                      United States Court of Appeals

                          FOR THE EIGHTH CIRCUIT

                                _____________

                                 No. 95-2013
                                _____________

Robert Don Arnold,                   *
                                     *
     Plaintiff - Appellee,           *
                                     *
     v.                              *
                                     *
Michael Groose, Dave Dormire,        *
Jack Kirk,                           *
                                     *
     Defendants,                     *   Appeal from the United States
                                     *   District Court for the
James Bohannon, James Eberle,        *   Western District of Missouri.
Arthur W. Dearixon,                  *
                                     *
     Defendants - Appellants,        *
                                     *
Robert Faith,                        *
                                     *
     Defendant.                      *


                                _____________

                     Submitted:   January 10, 1996

                           Filed: March 31, 1997
                              _____________

Before LOKEN, REAVLEY,1 and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.


     Robert Don Arnold, a Missouri inmate who is serving a life sentence
without parole for first degree murder at the Jefferson




     1
      The Honorable Thomas M. Reavley, United States Circuit Judge
for the Fifth Circuit, sitting by designation.
City Correctional Center (JCCC), filed this action under 42 U.S.C. § 1983,
alleging, inter alia, that Lieutenant James Bohannon (an officer at JCCC)
conspired with another inmate, Claude Woodard, to kill Arnold, and that
Arthur W. Dearixon (the Chief Investigator at JCCC) and James Eberle (Chief
of Security at JCCC) destroyed evidence of the conspiracy.    A jury returned
a verdict in favor of Arnold against the defendants, and the defendants
appeal.   We reverse and remand.


                                     I.


     Viewing the evidence in the light most favorable to the jury's
verdict, the jury could have found the following facts.


     Arnold was transferred to the JCCC in 1991 and was assigned to
housing unit 2A.   At the time of Arnold's transfer, inmate Claude Woodard,
a reputed prison drug dealer who had "dirt" on two or more guards, was the
clerk of housing unit 2A.    As clerk of the housing unit, Woodard had an
office which had a second, secret, private phone line.       Woodard used the
secret phone for setting up drug deals and communicating with certain
correctional officers.


     Shortly after Arnold arrived, Arnold was appointed as the new housing
unit clerk, replacing Woodard.     Although Woodard had officially lost his
position as the housing unit clerk, he retained his ability to move freely
within the housing unit and to use the secret phone line in the housing
clerk's office.    Arnold overheard some of Woodard's conversations and
learned that a particular officer, defendant Bohannon, was financing
Woodard's drug dealings inside the prison.   Arnold installed a wire tap on
the secret phone line and connected it to a voice-activated tape recorder
in his cell.   Arnold recorded some incriminating telephone conversations




                                      2
between     Woodard   and    Bohannan   and    later,   after      filing   this   lawsuit,
summarized them in a log.


       At some point, Woodard asked Arnold to record some conversations for
him.   Woodard had been terminated from a maintenance job and wanted to lay
the factual foundation for a lawsuit against certain prison officials.
Arnold recorded two conversations relating to Woodard's loss of his prison
job and later transcribed them into his log.


       According      to    Arnold's    testimony      and   his    log,    some   of   the
conversations Arnold taped related to setting up drug transactions.                  During
one phone call, Lieutenant Bohannon allegedly told Woodard, "It's here,"
and then hung up.      (Trial Tr. at 112.)        Arnold himself answered the phone
on the next call and told Bohannon that Woodard had gone to pick up "that
package."     (Id.) Bohannon responded in an angry tone, "What do you know
about it?    Never mind," and hung up.         (Id.)    Bohannon later discussed with
Woodard on the tapped phone the fact that Arnold knew of their dealings and
ordered Woodard to murder Arnold.          (Id. at 114-15.)         All of these alleged
conversations were supposedly recorded on Arnold's tape.


       Upon listening to the recorded conversation in which Woodard and
Bohannan discussed killing him, and knowing that Woodard had plans to kill
another inmate the next morning, Arnold contacted a roving guard and asked
to see someone about the matter.              He was allowed to speak to the watch
commander, who then referred Arnold to appellants Dearixon and Eberle.
Upon hearing Arnold's story and receiving Arnold's tape, Dearixon and
Eberle asked Arnold to give a written statement summarizing the facts and
advised him not to tell anybody about the tape.                    Arnold completed his
written statement and was transferred to segregated housing for his
protection.     So was Woodard.        A day or two later, Arnold was




                                              3
instructed to give another statement, this time making no reference to
Bohannon.     Arnold complied.     At the time of trial, only the second
statement remained in Arnold's file.


     Arnold allegedly had made three copies of the original tape.           He sent
one to the Department of Justice in Washington, D.C., and one to the
Federal Bureau of Investigation in Kansas City.           Arnold was unable to
produce these two copies at the trial.       The custodian of the FBI's records
testified that there was no tape recording of any kind in the FBI's file
containing Arnold's letter, and that there was no mention of any tapes in
Arnold's    letter.   Another    copy,   which   Arnold   had   in   his   personal
possession, was, according to Arnold, confiscated by a different prison
official.     The fourth tape, which Arnold had turned over to Eberle and
Dearixon, was admitted into evidence at trial, and at that time, it
contained only the two, nonincriminating telephone conversations; one
between Woodard and Bohannon regarding Woodard's termination from his
maintenance job, and one between Woodard and the living unit manager on the
same subject.


     During the time Arnold was segregated from the general population for
his protection, he received several letters from Woodard (who was also in
segregation) referring obliquely to taped telephone conversations and
directly to Bohannan, who Woodard described as his "dirty ally."             Arnold
turned over these letters to Dearixon, and they were admitted at trial.


     When Arnold was later released back into the general population,
Woodard began to threaten Arnold's life.      One morning, Woodard and several
other inmates followed Arnold in a tunnel towards an unsupervised corner
of the tunnel where many inmate stabbings have taken place.            One of the
inmates displayed a knife to Arnold.     Arnold feared for his life, but when
the inmates




                                         4
rounded   the   corner,   they   saw   an    officer.     The   would-be    assailants
retreated.


     Arnold filed this cause of action under 42 U.S.C. § 1983, claiming
the appellants had violated his Eighth Amendment right against cruel and
unusual punishment.       The case went to trial, and the jury returned a
verdict in favor of Arnold, assessing $15,000 in compensatory damages
against the appellants.       The appellants moved for an entry of judgment as
a matter of law or, in the alternative, for a new trial.                  The district
court denied the motion, and this appeal followed.


                                         II.


     Although the appellants raise a number of issues, we find dispositive
their argument that the district court committed reversible error in
refusing to admit evidence the appellants sought to use to impeach Arnold.
Due to our reversal and remand for a new trial, the district court may
confront an instructional issue argued by the appellants.                  Thus, as a
matter of prudence, we additionally examine the appellants' claim of
instructional error.


The Evidentiary Ruling


     In an effort to impeach Arnold, the appellants twice sought to admit
portions of Arnold's handwritten pro se pleadings from an earlier suit (No.
91-4571) Arnold had filed arising out of the same nucleus of facts at issue
in this case and which had been consolidated with the action tried (No. 92-
4447).    The district court refused to admit the evidence.                     The first
attempt was during the cross-examination of Arnold when the defendants’
counsel   sought   to   use   Arnold’s      third   amended   complaint    as    a   prior
inconsistent




                                            5
statement.    Arnold’s counsel’s relevancy objection was sustained. With
respect to the second attempt, during the defendants’ case in chief, the
trial transcript does not reveal either the grounds for the objection that
was made by Arnold's counsel or the basis for the court's ruling excluding
the evidence.


           [DEFENDANTS' COUNSEL]: At this time, Your Honor, on the
     question of injury, I want to read four statements that Mr.
     Arnold has written in his own hand filed in this courtroom and
     these are his various and sundry complaints. I just want to
     read the paragraph relating to whether he suffered injury and
     in what manner he suffered an injury because the stories
     because -- four different stories.

           [ARNOLD'S COUNSEL]:   Well, I object to it on several
     grounds and if we could approach the bench, I'd --

             THE COURT:   I'll sustain.    I'm not going to let him read
     it.

           [DEFENDANTS' COUNSEL]: These are admissions and it goes
     directly to his damages. The question of whether he, in fact,
     suffered an injury by virtue of any type of injury, from Claude
     Woodard, goes directly to --

             THE COURT:   Let me see it.

                               BENCH CONFERENCE

           [DEFENDANTS' COUNSEL]:  I'll show you my work product
     which is -- I've got the actual pleadings here.     What you
     basically have is the first time he wrote his statement in
     December of 1991, does never mention the fact that there was
     even a knife. The next time he wrote a statement in July of
     1992, he mentions that there was a threat to use a knife the
     next day.

             [ARNOLD'S COUNSEL]:   What the h--- are these?

           [DEFENDANTS' COUNSEL]: There's an injury only by virtue
     of the terror and fear of immediate death.

           COURT:   Objection be sustained.     I'm not going to let you
     read them.




                                      6
(Trial Tr., Vol. 2, at 116-17.)


     Defendants' counsel was later permitted to make a specific offer of
proof of Arnold's previous written versions of the events at issue, but
neither    Arnold's counsel nor the court added anything at that time
concerning what Arnold's objection was to the proffered evidence or what
the reasons were for the court's exclusion.          (Id. at 155-56.); see Fed. R.
Evid. 103 (a)(2),(b).        The defendants filed a motion for new trial,
claiming    (among   other   things)    that   the   exclusion   of   the   proffered
statements was prejudicial error.       It is only when the district court ruled
on the motion for new trial that the court clarified its ruling, stating
that it found the proffered evidence to be "irrelevant."            (Appellant's App.
at 200.)    At no time during trial was the proffered evidence attacked as
being confusing for the jury under Federal Rule of Evidence 403.                   The
proffered   evidence   consisted   of    Arnold's     handwritten     pleadings   (his
original complaint, his request for a preliminary injunction, and his third
amended complaint), which he had filed in the consolidated case (No. 91-
4571) in the same district court.


     We review a district court's decision to exclude evidence for a
"`clear and prejudicial' abuse of discretion."            Cummings v. Malone, 995
F.2d 817, 823 (8th Cir. 1993).     After carefully reading the entire record
before us, we conclude that the district court's refusal to admit the
proffered evidence in this case was a clear and prejudicial abuse of
discretion.


     This entire case depended on the credibility of Arnold's testimony.
In turn, Arnold's claim of a conspiracy to murder him rests on (1) a tape
that at trial contained only two benign conversations, but at some point
allegedly contained conversations implicating Bohannon in drug dealing and
conspiracy to murder




                                          7
Arnold, and (2) Arnold's log of the conversations the tape had allegedly
contained.    The appellants claim the tape never contained any conversations
about drug deals or about a conspiracy to murder Arnold, because no such
conversations took place.       The appellants also claim Arnold prepared the
"log" out of whole cloth after he filed this action in preparation for this
case.    The determination of whether a conspiracy to murder Arnold existed
turned on whether the jury found Arnold's testimony regarding the taped
conversations and his transcription of their substance to be credible.
Arnold's evidence of the act that put him in fear of imminent death
similarly rests solely on a credibility determination of him, for his only
evidence on this point is his own testimony that Woodard and his friends,
armed with a knife, followed Arnold in the tunnel to a blind corner in an
attempt to murder him.


        The evidence the appellants sought to use to impeach Arnold reveals
the evolving versions of Arnold's story, particularly with respect to the
alleged attempted attack on Arnold in the tunnel.               In Arnold's initial
complaint in No. 91-4571, filed just two months after the alleged attempt
to murder him in the tunnel, Arnold claimed that he had been subjected "to
constant fear of harm by forcing me to go to general population when [the
prison officials] knew there was a problem with another inmate and by
placing me back in the same housing unit with that inmate."             (Appellant's
App. at 29.)      However, in his lengthy rendition of the facts supporting his
initial complaint, he makes no mention of Woodard by name, and absolutely
no mention of Woodard and his friends armed with a knife following him down
the     tunnel.     Neither   is   there   any   mention   of    any   tape-recorded
conversations between Bohannon and Woodard wherein Bohannon ordered Woodard
to kill Arnold.      If in fact those omitted events had indeed occurred, one
would assume they would have been the most important facts to recite in
support of his claim that he had been "subjected to a constant fear of
harm."    There are also




                                           8
discrepancies between the versions about whether the attempted attack took
place in the morning or the evening, and when he reported the threat to
kill him, which leads to the question of whether Arnold is claiming the
foiled attack transpired at the time he was actually in protective custody.
The jury's credibility determination of Arnold's testimony concerning the
attempted attack was of paramount importance, for if the attempt did not
take place, Arnold has failed to state an Eighth Amendment claim.       See
Hopson v. Fredericksen, 961 F.2d 1374, 1378-79 (8th Cir. 1992) (explaining
the "terror of instant and unexpected death" doctrine under Burton v.
Livingston, 791 F.2d 97 (8th Cir. 1986)).


     Arnold's prior written versions of the facts were, for evidentiary
purposes, admissions by a party opponent under Federal Rule of Evidence
801(d)(2)(A).   They were offered against Arnold, a party opponent, and they
were his own handwritten statements submitted earlier to the court, at
least the first of which was made under penalty of perjury.     Contrary to
the district court's view, we believe the excluded admissions were relevant
because they were inconsistent both with Arnold's later version contained
in his handwritten complaint in No. 92-4447 and with his trial testimony.
To have evidentiary value for its inconsistency, the contradiction need not
be direct.    "The cases have developed a standard of minimal inconsistency,
under which almost any divergence will suffice to permit use of the prior
statement."     4 Jack B. Weinstein & Margaret A. Berger, Weinstein's
Evidence, ¶ 801(d)(1)(A)[01], at 801-142 (1996).      "It is enough if the
proffered [statement] taken as a whole, either by what it says or by what
it omits to say, affords some indication that the fact was different from
the testimony of the witness whom it is sought to contradict."       United
States v. Barrett, 539 F.2d 244, 254 (1st Cir. 1976) (quoting Commonwealth
v. West, 45 N.E.2d 260, 262 (Mass. 1942)) (emphasis added); accord Kenneth
S. Broun, et al., McCormick on Evidence




                                      9
§ 34, at 46 (John William Strong, ed., 4th ed. 1992) ("Accordingly, if the
former statement fails to mention a material circumstance presently
testified to, which it would have been natural to mention in the prior
statement, the prior statement is sufficiently inconsistent."); C. Mueller
& L. Kirkpatrick, 4 Federal Evidence § 402, at 164 (2d ed. 1994) (The
requirement of inconsistency is satisfied “if one includes a point that the
other omits or if one is pointed and specific while the other is qualified
and general.").   Arnold's prior pleadings fit that test.   Cf. United States
v. Bigham, 812 F.2d 943, 946 (5th Cir. 1987).


     Arnold argues that the various versions of the alleged events are not
inconsistent but are compatible, and therefore, the district court properly
concluded that their probative value is substantially outweighed by the
danger of confusing the jury.   We respectfully disagree, first, because the
trial court did not rest its decision on confusion but rather on relevancy,
and second, if the versions are compatible and not inconsistent, the
prospects for confusion are lessened, not heightened.       In our view, the
excluded evidence was highly probative and relevant to the credibility
determinations on which this case depended.     After hearing how little of
the presently submitted facts exists in the earlier versions of Arnold's
story, a reasonable jury could well question the veracity of Arnold's
testimony in this case.     Although we agree with Arnold's counsel that
comparing the facts recited in the pleadings of Arnold's other lawsuit to
those of this case could be somewhat confusing, this confusion stems
principally from the discrepancies in Arnold's story -- which is precisely
why the evidence is highly probative of his credibility.    We hold that any
potential confusion resulting from the admission of portions of the pro se
pleadings from Arnold's other suit does not substantially outweigh the
extremely high probative value of the evidence, see Rule 403, and the
district court's refusal to admit the prior




                                     10
versions as admissions was a clear and prejudicial abuse of discretion.
Cf. Cummings, 995 F.2d at 825 (finding that a district court abused its
discretion by refusing to admit evidence of prior inconsistent statements
based on confusion under Rule 403 when the credibility of the witness was
paramount to the case).    Accordingly, we reverse the jury's verdict in
favor of Arnold and remand for a new trial.


JURY INSTRUCTIONS


     We now address the instructional issue the appellants have raised.
The appellants contend that the district court erred by failing to instruct
the jury that the appellants must have acted "maliciously and sadistically"
in order to be liable.    The district court rejected this instruction,
reasoning that an instruction on intent to murder includes, by it own
terms, a malicious and sadistic intent.


     The district court instructed the jury that in order to find Bohannan
liable, it had to find:


     First, the defendant Bohannan and inmate Woodard had a mutual
     understanding; and second, the purpose of the mutual
     understanding between defendant Bohannan and Inmate Woodard was
     to murder the plaintiff; and third, that either defendant
     Bohannan or Inmate Woodard did act in furtherance of the
     conspiracy to murder the plaintiff. And fourth, as a direct
     result, the plaintiff suffered terror of instant and unexpected
     death sufficient to cause him injury.


(Trial Tr. at 2-160 to -61.)   The court further instructed the jury that
it should find Eberle liable only if it concluded:




                                    11
      First, defendant Eberle knew of the conspiracy to kill
      plaintiff; and second, defendant Eberle acted in furtherance of
      this conspiracy by destroying a portion of the tape; and third,
      that as a direct result the plaintiff suffered terror of
      instant and unexpected death sufficient to cause him injury.


(Id. at 161.)       The court gave an identical jury instruction concerning
Dearixon's potential liability, except that the instruction used Dearixon's
name instead of Eberle's.     (See id. at 161-62.)


      "A district court has broad discretion when framing jury instructions
. . . ."     Howard v. Barnett, 21 F.3d 868, 871 (8th Cir. 1994).             That
discretion is abused when the instructions as a whole do not "accurately
and adequately state the applicable law."        United States v. Clapp, 46 F.3d
795, 803 (8th Cir. 1995).


      Although in his final pleadings Arnold clearly alleges a violation
of   the   Eighth    Amendment's   prohibition    against   "cruel   and   unusual
punishment," and he clearly alleges a conspiracy to murder him, the record
is decidedly unclear as to whether this suit was tried as a failure-to-
protect case or as an excessive-force case.        The nature of the prisoner's
Eighth Amendment claim dictates the state of mind in which the appellants
must have acted in order to find them liable.        For example, in a failure-
to-protect case, the jury must find that the appellants were deliberately
indifferent in failing to protect the prisoner plaintiff from harm.         Farmer
v. Brennan, 114 S. Ct. 1970, 1977 (1994).           In an excessive force case,
however, the relevant question is generally whether the prison officers
applied (or in this case, attempted to apply) force "in a good faith effort
to maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm."       Whitley v. Albers, 475 U.S. 312, 320-21
(1986).    We have held that jury




                                       12
instructions in excessive force cases must include both the "malicious" and
the "sadistic" elements.   Howard, 21 F.3d at 872.


     This case does not fit neatly into either of the above categories.
It would indeed be a gross understatement to call an alleged conspiracy to
murder someone a "failure to protect" that person.       Yet, although the
alleged facts of this case actually describe an attempted use of excessive
force by a prison official using an inmate as his agent, the case did not
arise in a disciplinary context where "competing obligations" justify the
heightened requirements set out in Whitley.    See Whitley, 320-21 (1986)
(explaining the competing institutional concerns for safety of prison staff
or other inmates necessitating the heightened standard); see also Wright
v. Jones, 907 F.2d 848, 851 (8th Cir. 1990) (noting the Whitley standard
is not applicable when the defendants have not identified a competing
obligation justifying the heightened requirement).   Because we find in this
record no allegations of competing obligations supporting the use of the
heightened standard, and in fact the allegations in this case do not arise
in a disciplinary context, we conclude that the deliberate indifference
standard is appropriate for this case. Here, when prison officials are
alleged to have conspired to murder an inmate for their own personal (as
opposed to institutional or penological) purposes in order to cover up
illicit activities by one of them, those allegations, if proved at trial,
would suffice to show that the defendants were “deliberately indifferent”
to the safety of the plaintiff.     Thus, under the facts as alleged and
tried, the district court did not abuse its discretion in refusing to
include the "malicious" and "sadistic" elements in the jury instructions.




                                    13
     We have considered the appellants' remaining arguments, and find them
either mooted by the reversal and remand for a new trial or lacking in
merit.   We also find the motion to supplement the record to be mooted by
our reversal and remand.


                                  III.


     For the foregoing reasons, we reverse and remand for a new trial in
accordance with this opinion.


     A true copy.


            Attest:


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




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