                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 14 1999
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 LARRY DARNELL SIMS,

                Plaintiff - Appellee,                   No. 98-1476
          v.                                           (D. Colorado)
 DEPUTY SCHAAD,                                     (D.C. No. 96-Z-141)

                Defendant - Appellant,

          and
 JOHN W. ANDERSON, Sheriff;
 DEPUTY BEARGA; R. JOHNSON,
 Deputy; MARK MILLER, Deputy;
 SERGEANT ZAIN; CAPTAIN
 SANTIAGO; DEPUTY
 CHRISTENSEN,

                Defendants.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Larry Darnell Sims is a Colorado state prisoner incarcerated at the

Arrowhead Correctional Facility. Prior to his placement at the Arrowhead

facility, he was incarcerated at the El Paso County Criminal Justice Center (CJC).

Proceeding pro se, 1 Sims brought this 42 U.S.C. § 1983 action, alleging that

defendants, as employees of the CJC or of the El Paso County Sheriff’s

Department, violated his federal constitutional rights under the Eighth and

Fourteenth Amendments. Defendants moved for summary judgment, claiming

qualified immunity or lack of personal involvement. The district court granted

the motion as to all claims and defendants, except as to Deputy Schaad. Schaad

now appeals from the district court’s denial of his motion for summary judgment.

He contends that the district court erred in failing to find that he was entitled to

qualified immunity as a matter of law. We affirm in part and dismiss in part.




      After Sims filed his verified complaint, the district court sought volunteer
      1

counsel for Sims, and eventually volunteers were appointed. The volunteer
counsel have represented Sims in all subsequent proceedings and pleadings.

                                          -2-
                                  BACKGROUND

      In his verified complaint, Sims alleges that, on October 19, 1995, while he

was incarcerated at the CJC on ward 2-D-2, he was attacked in his cell, severely

beaten, and almost killed by inmate Javan Gadlin. He also alleges that, prior to

the attack, he had informed Schaad, who was the deputy on duty, that “all day that

morning and afternoon,” “Gadlin had been making threats to do him serious

harm.” Appellee’s Br., Ex. 1 at 2. According to the complaint, “Schaad did

nothing but say to inmate Sims in the way of ‘I am busy or something.’” Id.

Then, despite the warning, Schaad left the ward for more than three hours,

“only . . . return[ing] to check on the status of the cell doors, to see if they were

either open or closed.” Id. Sims further complained that, during the period the

attack was actually occurring, “Schaad [failed] to investigate the crowd in front of

[Sims’] cell.” Id. at 3. Schaad denies having been informed of the threats.

Appellant’s App. at 178.

      After the summary judgment motion and response were filed, the matter

was referred to a magistrate judge who recommended dismissal of all claims and

defendants except the above-stated claim against Schaad for the Eighth

Amendment violation. Id. at 214-22. Noting Sims’ claim that he had informed

Schaad of the threats, but Schaad did nothing to protect Sims from those known

threats, the magistrate judge concluded that Schaad was not entitled to qualified


                                          -3-
immunity at the summary judgment stage. Id. at 218. Defendants filed a “Notice

of Appeal” of the magistrate judge’s order as to Schaad. They argued that the

magistrate judge erred in considering the conclusory allegations of the complaint

as sufficient to establish the fact of notice to Schaad. Additionally, the

defendants contended that even if Schaad had been notified of the threat, the

conditions did not pose a substantial risk of serious harm, and, at most, the facts

demonstrated negligence rather than deliberate indifference. Upon de novo

review, the district court adopted the magistrate judge’s recommendation. Schaad

then brought this appeal.



                                   DISCUSSION

      Qualified immunity generally shields public officials from suit if their

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); Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997). Once a

defendant raises a qualified immunity defense, the burden shifts to the plaintiff to

demonstrate that the defendant’s actions violated a clearly established

constitutional right. See Guffey v. Wyatt, 18 F.3d 869, 871 (10th Cir. 1994); see

also Siegert v. Gilley, 500 U.S. 226, 232 (1991).




                                          -4-
        The law regarding Sims’ Eighth Amendment claim was clearly established

at the time of the alleged actions. Farmer v. Brennan, 511 U.S. 825, 833 (1994)

(noting that the Eighth Amendment imposes a duty upon prison officials to

protect prisoners in custody from violence at the hands of other prisoners);

Northington v. Marin, 102 F.3d 1564, 1567-68 (10th Cir. 1996); Grimsley v.

MacKay, 93 F.3d 676, 679 (10th Cir. 1996). However, not every injury caused to

one inmate by another inmate results in Eighth Amendment liability for prison

officials responsible for the inmates’ safety. Farmer, 511 U.S. at 834. In order to

prove an Eighth Amendment violation, the plaintiff must establish that “(1) he is

incarcerated under conditions posing a substantial risk of serious harm, and (2)

prison officials acted with a sufficiently culpable state of mind, known as

‘deliberate indifference.’” Grimsley, 93 F.3d at 681 (citing Farmer, 511 U.S. at

834).

        We review de novo the district court’s ruling on summary judgment.

Taylor v. Meacham, 82 F.3d 1556, 1559 (10th Cir. 1996). As an initial matter, we

must determine whether Schaad may bring this interlocutory appeal of the denial

of summary judgment on the issue of qualified immunity. Under the standard set

forth in Johnson v. Jones, 515 U.S. 304 (1995), and Behrens v. Pelletier, 516 U.S.

299 (1996), if the district court determined that the law allegedly violated by the

defendant was clearly established at the time of the challenged actions, that ruling


                                         -5-
is immediately appealable. Similarly, a determination that the facts taken in the

light most favorable to the nonmoving party demonstrate a violation of clearly

established law is also immediately appealable. See Behrens, 516 U.S. at 313;

Johnson, 515 U.S. at 312-14; Foote, 118 F.3d at 1422. However, to the extent the

district court’s order decides nothing more than whether the evidence could

support a finding that particular conduct occurred, government officials cannot

bring an interlocutory appeal of a pretrial denial of qualified immunity. See

Behrens, 516 U.S. at 313.

      Schaad does not contend that the law was not clearly established. Rather,

he complains that the district court erred (1) by failing to address whether the

alleged facts establish conditions of incarceration which pose a substantial risk of

serious harm; and (2) by finding that a genuine issue of material fact precluded

summary judgment on the issue of whether his conduct violated clearly

established law. 2



      2
        In part, Schaad attempts to frame this second issue as a purely legal
question, arguing that the alleged facts do not establish a constitutional violation.
Thus, he contends that an Eighth Amendment violation can be found only if there
are repeated warnings, and that, as a matter of law, Sims’ allegation that he told
Schaad about the threats to his safety (presumably only once) is insufficient to
establish a sufficiently culpable state of mind. Since the critical issue is whether
a defendant was subjectively aware of a risk of serious harm, Farmer, 511 U.S. at
837, we find no merit in Schaad’s assertion that, on this record, Sims’ claim can
be resolved on the sufficiency of the pleadings as a matter of law. See note 3,
infra.

                                         -6-
      Significantly, the second claim of error involves the district court’s

determination that the evidence could support a particular finding. 3 Under

Behrens and Johnson, the district court’s order as to the sufficiency of that

evidence at the summary judgment stage is unreviewable. Foote, 118 F.3d at

1422 (“An order denying qualified immunity on summary judgment is not

appealable if it merely determines the facts asserted by the plaintiff are

sufficiently supported by evidence in the record to survive summary judgment.”).

Accordingly, we have jurisdiction under 28 U.S.C. § 1291 to review the district

court’s determination that the conditions alleged posed a substantial risk of

serious harm. We lack jurisdiction, however, to the extent that Schaad seeks

interlocutory review of the district court’s ruling that genuine disputes of fact

precluded summary judgment based on qualified immunity. We therefore dismiss

that portion of Schaad’s appeal for lack of jurisdiction.

      Following its de novo review of the magistrate judge’s recommendation,

the district court found that “[t]he statement made by plaintiff to the defendant is



      3
        Schaad’s argument focuses primarily on Sims’ factual allegations and upon
his own efforts to dispute and dismiss them. Thus, he denies any knowledge of
the risk, and he argues that the “conclusory” allegations of the complaint were
inadmissible for summary judgment purposes. Because a verified pleading may
be treated as an affidavit if the facts alleged are within the pleader’s personal
knowledge, see Jaxon v. Circle K Corp., 773 F.2d 1138, 1139 n. 1 (10th Cir.
1985), the district court did not err in considering the complaint as responsive to
the summary judgment motion.

                                         -7-
sufficient evidence to show that plaintiff was incarcerated under conditions

posing a substantial risk of serious harm. Further, there are allegations by

plaintiff that defendant Schaad was deliberately indifferent to plaintiff’s request

for protection.” Appellant’s Br., Ex. 2 at 2-3. Relying on Grimsley, 93 F.3d at

681-82, Schaad apparently argues that, as a matter of law, Sims failed to allege

facts which demonstrate that he was incarcerated under conditions posing a

substantial risk of serious harm. 4 Although Schaad correctly cites Grimsley for its

conclusion that the conditions at issue there did not pose a substantial risk of

serious harm, “notwithstanding the fact that an inmate . . . succeeded in inflicting

injury upon [the plaintiff],” id. at 683, Grimsley is easily distinguished on its

facts. Significantly, Grimsley involved an injury to an inmate who was “securely

locked [behind a steel door] by himself in a maximum security cell.” Id. By

contrast, Sims was in an open ward where Gadlin and other inmates could gain

free access to his cell. 5 Given Sims’ allegation that he advised Schaad of the

repeated threats of serious harm from Gadlin, and viewing that evidence in the

light most favorable to Sims, we find no error in the district court’s conclusion


      4
        Overlooking the district court’s express finding, Schaad also argues that
the district court erred by wholly failing to address this element. Appellant’s Br.
at 11-13.
      5
        Schaad also asserts that Sims put himself in harm’s way. However, that
assertion relies on facts and conclusions which are not necessarily clear from the
present record.

                                          -8-
that the conditions alleged posed a substantial risk of serious harm. Farmer, 511

U.S. at 833 (“having stripped [inmates] of virtually every means of self-protection

and foreclosed their access to outside aid, the government and its officials are not

free to let the state of nature take its course”).

       AFFIRMED in part and DISMISSED in part.

                                                  ENTERED FOR THE COURT



                                                  Stephen H. Anderson
                                                  Circuit Judge




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