                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 12-2022
                       ___________________________

                                Chariell Ali Glaze,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

  Karl Byrd, Sheriff, Faulkner County; Bobby Brown, Major, Faulkner County
   Sheriff’s Office; John Randall, Captain, Faulkner County Sheriff’s Office,

                           lllllllllllllllllllll Defendants,

   Gary Andrews, Lt., Faulkner County Sheriff’s Office; Demontrel L. Childs,

                    lllllllllllllllllllll Defendants - Appellants.
                                      ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                           Submitted: January 17, 2013
                              Filed: July 19, 2013
                                 ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.

     While detained pending trial at the Faulkner County Detention Center in
Arkansas, Chariell Glaze was attacked by three fellow inmates. He brought this
action, alleging that Demontrel Childs, a correctional officer at the jail, and Gary
Andrews, a lieutenant, violated his constitutional rights by failing to protect him from
the attack. The district court denied the defendants’ motion for summary judgment
based on qualified immunity, and the defendants appeal. We affirm the denial of
qualified immunity to Childs, reverse as to Andrews, and remand for further
proceedings.

                                           I.

      Because we are reviewing the denial of the defendants’ motion for summary
judgment, we describe the facts in the light most favorable to Glaze. On the morning
of March 5, 2010, for reasons that do not appear in the record, jail officials removed
Glaze from his cell and placed him in administrative segregation. An officer returned
Glaze to his cell later that night. When Glaze reentered his cell, he was attacked by
fellow inmates, including one Marcus Amos.

       The key evidence in this appeal is the deposition testimony of Bradley Boyce,
one of Glaze’s cellmates. Boyce testified that he had two conversations with
correctional officer Childs on the day of the attack. The first conversation occurred
shortly after Glaze left the cell for administrative segregation. Boyce told Childs that
“you all just took Mr. Glaze out of here and there are people in here talking about
hurting him.” Boyce warned Childs that “if you bring [Glaze] back in here there are
certain inmates in here talking about hurting him.” According to Glaze, Childs said
that he would “talk to the lieutenant and see what can be done.”

       Later that afternoon, while Glaze was still in administrative segregation, Boyce
asked Childs whether he had spoken to the lieutenant. According to Boyce, Childs
responded that he “talked to the lieutenant and the lieutenant said he couldn’t do
anything about it,” but Boyce also said that “knowing that they have done moves like
that before and moved people around on those grounds, either [Childs] is lying or he

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didn’t give the lieutenant all of the information.” J.A. 168. Boyce testified that the
lieutenant to whom Childs referred was Lieutenant Andrews.

       Jail officials took no action in response to Boyce’s warning. At around 10:50
that night, an officer returned Glaze to his cell. As Boyce had predicted, Glaze was
attacked by three inmates, who bloodied Glaze’s face. Glaze was transported to a
hospital emergency room, where he received six stitches around his left eye.

       Glaze brought this lawsuit, alleging that five jail officials violated his
constitutional rights by failing to protect him from the attack. All five moved for
summary judgment, arguing that they were entitled to qualified immunity. The
district court, adopting a recommendation of a magistrate judge, dismissed three
officials but not Childs and Andrews.

       As to Childs, the district court determined that a reasonable jury could find that
he failed to inform Andrews of the risk of danger to Glaze if he were returned to his
cell. On that basis, the court ruled that a jury could find that Childs was deliberately
indifferent to Glaze’s safety, and that he violated a clearly established constitutional
right.

       The district court also concluded that a reasonable jury could find that Andrews
failed to respond properly to a warning about the threats against Glaze. The court
noted that Andrews might have known that Glaze was in danger before Boyce’s
conversations with Childs, because one of the attackers—Marcus Amos—was
removed from Glaze’s cell three or four days before the attack. The district court also
reasoned that although Andrews testified that he did not know of problems between
Glaze and Amos prior to March 6, 2010, he did not say whether he was notified by
Officer Childs about the threat to Glaze on the morning of March 6. The district court
believed (erroneously) that the attack occurred on March 6 rather than March 5, so the
court thought the potential for notice to Andrews on the morning of March 6 was

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significant. The court did not rely on Boyce’s testimony about his second
conversation with Childs. The parties disputed whether this evidence was hearsay,
and the court deferred a ruling, if necessary, until trial.

                                            II.

       Childs and Andrews appeal the denial of qualified immunity. We review the
district court’s denial of qualified immunity de novo, and we view the evidence in the
light most favorable to Glaze. Johnson v. Phillips, 664 F.3d 232, 236 (8th Cir. 2011).
An official is entitled to qualified immunity unless the facts alleged establish a
violation of a constitutional or statutory right, and that right was clearly established
at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

      A jail official violates the Due Process Clause of the Fourteenth Amendment,
and may be liable under 42 U.S.C. § 1983, when he is deliberately indifferent to a
substantial risk of serious harm to a pre-trial detainee and fails to protect the detainee.
See Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007). A failure-to-protect claim
has two elements. First, “the inmate must show that he [was] incarcerated under
conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S.
825, 834 (1994). Second, the inmate must show that the official knew of and
disregarded the risk to the inmate’s safety. Id. at 837.

       Neither defendant disputes that Glaze was detained under conditions that posed
a substantial risk of harm. Childs and Andrews contend, however, that the facts
alleged fail to establish a constitutional violation, because there is no evidence that
either of them knew of the danger to Glaze.




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                                           A.

       Childs argues that Boyce’s warning was too vague to communicate the
existence of a substantial risk of serious harm, and that Boyce did not identify the
would-be assailant. We have recognized that “threats between inmates are common
and do not, under all circumstances, serve to impute actual knowledge of a substantial
risk of harm.” Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) (internal
quotation omitted). But we believe a jury reasonably could conclude that Childs
appreciated the risk to Glaze. After Boyce told Childs that Glaze was in danger,
Childs responded that he would “talk to the lieutenant and see what can be done.” A
reasonable jury could interpret Childs’s response to mean that he perceived a serious
risk to Glaze’s safety, because he regarded the threat as serious enough to warrant
telling his lieutenant. Insofar as Childs relies on Boyce’s failure to identify the would-
be assailant, his argument has been rejected by the Supreme Court. A jail official may
not “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.” Farmer, 511 U.S. at 843.

       Childs also asserts that there is no evidence that he failed to tell Andrews about
his conversation with Boyce, because “the submitted evidence is that [he] informed
his lieutenant,” but this is not a matter that we can review in an interlocutory appeal.
Our jurisdiction extends only to purely legal issues. Ortiz v. Jordan, 131 S. Ct. 884,
891 (2011). A district court’s determination about “whether the evidence could
support a finding that particular conduct occurred” is not immediately appealable.
Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Here, the record includes no
testimony or affidavit from Childs about the events of March 5. Boyce testified that
he thought Childs was lying or exaggerating when he claimed to have informed
Andrews of Boyce’s warning, and the district court determined that a jury could find



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that Childs never told Andrews about the warning. We must take that as a given for
purposes of an interlocutory appeal based on qualified immunity.

       Assuming that Childs failed to tell Andrews about the threat, there is sufficient
evidence on the present limited record from which a jury could infer that Childs acted
with the requisite mental state for a constitutional violation. Perhaps Childs
consciously chose not to bother the lieutenant, or maybe Childs decided that he did
not care what happened to Glaze. The evidence at this stage does not foreclose either
possibility. So if a jury concluded that Childs was aware of a substantial risk of
serious harm to Glaze, and that he failed to notify Andrews, then it could further
conclude that Childs was deliberately indifferent to Glaze’s safety. Such deliberate
indifference would violate clearly established law that sets forth a jail official’s duty,
under certain circumstances, to protect inmates from substantial risks of serious harm.
See, e.g., Farmer, 511 U.S. at 828; Kahle, 477 F.3d 550. On this record, the district
court properly denied qualified immunity to Childs.

                                           B.

       Andrews contends that no admissible evidence demonstrates that he knew of
any threat to Glaze, so he could not have known that Glaze faced a substantial risk of
serious harm. In response, Glaze abandons the district court’s notion that Andrews
might have learned of trouble between Glaze and Amos on the morning of the attack;
Glaze admits that the attack occurred on March 5. Glaze does suggest that Andrews
knew of a serious risk to Glaze because Amos had been removed from the cell that he
shared with Glaze a few days earlier. Glaze concedes, however, that the only reason
Amos did not want to be housed with Glaze was that he had “bad gas,” so even if
Andrews had known about Amos’s move, no reasonable jury could find that Andrews
inferred from the move that Glaze was in danger.




                                           -6-
       To show that Andrews knew of the threat, Glaze relies on Boyce’s second
conversation with Childs. He cites Childs’s statement to Boyce that Childs “talked
to the lieutenant and the lieutenant said he couldn’t do anything about it.” Andrews
responds that the second conversation is inadmissible hearsay that cannot be used to
defeat summary judgment. See Brunsting v. Lutsen Mountains Corp., 601 F.3d 813,
817 (8th Cir. 2010). This disagreement raises a purely legal issue under the rules of
evidence.

      Childs’s second conversation with Boyce contains two separate statements for
evidentiary purposes: Childs’s statement that he “talked to the lieutenant,” and
Andrews’s response that “he couldn’t do anything about it.” We conclude that both
statements are inadmissible.

       The first statement—that Childs “talked to the lieutenant”—is the more
important of the two. It would show that Childs informed Andrews of the threat to
Glaze. But this assertion is an out-of-court statement by Childs offered to prove the
truth of the matter asserted—i.e., that Childs spoke with Andrews. As such, it is
hearsay. Fed. R. Evid. 801(c). Glaze contends that the statement is not hearsay
because it is an admission by a party-opponent, see Fed. R. Evid. 801(d)(2), but the
statement by Childs is offered against Andrews, not against Childs, so it is not
admissible as an admission. Glaze also cites Federal Rule of Evidence 803(3), but the
statement does not concern Childs’s “then-existing state of mind”; it concerns what
Childs supposedly told Andrews. Because no hearsay exception applies to the first
statement, it is inadmissible.

      The second statement—Childs’s report that Andrews said “he couldn’t do
anything about it”—is also inadmissible. This statement is hearsay within hearsay.
Boyce testified about a statement by Childs that reported a statement by Andrews.
This type of evidence is admissible only “if each part of the combined statements
conforms with an exception to the rule [against hearsay].” Fed. R. Evid. 805.

                                         -7-
Although Andrews’s statement would be admissible against him as an admission if
Childs so testified, there is no exception allowing admission of Boyce’s statement
about what Childs told him.

      There is no admissible evidence to establish that Andrews knew about a
substantial risk to Glaze’s safety. Andrews is thus entitled to qualified immunity.

                                  *       *       *

      For the foregoing reasons, we affirm the denial of qualified immunity to Childs,
reverse the denial of qualified immunity to Andrews, and remand for further
proceedings.
                       ______________________________




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