                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 10-3431
                                ___________

John Buff,                             *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
Chuck Dwyer; Laura Vance;              *
Johnnie Williams; Yvonne Moore;        *        [UNPUBLISHED]
Dawn Horn; Jackie Cooper; Dan          *
Martinez; Alex Clinton; Christy        *
Clinton; Lance Gordon; Clarence        *
Busby; Gary Derrick; John Darrin;      *
Unknown Collins; Mary Ann Faulkner; *
Unknown Thompson; Southeast            *
Correctional Center Employees John     *
Does 1-12; Eric Harper; Kevin McKay; *
Travis Jackson; Donald Beck,           *
                                       *
             Appellees.                *
                                  ___________

                           Submitted: June 14, 2011
                              Filed: August 9, 2011
                               ___________

Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
                           ___________
PER CURIAM.

    Missouri inmate John Buff appeals the district court’s1 adverse grant of
summary judgment in his 42 U.S.C. § 1983 suit. For the following reasons, we affirm.



       Mr. Buff was attacked by fellow inmates shortly after his transfer to Southeast
Correctional Center. Following the attack, he was immediately placed in
administrative segregation. Mr. Buff was unable to identify his assailants, and prison
officials investigated but were unable to determine which inmates perpetrated the
attack. After spending approximately thirty days in administrative segregation,
Mr. Buff was returned to general population where he was attacked by fellow inmates
within a couple of days of his return. Mr. Buff alleged that Eric Harper, Alex Clinton,
Lance Gordon, Jackie Cooper, Yvonne Moore, Dawn Horn, Dan Martinez, Laura
Vance, and Christy Clinton were deliberately indifferent to the risk that he would be
assaulted once he was returned to general population, in violation of his Eighth
Amendment rights.2 To demonstrate such a violation, Mr. Buff had to show that (1)
his release into general population posed a substantial risk of serious harm, and (2)
each defendant knew of and disregarded that risk. See Pagels v. Morrison, 335 F.3d
736, 740 (8th Cir. 2003).

      The district court concluded that defendants were entitled to qualified
immunity, because they did not violate the Constitution. See Young v. Selk, 508 F.3d
868, 871 (8th Cir. 2007) (when deciding whether official is entitled to qualified
immunity, court first determines whether official violated federal right at all; if so,

      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
      2
      We do not address the claims that Mr. Buff raised against the other defendants,
because he did not meaningfully raise those claims in his opening brief on appeal. See
Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
                                          -2-
court then determines whether that right was clearly established). We agree with the
district court that Mr. Harper was entitled to summary judgment, because Mr. Buff
failed to present evidence rebutting Mr. Harper’s evidence that he had no
responsibility for returning Mr. Buff to general population. See Ripson v. Alles,
21 F.3d 805, 808-09 (8th Cir. 1994) (defendant is entitled to summary judgment in
§ 1983 suit where he was not personally or directly involved in alleged constitutional
violation). We also agree with the district court that the remaining defendants were
entitled to summary judgment, because Mr. Buff failed to rebut the evidence showing
either that (1) the defendant did not actually infer that Mr. Buff faced a substantial risk
of assault if returned to general population, see Norman v. Schuetzle, 585 F.3d 1097,
1104 (8th Cir. 2009) (each prison official’s subjective knowledge of risk that prisoner
faces must be assessed individually; official must be aware of facts from which
inference could be drawn that substantial risk of serious harm exists and must actually
draw inference); or (2) the defendant responded reasonably to the risk by conducting
an investigation into the assault and placing Buff in administrative segregation
following the assault, see Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010)
(prison official is deliberately indifferent if he or she actually knows of substantial risk
and fails to respond reasonably).

       Accordingly, we affirm the district court’s judgment.

BYE, Circuit Judge, concurring in part and dissenting in part.

      I concur in the majority’s decision affirming the district court’s grant of
summary judgment with respect to defendants Eric Harper, Alex Clinton, Lance
Gordon, and Jackie Cooper. With respect to John Buff’s claims against defendants
Dawn Horn, Yvonne Moore, Dan Martinez, Laura Vance, and Christy Clinton
(“defendants”), I believe material questions of fact remain, which preclude the district
court’s grant of summary judgment. I therefore respectfully dissent.



                                            -3-
       To succeed in his Eighth Amendment claims, Buff need not show “that a prison
official acted or failed to act believing that harm actually would befall an inmate; it
is enough that the official acted or failed to act despite his knowledge of a substantial
risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). In
demonstrating the officials’ knowledge of a risk of harm, Buff “is not required to
allege and prove that the defendant[s] . . . specifically knew about or anticipated the
precise source of the harm.” Kahle v. Leonard, 477 F.3d 544, 551 (8th Cir. 2007)
(citation omitted) (emphasis in original). In general, “[t]he question of whether the
official knew of the substantial risk is a factual one ‘subject to demonstration in the
usual ways, including inference from circumstantial evidence.’” Young v. Selk,
508 F.3d 868, 873 (8th Cir. 2007) (quoting Farmer, 511 U.S. at 842).

       Viewing the record in the light most favorable to Buff, as we are required to do
on summary judgment, I would conclude defendants Horn, Moore, Martinez, Vance,
and Clinton had knowledge of a substantial risk to Buff’s safety. The record shows
Buff notified the defendants his life was in danger due to his assailants’ threats that
he would be killed if he returned to general population. In multiple written and oral
statements, Buff requested to be placed in protective custody in light of these threats.
Although “threats between inmates are common and do not, in every circumstance,
serve to impute actual knowledge of a substantial risk of harm,” Blades v. Schuetzle,
302 F.3d 801, 804 (8th Cir. 2002) (internal quotation marks and citation omitted),
Buff’s version of the facts, if accepted by the jury, demonstrate he believed he was at
substantial risk of being assaulted and he communicated this information to the
defendants. See Young, 508 F.3d at 873 (concluding summary judgment was not
proper where the plaintiff told officials of an inmate’s threat, of the urgent
circumstances, and of his need to be moved immediately). This is particularly true
when considering the fact the threats were made after Buff was already assaulted once
and warned not to return to general population.




                                           -4-
       The district court concluded the defendants did not actually believe Buff was
at serious risk of harm in the general population, stating:

      The evidence is consistent that the primary reason Plaintiff was denied
      continued protective custody was because there was no specific, known
      threat to Plaintiff in the general population; he was unable to identify any
      specific enemy and Defendants’ investigation into the assault did not
      uncover any suspects. Plaintiff himself acknowledged that it was
      ‘beyond strange’ that he was unable to determine who had assaulted him
      or why. As such, the evidence does not indicate that Defendants were
      anything more than negligent in deciding that the risk to Plaintiff was not
      as severe as he represented.

Order at 10. Contrary to the district court’s implication, the Supreme Court in Farmer
expressly rejected imposing a requirement on a prisoner to provide advance
notification of a substantial risk of assault. See Farmer, 511 U.S. at 849 n.10 (“The
District Court’s opinion is open to the reading that it required not only advance
notification of a substantial risk of assault, but also advance notification of a
substantial risk of assault posed by a particular fellow prisoner. The Eighth
Amendment, however, imposes no such requirement.”) (internal citation omitted).
This court has also concluded a prisoner’s “failure to give advance notice of [an
attack] is inconclusive as to the defendants’ subjective knowledge.” Whitson v. Stone
County Jail, 602 F.3d 920, 924 (8th Cir. 2010). Thus, to the extent the district court
concluded the officials did not have knowledge of a substantial risk of harm to Buff
based on his inability to specifically identify his assailants, I would conclude the court
erred. “Regardless of how prison officials become subjectively aware of a substantial
risk of serious harm to an inmate–and indeed, even in situations where the prisoner
himself remains oblivious to the potential harm–the Eighth Amendment requires them
to respond reasonably.” Howard v. Waide, 534 F.3d 1227, 1237 (10th Cir. 2008); see
also Williams v. McLemore, 247 F. App’x 1, 13 (6th Cir. 2007) (“[N]othing in Farmer

                                           -5-
suggests that [the prisoner’s] claim must fail because he cannot identify the person
who stabbed him.”).

       The closer issue is whether the defendants responded reasonably to the risk.
“[P]rison 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.” Farmer, 511 U.S. at 844. As the majority notes,
the defendants placed Buff in administrative segregation after the first assault and took
some measures to attempt to identify the attackers. On the other hand, the defendants
seemed to give short shrift to Buff’s repeated requests for protective custody.
Although Buff was placed in administrative segregation for thirty days “pending
protective custody review,” the record is unclear as to whether he actually received
such a review, as the defendants recommended Buff be returned to general population
following the March 3, 2005, classification hearing because his behavior had
improved and he did not have any known enemies. At that hearing, the defendants
denied Buff’s request for protective custody because such protection was unavailable
unless Buff could specifically identify a known enemy. Accordingly, the defendants
returned Buff to general population just five cells from where he was previously
assaulted. Three days later, Buff was stabbed by two inmates, causing lacerations to
his chest, side, and shoulder.

       By placing the onus on Buff to identify his masked assailants, the defendants
improperly shifted responsibility for protection to Buff himself. See Young, 508 F.3d
at 874. Moreover, the defendants refused to conduct other measures such as allowing
Buff to attempt to identify his assailants through photographs. See Rodriguez v. Sec’y
for Dep’t of Corr., 508 F.3d 611, 620 (11th Cir. 2007) (“An official responds to a
known risk in an objectively unreasonable manner if he knew of ways to reduce the
harm but knowingly declined to act or if he knew of ways to reduce the harm but
recklessly declined to act.”) (internal quotation marks and citation omitted). I am
particularly concerned with Yvonne Moore’s statement to Buff that he could

                                           -6-
determine the identity of his attackers once he returned to general population; not only
does this show knowledge of a substantial risk to Buff’s safety, it was an unreasonable
response in the face of Buff’s statements that his life was in danger if he returned to
general population.

        At the very least, there are remaining questions of fact concerning the
defendants’ response to Buff’s repeated requests for protective custody. “Whether
[Buff] is ultimately able to prove the alleged factual bases for his claims is a matter
left for the finder of fact–not the appellate court on interlocutory appeal.” Nelson v.
Shuffman, 603 F.3d 439, 448 (8th Cir. 2010). Therefore, based on the remaining
questions of fact, I would reverse the district court’s grant of summary judgment with
respect to defendants Horn, Moore, Martinez, Vance, and Clinton.
                          ______________________________




                                          -7-
