                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1429
                       ___________________________

                           Tim Axelson, ADC #97108

                       lllllllllllllllllllllPlaintiff - Appellee

                                          v.

Randall Watson, Warden, Varner Unit; Moses Jackson, Assistant Warden, Varner
Unit; Floria Washington, Classification Officer, Varner Unit (originally named as
      F. Washington); Kennie Bolden, Major/Chief of Security, Varner Unit

                     lllllllllllllllllllllDefendants - Appellants

 Ashlee Shabazz, Sergeant, 8 Bks Varner Unite (originally named as Shabazz);
     Mark Stephens, Captain, Varner Unit (originally named as Stephens)

                            lllllllllllllllllllllDefendants

  William Conner, Captain, Varner Unit (originally named as Conner); Telicia
      Mothershed, Officer, Varner Unit (originally named as Mothershed)

                     lllllllllllllllllllllDefendants - Appellants

Jane Doe, Grievance Officer, Varner Unit; John Does, Officers 1-6, Varner Unit;
  Myheisia Jones, Corporal; Travis Goins, Officer; Larry Louis, Officer; Gary
                              Williams, Officer

                            lllllllllllllllllllllDefendants

                               John Rogers, Officer

                      lllllllllllllllllllllDefendant - Appellant
   Deborah Andrews, Corporal; Chester Rayford, Officer; Shondreka Cooper,
Corporal; James Plummer; Freddie L. Gibson, Sergeant (originally named as Gibson)

                             lllllllllllllllllllllDefendants
                                     ____________

                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                           Submitted: December 7, 2018
                            Filed: December 28, 2018
                                  [Unpublished]
                                  ____________

Before KELLY, GRASZ, and STRAS, Circuit Judges.
                           ____________

PER CURIAM.

       In this 42 U.S.C. § 1983 action, Arkansas inmate Tim Axelson sued several
Arkansas Department of Correction (ADC) Varner Unit officials, claiming that they
failed to protect him from attacks by other inmates. Defendants appeal the district
court’s1 interlocutory order denying their motion for summary judgment based on
qualified immunity, arguing that the district court erred in considering affidavits by
other Varner inmates; concluding there were genuine factual disputes as to whether
Varner was adequately staffed, given the unit’s accreditation by the American



      1
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Beth M. Deere, United States Magistrate Judge for the Eastern District of
Arkansas.

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Correctional Association (ACA); and declining to distinguish the facts of this case
from those in Krein v. Norris, 309 F.3d 487 (8th Cir. 2002).

       In an appeal from an interlocutory order2 denying qualified immunity, this
Court’s jurisdiction is limited to reviewing abstract issues of law, which include
whether the district court erred in relying on inadmissible evidence, see Jones v.
McNeese, 746 F.3d 887, 899 (8th Cir. 2014); and whether the facts the district court
found properly supported at summary judgment constituted a violation of a clearly
established constitutional right, see Shannon v. Koehler, 616 F.3d 855, 860-62 (8th
Cir. 2010). However, this Court lacks jurisdiction over an interlocutory order
denying qualified immunity when the denial was premised on the district court’s
finding of a material factual dispute. See Raines v. Counseling Assocs., Inc., 883 F.3d
1071, 1074 (8th Cir. 2018). This Court reviews the district court’s qualified
immunity determination de novo, viewing the record in the light most favorable to
Axelson, drawing all reasonable inferences in his favor, and accepting as true the
facts the district court found sufficiently supported, to the extent they are not blatantly
contradicted by the record. See Thompson v. City of Monticello, 894 F.3d 993, 997-
98 (8th Cir. 2018); Shannon, 616 F.3d at 861-62.

       Initially, we conclude that the district court permissibly relied on the inmate
affidavits. See Fed. R. Civ. P. 56(c)(4) (requirements for affidavits submitted in
opposition to motion for summary judgment); Fed. R. Evid. 401 (defining relevant
evidence); Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018) (to prevail on
failure-to-protect claim, inmate must show that there was substantial risk of harm to
inmate, and that prison official was deliberately indifferent to that risk).




      2
        Although the order on appeal is interlocutory, we treat it as a final decision
under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). As a
result, the defendants’ appeal was timely.

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       We further conclude that this Court lacks jurisdiction to review defendants’
challenge to the district court’s determination that there was a “dispute of material
fact as to the staffing conditions at the times Axelson was attacked,” as that
determination was not plainly foreclosed by the evidence in the record. See Raines,
883 F.3d at 1074 (this Court lacks jurisdiction when denial of qualified immunity was
premised on district court’s determination of material factual dispute, unless
determination was plainly foreclosed by record). We also note that Varner’s ACA
accreditation and purported compliance with ACA’s minimum standards did not
establish, as a matter of law, that the unit was staffed according to the requirements
of the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (while
ACA’s recommendations may be instructive, “they simply do not establish the
constitutional minima”).

       Finally, we conclude that the district court correctly declined to distinguish
Krein because the facts the court found sufficiently supported — if credited by a trier
of fact — could support a reasonable inference that defendants were deliberately
indifferent to a substantial risk of harm to Axelson. See Krein, 309 F.3d at 489-92
(defendants were not entitled to qualified immunity where record showed that prison
had one guard for 150 inmates in three barracks, defendants should have been aware
of inadequate staffing yet made no staffing changes, level of violence in barracks was
five times that of any other barracks, ADC failed to maintain records of assaults, and
defendants’ failure to abide by staffing requirements created environment that posed
risk of harm to all inmates in prison barracks); see also Smith v. Ark. Dep’t of Corr.,
103 F.3d 637, 644-45 (8th Cir. 1996) (Eighth Amendment requires prison officials
to take reasonable steps to protect inmates from violence by fellow inmates); cf.
Patterson, 902 F.3d at 852-53 (distinguishing Krein where record lacked evidence
justifying inference that defendants subjectively disregarded substantial risk of harm
to inmate).




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       Accordingly, we dismiss this appeal to the extent defendants challenge the
district court’s finding of a material factual dispute, and affirm in all other respects.
                         ______________________________




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