United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1571

___________

Tony Cohrs, *

 *

Appellee, *

 *

v. *

 *

Larry Norris, Director, Arkansas *

Department of Correction; G. *

Guntharp, Assistant Director, * Appeal from the United States

Arkansas Department of Correction, * District Court for the

 * Eastern District of Arkansas

Defendants, *

 * [UNPUBLISHED]

Rick Toney, Warden, Arkansas *

Department of Correction, *

originally sued as Rickie Toney; L. *

Johnson, CO-I, Varner Unit, *

Arkansas Department of Correction, *

 *

Appellants. *

___________

 Submitted: March 31, 2000

 Filed: April 24, 2000

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Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges. 

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PER CURIAM.

In this interlocutory appeal, Warden Rick Toney and Correctional Officer Loney

Johnson appeal from an order entered in the District Court for the Eastern District of

Arkansas, denying their motion for summary judgment based on qualified immunity.

Tony Cohrs, a white inmate at the Varner Unit in Arkansas, submitted his 42 U.S.C.

§ 1983 complaint against Toney and Johnson, among others, alleging they failed to

protect him from an attack by several African-American inmates, in violation of the

Eighth Amendment. For reversal, Toney and Johnson argue they did not know about

the attack ahead of time; they had no reason to believe an attack would occur; and,

contrary to Cohrs’s contention, failing to balance the barracks according to race is not

a violation of the Eighth Amendment. For the reasons discussed below, we affirm in

part, reverse in part, and remand.

Although a denial of summary judgment is not a final decision, when the issue

presented is whether the facts alleged support a claim that defendants violated clearly

established law, the denial of summary judgment is immediately appealable and we

conduct a de novo review. See Pace v. City of Des Moines, 201 F.3d 1050, 1052 (8th

Cir. 2000). Qualified immunity shields government officials from suit, unless their

conduct violated “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

In determining defendants’ entitlement to immunity, we determine whether the

plaintiff has alleged a deprivation of constitutional magnitude, and if so, whether that

right was so clearly established that defendants would have known their conduct

violated the Constitution at the time of their acts. See Weiler v. Purkett, 137 F.3d 1047,

1050 (8th Cir. 1998) (en banc). Because the Eighth Amendment imposes a duty on

prison officials to protect inmates from violence at the hands of other inmates, a prison

official may be liable for failing to protect an inmate if the inmate has suffered an
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objectively serious deprivation and the official acted with deliberate indifference to the

inmate’s safety. See Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). To be

deliberately indifferent, the prison official must have known of, yet disregarded, an

excessive risk to the inmate’s safety; that is, the official must have been aware of facts

from which an inference could be drawn that the inmate faced a substantial risk of

serious harm, and the official must have drawn the inference. See id. at 837. 

We disagree with the district court that Cohrs alleged a deprivation of

constitutional magnitude in his claim that Toney and Johnson failed to prevent the

attack. It was undisputed that Cohrs had been in Barracks 14--the barracks where he

was attacked--for only two weeks prior to the attack, he did not have an enemies list,

and he had talked only casually with his attacker. It was also undisputed that there had

been no talk of the attack prior to its occurring. The evidence, moreover, does not

support an inference that Toney and Johnson knew of a specific risk to Cohrs, or knew

that whites were generally at risk of being attacked by African-Americans in Barracks

14. At a pretrial hearing, Cohrs testified he heard other white inmates had been

assaulted the same night he was, but he did not testify (or allege, for that matter) that

Toney and Johnson were aware of these attacks, or that racially-motivated attacks had

previously occurred in Barracks 14. Additionally, Cohrs asserted in his brief opposing

summary judgment that an interoffice communication noted that two attacks had

occurred earlier during the night of his assault. He failed to submit a copy of the

interoffice communication, however, and he never alleged that Johnson and Toney were

aware of the communication before the attack. Under these circumstances, we believe

the facts require a conclusion that defendants were not deliberately indifferent for failing

to prevent the attack. See Prosser v. Ross, 70 F.3d 1005, 1007 (8th Cir. 1995) (prison

officials are entitled to qualified immunity from claims arising out of surprise attack by

one inmate on another, even if officials know attacking inmate may be dangerous or

violent). Therefore, Toney and Johnson are entitled to qualified immunity on Cohrs’s

claim that they failed to prevent the attack.
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Cohrs also claimed, however, that Johnson should have responded sooner to the

attack. As to this claim, Cohrs testified that Johnson would have been able to see the

fight from the control booth, and that Johnson had been in the control booth when Cohrs

last saw him. Additionally, Cohrs alleged in his verified complaint that the fight lasted

twenty to twenty-five minutes. Viewing this evidence most favorably to Cohrs, it

appears that Johnson, from the safety of the control booth, witnessed the twenty-fiveminute fight and did nothing. Although prison guards have no constitutional duty to

intervene in an armed assault of one inmate upon another when intervention would place

the guards in physical danger or when the inmates outnumber the guards, see id. at

1008, we believe a genuine issue of material fact exists as to whether Johnson was

deliberately indifferent for failing to seek help from other parts of the prison. We

therefore affirm the district court’s denial of qualified immunity to Johnson on the claim

that he did not timely respond. 

Accordingly, we reverse and remand for an order granting summary judgment for

Toney and dismissing him from the case entirely. We also reverse and remand for an

order granting summary judgment for Johnson on the claim that he was deliberately

indifferent for failing to prevent the attack. However, we affirm the denial of summary

judgment as to Johnson on the failure-to-respond-sooner claim. 

A true copy.

Attest:

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