*The HONORABLE JOHN F. NANGLE, United States District

Judge for the Eastern District of Missouri, sitting by

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 of

Correctional Services, was assaulted by another inmate while incarcerated

at the Omaha Correctional Center (OCC). Following the attack, Prater filed

suit against prison officials under 42 U.S.C. § 1983, alleging that they

failed to protect him from a substantial risk of attack and therefore

violated his Eighth Amendment rights. In a motion for judgment on the

pleadings, the prison officials requested dismissal for failure to state

a claim and asserted the defense of qualified immunity. The district court

denied the motion and the prison officials appeal. We reverse.
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I. BACKGROUND

This lawsuit arose out of an altercation between Prater and a fellow

OCC inmate, Robert Penn, in the summer of 1994. At this stage in the

proceedings we view the facts in the light most favorable to Prater,

National Car Rental Sys., Inc. v. Computer Assoc. Int'l, Inc., 991 F.2d

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 him that Penn could possibly be transferred to OCC. Kilgore was

aware that Prater had had a relationship with Penn's wife and wanted to

determine whether the transfer would create any problems between the two

inmates. At this meeting, Prater completed an Interview Request Form,

stating, "I personally don't have a problem with Robert Penn coming to

O.C.C. However, I will advise you, that I have a relationship with his

separating wife." Kilgore discussed the situation with his superiors and

met with Prater again the following day. Prater reiterated his prior

statements, 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, Penn was transferred to OCC. Upon arrival, Penn immediately

threatened Prater. Prater reported the threats to Kilgore and sent

grievances regarding the incident to Harold Clarke, Director of the

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 note that some of Prater's pleadings allege that he was

1

beaten on July 7, 1994. Although as a rule a judgment on the

pleadings requires that we accept as true all facts pled by the

nonmoving party, in this case the prison records clearly indicate

that Prater was not in fact incarcerated at OCC on July 7, 1994.

Furthermore, when Prater filed grievances regarding the incident

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. Nevertheless, the actual date of the attack

does not alter our analysis of the substance of his complaint.

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On June 29, 1994, Prater was temporarily transferred to another

facility. He returned to OCC on July 13, 1994. Approximately two weeks

later, on July 27, 1994, Penn attacked Prater, punching Prater in the

1

mouth and knocking his teeth loose. Prater sued Kilgore, Hall, Clarke, &

Dahm (hereinafter "the prison officials"), alleging that they were

deliberately indifferent to the substantial risk of harm he faced from

Penn. 

The prison officials moved for judgment on the pleadings pursuant to

Rule 12(c) of the Federal Rules of Civil Procedure. The officials

contended that Prater had failed to state a claim on which relief could be

granted, and that they were entitled to qualified immunity. The district

court denied the motion on both grounds. On appeal, the prison officials

contest the district court's denial of qualified immunity. They argue that

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 exception

to the final judgment rule exists, however, when the motion is denied on

qualified immunity grounds. See Mitchell v. Forsyth, 472 U.S. 511 (1985).

An appeal based on
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qualified immunity permits prison officials to claim that all of the

conduct which the district court deemed sufficiently supported for purposes

of judgment on the pleadings met the standard of objective legal

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 the

pleadings, we accept as true all facts pled by Prater and grant him all

reasonable inferences from the pleadings in an effort to determine whether

material issues of fact remain regarding the prison officials' entitlement

to qualified immunity. See National Car Rental, 991 F.2d at 428.

Qualified immunity shields government actors from liability in civil

lawsuits when "their conduct does not violate clearly established statutory

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 further

establish, however, the question of qualified immunity requires more than

a determination that a particular right is "clearly established" in the

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 whether

reasonable officials could have believed their actions violated clearly

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 the

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 is not . . . every injury suffered by one prisoner at

the hands of another that translates into constitutional liability for

prison officials responsible for the victim's safety." Id. at 1977. The

duty to protect requires only that prison officials "take reasonable

measures to abate substantial risks of serious harm, of which the officials

are aware." Reece, 60 F.3d at 491. Accordingly, the "clearly established"

right in this case contains two components: 1) an objectively serious

deprivation; and 2) a subjectively culpable state of mind. Farmer, 114 S.

Ct. at 1977. Absent facts establishing both factors, no constitutional

violation exists and the prison officials are not liable.

Although it is a close question, we assume without deciding that

Prater's incarceration with Penn resulted in a serious deprivation of

protection, and thus that Prater could establish the objective prong of the

constitutional right. Nevertheless, even if we assume the allegations in

Prater's pleadings are true, we conclude that Prater's facts are

insubstantial as a matter of law to establish the subjective prong of the

constitutional violation. 

The subjective component of the Eighth Amendment right to protection

from inmate attack requires a showing that prison officials acted, or

failed to act, with "deliberate indifference" to inmate health or safety.

Id. This standard was recently clarified by the Supreme Court in Farmer.

There, the Court rejected an objective test for deliberate indifference,

which would have permitted liability when a prison official failed to

respond to risks of which the official knew or should have known. Id. at

1979. Instead, the Court held that a prison official cannot be found

deliberately indifferent 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

suggest that an inmate must suffer physical injury before prison

officials will be deemed to possess the requisite actual knowledge

for an Eighth Amendment violation. As Farmer acknowledges, there

may be circumstances in which a risk is so obvious or welldocumented that a factfinder may conclude a prison official was

aware of it. 114 U.S. at 1981. Statements or actions by prison

officials indicating they perceived a risk will also assist an

inmate in establishing the subjective component of an Eighth

Amendment violation. Prater, however, has failed to allege such

circumstances. 

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be drawn that a substantial 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." Id. 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 serious

harm to Prater. See id. Prater's allegations fail to do so.

As an initial matter, Prater has alleged no facts from which an

inference could be made that the prison officials actually knew of the risk

to Prater. Although Prater's pleadings allege that he was threatened by

Penn, threats between inmates are common and do not, under all

circumstances, serve to impute actual knowledge of a substantial risk of

harm. In all other respects, the pleadings reflect the absence of a reason

for alarm on the part of the officials. Prater's complaint admits that the

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

between Prater's return to OCC and the altercation was in itself a

sufficient time for prison officials to believe that Prater was not, in

fact, in danger. Thus, Prater's own version of the prison officials'

conduct does not establish the level of subjective knowledge required for

a violation of Prater's clearly established Eighth Amendment rights.2
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Moreover, even if the officials were aware of the risk to Prater,

Prater's allegations provide no basis for a reasonable factfinder to

conclude that the officials responded unreasonably to the risk. As Farmer

specifically noted, prison officials may not be found guilty of an Eighth

Amendment violation if 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 Prater, the prison officials consulted Prater prior to

Penn's transfer. After Penn's first threats, Kilgore alerted Deputy Warden

West, who promptly received assurance from Penn that there would be no more

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 responding

to the tensions between Prater and Penn. Accordingly, even though harm to

Prater was not ultimately avoided, the prison officials' conduct does not

rise to the level of a constitutional violation.

In summary, Prater has failed to allege facts which, taken as true,

establish a violation of Prater's clearly established constitutional

rights. The prison officials are therefore shielded from liability.

III. CONCLUSION

For the foregoing reasons, we reverse the decision of the district

court and remand for judgment in favor of the prison officials.
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A true copy.

Attest:

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