                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-3749
                                   ___________

Wendell R. Ayers,                      *
                                       *
             Appellee,                 *
                                       *
       v.                              * Appeal from the United States
                                       * District Court for the
Willis Sargent, Warden, Jefferson      * Eastern District of Arkansas.
County Correctional Facility, Arkansas *
Department of Correction; Tracy        *
Spadoni, Sergeant, Jefferson County    * [UNPUBLISHED]
Correctional Facility, Arkansas        *
Department of Correction,              *
                                       *
             Appellants.               *
                                  ___________

                          Submitted: May 7, 1998
                              Filed: July 9, 1998
                                  ___________

Before FAGG, BEAM, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       Willis Sargent and Tracy Spadoni, defendants in this 42 U.S.C. § 1983 action
brought by Arkansas inmate Wendell R. Ayers, appeal the district court&s interlocutory
order denying their motion for summary judgment. We reverse, in part, and remand for
further proceedings.
       Ayers brought this action against Sargent, the warden of the Jefferson County Jail
and Correctional Facility, and correctional officer Spadoni. In Ayers&s complaint--which
we construe as asserting claims against defendants in their individual capacities--he
alleged he had been severely beaten by a group of inmates, and both defendants failed
to protect him.

       Proceeding by consent of the parties, the magistrate judge conducted an
evidentiary hearing, then appointed counsel and scheduled a jury trial. Thereafter,
defendants moved for summary judgment, arguing, as relevant, they were entitled to
qualified immunity, and Ayers opposed the motion. The magistrate, referring to his
findings following the evidentiary hearing, construed defendants& motion as a request for
summary judgment solely as to defendant Sargent. Noting Ayers had asserted that
Sargent had been aware of inadequate barracks staffing and threats involving Ayers, the
magistrate judge concluded a fact issue remained as to whether Sargent had been
deliberately indifferent to Ayers&s safety and denied the motion.

       Initially, we hold that the magistrate committed error in construing defendants&
motion for summary judgment based on qualified immunity as a request for judgment by
Sargent alone. See Parton v. Ashcroft, 16 F.3d 226, 227-28 (8th Cir. 1994) (remanding
for ruling on issue of qualified immunity where magistrate judge, who had conducted
pretrial proceedings, set case for trial, and determined that trial would be judicially
efficient way to dispose of claim, refused to rule on summary judgment motion).
Accordingly, we express no opinion on the merits of Ayers&s claim against Spadoni, and
remand for a ruling on Spadoni&s summary judgment motion.

       As to Sargent, we have jurisdiction to consider de novo whether the district court
erred in denying summary judgment. See Williams v. Delo, 49 F.3d 442, 445 (8th Cir.
1995). “Qualified immunity shields government actors from liability in civil lawsuits
when #their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.&” Prater v. Dahm, 89 F.3d 538, 540-

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41 (8th Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In the
context of protecting prisoners from violence at the hands of other prisoners, the question
of qualified immunity requires a determination as to whether a reasonable official could
have believed his actions violated the law, given the information available to him at the
time of the attack. See Prater, 89 F.3d at 541.

       Ayers argued below that Spadoni&s first-hand knowledge of threats made against
Ayers could be imputed to Sargent, and also that Sargent had first-hand knowledge
through his experiences with another prison facility of the dangers posed by inadequate
staffing. Ayers stated there had been only two guards on duty to watch four barracks on
the day of his assault, and he attached a copy of a grievance form, which post-dated the
assault, wherein he complained about inadequate security in his barracks. Because
Ayers provided no evidence from which an inference could be made that Sargent
actually knew of the threats against Ayers prior to the assault, or that Sargent somehow
failed to train or supervise Spadoni, we conclude Ayers did not establish a basis for
imposing liability against Sargent. See Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.
1997) (liability under § 1983 cannot attach to supervisor merely because subordinate
violated someone&s constitutional rights; rather, supervisor can be liable only if he
directly participated in constitutional violation, or if his failure to train or supervise
offending actor directly caused deprivation). In addition, Ayers presented no evidence
of a pervasive or unreasonable risk of harm based on inadequate staffing, see Williams
v. Willits, 853 F.2d 586, 588 (8th Cir. 1988), nor did he present evidence that the
conditions at the Jefferson County Jail and Correctional Facility were similar to the
conditions at the facility with which Sargent was familiar. The district court therefore
should have granted Sargent&s motion for summary judgment based on qualified
immunity. Accordingly, we reverse the judgment of the district court and remand for
further proceedings consistent with this opinion.




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A true copy.

      Attest:

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




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