                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                NOV 28 2000
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 KENNETH SMITH,

           Plaintiff-Appellant,
 v.                                                           No. 99-7102
 JAMES SAFFLE, Director, Department                     (D.C. No. 98-CV-348-S)
 of Corrections; DELORES RAMSEY,                              (E.D. Okla.)
 Director Designee for DOC; JANICE
 MELTON, Warden of Bill Johnson
 Correctional Center; DALE COURSON,

           Defendants-Appellees.


                                  ORDER AND JUDGMENT*


Before TACHA, HOLLOWAY, and BALDOCK, Circuit Judges.


       Plaintiff Kenneth Smith was an inmate at the Bill Johnson Correctional Center

in Oklahoma City, Oklahoma, a drug offender work camp. Another inmate, Anthony

Delatorre, attacked Plaintiff with a sheetrock saw that Delatorre had obtained ostensibly

to work on a project in the food service building. Plaintiff responded by striking

Delatorre and overcoming his advance. Both men incurred minor injuries. Prison



       *
          This order and judgment is not binding precedent, except under the doctrines of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.
officials charged both men with battery misconduct and disciplined them in compliance

with prison regulations.

       Plaintiff subsequently filed suit under 42 U.S.C. § 1983, alleging a violation of his

Eighth Amendment rights. See U.S. Const. amend. VIII. Specifically, Plaintiff alleged

that prison officials failed to protect him from serious bodily harm by ignoring the risk

to his safety which the unsupervised Delatorre presented. Following receipt of a Martinez

Report, see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), the district court dismissed

the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We exercise jurisdiction under 28

U.S.C. § 1291. We review a dismissal under § 1915(e)(2)(B)(i) for an abuse

of discretion, see McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997).

Applying this standard, we affirm.

                                             I.

       The Bill Johnson Correctional Center is a minimum security facility. A sheetrock

saw is a “Class B” tool. Class B tools within a minimum security facility are defined

as “[t]ools that are hazardous and could be used as a weapon or could pose a serious

security risk if allowed to be introduced into the general population.” Class B tools

require “general supervision,” that is too say a “supervisor will be present within the

defined work area.” In contrast, Type A tools pose a serious security risk if not properly

supervised. Class A tools must “be supervised by staff in the work area, in a proximity

and frequency of observation that will make usage of the tool for other than its intended


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purpose unlikely.

       The Martinez report reveals that on February 3, 1998, prison officials directed

Delatorre to complete a work order for the repair of sheetrock in the food service

building. Around 8:30 a.m., the supervising officer, Defendant Dale Courson, instructed

Delatorre to check out the tools required for the job from the maintenance tool room.

Delatorre checked out a sheetrock saw, as well as some Class C tools which require no

direct supervision. Thereafter, Courson escorted Delatorre through the yard to the food

service building where Delatorre remained until around 10:15 a.m. Courson then directed

Delatorre to return the tools to maintenance. Around 3:30 p.m., Courson escorted

Delatorre into the yard a second time and instructed him to proceed to the food service

building. Food service supervisors were present in the food service building at all times.

Each time Courson and Delatorre entered and exited the yard through a sally port, where a

gate officer checked the tools and compared them to a tool list. Around 5:00 p.m.,

Courson received word of the incident between Plaintiff and Delatorre.

                                              II.

       Not every injury that one prisoner suffers at the hands of another prisoner results

in constitutional liability against prison officials responsible for prisoner safety. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). To prevail on a constitutional claim based on

prison officials’ failure to prevent injury, a prisoner must establish that (1) the conditions

under which he was incarcerated posed a substantial risk of serious bodily harm, and


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(2) prison officials acted with “deliberate indifference” in ignoring that risk. Id. The first

component is objective, i.e., whether the risk is sufficiently serious, and the second

component is subjective, i.e., whether officials acted with a culpable state of mind.

Perkins v. Kansas Dept. of Corr., 165 F.3d 803, 809 (10th Cir. 1999).

       Negligence on the part of prison officials does not constitute deliberate

indifference. Eighth Amendment liability requires “more than ordinary lack of due

care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).

A prison official is not liable under the Eighth Amendment for unsafe conditions of

confinement “unless 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.” Farmer, 511 U.S. at 837. An official’s failure to alleviate a significant

or obvious risk that he should have perceived but did not, while no cause for

commendation, does not constitute a violation of the Eighth Amendment. Id. at 838.

                                              III.

       Based on the foregoing, we agree with the district court that the uncontroverted

facts establish as a matter of law that prison officials at the minimum security facility,

while perhaps careless in supervising Delatorre, were not “deliberately indifferent” to any

threat to Plaintiff’s or other inmate’s personal safety. In other words, the evidence is

insufficient to permit a trier of fact to find that prison officials, including Courson, had


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any actual knowledge of the risk which Delatorre posed. Plaintiff has presented no

evidence to show that “a substantial risk of inmate attacks was longstanding, pervasive,

well-documented, or expressly noted by prison officials in the past.” Id. at 842. Nor do

the facts suggest that prison officials had been exposed to information concerning the risk

to Plaintiff or any ongoing feud between Plaintiff and Delatorre. See Grimsley v.

MacKay, 93 F.3d 676, 681 (10th Cir. 1996) (noting that constitutional liability may exist

“where prison officials have disregarded repeated warnings of danger to a particular

prisoner and continually refuse to make the situation safe”). On this record, we have no

choice but to conclude that prison officials neither knew of nor disregarded an excessive

risk to inmate safety. See Farmer, 511 U.S. at 837.

       AFFIRMED.

                                          Entered for the Court,



                                          Bobby R. Baldock
                                          Circuit Judge




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