                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 06-3017
                                ___________

Michael David Lenz,                    *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Charlie Wade, Jr., Sgt. Cummins Unit, *
ADC (originally sued as Wade);         *
Louis Seamster, CO-I, Cummins Unit, *
ADC (originally sued as Seamster);     *
Kenneth Bell, Lt. Cummins Unit,        *
ADC (originally sued as Bell);         *
Arkansas Department of Correction;     *
Larry Norris,                          *
                                       *
            Defendants,                *
                                       *
M.D. Reed,                             *
                                       *
            Appellant,                 *
                                       *
Loren Burrer; Percy Sergeant, Mr.,     *
                                       *
            Defendants.                *
                                  ___________

                          Submitted: June 11, 2007
                             Filed: June 20, 2007
                              ___________

Before BYE, RILEY, and BENTON, Circuit Judges.
                            ___________
RILEY, Circuit Judge.

      Following a two-day bench trial, the district court entered a judgment against
Charlie Wade, Jr. (Officer Wade), Kenneth Bell (Officer Bell), and M.D. Reed
(Warden Reed) for inflicting cruel and unusual punishment on Michael Lenz (Lenz).
Warden Reed appeals. We reverse the judgment against Warden Reed and remand.

I.     BACKGROUND
       Lenz is an inmate within the Arkansas Department of Correction (ADC). At
the time of the incident on January 24, 1998, Lenz and three other inmates were
housed in isolation in the Cummins Unit of the ADC, where Warden Reed was the
warden. As a result of an incident between an officer and one of the inmates, several
officers instructed the inmates to allow themselves to be handcuffed. Lenz refused to
be handcuffed. Officer Wade, Officer Bell, and the other officers doused Lenz and
other inmates with pepper spray. Lenz then put on the handcuffs. Pursuant to an
ADC policy, the officers took the other inmates affected by the pepper spray to the
showers, however, the officers took Lenz to the captain’s room, which is an enclosed
room without cameras. In the captain’s room, Officer Wade, Officer Bell, and other
officers beat Lenz, who was still handcuffed, and shocked him with a shock stick.1

      1
       On January 7, 1998, similar violence occurred in the Cummins Unit. After
inmates threw water or urine on a female officer, other officers doused the inmates
with pepper spray. The officers then took inmates Kiloe Page (Page) and George
Proby (Proby) to the captain’s room. In the captain’s room, Officer Wade, Officer
Bell, and other officers beat Page and Proby and used shock sticks in the inmates’
“behinds.”

        The district court found Warden Reed learned of the January 7 violent incident
after the January 24 violent incident because “[Warden Reed] did not receive [Page’s
grievance] until February 2, 1998, which was after the Lenz incident.” The district
court’s factual finding is not clearly erroneous and is not challenged by Lenz. Thus,
the January 7 violent incident is not relevant to determining whether Warden Reed
exhibited deliberate indifference. See Blades v. Schuetzle, 302 F.3d 801, 804 (8th Cir.

                                         -2-
As a result of the beating, Lenz suffered severe injuries, including a locked jaw and
a broken rib. Lenz did not receive immediate medical treatment for his injuries
despite an ADC policy that requires inmates who are shocked with shock sticks to
receive immediate medical attention. Warden Reed was not present during the
January 24 violent incident.2

       Before January 24, 1998, Warden Reed had reviewed several complaints
regarding Officer Wade and Officer Bell. First, inmate Greg Rose (Rose) alleged
Officer Wade “jumped” him on February 26, 1996. Warden Reed investigated the
grievance, concluding the evidence did not support Rose’s allegations. Warden Reed
then referred the grievance to Internal Affairs, which concurred with Warden Reed’s
conclusion. Second, inmate Tommy Radford (Radford) accused Officer Wade of
beating him on May 22, 1996. After investigating the matter, Warden Reed concluded
the evidence supported the accusations and (1) suspended Officer Wade for one week
without pay; (2) counseled Officer Wade; (3) told Officer Wade “a reoccurance [sic]
of this type of behavior will not be tolerated,” meaning termination; and

2002) (“[T]he matter of deliberate indifference must be determined with regard to the
relevant prison official’s knowledge at the time in question, not with ‘hindsight’s
perfect vision.’” (quoting Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998))).
      2
        Lenz attempted to file a grievance with the ADC regarding the January 24
violent incident, however, Officer Bell destroyed Lenz’s completed grievance form.
The district court concluded Lenz was prevented from exhausting Lenz’s available
administrative remedies. See generally Lyon v. Vande Krol, 305 F.3d 806, 808 (8th
Cir. 2002) (en banc) (“[I]nmates cannot be held to the exhaustion requirement of the
[Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66,
codified in part at 42 U.S.C. § 1997e,] when prison officials have prevented them
from exhausting their administrative remedies.”). Under the Prison Litigation Reform
Act, failure to exhaust the available administrative remedies is an affirmative defense,
not a matter of subject matter jurisdiction. See Jones v. Bock, 127 S. Ct. 910, 919-922
(2007). Because this issue has not been raised on appeal, we will not consider it
further. See United States v. Paz, 411 F.3d 906, 910 n.4 (8th Cir. 2005) (stating we
will not consider issues that have been abandoned).

                                          -3-
(4) temporarily reassigned Officer Wade to building security for about three months.
Officer Wade’s beating of Radford was Officer Wade’s first instance of disciplinary
action since joining the ADC in 1989. Warden Reed believed Officer Wade’s
misconduct was a one-time event and did not constitute a pattern of misconduct.
Third, inmate Patrick Sherman (Sherman) alleged Officer Wade attacked him on
October 29, 1996. Warden Reed investigated the grievance, concluding Officer Wade
used pepper spray only after Sherman attempted to kick Officer Wade. Fourth, inmate
Marcus Copeland (Copeland) accused Officer Bell of punching him and pushing his
head against a wall. After an investigation, Warden Reed concluded Copeland’s
accusations were unfounded. Fifth, inmate Rickey Stewart (Stewart) alleged Officer
Bell and another officer shocked him after he refused to be handcuffed. After
investigating the grievance, Warden Reed concluded Stewart’s allegation could not
be corroborated. If an inmate’s grievance could not be corroborated, then Warden
Reed denied the grievance.

       Lenz filed a complaint pursuant to 42 U.S.C. § 1983 and the Arkansas Civil
Rights Act of 1993, Ark. Code §§ 16-123-101–16-123-109,3 against Officer Wade,
Officer Bell, Director Larry Norris (Director Norris), Warden Reed, and others. A
magistrate judge held a bench trial and issued a report and recommendation, which the
district court adopted, concluding (1) Officer Wade and Officer Bell inflicted cruel
and unusual punishment on Lenz, (2) Director Norris’s actions did not exhibit
deliberate indifference, and (3) Warden Reed’s actions exhibited deliberate
indifference. The district court awarded Lenz $15,000 in compensatory damages,
$36,562.50 in attorney fees and $3,424.45 in costs assessed against Officer Wade,
Officer Bell, and Warden Reed, jointly and severally. The district court further
awarded punitive damages of $10,000, allocated $5,000 each to Officer Wade and
Officer Bell.

      3
       With respect to prisoners, the cruel and unusual punishment analysis under the
United States Constitution and the Arkansas Constitution is the same. Grayson v.
Ross, 454 F.3d 802, 811-12 (8th Cir. 2006).

                                         -4-
       Warden Reed appeals, challenging the district court’s finding that Warden
Reed’s actions exhibited deliberate indifference and also the district court's calculation
of the compensatory damages award. Officer Wade and Officer Bell did not appeal
the judgment of the district court.

II.   DISCUSSION
      After a bench trial, we review for clear error the district court’s findings of fact
and we review de novo the district court’s legal conclusions. Snider v. United States,
468 F.3d 500, 509 (8th Cir. 2006); see also Fed. R. Civ. P. 52(a).

      The Eighth Amendment prohibits the infliction of cruel and unusual
punishment. U.S. Const. amend. VIII. “‘[T]he treatment a prisoner receives in prison
and the conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v.
McKinney, 509 U.S. 25, 31 (1993)). Prison officials must provide humane conditions
of confinement, including protecting inmates from violence. See Jensen v. Clarke, 94
F.3d 1191, 1197 (8th Cir. 1996). Unnecessary and wanton inflictions of pain,
including inflictions of pain without penological justification, “‘constitute[] cruel and
unusual punishment forbidden by the Eighth Amendment.’” Hope v. Pelzer, 536 U.S.
730, 737 (2002) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). “Being
violently assaulted in prison is simply not ‘part of the penalty that criminal offenders
pay for their offense against society.’” Farmer, 511 U.S. at 834 (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)).

        A prison official, such as Warden Reed, “may not be held liable under § 1983
for the constitutional violations of a subordinate on a respondeat superior theory.”
Ambrose v. Young, 474 F.3d 1070, 1079 (8th Cir. 2007) (quotation omitted). A
prison official, nonetheless, violates the Eighth Amendment by failing to protect an
inmate from a substantial risk of serious harm to the inmate. See Blades v. Schuetzle,
302 F.3d 801, 803 (8th Cir. 2002).

                                           -5-
       A violation of the Eighth Amendment based on a failure to protect has two
parts. First, the conditions that result from the failure to protect the inmate must pose
a substantial risk of serious harm to the inmates. Farmer, 511 U.S. at 834. “This
objective requirement ensures that the deprivation is sufficiently serious to amount to
a deprivation of constitutional dimension.” Jensen, 94 F.3d at 1197. Here, no dispute
exists that the abusive conditions that developed at the Cummins Unit posed a
substantial risk of serious harm to the inmates.

       Second, the subject prison official must have exhibited a sufficiently culpable
state of mind, that is, the prison official must have been deliberately indifferent to a
substantial risk of serious harm to the inmates. See Farmer, 511 U.S. at 834. “[A]
prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane 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.” Id. at 837. “This subjective state of mind must
be present before a plaintiff can be successful because only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.” Blades, 302 F.3d at 803
(internal quotation marks omitted). This requisite state of mind is akin to
recklessness, which is “more blameworthy than negligence,” yet less blameworthy
than purposefully causing or knowingly bringing about a substantial risk of serious
harm to the inmates. See Farmer, 511 U.S. at 835, 839-40.

      An obvious risk of a harm justifies an inference a prison official subjectively
disregarded a substantial risk of serious harm to the inmates. See Hope, 536 U.S. at
738. Nevertheless, “[a] single incident, or a series of isolated incidents, usually
provides an insufficient basis upon which to assign supervisor liability.” Howard v.
Adkison, 887 F.2d 134, 138 (8th Cir. 1989). “However, as the number of incidents



                                          -6-
grow[s], and a pattern begins to emerge, a finding of tacit authorization or reckless
disregard becomes more plausible.” Id.

       The evidence shows Officer Wade used excessive force on only one
substantiated occasion, resulting in a one-week suspension without pay, counseling
by Warden Reed, a reprimand, and temporary reassignment. Inmates filed several
other uncorroborated grievances alleging the use of excessive force by Officer Wade
and Officer Bell. As of January 24, 1998, Warden Reed had actual knowledge of only
a single corroborated incident involving the use of excessive force by Officer Wade.
Warden Reed investigated the other grievances and each time concluded neither
Officer Wade nor Officer Bell had acted improperly. Based on Officer Wade’s use
of excessive force against Radford, combined with the other uncorroborated
accusations of excessive force, Warden Reed may have suspected Officer Wade (and
possibly Officer Bell) posed substantial risks of serious harm to the inmates.
However, neither unsupported conjecture nor negligence regarding a substantial risk
of serious harm to the inmates is sufficient to prove deliberate indifference. See
Farmer, 511 U.S. at 835. Lenz never presented any direct or circumstantial evidence
showing Warden Reed actually knew Officer Wade and Officer Bell posed substantial
risks of serious harm to the inmates. Cf. Tucker v. Evans, 276 F.3d 999, 1003 (8th
Cir. 2002) (reversing the denial of qualified immunity to supervisors because, in part,
the evidence did not demonstrate the supervisors knew of and deliberately disregarded
“an excessive risk to inmate health and safety”). The record here does not establish
Warden Reed ever had the requisite knowledge or drew the necessary inferences to
support a claim of deliberate indifference. See Farmer, 511 U.S. at 837.

       Davis v. Delo, 115 F.3d 1388 (8th Cir. 1997), relied upon by Lenz and the
district court, is not to the contrary. In Davis, we held the record supported the
conclusion a supervisor exhibited deliberate indifference to a substantial risk of
serious harm to the inmates when the supervisor (1) had received numerous letters and
other complaints accusing the officer of using excessive force, (2) had not investigated

                                          -7-
the accusations, and (3) ignored recommendations from other officials that the officer
be reassigned or discharged. Id. at 1392-93, 1396. Based on the evidence, the district
court found the supervisor “had knowledge that [the officer] had a propensity to use
excessive force.” Id. at 1396. In contrast here, Warden Reed investigated all five
accusations, substantiated only one, and did not ignore recommendations for
reassignment or discharge.         Warden Reed actually counseled, suspended,
reprimanded, and reassigned Officer Wade for the one substantiated accusation. The
record does not sufficiently show Warden Reed knew by January 24, 1998, that
Officer Wade and Officer Bell had a propensity to use excessive force or posed
substantial risks of serious harm to the inmates.

       Additionally, Officer Wade and Officer Bell were not obvious risks to harm the
inmates. The evidence indicated Warden Reed believed Officer Wade’s use of
excessive force against Radford was a one-time event and not a pattern of misconduct.
A single substantiated incident involving excessive force in Officer Wade’s seven-
year career does not indicate the officer was an obvious risk to harm the inmates. Cf.
Riley v. Olk-Long, 282 F.3d 592, 595-96 (8th Cir. 2002) (affirming the district court’s
denial of the supervisor’s and warden’s motions for judgment as matters of law
because the officer “was the subject of numerous investigations concerning his
inappropriate behavior with inmates” and the supervisor and warden believed the
officer was a problem and may be sexually assaulting inmates). Moreover, the
uncorroborated grievances only indicated inmates complained about Officer Wade and
Officer Bell in the same fashion the inmates regularly complained about many other
officers. (Warden Reed responded to 24,352 grievances from 1996 to 1998, 82
involving physical abuse charges.)

       The district court primarily was convinced Warden Reed exhibited deliberate
indifference because, after the one substantiated violent incident in May 1996, Warden
Reed did not provide Officer Wade with counseling, anger management, or some



                                         -8-
other remedial program before returning Officer Wade to the isolation unit.4
However, as the district court found, Warden Reed responded to the May 1996 violent
incident by suspending Officer Wade for one week without pay, and counseling,
reprimanding, and temporarily reassigning Officer Wade to another unit. The district
court’s criticism of Warden Reed’s disciplinary choices does not support a finding of
deliberate indifference by Warden Reed. Federal courts are in no position to so finely
tune a warden’s supervision and discipline of officers in a state prison, such as the
district court conducts here.5

       Therefore, we reverse the district court’s finding of liability as to Warden Reed.
Having made this determination, we need not consider Warden Reed’s argument the
district court erred in calculating Lenz’s compensatory damages. Lenz’s pro se
motions are hereby denied.

III.  CONCLUSION
      We reverse the judgment against Warden Reed and remand for further
proceedings consistent with this opinion.
                      ______________________________




       4
       The district court reasoned “[h]ad [Warden] Reed [after the May 1996 violent
incident] provided some sort of remedial program for [Officer] Wade, such as
counseling or anger management, together with a supervised schedule for returning
back to work in the isolation area, the [c]ourt probably would reach a different
conclusion concerning liability.”
       5
       “The Constitution charges federal judges with deciding cases and
controversies, not with running state prisons.” Lewis v. Casey, 518 U.S. 343, 364
(1996) (Thomas, J., concurring).

                                          -9-
