## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3749

___________ Wendell R. Ayers, * * Appellee, * * v. * Appeal from the United States * District Court for the Willis Sargent, Warden, Jefferson * Eastern District of Arkansas. County Correctional Facility, Arkansas * Department of Correction; Tracy * Spadoni, Sergeant, Jefferson County * [UNPUBLISHED] Correctional Facility, Arkansas * Department of Correction, * * Appellants. *

___________ Submitted: May 7, 1998 Filed: July 9, 1998

___________ Before FAGG, BEAM, and HANSEN, Circuit Judges.

___________ PER CURIAM.
Willis Sargent and Tracy Spadoni, defendants in this 42 U.S.C. § 1983 actio n brought by Arkansas inmate Wendell R. Ayers, appe al the district court & s interlocutory order denying their motion for summary judgment. We reverse, in part, and remand for further proceedings.-2-

Ayers brought this action against Sargent, the warde n of the Jefferson County Jail and Correctional Facility, and correctional officer Spadoni. In Ayers & s complaint--which
we construe as asserting claims against defendants in their individual capacities--h e
a lleged he had been severely beaten by a group of inmates, and both defendants failed to protect him.

Proceed ing by consent of the parties, the magistrate judge conducted a n evident iary hearing, then appointed counsel and scheduled a jury trial. Thereafter , defendants moved for summary judgment, arguing, as relevant, they were entitled t o qualified immunity, and Ayers opposed the motion. The magistrate, referring to hi s findings following the evidentiary hearing, construed de fendants & motion as a request for
summar yjudgment solely as to defendant Sargent. Noting Ayers had asserted tha t Sargent had been aware of inadequate barrack s staffing and threats involving Ayers, the magist rate judge concluded a fact issue remained as to whether Sargent had bee n deliberately indifferent to Ayers & s safety and denied the motion.

In itially, we hold that the magistrate committed error in construing defendants & motion for summary judgment based on qualified immu nity as a request for judgment by Sargent alone. See Parton v. Ashcroft , 16 F.3d 226, 227-28 (8th Cir. 1994) (remanding for ruling on issue of qualified immunity where magistrate judge, who had conducte d pret rial proceedings, set case for trial, and determined that trial would be judiciall y efficient way to dispose of claim, refused to rule on summary judgment motion)

. Accordingly, we express no opinion on the merits of Ayers & s claim against Spadoni, and remand for a ruling on Spadoni & s summary judgment motion.
As to Sargent, we have jurisdiction to c onsider de novo whether the district court erred in denying sum

mary judgment. See Williams v. Delo , 49 F.3d 442, 445 (8th Cir. 1995 ). “Qualified immunity shields government actors from liability in civil lawsuit s when # their conduct does not violate clearly established statutory or constitutional rights of which a reasonable perso n would have known. & ” Prater v. Dahm , 89 F.3d 538, 540--3-

41 (8th Cir. 1 996) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). In th e context of protecting prisoners from violence at the hands of other prisoners , the question of qualified immunity requires a determination as to whether a reasonable official could have believed his actio ns violated the law, given the information available to him at the time of the attack. See Prater , 89 F.3d at 541.
Ayers argued below that Spadoni & s first-hand knowledge of threats made against Ayers c ould be imputed to Sargent, and also that Sargent had first-hand knowledg e through his experiences wit h another prison facility of the dangers posed by inadequate staffing. Ayers stated there had been only two guards o n duty to watch four barracks on the day of his assault, and he attac hed a copy of a grievance form, which post-dated the assault, wherein he complained about inadequate security in his barracks. Becaus e Ayers pro vided no evidence from which an inference could be made that Sargen t actually knew of the threats aga inst Ayers prior to the assault, or that Sargent somehow failed to train or supervise Spadoni, we conclude Ayers did not establish a basis fo r imposing liability against Sargent. See O tey v. Marshall , 121 F.3d 1150, 1155 (8th Cir. 1997) (liability under § 1983 cannot attach to supervisor merely because subordinat e violated someone & s constitutional rights; rather, supervisor can be liable only if h e direc tly participated in constitutional violation, or if his failure to train or supervis e offending actor

directly caused deprivation). In addition, Ayers presented no evidence of a pervasive o r unreasonable risk of harm based on inadequate staffing, see Williams
v. Willits , 8 53 F.2d 586, 588 (8th Cir. 1988), nor did he present evidence that th e conditi ons at the Jefferson County Jail and Correctional Facility were similar to th e conditions at the facility with which Sargent was familiar. The district court therefore sho uld have granted Sargent & s motion for summary judgment based on qualifie d immunity. Accordingly, we reverse the judgment of the district court and remand fo r further proceedings consistent with this opinion.-4-

A true copy.

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