                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-2053
                                  ___________

Frederick Burnley,                     *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Marvin Evans, Jr., Warden,             * [UNPUBLISHED]
Tucker Unit, ADC, et al.,              *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: September 28, 2007
                                Filed: October 4, 2007
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
                             ___________

PER CURIAM.

     Frederick Burnley, an inmate in the Maximum Security Unit of the Arkansas
Department of Correction (ADC), appeals the district court’s1 order dismissing his
42 U.S.C. § 1983 suit against ADC officials. Burnley alleged that the appellees,
Marvin Evans (warden at ADC), Richard Wimberly (Chief of Security for the
Maximum Security Unit of ADC), and Jackie Davis (Lieutenant in the Maximum


      1
        The Honorable H. David Young, United States Magistrate Judge for the
Eastern District of Arkansas, who presided over the case pursuant to consent of the
parties under 28 U.S.C. § 636(c).
Security Unit of the ADC), violated the Eighth Amendment’s prohibition against cruel
and unusual punishment by failing to protect Burnley from an attack by another
inmate. Following a one-day bench trial, the district court concluded that the
defendants had not been deliberately indifferent to a substantial risk of serious harm
to Burnley and dismissed the action. We affirm.

       It is ADC’s policy to have a guard stationed outside the gym to provide
continuous supervision of the inmates during gym call, an event occurring twice a
week in which inmates have the opportunity to exercise indoors. On March 1, 2003,
no guard was available to provide continuous gym-call supervision. Nevertheless,
Davis chose to conduct gym call in order to allow the inmates the opportunity to
exercise. Davis and another prison official took turns supervising gym call while also
attending to other duties. At some point during gym call, a dispute arose in a
basketball game, and Burnley was attacked twice by inmate John Ponder. During the
first encounter, Burnley suffered minor injuries. During the second encounter,
Burnley was rendered unconscious and sustained a broken nose, fractured eye socket,
and lacerations. Burnley testified that these injuries have resulted in sinus problems
and migraine headaches. There was testimony that it took more than five minutes for
security to arrive after the other inmates called for help. Burnley did not have a prior
history of conflict with Ponder, and he did not request permission to leave the gym at
any point during gym call that day.

       The district court absolved Evans and Wimberly of liability, finding that they
were not present at the time of the incident, had no prior knowledge of a potential
conflict between Burnley and Ponder, and did not take any action that led to Burnley’s
injuries. Although the district court found that Davis violated prison procedures on
the day of the incident and therefore may have been negligent, it determined that
Burnley had not proved by a preponderance of the evidence that Davis acted with
deliberate indifference to Burnley’s health or safety. We review the district court’s
findings of fact for clear error and the district court’s legal conclusions de novo. Lenz

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v. Wade, 490 F.3d 991, 994 (8th Cir. 2007), petition for cert. filed, __ U.S.L.W. __
(U.S. Aug. 24, 2007) (No. 07-6188).

       To establish that the appellees violated the Eighth Amendment by failing to
protect him, Burnley was required to prove that the lack of supervision during gym
call posed a substantial risk of serious harm to the inmates and that the appellees were
deliberately indifferent to that risk. Lenz, 490 F.3d at 995 (citing Farmer v. Brennan,
511 U.S. 825, 834 (1994)). Assuming, arguendo, that there was a substantial risk of
serious harm to the inmates, we conclude that the district court did not err in finding
that the appellees were not deliberately indifferent to that risk.

       A prison official is deliberately indifferent to a substantial risk of serious harm
to an inmate if the official has “actual intent that the inmate be harmed, or knowledge
that harm will result, or reckless disregard of a known excessive risk to inmate health
and safety.” Krein v. Norris, 309 F.3d 487, 492 (8th Cir. 2002) (emphasis omitted).
Because Burnley does not allege that the appellees had actual intent to cause him harm
or that they had knowledge that he would be harmed without continuous supervision
during gym call, he was required to establish that the appellees recklessly disregarded
a substantial risk of serious harm.

       Although an obvious risk of harm may justify an inference that a prison official
subjectively disregarded that risk, a single incident causing injury to an inmate
generally is not sufficient to establish an Eighth Amendment violation. Lenz, 490
F.3d at 995-96. Prior to the March 1, 2003, incident, there were no encounters or
conflicts between Burnley and Ponder. Additionally, Burnley did not request to leave
the gym either before the initial encounter or between that encounter and the second.
See Berry v. Sherman, 365 F.3d 631, 634 (8th Cir. 2004) (concluding that there was
no substantial risk of serious harm because there was no evidence that plaintiff feared
for his safety prior to the incident leading to the injury, and the plaintiff declined
protective custody). Accordingly, there is no evidence that Burnley believed he faced

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a substantial risk of serious harm by attending gym call or by remaining in the gym
after the first encounter, and there is no evidence that the harm to Burnley arose out
of anything more than a single, isolated incident. Thus, the risk that Burnley would
be injured during gym call was not obvious, and we cannot infer that the appellees
subjectively disregarded that risk.

         Although leaving a group of maximum security inmates unsupervised may itself
pose a risk of harm to the inmates, the risk that violence will occur in a maximum
security prison can never be completely eliminated. See Andrews v. Siegel, 929 F.2d
1326, 1330-31 (8th Cir. 1991) (“some violence in prisons may be unavoidable due to
the character of the prisoners”) (internal quotations and citations omitted).
Recognizing that this risk exists, “we give prison officials ‘wide-ranging deference
. . . to preserve internal order and discipline and to maintain institutional security.’”
Jackson v. Everett, 140 F.3d 1149, 1152-53 (8th Cir. 1998) (quoting Falls v. Nesbitt,
966 F.2d 375, 379 (8th Cir. 1992)). Here, the record reveals that Evans and Wimberly
were not involved in the decision to conduct gym call on March 1, 2003, and that
Davis used his best judgment to ensure that the inmates received the opportunity to
exercise while also balancing the security needs of the prison. Even if Davis was
negligent in failing to follow prison procedures and in conducting gym call without
continuous supervision of the inmates, mere negligence does not constitute deliberate
indifference. See Lenz, 490 F.3d at 995.

      The judgment is affirmed.
                      ______________________________




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