. The official s contended that Prater had failed to state a clai m on which relief could be granted, and that the y were entitled to qualified immunity. The district court denied the moti on on both grounds. On appeal, the prison officials contest the district court's denial of qualified immunity. They argue tha t their actions did not violate Prater's clearly established constitutional right to protection from inmate attacks, and thus that they are entitled to qualified immunity.

II. DISCUSSION
Ordinarily, a denial of a motion for judgment on the pleadings is not considered a final, appealable order over which we may accept jurisdiction

. See , e.g. , White v. Holmes , 21 F.3d 277, 279 (8th Cir. 1994). An exceptio n to the final judgment rule exists, however, when the motion is denied on qualified immunity grounds. See Mitchell v. For syth , 472 U.S. 511 (1985). An appeal based on

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qual ified immunity permits prison officials to claim that all of th e conduct which the district court deemed sufficiently supported for purpose s of judgment on the pleadings met the standard of objective lega l reasonableness required for qualified immunity. See Behrens v. Pelletier , 116 S. Ct. 834, 842 (1996). We therefore have jurisdiction to consider, de novo, whether the prison officials are entitled to qualified immunity. White , 21 F.3d at 279. On an appeal from a motion for judgment on th e pleadin gs, we accept as true all facts pled by Prater and grant him al l reasonable inferences from the pleadings in an e ffort to determine whether material issues of fact remain regarding the pri son officials' entitlement to qualified immunity. See National Car Rental , 991 F.2d at 428.
Qualified immunity shields governmen t actors from liability in civil lawsuits when "their conduct does not violate clearly established statutor y
or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Thus, our inquiry begins with an examination of whether Prater has alleged the violation of a constitutional right. Moorman v. Thalacker , 83 F.3d 970, 972 (8th Cir

. 1996). If not, the complaint must be dismissed. Id. As our cases furthe r establish, however, t he question of qualified immunity requires more than
a d etermination that a particular right is "clearly established" in th e abstract. See Anderson v. Creighton , 483 U.S. 635, 640 (1987); Reece v. Groose , 60 F.3d 487, 491 (8th Cir. 1995). Instead, we must examine whethe r reasonable officials could have believed their actions violated clearl y established law, given the information available to the officials at the time of the attack. Reece , 60 F.3d at 491.

It is well settled that the Eighth Amendment imposes a duty on th e part of prison officials "`to protect prisoners from violence at the hands of other prisoners.'" Farmer v. Brennan , 114 S. Ct. 1970, 1976 (1994 ) (quoting Cortes-Quinones v. Jimenez-Nettleship ,

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842 F.2d 556, 558 (1st Cir.), cert. denied , 488 U.S. 823 (1988))

. Nevertheless, "[i]t i s not . . . every injury suffered by one prisoner at the ha nds of another that translates into constitutional liability fo r prison officials responsible for the victim's sa fety." Id. at 1977. The duty t o protect requires only that prison officials "take reasonabl e
measures to abate substantial risks of serious harm, of which the official s
are aware." Reece , 60 F.3d at 491. Accordingly, the "clearly established " right i n this case contains two components: 1) an objectively seriou s deprivation; and 2) a subjectively culpable stat e of mind. Farmer , 114 S. Ct. at 1977. Absent facts establishing both factors, no constitutiona l violation exists and the prison officials are not liable.

Al though it is a close question, we assume without deciding tha t Prater 's incarceration with Penn resulted in a serious deprivation o f protection, and thus that Prater could establish the objective prong of th e constitutional right. Nevertheless, even if we assume the allegations in Prater 's pleadings are true, we conclude that Prater's facts ar e insubstantial as a ma tter of law to establish the subjective prong of the constitutional violation. The subjective component of the Eigh th Amendment right to protection from in mate attack requires a showing that prison officials acted, o r failed to act, with " deliberate indifference" to inmate health or safety. Id. This standard wa s recently clarified by the Supreme Court in Farmer
. There, the Court rejected an objective test for deliberate indifference, which w ould have permitted liability when a prison official failed t o respond to risks of w hich the official knew or should have known. Id. at 197 9. Instead, the Court held that a prison official cannot be foun d deliberatelyindifferent under the Eighth Amendment "unless the official knows of and disregards an excessive risk to inmate health or safety." Id

. In other words, the Court explained, "the official must both be aware of facts from which the inference could

### By determining that Prater has not alleged facts indicating 2 

### the prison officials actually knew of the danger to him, we do not sug gest that an inmate must suffer physical injury before priso n officials will be deemed to po ssess the requisite actual knowledge for an Eighth Amendment violation. As Farmer acknowledges, there may be circumstances in which a risk is so obvious or well

docume nted that a factfinder may conclude a prison official wa s awar e of it. 114 U.S. at 1981. Statements or actions by priso n officials indicating they perceived a risk will also assist a n inmate in establishing the subjective component of an Eight h Ame ndment violation. Prater, however, has failed to allege suc h circumstances.
-6- be drawn that a subst antial risk of serious harm exists, and he must also draw the inference." Id. Moreover, even if the prison officials actually know of a substantial risk to inmate health or safety, the officials may nevertheless escape liability "if they respond[] reasonably to the risk, even if the harm ultimately was not averted." I d. at 1982-83. Therefore, in order to show the state of mind required to establish a constitutional violation, Prater's pleadings must demonstrate that the prison officials failed to act reasonably despite knowledge of a substantial risk of seriou s harm to Prater. See id. Prater's allegations fail to do so.

As an initial matter, Prater has alleged no facts from which a n inference could be made that the prison officials actually knew of the ris k to Prater. Although Prater's pleadings allege that he was threatened by Penn, threats between inmates are common and do not, under al l circumstances, serve to impute actual knowledge of a substantial risk of harm. In all other respects, the pleadings reflect the absence of a reaso n for alarm on the part of the officials. Prater's complaint admits that th e prison officials had assurances from both inmates that there would be no trouble. Furthermore , Prater does not dispute the fact that, despite the threats, he and Penn were incarcerated together for a substantial period of time without incident. Under the circumstances, the two-week period bet ween Prater's return to OCC and the altercation was in itself a sufficient time for prison officials to believe that Prater was not, i n fact, in d anger. Thus, Prater's own version of the prison officials ' conduct does not esta blish the level of subjective knowledge required for a violation of Prater's clearly established Eighth Amendment rights. 2

### -7- Moreover, even if the officials were aware of the risk to Prater , Prater 's allegations provide no basis for a reasonable factfinder t o conclude that the officials responded unreasonab ly to the risk. As Farmer specifically noted, p rison officials may not be found guilty of an Eighth Amendment violation i f they respond reasonably to a perceived risk, "even if the harm ultimately was not averted." Farmer , 114 S. Ct. at 1982-83. Here, according to Pr ater, the prison officials consulted Prater prior to Penn's transfer. After Penn's first threats, Kilgore alerted Deputy Warde n West, who promptly received assurance from Penn that there would be no mor e problems between the two inmates. Given the information available to the prison officials at the time, these facts do not create a material issue of fact as to whether the prison officials acted unreasonably in respondin g to the tensions between Prater and Penn. Accord ingly, even though harm to Prater was not ultima tely avoided, the prison officials' conduct does not rise to the level of a constitutional violation.

In summar y, Prater has failed to allege facts which, taken as true,
es tablish a violation of Prater's clearly established constitutiona l rights. The prison officials are therefore shielded from liability.

III. CONCLUSION

For the foregoing reasons, we reverse the decision of the distric t court and remand for judgment in favor of the prison officials.

### -8- A true copy.

Attest:

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