                                ___________

                                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.




     *The HONORABLE JOHN F. NANGLE, United States District
     Judge for the Eastern District of Missouri, sitting by
     designation.
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.




                                     -2-
        On June 29, 1994, Prater was temporarily transferred to another
facility.    He returned to OCC on July 13, 1994.       Approximately two weeks
                              1
later, on July 27, 1994,          Penn attacked Prater, punching Prater in the
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




        1
      We note that some of Prater's pleadings allege that he was
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.

                                        -3-
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,




                                         -4-
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




                                        -5-
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



        2
      By determining that Prater has not alleged facts indicating
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 well-
documented 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.

                                           -6-
       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.




                                     -7-
A true copy.


     Attest:


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




                            -8-
