                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit

                        UNITED STATES COURT OF APPEALS
                                                                                  MAR 6 2000
                                    TENTH CIRCUIT
                                ________________________
                                                                             PATRICK FISHER
 JAMES MERVIN,                                                                         Clerk

                 Plaintiff-Appellee,
           vs.
                                                              No. 99-1135
 ROBERT FURLONG, DONALD                                   (D.C. No. 93-N-2129)
 TORNOWSKI, TREVER WILLIAMS,                                    (D.Colo.)
 CAPTAIN JARVIS, BEN GRIEGO,
 ARISTEDES ZAVARAS, LARRY
 NUTTER, individually and in their
 official capacities,

                 Defendants-Appellants.
                               _____________________

                               ORDER AND JUDGMENT*
                                ______________________

Before BRISCOE and PORFILIO, Circuit Judges, and ROGERS, Senior District
Judge.**
                        ______________________

       Plaintiff brought this action against the defendants, correctional officers at Limon

Correctional Facility (LCF) in Limon, Colorado, pursuant to 42 U.S.C. § 1983 for alleged

violations of his rights under the Eighth Amendment to the United States Constitution.


       *
        This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir.R.36.3.
       **
         The Honorable Richard D. Rogers, Senior United States District Judge for the
District of Kansas, sitting by designation.
Plaintiff contended that the defendants failed to protect him from a physical and sexual

assault by another inmate. This is an appeal from the district court’s denial of summary

judgment to the defendants based on qualified immunity. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

                                             I.

       This court reviews the district court’s denial of qualified immunity on summary

judgment de novo. Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir. 1998). As with other

summary judgment appeals, we review the evidence in the light most favorable to the

nonmoving party. Id. When we review summary judgment decisions involving a qualified

immunity defense, however, our review differs from other summary judgment rulings in that

we must follow the analytical framework established in Siegert v. Gilley, 500 U.S. 226, 231-

33 (1991). Id. First, we must determine whether the plaintiff has alleged a violation of a

constitutional right. See Siegert, 500 U.S. at 231-32; Radecki, 146 F.3d at 1229. Second,

we must consider whether the right allegedly implicated was clearly established at the time

of the events in question. Radecki, 146 F.3d at 1229. “Whether a plaintiff has alleged

conduct by a defendant that violates the Constitution and whether that prior law clearly

prohibited the defendant’s conduct are questions of law that we review de novo.” Id.

                                            II.

       The record, when viewed in the light most favorable to the plaintiff, shows the

following events. In July 1993, plaintiff was an inmate at LCF. Marvin Gray, a large and


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powerful individual with a violent past, was also an inmate at that facility. Gray had

previously been administratively punished in 1987 for raping another inmate.

       During the latter part of July, 1993, the defendants were made aware that Gray had

brutally raped another inmate at LCF. During the investigation, the defendants did not

remove Gray from general population. Rather, Gray was transferred within the institution

to share a cell with plaintiff. On the night of July 24th, Gray assaulted plaintiff. He choked,

beat and raped him. Mervin reported the assault on the morning of July 25th and the

defendants then took steps to isolate Gray.

       The defendants do not contest in this appeal that the allegations made by the plaintiff

establish a violation of a constitutional right. Rather, they contend only that the law

concerning an inmate’s right to safety in prison in 1993 was not clearly established. They

argue that the law did not become clear until the Supreme Court’s decision in Farmer v.

Brennan, 511 U.S. 825 (1994), one year after the incident in this case.

                                              III.

       A government official is entitled to qualified immunity from civil damages when his

“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).

When a defendant pleads qualified immunity, the plaintiff must make the following two-part

showing: (1) demonstrate that the defendant’s actions violated a constitutional or statutory

right; and (2) show that the constitutional or statutory rights the defendant allegedly violated


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were clearly established at the time of the conduct at issue. Albright v. Rodriguez, 51 F.3d

1531, 1534 (10th Cir. 1995). In order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must have found the law to be as the plaintiff maintains. Clanton

v. Cooper, 129 F.3d 1147, 1156 (10th Cir. 1997). The contours of the right must be

sufficiently clear that a reasonable officer would understand that what he is doing violates

that right. V-1 Oil Co. v. Means, 94 F.3d 1420, 1423 (10th Cir. 1996). This is not to say that

an official action is protected by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the light of preexisting law the

unlawfulness must be apparent. Id.

                                             IV.

       The law is well-settled that the Eighth Amendment requires prison officials to “take

reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S.

517, 526-27 (1984). Suffering physical assaults while in prison is not “part of the penalty

that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S.

337, 347 (1981). A prison official violates the Eighth Amendment only when two

requirements are met. First, the deprivation alleged must be objectively, “sufficiently

serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). For a claim like this one, the inmate

must show that he is incarcerated under conditions posing a substantial risk of serious harm.

Helling v. McKinney, 509 U.S. 25, 35 (1993). Second, the official must have acted with


                                              4
“deliberate indifference” to inmate health or safety. Wilson, 501 U.S. at 302-03.

       In Farmer, the Supreme Court clarified the “deliberate indifference” standard. The

Court explicitly rejected an objective test and held that the Eighth Amendment deliberate

indifference standard is subjective. Farmer, 511 U.S. at 837. A prison official who “knows

of and disregards an excessive risk to inmate health or safety” is deliberately indifferent for

these purposes. Id.

       The arguments of the defendants fail to acknowledge two distinct lines of cases. In

the prison context, the Supreme Court and other courts have established two very different

standards depending upon the circumstances. In the normal prison custodial situation, courts

have long applied “deliberate indifference” as the standard. See Estelle v. Gamble, 429 U.S.

97, 104, 106 (1976); accord County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998). In

violent disturbance or excessive force situations, courts have applied a “malicious and

sadistic” standard of liability. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986); accord

Lewis, 523 U.S. at 852-53. The defendants have confused these differing standards and their

application to the particular circumstances of the cases cited. The application of the

deliberate indifference standard to the duty of prison officials to protect prisoners from each

other has long been established. The fact that several cases from this Circuit addressing

inmate-on-inmate violence cite Whitley rather than Estelle does not absolve the defendants

from liability. These cases do not cite Whitley for the proposition that the “malicious and

sadistic” test applies to claims involving assaults by other inmates. Instead, these cases cite


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Whitley and its progeny for the proposition that “obdurate and wanton” conduct by prison

officials violates the Eighth Amendment--a point that is entirely consistent with Estelle.

       Nor does the definition of “deliberate indifference” announced by the Supreme Court

in Farmer absolve the defendants from liability. In Berry v. City of Muskogee, 900 F.2d

1489 (10th Cir. 1990) we considered an Eighth Amendment claim by relatives of a prisoner

who had been murdered by fellow inmates. In applying the deliberate indifference standard,

we determined that a prison official acts with deliberate indifference if his conduct disregards

a known or obvious risk that is very likely to result in the violation of a prisoner’s

constitutional rights. 900 F.2d at 1496. Contrary to the argument of the defendants,

subsequent Tenth Circuit decisions did not change or confuse this standard. The Supreme

Court in Farmer rejected this definition of “deliberate indifference.” The standard adopted

by the Court heightened the requirements for a finding of deliberate indifference. This

subsequent change in the law does not create any confusion where the law was well-settled

in the Tenth Circuit prior to it. The change in the law does not benefit the defendants where

the facts support a constitutional violation under both Berry and Farmer. The definition

adopted by the Court in Farmer created a higher standard for the plaintiff to meet.

Accordingly, we do not find that the defendants were entitled to qualified immunity. The

decision of the district court is AFFIRMED.

                                                   Entered for the Court
                                                   Richard D. Rogers
                                                   District Judge


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