                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3883
                                    ___________

Kenneth Brian Young,                   *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Sergeant Selk; Sergeant Coolidge,      *
                                       *
            Appellants.                *
                                  ___________

                              Submitted: September 27, 2007
                                 Filed: November 28, 2007
                                  ___________

Before COLLOTON, ARNOLD, and GRUENDER, Circuit Judges.
                          ___________

ARNOLD, Circuit Judge.

       Prisoner Kenneth Young brought an action against the Minnesota Department
of Corrections (MDOC) and its officials under 42 U.S.C. § 1983, claiming that they
violated the eighth amendment's prohibition against cruel and unusual punishment by
failing to protect him from an assault by his roommate. His complaint also included
an assault claim against his attackers. When MDOC and the prison officials moved
to dismiss the claims against them, the district court,1 treating the motion as one for


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendations of The Honorable Susan
Richard Nelson, United States Magistrate Judge for the District of Minnesota. See 28
summary judgment, granted the motion in part. It denied the motion, however, as to
Mr. Young's eighth amendment claims against Sergeant Van Coolidge and Sergeant
Charles Selk in their individual capacities. The two prison employees appealed,
contending that the district court should have dismissed these claims based on
qualified immunity. We affirm.

                                         I.
      Though Sergeants Selk and Coolidge moved to dismiss, both they and
Mr. Young in his response relied on matters outside the pleadings. The district court
thus properly treated the motion as a request for summary judgment. See Fed. R.
Civ. P. 12(b). The denial of summary judgment based on qualified immunity is
immediately appealable, and we review it de novo. See Sexton v. Martin, 210 F.3d
905, 909 (8th Cir. 2000). We state the facts as viewed in the light most favorable to
Mr. Young, drawing all reasonable inferences in his favor. See Burnham v. Ianni, 119
F.3d 668, 673 (8th Cir. 1997) (en banc).

      A few months after Mr. Young was incarcerated at the Rush City facility of
MDOC (MDOC-RC), inmate Edward Whitefeather was placed in the cell with him.
When Mr. Whitefeather arrived, Mr. Young said, "Hi" and offered to move his
possessions out of Mr. Whitefeather's way because the room was small.
Mr. Whitefeather did not respond.

      Mr. Young next told Mr. Whitefeather that since he (Mr. Young) worked during
the day, Mr. Whitefeather would have the room to himself. He added that he would
appreciate it if Mr. Whitefeather kept the television volume down when Mr. Young
came back during his lunch break so that he could get some "nap time," and that the
room was otherwise "basically his" (Mr. Whitefeather's). Mr. Whitefeather then
"went off the deep end about you don't tell me what to do or anything else [and]


U.S.C. § 636(b)(1)(B).

                                         -2-
started talking about he's got friends." When Mr. Young said that he had intended to
talk about these things "out of respect," Mr. Whitefeather said "well, mother fuck you,
and everything else." Finally Mr. Whitefeather said that he would do whatever he
wanted to do and that if Mr. Young didn't like it, he would have to "deal" with
Mr. Whitefeather and his "boys."

       After waiting about twenty minutes so as not to arouse Mr. Whitefeather's
suspicions, Mr. Young left the room to seek assistance. Because he was new to that
particular area of MDOC-RC, Mr. Young asked inmate Brian Brown – who had
worked in the unit for some time as a janitor – whom he should talk to about moving
to another cell. After introducing Mr. Young to Sergeant Coolidge at the guard desk,
Mr. Brown told the sergeant that Mr. Young was having a problem with his
roommate, who was of a different race, adding that "there is something wrong with
the dude." When Sergeant Coolidge asked Mr. Young what the problem was, he
responded that Mr. Whitefeather was "deranged" and had threatened him. Mr. Young
added, "You gotta get me out of this room. I don't want to be in a situation. I don't
want no problems with the guy." He asked "please" to be moved from the room
"immediately" and offered to start packing up his things.

       When asked to recount the conversation more specifically, Mr. Young testified
that Sergeant Coolidge said something like " 'I'll try to get back to you as soon as I
can' or whatever guards do to blow you off. I said, 'well, it's pretty urgent.' " When
the sergeant suggested that Mr. Young write a kite (a prison form used by inmates for
complaints or requests), Mr. Young responded that there was "not time for that"
because it takes two or three days before anyone responds to a kite. Mr. Young was
unsure of the exact words spoken in this conversation, but that "was the gist of it"; he
had told the sergeant that he felt threatened and "explained it was an emergency,
urgent." The sergeant "wasn't really involved in the conversation"; he was "fiddling
around with paperwork and blew it off." When questioned further, Mr. Young said
that he concluded that Sergeant Coolidge "blew him off" based on the sergeant's

                                          -3-
statements and his "condescending" manner when he told Mr. Young to speak to
someone else. Mr. Young added that "[y]ou got a real sense of do I care about you?
Go talk to such and such. Go talk to somebody else."

        The next day, Mr. Young and Mr. Brown approached Sergeant Selk, who was
then running the unit. Mr. Young testified that he told Sergeant Selk basically what
he had told Sergeant Coolidge. He reported that Mr. Whitefeather had threatened him,
and that he (Mr. Young) had been incarcerated for ten years, had never been in an
altercation, and did not want to "have any situation." Mr. Young testified that he
looked Sergeant Selk "in the face" while telling him that he was being threatened and
that it was "an urgent matter." Sergeant Selk did not take any action on Mr. Young's
request.

       Later the same day that Mr. Young spoke to Sergeant Selk, Mr. Whitefeather,
with the assistance of two other inmates, attacked Mr. Young while he was lying on
his bunk. They had heated a mixture of honey, hair gel, tea, and water in a microwave
oven, and Mr. Whitefeather poured the hot mixture on Mr. Young's face, neck, and
chest, causing him second degree burns. Mr. Whitefeather then beat Mr. Young with
a rock, wrapped in a sock, that was the size of a fist. Mr. Young was taken to the
hospital for treatment. In his complaint, he seeks damages for physical and
psychological injuries resulting from the assault.

                                            II.
      "Qualified immunity protects state officials from civil liability for actions that
do not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Shockency v. Ramsey County, 493 F.3d 941,
947 (8th Cir. 2007) (internal quotation marks and citations omitted). When deciding
whether an official is entitled to qualified immunity, we first determine whether he or
she violated a federal right at all; if so, we then determine whether that right was



                                          -4-
clearly established. See Hope v. Pelzer, 536 U.S. 730, 736 (2002); Coonts v. Potts,
316 F.3d 745, 750 (8th Cir. 2003).

                                          A.
       Because being subjected to assault is not "part of the penalty that criminal
offenders [must] pay for their offenses," Rhodes v. Chapman, 452 U.S. 337, 347
(1981), the eighth amendment's prohibition against cruel and unusual punishment
requires prison officials to "take reasonable measures to guarantee" inmate safety by
protecting them from attacks by other prisoners, Farmer v. Brennan, 511 U.S. 825,
832 (1994) (internal quotation marks and citations omitted). Of course, prison
officials do not commit a constitutional violation every time one prisoner attacks
another. See id. at 834; Blades v. Schuetzle, 302 F.3d 801, 803-04 (8th Cir. 2002).
In order to establish an eighth amendment failure-to-protect claim, a plaintiff must
show that the prison official was deliberately indifferent to a "substantial risk of
serious harm." Farmer, 511 U.S. at 828. To succeed on such a claim, the plaintiff
must first establish that the alleged constitutional deprivation was "objectively,
sufficiently serious," which requires a showing that the official's failure to protect
resulted in the inmate being "incarcerated under conditions posing a substantial risk
of serious harm." Id. at 834.

      Sergeants Coolidge and Selk argue that Mr. Young failed to offer sufficient
evidence that Mr. Young actually faced a substantial risk of serious harm. At oral
argument, the defendants' counsel maintained that since the question is whether there
was actually a substantial risk – as opposed to whether Mr. Young described a
substantial risk to the prison officials – Mr. Young can establish this element of his
eighth amendment claim only through evidence of what Mr. Whitefeather said and did
when he arrived at the cell. We agree that Mr. Whitefeather's conduct, rather than
Mr. Young's account to the defendants, is the most probative evidence of the degree
and type of risk that he faced, though we think that evidence of his state of mind might
also be of some relevance. For example, the fact that Mr. Young promptly reported

                                          -5-
a threat, asked to be moved immediately, and, when no help was forthcoming, made
the same plea the next day, may be some evidence of the existence of a risk of harm.
In a case that the defendants rely on, we considered a plaintiff's failure to express fear
or to accept an offer of protective custody as some evidence that a substantial risk of
serious harm did not exist. See Berry v. Sherman, 365 F.3d 631, 634-35 (8th Cir.
2004).

       In any event, we believe that Mr. Whitefeather's conduct upon his arrival in
Mr. Young's cell alone raises a reasonable inference of a substantial threat of violence
against the plaintiff. Mr. Young, who had been incarcerated for ten years, testified
that prisoners usually set out ground rules for how they will share the space when they
are first placed in a cell together. Consistent with this practice, Mr. Young
immediately offered to accommodate Mr. Whitefeather, but Mr. Whitefeather said
nothing in response. Nor did he respond when Mr. Young told him that the room
would generally be his (Mr. Whitefeather's) to use.

      When Mr. Young asked that the television be turned down for the short period
during his lunch break so that he could take a nap, Mr. Whitefeather unexpectedly
exploded in a rage. He challenged Mr. Young by shouting, "You don't tell me what
to do or anything else." Mr. Young's attempt to mollify him seemed to have the
opposite effect. When Mr Young said that he had been speaking "out of respect,"
Mr. Whitefeather cursed at Mr. Young and was "like a deranged man about the
respect": He said that he didn't "have to respect nobody" and that he would do
whatever he wanted to do. Mr. Whitefeather, who is a Native American, also told
Mr. Young that he was "affiliated." According to Mr. Young, the Native American
prisoners at MDOC-RC were pretty "clicked up," which, he said, is "prison
terminology as far as gangs and affiliations." We think that a factfinder could infer
from this evidence that Mr. Whitefeather was saying that he would be joined by other
Native American prisoners in any attack on Mr. Young, who is not a Native
American, and Mr. Whitefeather certainly made it clear that Mr. Young would be

                                           -6-
confronted by more than one other prisoner in addition to Mr. Whitefeather: As we
have already said, after announcing that he would do whatever he wanted to do,
Mr. Whitefeather added, "If you have a problem with that you can deal with me and
my boys."

       Mr. Young testified that he felt threatened not only by Mr. Whitefeather's
words, but also by his "physically threatening position" and "the whole tone, how he
was telling me, as far as what he told me, he was affiliated, mother fuck you."
Mr. Whitefeather spoke "very loudly and very sharply at me as one would if you're
being threatened," and "[m]ost people in prison don't come off the bat talking to you
like that." "In prison, when people are talking to you in a harsh tone," it means that
you are being threatened. "It's ... a basic warning sign. Listen, I'm ready to fight. ...
When you start telling them what you're not going to do, using the MF word and
everything else, that's basically saying, 'I'm threatening you' " or they are "deranged
... whatever he is, I need to get out of the room."

       We believe that this evidence is sufficient to support a finding that there was
a substantial risk of serious harm to Mr. Young. As the Supreme Court remarked in
Farmer, 511 U.S. at 844-45, inmates are, on the whole, "dangerous men," and we
think that the record here supports an inference that Mr. Whitefeather was a dangerous
man who was particularly volatile, that he was easily offended and enraged, and that
he was willing to attack – with the assistance of his "boys" – when in a state of rage.
We also believe that Mr. Young's testimony about the manner in which prisoners
threaten each other would support a finding that Mr Whitefeather indeed engaged in
threatening conduct, and that his remaining in the cell with Mr. Young created a
substantial risk of serious harm. The fact that Mr. Young immediately sought a cell
change serves only to strengthen our conclusion.

      Sergeant Coolidge and Sergeant Selk next contend that Mr. Young failed to
present sufficient evidence of the subjective aspect of his eighth amendment claim.

                                          -7-
To meet this requirement, Mr. Young had to show that the defendants "exhibited a
sufficiently culpable state of mind, that is, [they] must have been deliberately
indifferent to a substantial risk of serious harm to [Mr. Young]." An official is
deliberately indifferent if he or she actually knows of the substantial risk and fails to
respond reasonably to it, see id. The Constitution requires such a state of mind before
liability can attach because "only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment." Lenz, 490 F.3d at 995 (internal quotation marks
and citations omitted); see also Farmer, 511 U.S. at 834. The question of whether the
official knew of the substantial risk is a factual one "subject to demonstration in the
usual ways, including inference from circumstantial evidence." Id. at 842.

       We conclude that Mr. Young's evidence was sufficient to avoid summary
judgment on this point. He testified that he told both the officials that he had been
threatened by Mr. Whitefeather, that his circumstances were urgent, that he needed to
be moved immediately, and that it was an emergency. In addition, he testified that he
told Sergeant Coolidge that Mr. Whitefeather was "deranged," and that Mr. Brown
told Sergeant Coolidge that there was "something wrong" with Mr. Whitefeather. We
think that the information provided to the defendants was sufficient to support a
finding that they were aware of a substantial risk of serious harm to Mr. Young.

       We have little difficulty concluding also that the evidence could support a
finding that Sergeants Coolidge and Selk did not respond reasonably to the risk. Even
if they suggested that Mr. Young file a kite, ample evidence supported a finding that
kites were processed too slowly to protect a prisoner from an immediate threat. We
also reject the officials' contention that prisoners generally knew by "word of mouth"
or by going through their "daily activities" that they could avoid a dangerous
roommate by refusing to re-enter their cell at the appointed time. Initially we note that
there is no evidence that Mr. Young ever knew that he had this option. In addition,
we think that the officials, by making this argument, are attempting to shift



                                          -8-
responsibility for protection to the prisoners themselves and asking them to engage
in behavior that might well result in disciplinary action.

       The defendants rely on Prater v. Dahm, 89 F.3d 538, 541-42 (8th Cir. 1996),
for their contention that it was not enough to show that they were aware of a threat;
they maintain that they could not be found to know of a substantial risk of serious
harm without having more factual information. We think that Prater is inapposite.
In that case, we reversed the district court's denial of judgment on the pleadings based
on qualified immunity. The plaintiff alleged that the prison officials knew that
another prisoner in the same facility had threatened him, and the defendants here rely
on our statement in Prater that "threats between inmates are common and do not,
under all circumstances, serve to impute actual knowledge of a substantial risk of
harm." Id. at 541. But we think that by stating that threats, "under all
circumstances," do not impute a knowledge of a substantial risk of harm, we certainly
implied that in some circumstances, the knowledge of threats will support such a
finding. See e.g., Erickson v. Holloway, 77 F.3d 1078, 1080 (8th Cir. 1996). We
noted, moreover, that the plaintiff's own allegations belied the existence of a
substantial risk: He admitted in his complaint that both he and the other prisoner had
assured the officials that "there would be no trouble"; and the plaintiff did not dispute
that the two prisoners had been in the same prison for a "substantial period of time
without incident." Id. at 542. Here the officials conducted no investigation, the
inmates did not give any assurances of "no trouble," and Mr. Young and
Mr. Whitefeather shared a small cell for less than two days before the incident. In
addition, Mr. Young reported not only that he had been threatened, but he used words
such as "urgent" and "emergency" to describe his circumstances and notified
Sergeants Coolidge and Selk that he needed to be moved immediately, and the
defendants simply had no evidence to the contrary.

      We also note that Sergeant Selk himself testified that if an inmate reported that
he had been threatened, he would deem it "serious," the inmates would be separated,

                                          -9-
and an investigation would be conducted. Mr. Young testified that he told the
defendants that he had been threatened. Although the defendants now argue that
Mr. Young should have provided more detail to them about the threat, Sergeant Selk
testified that prisoners did not generally do so because they were afraid that they
would be overheard and labeled "snitches." We conclude therefore that the evidence
was sufficient to support an eighth amendment claim.

                                              B.
       Although we have concluded that Mr. Young's evidence was sufficient to
support a conclusion that the Constitution was violated, Sergeant Coolidge and
Sergeant Selk would be entitled to qualified immunity unless their conduct violated
clearly established constitutional rights "of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This determination is
undertaken in light of the law as it existed at the time and the "specific context of the
case, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194, 201 (2001).
The Supreme Court, however, has made it clear that there need not be a case with
"materially" or "fundamentally" similar facts in order for a reasonable person to know
that his or her conduct would violate the Constitution. Hope, 536 U.S. at 741. The
"salient question ... is whether the state of the law" gave the officials "fair warning that
their alleged [conduct] was unconstitutional." Id.

       The defendants in their brief do not focus on this aspect of qualified immunity.
First of all, in any case, it was no doubt clearly established long before 2004, when
Mr. Young was assaulted, that the eighth amendment required prison officials "to
protect prisoners from violence at the hands of other prisoners." Farmer, 511 U.S. at
832 (internal quotation marks and citation omitted). And we think that the evidence
of Mr. Whitefeather's conduct, in addition to the evidence of the information provided
to Sergeants Coolidge and Selk, all viewed favorably to Mr. Young, showed a
violation of a clearly established eighth amendment right to protection and gave the
officials "fair warning" that their conduct violated that clearly established right. See

                                           -10-
Hope, 536 U.S. at 741. Sergeant Selk's testimony bolsters our conclusion: He agreed
with Mr. Young that inmates would not generally talk about the details of a threat at
the guard desk where other prisoners were likely to overhear them, and he implied that
the guards commonly relied on the use by inmates of certain language, including the
report of a "threat," as notice that the inmate was in danger and should be separated
from the prisoner who threatened him until an investigation was conducted.

                                         III.
      Accordingly, we affirm the district court's order denying qualified immunity to
Sergeant Coolidge and Sergeant Selk, and we remand the case to that court for further
proceedings.
                      ______________________________




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