                                              Filed:   December 4, 1997


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                              No. 96-7619
                           (CA-94-1424-AMD)



Gregory L. Rich,

                                                 Plaintiff - Appellee,

           versus

Sergeant Michael Bruce,

                                                Defendant - Appellant.




                              O R D E R


           The Court amends its opinion filed November 13, 1997, as

follows:
           On page 6, second full paragraph, line 7 -- the sentence

beginning "These findings establish" should begin a new paragraph.

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                       Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GREGORY L. RICH,
Plaintiff-Appellee,

v.

SERGEANT MICHAEL BRUCE,
Defendant-Appellant,
                                                               No. 96-7619
and

SEWALL SMITH, Warden; JAMES
SANDERS; JAMES PEGUESE;
LIEUTENANT GRANT; TERESA
WILSON-BOGANS, Corporal,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-94-1424-AMD)

Argued: October 1, 1997

Decided: November 13, 1997

Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.

_________________________________________________________________

Reversed by published opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson and Judge Wilkins joined.

_________________________________________________________________

COUNSEL

ARGUED: David Phelps Kennedy, Assistant Attorney General, Bal-
timore, Maryland, for Appellant. Paul R. Kramer, PAUL KRAMER,
P.A., Baltimore, Maryland, for Appellee. ON BRIEF: J. Joseph Cur-
ran, Jr., Attorney General of Maryland, Baltimore, Maryland, for
Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Plaintiff-appellee Gregory L. Rich filed this § 1983 action against
defendant-appellant Michael Bruce, alleging that Bruce violated
Rich's rights under the Eighth Amendment. After a bench trial, the
district court found for Rich and entered judgment accordingly. For
the reasons that follow, we reverse.

I.

Gregory L. Rich is an inmate at the Maryland Correctional Adjust-
ment Center. This institution, known as "SuperMax," is the most
secure penal institution in Maryland, designed to house inmates with
the most serious behavioral and management problems. As a super-
maximum security institution, it has single cells, limited inmate
movement, limited physical contact between inmates, and limited
physical contact between inmates and officers. There are detailed pro-
cedures for searching and securing inmates whenever they are
removed from their cells.

Because of repeated and egregious misbehavior, Rich was assigned
to disciplinary segregation in what was an even more secure part of
SuperMax. The inmates in disciplinary segregation are handled in
accordance with stringent procedures designed to prevent inmates
from coming into any contact with one another. Previous to the events
giving rise to this lawsuit, there had been instances of assaults by
inmates on other inmates or on prison officials; the rigorous proce-
dures governing the facility in general, and those governing inmates
in disciplinary segregation in particular, had been specifically
designed, and on occasion modified, to eliminate or minimize these
risks. See, e.g., J.A. at 21.

                   2
On July 23, 1992, Michael Bruce, at that time a Sergeant at Super-
Max, was the supervising officer in charge of the area in which Rich
was incarcerated. Bruce removed Rich from his cell and placed him
in an outside recreation area. While Rich was secured there, Bruce
released another inmate, Kenneth Higgins, from his cell for his recre-
ation period in the "day room" in front of the cells. Higgins was a
highly dangerous inmate, and the prison had issued a notice warning
that Higgins should be considered an enemy of all the other inmates.
S.A. at 14. Furthermore, because Rich had stabbed Higgins some
months earlier, Higgins was considered to be Rich's enemy in partic-
ular. See S.A. at 6-7.

Forty-five minutes later, Bruce went to bring Rich back from out-
side recreation. Bruce walked with Rich, who was handcuffed in
accordance with MCAC procedures, up the corridor leading from the
outside recreation area to the cells, past the sergeant's office and the
interview room, then toward the locked door ("door # 58") that sepa-
rated the corridor from the day room. Bruce asserts that he intended
to call Higgins to the door to tell him it was time to return to his cell,
then secure Rich in the interview room, then lock Higgins in his cell,
and finally return Rich to his cell. Apparently Bruce needed to take
Rich through door # 58 to return him to his cell; accordingly, it was
necessary for Bruce to return Higgins to his cell first to avoid bringing
the inmates into contact with each other.

Presumably because of a misunderstanding, another prison official,
who was located in the control room so that she could see both door
# 58 and the day room, and who had control over the door by remote
control, opened the door.1 Higgins jumped through the door with his
hand over his head, holding a shank. Despite Bruce's efforts to pro-
tect Rich, Higgins was able to stab Rich. Other prison officials came
to Bruce's aid, and together they restrained Higgins and gave Rich
first aid. Rich required both hospitalization and surgery, and although
he ultimately recovered, he has permanent scars.
_________________________________________________________________

1 This officer claimed that she could not see that Higgins was in the day
room. Apparently Bruce had earlier told a different official in the control
room of Higgins' presence in the day room. That officer had left, and had
neglected to warn the replacement official of Higgins' whereabouts.

                    3
Bruce, apparently frightened, filed a report of the day's events that
falsely stated that he had complied with certain regulations that he
had in fact broken. Later, including at trial, he admitted that this
report was false. Among the regulations that Bruce violated are the
following:

        (1) regulations requiring that no more than one inmate be
        out of his cell for recreation at any given time.

        (2) regulations requiring that two officers participate in tak-
        ing an inmate out of his cell.

        (3) regulations requiring that inmates given recreation in the
        day room wear handcuffs.

        (4) regulations requiring that prisoners' clothes and persons
        be carefully searched before they leave their cells.

See generally S.A. at 2-5; 9-13. As a result of these actions, Bruce
was demoted and otherwise disciplined after an internal investigation
found he had acted with extreme negligence. See S.A. at 8-9.

Rich thereafter brought suit against Bruce and various other prison
officials pursuant to 42 U.S.C. § 1983. Although judgment was ulti-
mately entered in favor of all other defendants, the district court con-
cluded, after a bench trial, that Bruce had, through his actions and
omissions, exhibited deliberate indifference to a substantial risk of
serious harm to Rich, and that Bruce had therefore violated Rich's
Eighth Amendment rights. The court awarded Rich $40,000 in com-
pensatory damages and more than $20,000 in attorneys' fees. See J.A.
at 31, 36.

II.

This case is controlled by Farmer v. Brennan, 511 U.S. 825
(1994). There, in rejecting an objective standard for "deliberate indif-
ference," the Supreme Court held that,

        a prison official cannot be found liable under the Eighth
        Amendment for denying an inmate humane conditions of

                    4
        confinement unless the official knows of and disregards an
        excessive risk to inmate health or safety; the official must
        both be aware of facts from which the inference could be
        drawn that a substantial risk of serious harm exists, and he
        must also draw the inference.

Id. at 837 (emphasis added). While the Court made clear that
"[w]hether a prison official had the requisite knowledge of a substan-
tial risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence," id. at 842,
it made equally clear that inferences from circumstantial evidence
cannot be conclusive:

         Because, however, prison officials who lacked knowledge
        of a risk cannot be said to have inflicted punishment, it
        remains open to the officials to prove that they were
        unaware even of an obvious risk to inmate health or safety.
        That a trier of fact may infer knowledge from the obvious,
        in other words, does not mean that it must do so. Prison offi-
        cials charged with deliberate indifference might show, for
        example, that they did not know of the underlying facts indi-
        cating a sufficiently substantial danger and that they were
        therefore unaware of a danger, or that they knew the under-
        lying facts but believed (albeit unsoundly) that the risk to
        which the facts gave rise was insubstantial or nonexistent.

Id. at 844 (emphasis added).

In concluding that Bruce acted with deliberate indifference, the dis-
trict court purported to apply Farmer. See, e.g., J.A. at 18. However,
the district court actually found only that Bruce had actual knowledge
of facts from which a reasonable person might have drawn the infer-
ence that Bruce's actions exposed Rich to a substantial risk of serious
harm, not that Bruce actually drew this inference. In fact, the district
court findings affirmatively establish that Bruce did not draw this
inference.

The district court found, first of all, that Bruce knew that Rich was
at risk from Higgins. The nature of the findings, however, make clear

                    5
that the district court found only that Bruce knew, as a general matter,
that Higgins was a dangerous man and an enemy of Rich:

         First and foremost, there is simply no question whatso-
        ever that Officer Bruce knew that Mr. Rich was at risk from
        Mr. Higgins. . . . Every officer assigned to that housing unit,
        . . . and Officer Bruce specifically, had actual knowledge of
        the prior stabbing by Mr. Rich of Mr. Higgins, and had
        actual knowledge that Mr. Higgins was a very bad person
        who posed a grave risk of harm to everybody in that institu-
        tion, inmates and officers alike, and that Mr. Rich required
        careful treatment and handling at all times.

J.A. at 18-19.

Second, the district court found that Bruce knew of the general
risks that all the inmates posed to one another and the prison officials
at SuperMax:

        [Bruce] obviously knew on July 23, 1992 that he was work-
        ing in the segregation unit of SuperMax, the most secure
        institution in the state of Maryland. . . .

         He had actual knowledge that the people in [the disciplin-
        ary segregation unit] on July 23, 1992 posed a grave risk of
        harm to each other and to correctional officers.

J.A. at 19.

Third, the district court found that Bruce deliberately violated "im-
portant and critical" rules that were "designed specifically for the
place where he was assigned, the segregation unit of SuperMax." J.A.
at 20. And it found that there had been other "instances of inmates
stabbing or shanking other inmates while the victims were hand-
cuffed," and that the regulations that Bruce violated "were designed
specifically and precisely for just this situation." J.A. at 21.

These findings establish that Bruce knew, as a general matter, that Rich
was at risk from other inmates, and from Higgins in particular, and that
Bruce knew that his actions were in violation of SuperMax regula-

                    6
tions. They do not establish, however, that Bruce had actual knowl-
edge that his actions uniquely increased these general risks to which
Rich was exposed each and every day he was incarcerated in disci-
plinary segregation at SuperMax. That is, the findings do not establish
that Bruce knew that his actions exposed Rich to a specific risk dis-
tinct from the general risks of violence from other inmates and Hig-
gins to which Rich was always exposed, and of which Bruce was
most certainly aware.

On the contrary, the district court's findings regarding Bruce's
awareness of the specific risk created by his actions sound not in sub-
jective recklessness, but rather in negligence:

        This was Sergeant Bruce engaging in active negligence and
        deliberate violations of important and critical correctional
        department rules and regulations . . . .

        ...

         Can then-Sergeant Bruce have been so stupid, so lazy, so
        inattentive, so tired, so burnt out to have done what he did?

        Apparently he was.

        ...

         In my judgment, applying the Supreme Court standard,
        this amounts to deliberate indifference. It is beyond the pale.
        For a single correctional officer to take the kinds of risks
        that were taken here, with actual knowledge, in the worst
        institution in the state and in the worst part of that institu-
        tion, in direct, conscious, willful disregard of the specific
        regulations that were designed specifically to protect
        inmates and officers from the very kind of harm that has
        been inflicted here, that is deliberate indifference. Whether
        you call it stupidity, laziness, or gross and extreme negli-
        gence, it's recklessly indifferent to the risk that Mr. Rich
        was placed under. The combination of circumstances, the
        confluence of circumstances equals reckless indifference.

                    7
         ...

        [The cause of the incident] was Officer Bruce's gross indif-
        ference to the circumstances that confronted him that day.
        He was trying to do what he thought would achieve the most
        reasonable accommodation of all interests, I suppose.
        Apparently other officers had advised him, upon his arrival
        at SuperMax, that despite the regulations, there were ways
        to get around them. And he foolishly got into lock step. But
        he was not smart enough to realize the risks that he was cre-
        ating for himself and for Mr. Rich.

J.A. at 20, 23-24, 27 (emphases added).

Appellee Rich makes much of the fact that the district court used
the phrase "actual knowledge," both in the language quoted supra,
and elsewhere in the findings. See, e.g., J.A. at 25 ("There must be
actual knowledge of the threat of the risk. It is clear here that Officer
Bruce had that."). However, the context of the findings as a whole,
as the findings quoted supra confirm, makes clear that Bruce had
actual knowledge only (1) that Rich was in danger from Higgins as
a general matter, (2) that SuperMax was a dangerous place, where
everyone was in danger from the inmates, and (3) that Bruce was vio-
lating regulations. It is quite clear that the district court did not find
that Bruce knew that his violations of the regulations created any
unique risk for Rich. Quite the contrary; the district court actually
concluded that Bruce was too stupid to realize this. See also J.A. at
29 ("There is a perfect marriage between violations of which Officer
Bruce had actual knowledge in the light of a threat to Mr. Rich by an
identified inmate of which Officer Bruce had actual knowledge and
the harm that befell Mr. Rich."); id. ("There is no basis for a conclu-
sion that Officer Bruce reasonably thought he was doing anything
other than engaging in conduct which created a foreseeable risk that
Mr. Rich's Eighth Amendment rights would be violated.") (emphasis
added); J.A. at 28-29 (Bruce's actions were unreasonable in light of
"the facts and circumstances of which he had actual knowledge."). It
is clear, then, that Bruce had actual knowledge of facts from which
a reasonable person might have inferred the existence of the substan-
tial and unique risk to Rich caused by Bruce's conduct. This, how-
ever, is not enough to establish a violation of the Eighth Amendment.

                     8
Farmer makes clear that the defendant official-- here, Bruce -- must
actually have drawn the inference.2 From the district court's own find-
ings, it is plain that Bruce did not draw this inference.

Rich also argues that even if the district court failed to find that
Bruce had actual knowledge that his conduct created a unique risk to
Rich, such knowledge can be readily inferred. Bruce, however, stead-
fastly maintained that he did not at the time realize the dangers his
actions created -- for himself, as well as for Rich -- and the district
court specifically found that Bruce was sincere on this point:

        I might say that I was very impressed with what I perceived
        to be Officer Bruce's sincerity. I observed him when he tes-
        tified yesterday, and he seemed genuinely to regret what
        happened. He really did. I thought I saw a real reaction
        when I asked him about the fact that he put his own life at
        risk by the shortcuts he took.

J.A. at 25. As this finding suggests, the idea that Bruce had actual
knowledge that his violations of the prison rules uniquely exposed
Rich to a substantial risk is hard, if not ultimately impossible, to
square with the fact that Bruce exposed himself, as well as Rich, to
substantial danger through his actions. On the contrary, the facts
reveal that, as Bruce testified, Bruce honestly believed that door # 58
would stay locked, and that this barrier would be sufficient to protect
Rich, as well as himself, from Higgins.
_________________________________________________________________

2 Bruce's actual knowledge that Rich was in danger from Higgins as a
general matter, absent knowledge that Bruce's actions uniquely increased
this risk, is clearly insufficient to satisfy Farmer. That case explicitly
equated the "deliberate indifference" standard of Eighth Amendment
jurisprudence with the "subjective recklessness" standard from criminal
law. 511 U.S. at 839-40. A defendant is not subjectively reckless where,
although he is aware of the existence of a general risk, he is unaware that
his conduct is inappropriate in light of that risk. True subjective reckless-
ness requires knowledge both of the general risk, and also that the con-
duct is inappropriate in light of that risk. Accordingly, this is a case in
which the defendant "knew the underlying facts but believed (albeit
unsoundly) that the risk to which the facts gave rise was insubstantial or
nonexistent." Farmer, 511 U.S. at 844.

                    9
CONCLUSION

For the reasons stated, the judgment of the district court is
reversed.

REVERSED

                    10
