                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3087
                                    ___________

Ben Krein,                                   *
                                             *
             Plaintiff-Appellee,             *
                                             *
      v.                                     *
                                             *
Larry Norris, Director of the Arkansas       *
Department of Correction, individually       *
and in his official capacity; David          *
Guntharp, Deputy Director of the             *
Arkansas Department of Correction,           *
individually and in his official capacity;   *
John Belken, Assistant Warden of the         *
North Central Unit, individually and         *
in his official capacity (originally sued    *
as John Belkins); Robert Perry, Major,       *
individually and in his official capacity;   *   Appeal from the United States
Bill Killian, Col., individually and in      *   District Court for the
his official capacity; David Beatty,         *   Eastern District of Arkansas
Lieutenant, individually and in his          *
official capacity; Jackie Goggins,           *
Sergeant, individually and in his            *
official capacity; Larry May, Warden         *
of the North Central Unit, Arkansas          *
Department of Correction, individually       *
and in his official capacity,                *
                                             *
             Defendants-Appellants.          *
                                             *
Susan Jill Miller, Nurse Practioner,         *
Correctional Medical Services, Inc.,         *
Individually and in her official            *
capacity (originally sued as S. Jill        *
Miller); Gerrold Wood, Nurse,               *
Correctional Medical Services,              *
Inc., individually and in his               *
official capacity (originally sued          *
as Glen Woods),                             *
                                            *
      Defendants.                           *
                                       ___________

                              Submitted: March 11, 2002

                                   Filed: October 16, 2002
                                    ___________

Before McMILLIAN, HEANEY, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       Arkansas inmate Ben Krein (hereinafter “plaintiff”) brought this prisoner civil
rights action pursuant to 42 U.S.C. § 1983 in the United States District Court for the
Eastern District of Arkansas. Larry Norris, the Director of the Arkansas Department
of Corrections (“ADC”) and other ADC officials and staff (hereinafter collectively
“defendants”) now appeal from an order of the district court1 denying their motion for
summary judgment on plaintiff’s claim alleging that, by failing to provide adequate
security, defendants were “deliberately indifferent” to a known risk of harm to
inmates, in violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment. Krein v. Norris, No. 1:98CV00124 (E.D. Ark. Aug. 24, 2001)


      1
       The Honorable Susan Webber Wright, Chief United States District Judge for
the Eastern District of Arkansas.

                                           -2-
(hereinafter “District Court Order”). For reversal, defendants argue that the district
court erred in failing to hold that they are entitled to judgment as a matter of law on
their qualified immunity defense because plaintiff may not, as a matter of law, recover
money damages for injuries resulting from a “surprise attack” by another inmate.

      This is the second time this matter has come before us on interlocutory appeal.
The first time, we dismissed the appeal for lack of jurisdiction. See Krein v. Norris,
250 F.3d 1184, 1186 (8th Cir. 2001).

       Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331,
1343. The notice of appeal was timely filed pursuant to Fed R. App. P. 4(a). As more
fully explained below, we now have limited jurisdiction over the present appeal based
upon 28 U.S.C. § 1291 and the collateral order doctrine. To the limited extent we
have jurisdiction, we affirm the order of the district court.

                                     Background

       On January 6, 1998, while plaintiff was sleeping in Barracks #1 of ADC’s
North Central Unit (“NCU”), plaintiff was attacked by another inmate, Michael
Pruett, who was also housed in Barracks #1 at that time. As a result of the attack,
plaintiff sustained a broken jaw. He filed the present action in federal district court,
asserting several claims, including an Eighth Amendment deliberate indifference
claim. He requested damages, among other forms of relief. Defendants moved for
summary judgment on the basis of qualified immunity and other grounds. Upon the
recommendation of a magistrate judge, the district court granted partial summary
judgment for defendants and dismissed all but plaintiff’s Eighth Amendment
deliberate indifference claim. Defendants then filed an interlocutory appeal, arguing
that the deliberate indifference claim should also have been dismissed based upon
qualified immunity. Upon review, we dismissed that appeal for lack of appellate
jurisdiction because “there ha[d] been no decision, conclusive or otherwise, rendered

                                          -3-
below on the disputed question of qualified immunity.” Krein v. Norris, 250 F.3d at
1188.

       On remand, defendants renewed their qualified immunity argument in the
district court, and the matter was again submitted to the magistrate judge for initial
consideration. This time, the magistrate judge recommended dismissal of the
deliberate indifference claim, reasoning that plaintiff had essentially alleged that he
was the victim of a “surprise attack,” and thus defendants were entitled to qualified
immunity as a matter of law. See Krein v. Norris, No. 1:98CV00124, slip op. at 5-6
(E. D. Ark. Aug. 3, 2001) (Proposed Findings and Recommendation) (citing cases).

       Upon review, the district court did not fully adopt the magistrate judge’s
recommendation. The district court agreed with the magistrate judge that plaintiff’s
deliberate indifference claim would fail as a matter of law “if a surprise attack by
[Pruett] were plaintiff’s theory of recovery.” See District Court Order at 1. However,
the district court noted, plaintiff’s deliberate indifference claim was primarily based
upon allegations of inadequate security, not the attack itself. The district court
continued: “Prison officials may be found liable under the Eighth Amendment if they
know of and disregard an excessive risk to inmate health and safety.” Id. at 1-2
(citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

       Upon examination of the record before it (including affidavits of other inmates,
the affidavit of a security officer who worked in the NCU at the time plaintiff was
attacked, and the affidavit of a prison security expert), the district court determined
that there was evidence in the record to support the following assertions: defendants’
failure to abide by staffing requirements created an environment which posed a risk
of harm to all inmates housed in the barracks area; the NCU had one guard for three
barracks housing 150 inmates; defendants were or should have been aware of an
inadequate staffing problem as early as August 1997 and yet they had made no
staffing changes as of January 1998, when the attack occurred; the level of violence

                                         -4-
in Barracks #1 was five times that of any other NCU barracks and yet staffing
adjustments were not made to address the disparity; the number of isolation cells was
inadequate; and ADC failed to keep track of the number and locations of assaults
occurring within the NCU. Id. at 2.

       The district court thus concluded: “plaintiff has asserted the violation of a
constitutional right; the right is clearly established; and the record, viewed in the light
most favorable to plaintiff, shows genuine issues of material fact as to whether a
reasonable official would have known that his course of conduct violated that right.”
Id. Accordingly, the district court denied defendants’ motion for summary judgment
based on qualified immunity, and this second interlocutory appeal followed.

                                       Discussion

       As a threshold matter, we must again begin by considering whether or not we
have interlocutory appellate jurisdiction. As a general rule, non-final orders, such as
denials of motions for summary judgment, may not be raised on interlocutory appeal.
However, under the collateral order doctrine, a small class of orders (which includes
some orders denying summary judgment based on qualified immunity) is exempt
from that general rule. See Krein v. Norris, 250 F.3d at 1187. As indicated above,
the first time this case came before us on interlocutory appeal, defendants asserted
jurisdiction based upon their qualified immunity defense, but we dismissed that
appeal because the district court had not specifically and conclusively ruled on the
issue of qualified immunity. See id.

       This time, the district court has specifically ruled on the qualified immunity
issue. However, that still does not end our jurisdictional inquiry. For our present
purposes, we must now determine whether or not we have interlocutory appellate
jurisdiction in light of the Supreme Court’s mandates in Johnson v. Jones, 515 U.S.
304 (1995). In so doing, we separately consider the two distinct holdings of the

                                           -5-
district court: (1) that “plaintiff has asserted the violation of a constitutional right
[and] the right is clearly established” and (2) that “the record, viewed in the light most
favorable to plaintiff, shows genuine issues of material fact as to whether a reasonable
official would have known that his course of conduct violated that right.” District
Court Order at 2.

Interlocutory appellate jurisdiction: clearly established constitutional right

       We first consider whether or not we have interlocutory appellate jurisdiction
to review the district court’s holding that “plaintiff has asserted the violation of a
constitutional right [and] the right is clearly established.” Id. In Johnson v. Jones,
the Supreme Court discussed in great detail the scope of interlocutory appellate
jurisdiction in qualified immunity cases. Quoting Mitchell v. Forsyth, 472 U.S. 511,
528 n.9 (1985), the Supreme Court explained that a district court’s order addressing
qualified immunity at the summary judgment stage may be reviewed on interlocutory
appeal where the issue is “‘a purely legal one: whether the facts alleged (by the
plaintiff, or, in some cases, the defendant) support a claim of violation of clearly
established law.’” Johnson v. Jones, 515 U.S. at 313. More specifically, a court of
appeals may consider on interlocutory appeal “whether the plaintiff has alleged the
deprivation of an actual constitutional right at all” and “whether that right was clearly
established at the time of the alleged violation.” Wilson v. Layne, 526 U.S. 603, 609
(1999). We now consider those questions of law de novo.

Deliberate indifference claim

       Defendants argue that the district court erred in determining that plaintiff has
asserted a violation of a clearly established constitutional right. Because it is
undisputed in the present case that neither plaintiff nor defendants actually knew that
Pruett would attack plaintiff, defendants characterize plaintiff’s Eighth Amendment
deliberate indifference claim as one based upon a “surprise attack.” Therefore,

                                           -6-
defendants argue, plaintiff’s deliberate indifference claim is barred as a matter of law
under this court’s precedents. See Brief for Appellants at 11 (citing Prosser v. Ross,
70 F.3d 1005, 1007 (8th Cir. 1995)). See also Tucker v. Evans, 276 F.3d 999, 1001
(8th Cir. 2002) (“We have held in several cases that qualified immunity for prison
officials is appropriate when an Eighth Amendment failure-to-protect claim arises
from inmate injuries resulting from a surprise attack by another inmate.”) (citing
cases).

       In Prosser v. Ross, 70 F.3d at 1007-08, this court noted that the plaintiff’s
allegations in that case – other than those which were pure conjecture – amounted to
nothing more than a claim that the defendant, a prison guard, had simply failed to
prevent or to intervene in an unforeseeable inmate attack. By contrast, plaintiff in the
present case has specifically alleged that, “by failing to provide adequate security in
an open barracks,” defendants were deliberately indifferent to a risk of harm to
plaintiff. See Appellant’s Appendix at 26 (Second Amended Complaint, ¶ 26).
Moreover, plaintiff’s evidence at the summary judgment stage supported the
allegations that, at the time he was attacked by Pruett, defendants objectively and
subjectively knew of, and deliberately disregarded, an excessive risk of harm to
inmate health and safety in Barracks #1. Thus, as the district court recognized,
plaintiff’s claim does not “arise from” Pruett’s attack per se, but arises from
plaintiff’s substantiated allegation that defendants were deliberately indifferent to a
known substantial risk that such an attack would occur. The district court therefore
did not err in declining to grant summary judgment under our “surprise attack” line
of cases. Cf. Tucker v. Evans, 276 F.3d at 1003 (reversing denial of summary
judgment based on qualified immunity where the plaintiff’s claim was based upon a
surprise attack and “there [was] no evidence in the record demonstrating that [the
prison officials] knew of and deliberately disregarded an excessive risk to inmate
health or safety”).




                                          -7-
        In Farmer v. Brennan, 511 U.S. at 828, the Supreme Court held that “[a] prison
official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.” The Supreme Court further explained that such
deliberate indifference exists if “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. The Supreme Court also made clear in Farmer
v. Brennan, id. at 843, that, in order to have a viable deliberate indifference claim, a
plaintiff is not required to allege and prove that the defendant or defendants
specifically knew about or anticipated the precise source of the harm (in this case,
Michael Pruett). The Court explained: “Nor may a prison official escape liability for
deliberate indifference by showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that the complainant was especially likely to
be assaulted by the specific prisoner who eventually committed the assault.” Id.2

      This is not to say that defendants’ lack of knowledge of Pruett’s particular
dangerousness is entirely irrelevant to the present case. On the contrary, the fact that
defendants were unaware of the precise danger is relevant to defendants’ subjective
knowledge of the overall risk, which is an element of plaintiff’s Eighth Amendment
claim. All we are saying at this point is: assuming the truth of plaintiff’s


      2
          The Supreme Court gave the following example:

      If, for example, prison officials were aware that inmate rape was so
      common and uncontrolled that some potential victims dared not sleep
      but instead would leave their beds and spend the night clinging to the
      bars nearest the guards’ station, it would obviously be irrelevant to
      liability that the officials could not guess beforehand precisely who
      would attack whom.

Farmer v. Brennan, 511 U.S. 825, 843 (1994) (internal quotation marks, brackets,
ellipsis, and citation omitted).

                                          -8-
substantiated allegations, he has sufficiently alleged a deliberate indifference claim,
and defendants’ lack of knowledge that the particular attack would occur does not
extinguish the legal existence of his claim.

       We also reject defendants’ additional argument that plaintiff’s deliberate
indifference claim cannot be sustained because the only remedy still available to him
is monetary damages.3 A violation of the Eighth Amendment right recognized in
Farmer v. Brennan may be the basis for an award of money damages as well as
injunctive relief. See, e.g., Newman v. Holmes, 122 F.3d 650 (8th Cir. 1997)
(affirming judgment awarding monetary damages to two inmates who were attacked
by another inmate, on their claim that the defendant, a corrections officer, was
deliberately indifferent to an excessive risk of harm to them, in violation of their
Eighth Amendment rights). This court explained:

      In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court
      confirmed that a prison official violates the Eighth Amendment if he is
      deliberately indifferent to the need to protect an inmate from a
      substantial risk of serious harm from other inmates. . . . [D]eliberate
      indifference in this context means actual intent that the inmate be
      harmed, or knowledge that harm will result, or reckless disregard of a
      known excessive risk to inmate health and safety.

Id. at 652 (emphasis added).

       In sum, upon de novo review, we affirm the district court’s holding that
plaintiff has alleged the deprivation of a clearly established constitutional right.




      3
       The district court dismissed plaintiff’s claims for injunctive, declaratory, and
other equitable relief because he had been released from custody. Krein v. Norris,
1:98CV00124 (E.D. Ark. June 29, 2001).

                                         -9-
Interlocutory appellate jurisdiction: genuine issues of material fact

       Finally, we consider whether or not we have interlocutory appellate jurisdiction
to review the district court’s holding that “the record, viewed in the light most
favorable to plaintiff, shows genuine issues of material fact as to whether a reasonable
official would have known that his course of conduct violated that right.” District
Court Order at 2. This holding reflects the district court’s conclusion that the record
before it contained sufficient evidence to create a genuine issue – or, in other words,
a triable issue – of material fact regarding defendants’ qualified immunity defense.

       As we noted in our first panel opinion, while the Supreme Court has repeatedly
emphasized the importance of deciding qualified immunity issues at the earliest
possible stage of litigation, not all qualified immunity issues may be decided on
summary judgment. Krein v. Norris, 250 F.3d at 1188. Indeed, summary judgment
is not appropriate when there is a genuine issue of material fact surrounding the
question of the plaintiff’s or a defendant’s relevant conduct – because, under those
circumstances, the court cannot determine as a matter of law what predicate facts
exist in order to decide whether or not the defendant’s conduct violated clearly
established law. Id. (quoting Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993)).
Regarding the jurisdictional implications of this type of an “evidence sufficiency”
holding on interlocutory appeal, we are again guided by the Supreme Court’s opinion
in Johnson v. Jones, 515 U.S. at 313 (“We now consider the appealability of a portion
of a district court’s summary judgment order that, though entered in a ‘qualified
immunity’ case, determines only a question of ‘evidence sufficiency,’ i.e., which facts
a party may, or may not, be able to prove at trial.”). Faced with this difficult
jurisdictional question, the Supreme Court concluded: “This kind of order . . . is not
appealable.” Id. The Court explained:

      We recognize that, whether a district court’s denial of summary
      judgment amounts to (a) a determination about pre-existing “clearly

                                         -10-
      established” law, or (b) a determination about “genuine” issues of fact
      for trial, it still forces public officials to trial. And, to that extent, it
      threatens to undercut the very policy (protecting public officials from
      lawsuits) that (the Mitchell Court held) militates in favor of immediate
      appeals. Nonetheless, the countervailing considerations that we have
      mentioned (precedent, fidelity to statute, and underlying policies) are too
      strong to permit the extension of Mitchell to encompass appeals from
      orders of the sort before us [i.e., orders holding that there is a genuine
      issue of material fact for trial].

See id. at 314-18.

       Accordingly, in the present case, to the extent defendants appeal the district
court’s holding that there remain genuine issues of material fact, and to the extent that
they challenge the sufficiency of plaintiff’s evidence to support that conclusion,4 we
hold that we lack interlocutory appellate jurisdiction. Accord Moore v. Duffy, 255
F.3d 543, 545 (8th Cir. 2001) (dismissing interlocutory appeal for lack of jurisdiction
where the defendant in a § 1983 prisoner civil rights action appealed “only the district
court’s determination that ‘the pretrial record sets forth a “genuine” issue of fact for
trial’”) (citing Johnson v. Jones, 515 U.S. at 320).

                                      Conclusion

      For the reasons stated, the order of the district court is affirmed in part, and the
appeal is dismissed in part. The matter is remanded to the district court for further
proceedings consistent with this opinion.




      4
       For example, defendants argue that “[t]his case is not a situation in which
assaults were so long-standing, pervasive, and well-documented that the Defendants
must have known that inmate Krein was in danger from inmate Pruett.” Brief for
Appellants at 15-16.

                                          -11-
A true copy.

      Attest:

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




                          -12-
