                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2828
                                   ___________

Jerome Berry,                        *
                                     *
           Appellee,                 *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Missouri.
Robb Sherman; Roger Rutledge;        *
Susan Embree; James J. Burgess;      *
Richard Fongemie, Sgt.,              *
                                     *
           Appellants.               *
                                ___________

                             Submitted: January 15, 2004

                                  Filed: April 22, 2004
                                   ___________

Before BYE, HEANEY, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       Robb Sherman, Roger Rutledge, Susan Embree, Captain James J. Burgess, and
Sergeant Richard Fongemie (collectively referred to as "appellants"), all correctional
officers at Northeast Correctional Center ("NECC"), appeal the district court's denial
of qualified immunity in Jerome Berry's 42 U.S.C. § 1983 claim. We reverse.
                                    I. Background
       Berry, an inmate at NECC, sued the named appellants and other defendants1
claiming that they failed to protect him from attack by other inmates in violation of
the Eighth Amendment and that they allegedly violated his right to equal protection
under the Fourteenth Amendment. In late 1998, Berry complained to corrections
officials that he and his roommate could not get along. In response, the officials
moved Berry to Christopher Lewis's cell. Berry and Lewis had not met before they
were assigned to the same cell. Berry did not declare Lewis an "enemy" or name him
on his "enemies list." As such, Berry did not sign–and he was not offered–an enemy-
waiver form.

       Shortly after moving into the cell with Lewis, Berry complained to prison
officials about Lewis's personal hygiene on January 11, 1999. Grievance officers
investigated Berry's complaint and instructed Berry to follow proper procedure and
submit a cell-change request.

      Each appellant worked with Berry or dealt with his complaints. Sergeant
Fongemie investigated Berry's complaints and determined that they were unfounded
because, according to Fongemie, "[Berry] was the only offender that complained that
offender Christopher Lewis was unsanitary. I had personally observed offender
Christopher Lewis cleaning his room and staff and other offenders had not
complained that offender Lewis was unsanitary." Sherman also met with Berry to
determine if he wanted protective custody. Berry declined the offer.

       Rutledge spoke with Berry on several occasions about Berry's preference to
cell only with Caucasian offenders and about Berry's complaints that Lewis–who is



      1
      Berry's complaint named defendants Prudden, Rowley, Sherman, Rutledge,
Embree, Burgess, Fongemie, Harris, and Hays.

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African American–was unsanitary. Rutledge noted that Berry never indicated that he
feared for his safety with Lewis and, in fact, declined protective custody on several
occasions. Rutledge also indicated that an enemy waiver was not offered because
Berry did not declare Lewis an enemy.

        Embree, the caseworker in Berry's housing unit, noted that Berry requested to
room with a Caucasian cell mate. Embree indicated that she did not hear Berry tell
staff that he believed that his life was in danger or that he wanted protective custody.
Finally, Burgess wrote a memo explaining that he was not reassigning Berry to
another cell away from Lewis.

      In early January 1999, prison officials received a tip that Lewis and two of his
friends– Hopkins and Bonner–had threatened another unnamed inmate and that Lewis
possessed a homemade knife. Prison officials searched for the knife in Berry's and
Lewis's cell, but none was found.

      On January 19, 1999, Berry and Lewis fought outside their cell. Hopkins and
Bonner joined in the fracas. Berry received minor lacerations to his head. Afterwards,
Berry claimed that Lewis and his friends attacked him without provocation. Lewis,
however, claimed that he acted in self-defense when Berry exited the cell and
attacked him. An inmate witness stated that Hopkins used a knife to assault Berry.

      After the fight, Berry appealed the denial of his January 11 grievance. Officials
denied Berry's appeal because, after reviewing the investigative report concerning the
January 19 fight, the Assistant Director of the Division of Adult Institutions
determined:

      I do not find that staff failed to do their job, resulting in the injuries you
      received. Prior to the incident, your complaint to staff regarding your
      cellmate's hygiene habits in no way warranted the signing of an enemy


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      waiver. Had you felt threatened by your cellmate prior to the assault,
      then it was your responsibility to immediately advise staff. This, I find,
      you did not do. NECC staff has reported that you were asked on at least
      five different occasions, prior to the incident, if you wanted protective
      custody and that you always said no, that you did not have any
      complaints with your cellmate other than his hygiene. Further, I find that
      you are now assigned to the Farmington Correctional Center.

       Before the district court, all defendants filed motions for summary judgment
claiming qualified immunity and a defense to the equal-protection claim. In an order
filed June 9, 2003, the district court granted the motions for summary judgment as to
all defendants on the equal-protection claim. On the failure-to-protect claim, however,
the district court granted summary judgment for defendants Prudden, Rowley, Harris,
and Hays, but not to the appellants. The appellants now appeal the denial of qualified
immunity in Berry's failure-to-protect claim.

                                    II. Analysis
       We review qualified-immunity entitlement de novo. Jackson v. Everett, 140
F.3d 1149, 1151 (8th Cir. 1998). Qualified immunity shields government officials
from suit in performance of discretionary functions. However, when an official's
conduct violates a clearly established constitutional or statutory right of which a
reasonable person would have known, qualified immunity does not prevent suit by
the injured party. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pagels v.
Morrison, 335 F.3d 736, 739 (8th Cir. 2003). Qualified immunity protects "all but the
plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475
U.S. 335, 341 (1986).

      Berry argues that the appellants violated his rights clearly established by the
Eighth Amendment of the United States Constitution. The Eighth Amendment
prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII.
The Amendment requires prison officials to take "reasonable measures to guarantee

                                         -4-
the safety of inmates [and] . . . to protect prisoners from violence at the hands of other
prisoners." Farmer v. Brennan, 511 U.S. 825, 832–833 (1994). A government 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. Jackson, 140
F.3d at 1151.

       To avoid the appellants' qualified-immunity defense, Berry needed to establish
two elements, one objective and the other subjective. Objectively, Berry needed to
establish that his continued incarceration with Lewis posed a substantial or pervasive
risk of harm. Subjectively, Berry had to establish that the appellants knew of and
disregarded a substantial risk of serious harm to him. Farmer, 511 U.S. at 833;
Pagels, 335 F.3d at 740. The more critical inquiry for qualified-immunity purposes
is whether it was "objectively legally reasonable" for the prison officials to believe
that his conduct did not violate the inmate's clearly established Eighth Amendment
right. Anderson v. Creighton, 483 U.S. 635, 641 (1987); Curry v. Crist, 226 F.3d 974,
977 (8th Cir. 2000).

       Consistent with that standard, the Supreme Court observed in Farmer that
"prison officials who actually knew of a substantial risk to inmate health or safety
may be found free from liability if they responded reasonably to the risk, even if the
harm ultimately was not averted." 511 U.S. at 844. In this appeal, the appellants argue
that Berry failed to establish both elements to bar the qualified-immunity defense.

                          A. Substantial Risk of Serious Harm
       Berry first had to show that he was at substantial risk of serious harm. The
district court determined that questions of fact remained whether the appellants
became aware of an escalating situation days before the fight based upon Lewis's
alleged threats to other inmates and the alleged existence of a homemade knife. Based
upon our review of the record, we disagree.



                                           -5-
       The undisputed evidence indicates that no one, including Berry, believed he
was at "substantial risk of serious harm." Despite some arguments between Berry and
Lewis regarding Lewis's hygiene, no evidence establishes that Berry feared for his
safety prior to the fight–in fact, Berry rejected the opportunity for protective custody
on numerous occasions. He instead claimed that his only complaint was with Lewis's
hygiene. Furthermore, the inmate-reported threat that Lewis had a knife and planned
to use it on another inmate did not materialize. The officials investigated by searching
Berry's and Lewis's cell. Nothing in the record shows the officials knew or had notice
that Lewis planned to attack Berry.

       In a case with many common facts, we found qualified immunity applied. In
Falls v. Nesbitt, 966 F.2d 375, 378 (8th Cir. 1992), the plaintiff, Nesbitt, "failed to put
on any evidence which satisfies even the most charitable reading of the notion of a
'pervasive risk of harm.'" The court noted:

      Prior to sharing a cell, Nesbitt did not know inmate Hamm, the inmate
      who stabbed him, nor did Nesbitt have any reason to fear Hamm. When
      Nesbitt filled out his housing roster prior to his transfer, his only request
      was that he not share a cell with a black inmate. Hamm was white.
      Ironically, in an affidavit executed by Nesbitt on the same day he was
      stabbed, Nesbitt testified as to his own incredulity at Hamm's violent
      reaction. Said Nesbitt, "[u]p until that time [the stabbing], I had no
      reason to believe that inmate Hamm was going to try to kill me."

Id. The facts here are similar in that Berry repeatedly rejected the opportunity to claim
Lewis as an enemy. The other facts show that any alleged threats made by Lewis were
made to or about other inmates, not to or about Berry. Berry himself did not think he
was a target. As such, Berry failed to establish that he was at "substantial risk of
serious harm."




                                           -6-
                        B. Knowledge of and Disregard for a
                          Substantial Risk of Serious Harm
      Given our holding that the evidence does not establish that Berry objectively
faced a substantial risk of harm, we need not address whether the appellants
subjectively acted, or failed to act, with deliberate indifference to Berry's safety.

                                    III. Conclusion
       For the foregoing reasons, the district court's order denying qualified immunity
to the appellants on Berry's failure-to-protect claim is reversed.
                       _______________________________




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