                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-6784



TROY LUKE BURKS,

                                                Plaintiff - Appellant,

          versus



JOHN PATE, Acting Warden; BETTY E. ALBRITTON,
Disciplinary Hearing Officer; P. FELDER, Unit
Sergeant,

                                               Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Henry M. Herlong, Jr., District
Judge. (CA-02-4014-3-20)


Submitted:   October 1, 2004                 Decided:   January 5, 2005


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Troy Luke Burks, Appellant Pro Se. Isaac McDuffie Stone, III, LAW
OFFICE OF MCDUFFIE STONE, L.L.C., Bluffton, South Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Troy Luke Burks, a South Carolina inmate, appeals from

the district court’s order granting summary judgment in favor of

the Defendants on his 42 U.S.C. § 1983 (2000) complaint.       We affirm

in part, vacate in part, and remand for further proceedings.

          On   April   5,   2002,   while   an   inmate   at   Allendale

Correctional Institution, Burks was attacked by five inmates who

entered his cell.   According to Burks, when the inmates approached

his open cell door:

          I . . . used the empty locker sitting by the door
          to try to block them out and bang it against the
          door to alert Sgt. Felder who was sitting down
          stairs less than 10 feet away . . . . When I
          started banging the metal locker against the door
          everyone stood facing my door including Sgt. Felder
          who disappeared under the walkway because he was
          afraid to intervene out of fear of being injured
          due to the fact he was alone . . . . Everyone in
          the dorm including Sgt. Felder was attracked [sic]
          to take a look up at the loud noise and fury of
          movement when nothing else was going on.


          Burks also submitted an affidavit from Ricky Johnson, an

inmate who witnessed the attack, stating that:

          On April 5, 2002, . . . while sitting on the T.V.
          benches with other inmates, I noticed and heard (5)
          five muslim inmates running up in inmate Troy Burks
          room upstairs . . . . As they ran in, it appeared
          they were being pushed back by some metal locker
          which was making a loud banging noise . . . . After
          approximately 5 minutes of pushing and loud cursing
          and threatening remarks from the 5 muslim inmates,
          they were able to over power inmate Burks and enter
          his room . . . . I notice Sgt. Felder was standing
          and looking up at the assault but instead returned
          back to his desk and sit back down, out of sight.

                                - 2 -
           After the attack, Burks located Sgt. Felder and requested

medical attention; Burks was treated at a local emergency room and

released. Burks’ medical records reveal that he was stabbed in the

face and upper left chest area with a twelve-inch shank, requiring

multiple stitches in both areas.

           Following   a   disciplinary   hearing,   Burks   and   another

inmate were both convicted of fighting and Burks was placed in

administrative segregation. Prison officials debited Burks’ prison

trust account to pay for his hospital bill.

           Burks filed the underlying § 1983 complaint alleging

that:    (1) prison officials knew of a pervasive risk of harm to

inmates and failed to institute measures to prevent the attack;

(2) Sgt. Felder deliberately failed to do anything to stop the

attack once it began; (3) Burks was denied due process at his

disciplinary hearing; (4) Burks was unconstitutionally kept in

solitary confinement after the attack; and (5) prison officials

illegally took money out of Burks’ trust account to pay his medical

bills.

           The district court granted summary judgment in favor of

all the Defendants as to all of Burks’ claims.         For the reasons

that follow, we vacate the award of summary judgment with respect

to claims (2) and (5) and remand for further proceedings.            With

respect to the remaining claims, our review of the record discloses

no reversible error. Accordingly, we affirm as to those claims for


                                 - 3 -
the reasons stated by the district court.           See Burks v. Pate, No.

CA-02-4014-3-20 (D.S.C. Mar. 25, 2004).

            This court reviews de novo a district court’s order

granting summary judgment.      Providence Square Assocs., L.L.C. v.

G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment

is appropriate when there is no genuine issue of material fact

given the parties’ burdens of proof at trial.             See Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986).     In determining whether the moving party has shown that

there is no genuine issue of material fact, a court must assess the

factual evidence and all inferences to be drawn therefrom in the

light most favorable to the non-moving party.                  See Smith v.

Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996) (en

banc).

            With this standard in mind, we find that the district

court erred in granting summary judgment in favor of Sgt. Felder on

Burks’ claim that he failed to take any action to stop the attack.

The Eighth Amendment imposes a duty on prison officials “to protect

prisoners    from   violence   at   the     hands   of    other   prisoners.”

Farmer v. Brennan, 511 U.S. 825, 833 (1994).             To establish a claim

under § 1983 for failure to protect from violence, an inmate must

show:    (1) “serious or significant physical or emotional injury,”

De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); and

(2) that the prison officials had a “sufficiently culpable state of


                                    - 4 -
mind.” Farmer, 511 U.S. at 834 (internal quotation marks omitted).

This court has observed that:

          [C]orrectional officers who are present when a
          violent altercation involving an armed inmate
          erupts and fail to intervene immediately do not
          violate the Eighth Amendment if officers are
          unarmed, unaware of a risk of harm prior to the
          altercation, and take reasonable steps to intervene
          safely . . . . By the same token, . . . a
          correctional officer who stands by as a passive
          observer and takes no action whatsoever to
          intervene during an assault violates the rights of
          the victim inmate. See Gordon v. Leeke, 574 F.2d
          1147, 1152 (4th Cir. 1978).       Gordon does not
          suggest whether the officers knew about the
          potential violence before the attack or whether
          they were merely present when the fight broke out;
          nevertheless, the plaintiff stated a viable claim
          as a result of the officers’ failure to take any
          action whatsoever.

Odom v. South Carolina Dep’t of Corrections, 349 F.3d 765, 773 (4th

Cir. 2003).

          Although the district court determined that Burks had

presented evidence of significant physical injury and evidence that

Felder could see and hear but did nothing to prevent or stop the

attack, the court nevertheless did not believe that the evidence

presented by Burks was sufficient to defeat summary judgment.

Notwithstanding Burks’ affidavit and the affidavit submitted by the

inmate witness, the court relied on a photograph submitted by the

Defendants with their motion for summary judgment to conclude that

“it would have been physically impossible for Felder to see,

evaluate or be subjectively aware of the altercation and the risk

of harm to Burks.”

                                - 5 -
          However, the photographs submitted by the Defendants

actually corroborated Burks’ (and the witness’) version of the

events:   i.e.,   that   Felder   saw   the   attack   but   intentionally

retreated to a desk where he would be out of sight.               Second,

Felder’s affidavits and the photograph created a genuine issue of

material fact--whether or not Felder actually saw the attack and

took no action--precluding summary judgment on this claim.

          We therefore vacate the award of summary judgment in

favor of Sgt. Felder as to this claim and remand to the district

court for further proceedings.     See Odom, 349 F.3d at 774 (“[W]hen

we are presented with two reasonable inferences, we are constrained

on summary judgment to accept the one most favorable to the non-

moving party”).

          We also find that the Defendants were not entitled to

summary judgment on Burks’ claim that they erroneously charged his

prison trust account $249 to cover the hospital emergency room

treatment he received after the attack.

          A prisoner has a protected property interest in his

prison trust account.    Gillihan v. Shillinger, 872 F.2d 935 (10th

Cir. 1989) (holding that prisoner stated a claim under § 1983 based

on prison’s assessment of transportation costs against his trust

account); cf. Washlefske v. Winston, 234 F.2d 179 (4th Cir. 2000)

(finding that limited property interest in prison trust account did

not extend to any interest earned on that account).          Therefore, a


                                  - 6 -
prisoner may not be deprived of those funds without minimum due

process.    See Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950) (holding that before one may be deprived of

property by adjudication, procedural due process requires prior

notice and hearing).        We find no evidence in the record to show

that Burks was given notice and an opportunity for a hearing prior

to the debiting of his prison trust account.

            The district court also concluded that debiting the

account was specifically authorized by South Carolina statute. The

South Carolina Code provides that prison authorities may deduct

from a prisoner’s inmate trust account the costs of “medical

treatment for injuries inflicted by the inmate upon himself or

others.”    S.C. Code Ann. § 24-13-80 (2000).          This statute does not

authorize deduction for costs associated with treating injuries to

the inmate by other inmates. We therefore vacate the award of

summary judgment to the Defendants on this claim as well and remand

for further proceedings.       We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials    before   the   court   and     argument    would   not   aid   the

decisional process.



                                                        AFFIRMED IN PART;
                                             VACATED AND REMANDED IN PART




                                    - 7 -
