                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1486
                       ___________________________

                                Diamond D. Blair

                      lllllllllllllllllllllPlaintiff - Appellant

                                         v.

                          Michael Bowersox, Warden

                            lllllllllllllllllllllDefendant

                    Roger Terry, Deputy Assistant Warden

                      lllllllllllllllllllllDefendant - Appellee

John Doe 1, SCCC Correctional Officer I; John Doe 2, SCCC Correctional Officer
   I; Jane Doe 1, SCCC Correctional Officer I; Jane Doe 2, SCCC Correctional
                                   Officer I

                           lllllllllllllllllllllDefendants
                                   ____________

                   Appeal from United States District Court
               for the Western District of Missouri - Springfield
                                ____________

                         Submitted: February 12, 2019
                             Filed: July 12, 2019
                                ____________

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
                              ____________
SMITH, Chief Judge.

       Inmate Diamond Blair was attacked by a fellow inmate on the first day he
arrived at South Central Correctional Center (SCCC) in Licking, Missouri. Following
the attack, prison officials placed Blair in a single-man cell in the facility’s
administrative segregation unit (“Ad-Seg”) while they conducted an investigation.
Officials returned Blair to the prison’s general population after two months in Ad-
Seg. Two days later, he was attacked again, this time by a different inmate. Blair
brought suit under 42 U.S.C. § 1983 against Deputy Warden Roger Terry, alleging
a failure to protect him from harm by fellow inmates. The case was tried to a jury.
After the parties rested, Terry moved for judgment as a matter of law. The district
court1 granted Terry’s motion. Blair challenges the court’s ruling on appeal. We
affirm.

                                     I. Background
       Diamond Blair brought a failure-to-protect claim against Deputy Warden Roger
Terry. Blair alleged Terry acted with deliberate indifference to the substantial risk that
Blair would be attacked by a fellow inmate, in violation of the Eighth Amendment’s
protection against cruel and unusual punishment. A jury trial was held, and at the
close of all the evidence, the district court granted judgment for Terry as a matter of
law. The district court determined that no reasonable jury could find in Blair’s favor.

        We review the district court’s decision de novo. Spruce v. Sargent, 149 F.3d
783, 785 (8th Cir. 1998). Our analysis requires “that (1) all direct factual conflicts
must be resolved in favor of [Blair]; (2) all facts in support of [Blair] that the
evidence tended to prove must be assumed; and (3) [Blair] must be given the benefit
of all reasonable inferences.” Id. We will affirm the decision if the evidence, viewed


      1
      The Honorable Roseann Ketchmark, United States District Judge for the
Western District of Missouri.

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under these standards, would not permit a reasonable jury to come to a different
conclusion. Id.

       Blair is an inmate serving a life sentence within the Missouri Department of
Corrections (MDOC). He arrived at the SCCC facility on April 7, 2015, where he was
assigned to a general population housing unit. That evening, as Blair sat down in the
dining hall for dinner, a fellow inmate whom he knew approached him and put his
arm around his shoulder. Blair shrugged him off. Moments later, another inmate,
Qusai Mahasin, attacked Blair from behind, stabbing him multiple times with a
prison-made knife. Blair had never met or had any contact with Mahasin before the
attack, and he did not know why Mahasin attacked him.

        The attack occurred in the prison’s general population unit. In addition to
general population, SCCC also contains protective custody and Ad-Seg housing units.
The prison places inmates in protective custody when there is reason to believe that
their safety would be jeopardized in general population. Inmates in protective custody
still receive the same general privileges afforded to the general population inmates.
Inmates housed in Ad-Seg, however, receive severely limited recreational privileges,
fewer opportunities to leave their single-man cells, and shorter meal times. Inmates
commonly refer to Ad-Seg as “the hole.” Following the attack, Blair was treated in
the infirmary, issued a conduct violation for fighting, and temporarily placed in an
Ad-Seg housing unit while prison officials conducted an investigation into the
incident. Officials also placed a transfer hold on Blair so that he would not be
transferred to another facility before they could conclude the investigation.

       As a deputy warden at SCCC, Terry handled “offender management.” This
responsibility included supervising the prison’s custody and classification staff and
approving inmate housing recommendations. On April 13, several days after the
attack, Terry went to the Ad-Seg housing unit to speak with another inmate. While
he was there, he approached Blair at his cell. Blair asked Terry why he was being kept

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in Ad-Seg despite being the victim of an attack. Terry replied that, as far as he was
aware, the investigation was still ongoing, so he could not “do anything with [Blair]”
at that time, but he “would check on it” for him. Trial Tr., Day 3, at 433, Blair v.
Bowersox et al., No. 6:15-cv-03532 (W.D. Mo. April 16, 2018), ECF No. 247.

      Blair testified that he asked Terry to send him to a protective custody unit
because he believed that someone had a “hit” out on him. Trial Tr., Day 1, at 54, Blair
v. Bowersox et al., No. 6:15-cv-03532 (W.D. Mo. April 16, 2018), ECF No. 245.
When Terry asked him why he thought so, Blair replied:

      I told him I felt at the time or believed at that time it had something to
      do with my murder case, the case—the case that I’m doing time for. I
      believe that some of my—I believe that my victim had some relatives at
      that institution. And that was maybe the reason why I was stabbed
      because I didn’t know why I was stabbed. I just got there.

Id. According to Blair, Terry said he was going to leave him in Ad-Seg until he could
“figure out what to do with” him because he “was too aggressive” to be placed in the
protective custody unit. Id. When Blair protested, Terry advised him, “you’re not
going to PC. Get that out of your head.” Id. Terry also told him that a facility transfer
was not an option, so Blair believed that “the only recourse was to keep [him] in Ad-
Seg or go back to general population.” Id. at 57. Another offender in the housing unit,
Carl Johnson, testified that he heard Terry say to Blair, “I’m not letting you out of
here,” and “PC’s not an option.” Trial Tr., Day 2, at 257, Blair v. Bowersox et al., No.
6:15-cv-03532 (W.D. Mo. April 16, 2018), ECF No. 246. Johnson did not hear Blair
ask Terry for protective custody, but he heard Terry tell Blair he was “just too
aggressive for” the PC unit. Id. at 258.

      In an effort to get out of the Ad-Seg unit, Blair wrote a letter to Eric Schafer,
the MDOC Investigator assigned to his case. In the letter, he expressed his frustration
with being confined to Ad-Seg and receiving a conduct violation despite being an

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assault victim. He questioned why he was being “punished,” especially in light of
available surveillance video of the attack and the fact that “the assailant was locked
up immediately, as well.” J.A., Vol. II, at 68. The letter concludes: “I would like to
be released back to general population. I do not want/need protective custody. Thank
you.” Id. Blair testified that he wrote this because he believed the more he requested
protective custody, the longer he would be left in Ad-Seg. He believed his only option
outside of Ad-Seg was general population.

       Two days later, prison officials conducted a classification hearing to review
Blair’s housing assignment. Blair testified that he told the Ad-Seg committee he
believed he had a hit out on him, and he requested a transfer to another institution. He
said he told the committee about his conversation with Terry and his understanding
that protective custody was not an option. The committee asked Blair if he needed
protective custody, and he said no. He testified that he declined because “if you ask
again for PC, you know you’re going to be in the hole longer.” Trial Tr., Day 1, at 75.
An offender’s statement at a classification hearing is generally recorded or
summarized by one of the committee members on a classification hearing form.
Blair’s testimony about the statement he gave to the committee did not appear on the
corresponding form. Instead, a committee member checked a box indicating Blair did
not need protective custody, and the form does not show that Blair had made any
requests for protective custody in the days preceding the hearing.

       The form also indicates Blair had been placed in disciplinary segregation,
which is more punitive than administrative segregation, due to the fighting conduct
violation he received on April 7. Blair would remain in disciplinary segregation until
April 23, and remain housed in the Ad-Seg unit until another review scheduled for
the following month. Blair signed the classification hearing form as well as a
“Protective Custody Needs Assessment/Waiver” indicating “I do not feel that I need
protective custody. I am not aware of any enemies among the inmate population, and
do not believe I am in any danger.” J.A., Vol. II, at 70. Blair testified that he waived

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protective custody status because he knew Terry would be the one approving the
form.

        Also on April 23, Blair filed an Informal Resolution Request (IRR) form. The
IRR is the first step in SCCC’s grievance system. Blair’s IRR requested an
expungement of the conduct violation he had received following the assault “and that
[he] be immediately reassigned to general population.” J.A., Vol. III, at 666. A case
manager reviewed his complaint and recommended the dismissal and expungement
of the conduct violation on May 13, 2015. That same day, the Ad-Seg committee
reviewed Blair’s housing assignment. Blair testified that he again made a statement
to the committee requesting placement in general population if protective custody was
not an option. However, the summary of his statement on the classification hearing
form reads: “Just wondering what my status is going to be. I don’t need P.C.” J.A.,
Vol. II, at 71. The committee checked the “No” box next to “P.C. Needs” and
recommended continued assignment to Ad-Seg with another review in 90 days. Id.
Again, Blair signed a form waiving protective custody.

        Immediately following the May 13 hearing, Blair filed another IRR form
challenging his continued confinement in Ad-Seg. On the form under the heading,
“Action Requested: State Remedies You Are Seeking,” Blair wrote, “Released to
general population or, in the alternative, agreement to forgo further grievance
procedures as redundant, and petition the court(s) for immediate decision for relief.”
Id. at 74.

       On May 27, 2015, MDOC Investigator Schafer interviewed Blair as part of the
investigation into the April 7 attack. The interview was audio-recorded and played
for the jury. In the recording, Blair reiterated that he did not know why he was
attacked. Schafer concluded the interview by asking Blair if there was anything he
would like to add, to which Blair replied, “I don’t need PC if that’s, you know, if
that’s the issue. I don’t need PC.” J.A., Vol. III, at 752. Blair’s testimony at trial

                                         -6-
explained his answer to Schafer as necessitated by his April 13 conversation with
Terry, in which Terry said that protective custody was unavailable. According to
Blair, he only represented that he did not need protective custody because he believed
he could not get it and wanted to remove its consideration as a possible hindrance to
his getting released from Ad-Seg.

        Blair testified that he wrote Terry three or four letters in April and May
requesting protective custody or, in the alternative, a transfer. These letters are not in
the case record. After receiving no response to his letters, Blair wrote another letter
on June 1 to SCCC Warden Michael Bowersox. In it, Blair wrote, “If I cannot be
released to general population, please transfer me” to another facility. Id. at 750. On
June 2, Schafer sent Warden Bowersox a letter stating that Blair’s transfer hold was
no longer necessary for investigative purposes and that SCCC officials “should
determine if the offender needs placement/continued placement in administrative
segregation.” Id. at 731. Schafer testified that he released the transfer hold after his
May 27 interview with Blair. Terry testified that he received a copy of Schafer’s
letter.

       Warden Bowersox put a post-it note on Schafer’s letter asking Terry, “what are
we going to do with [Blair][?]” Trial Tr., Day 3, at 446. Terry then spoke to the
warden, who told him that Blair’s family had been calling and that Blair had been
writing letters. Terry testified that he told Warden Bowersox that “Blair is a victim”;
“if there’s nothing else on the investigation and we know that . . . we got [Mahasin]
locked up,” and Blair “doesn’t want protective custody, I don’t care . . . . if [Blair]
goes to general population.” Id. at 444–45. He advised the warden to hold a special
review hearing because he “didn’t see the point in [Blair] having to sit in a single cell
solitary confinement for another month or two when he was a victim.” Id. at 476. The
warden agreed, and Terry ordered the review.




                                           -7-
       On the morning of June 5, prison officials approached Blair’s cell and asked
whether he was “ready to get out of the hole” and if he was “tired of complaining”
about being in Ad-Seg. Trial Tr., Day 2, at 204. Blair testified he did not receive a
formal classification hearing, but the officials did consult him about his placement
preference. In contrast to the other classification hearing forms in the record, the form
reporting the June 5 hearing was not signed by any classification committee members
or by a deputy warden. Terry testified that Blair could not have been released to
general population without a signed classification hearing form or a signed protective
custody waiver. Blair testified that he does not recall signing a protective custody
waiver before his release to general population on June 5, and there is no such waiver
form in the evidentiary record.

       On June 7, just two days after Blair’s return to general population, he suffered
a second attack, this time from a different inmate. The attack severely injured Blair.
On June 9, Schafer attempted to interview Mahasin, Blair’s first attacker. Mahasin
refused to speak or offer a written statement. That day, Schafer issued his report
regarding the April 7 attack. Schafer’s report was inconclusive and left the cause of
the attack on Blair as undetermined. The report did not determine whether someone
had ordered the first attack.

                                     II. Discussion
      On appeal, Blair argues that the district court erred in granting judgment as a
matter of law to Terry. Blair claims that Terry’s approval of his return to general
population amounted to a failure to protect him from the second attack. To succeed
on his claim, Blair must be able to prove two elements: (1) that Terry knew there
existed an objective, substantial risk of serious harm to Blair in the prison’s general
population housing unit; and (2) that Terry was deliberately indifferent to that risk.
See Letterman v. Does, 789 F.3d 856, 861–62 (8th Cir. 2015).




                                          -8-
      The deliberate indifference element is subjective and has two components. Id.
at 862. First, Blair “must . . . demonstrate that [Terry] knew of the substantial risk of
serious harm to [Blair].” Id. Blair does not have to prove that Terry had actual
knowledge of the risk of harm; he can instead demonstrate that the risk was obvious
enough to support the inference that Terry knew the risk existed. Id. However,
“constructive knowledge, or the ‘should-have-known’ standard, is not sufficient to
support a finding of deliberate indifference.” Spruce, 149 F.3d at 786 (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The hurdle is higher: Blair must
instead show that Terry “had been exposed to information concerning the risk and
thus ‘must have known’ about it.” Letterman, 789 F.3d at 862 (quoting Farmer, 511
U.S. at 842).

       Second, he must prove that Terry “deliberately disregarded that risk” by
showing that Terry “knew that [his] conduct was inappropriate in light of the risk.”
Id. (internal quotation omitted). The subjective standard is akin to that of criminal
recklessness: “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” before acting—or failing to act—with a conscious disregard for the risk.
Farmer, 511 U.S. at 837. “In contrast to negligence, deliberate indifference requires
a highly culpable state of mind approaching actual intent.” Kulkay v. Roy, 847 F.3d
637, 643 (8th Cir. 2017) (internal quotation omitted). We measure the official’s state
of mind according to his knowledge at the time of the incident, without the benefit
of hindsight. Id.

      Blair asserts that a jury could reasonably conclude that Terry acted with
deliberate indifference for three reasons. First, Blair testified to telling Terry that
someone had a hit out on him during their April 13 talk. Second, circumstantial
evidence showed Terry had not received an investigation report for the first attack
when he released Blair. Third, Blair did not request protective custody in his letters



                                          -9-
and on the assessment forms because he believed protective custody would not be
given and the request would delay his release from Ad-Seg even further.

       Blair’s reasons and the record evidence do not support reversal of the district
court’s judgment as a matter of law. Even if Blair had voiced his concerns to Terry
about there being a hit out on him, there is no evidence Blair knew who ordered it or
who Blair’s enemies in general population may have been. A prison official does not
necessarily act with deliberate indifference by failing to place an inmate “in
protective custody based on his general fear for his safety.” Robinson v. Cavanaugh,
20 F.3d 892, 895 (8th Cir. 1994) (per curiam). We have previously considered similar
facts in Davis v. Scott, 94 F.3d 444 (8th Cir. 1996), where an inmate was injured
shortly after entering a facility’s general population. The inmate in Davis was housed
in protective custody because of the presence of known enemies in the prison’s
general population. Id. at 445. After his known enemies left the facility, prison
officials held a housing classification hearing for him. Id. at 446. The inmate asked
for continued protective custody because he feared that friends of his departed
enemies who remained in general population might try to harm him there, though he
could not provide names for any such “would-be attackers.” Id. at 447. We held that
the prison officials did not act with deliberate indifference in releasing him to general
population because his statements were “vague and unsubstantiated” and did not
constitute “solid evidence . . . of an identifiable serious risk to [his] safety.” Id.

      Blair’s statements to Terry were speculative and non-specific. Blair’s stated
suspicions are insufficient to show Terry knew of a specific risk to Blair in a return
to general population. Mahasin’s apparently unprovoked April 7 attack was never
connected to anyone else. Blair’s theory of the existence of a hit being placed on him
had no evidentiary support beyond his suspicions. “[N]either unsupported conjecture
nor negligence regarding a substantial risk of serious harm . . . is sufficient to prove
deliberate indifference.” Lenz v. Wade, 490 F.3d 991, 996 (8th Cir. 2007) (citing
Farmer, 511 U.S. at 835).

                                          -10-
       Blair notes that officials had not yet interviewed his attacker or completed the
investigation of the first attack at the time Terry approved his return to general
population. But Terry knew that Blair’s April 7 attacker was not in general population
and was separately secured. Mahasin did not personally pose a direct threat to Blair
in the general population unit. There was no proof that any other inmate posed an
immediate threat to Blair.

       Releasing Blair without knowing the first attacker’s motive could have, at
most, constituted negligence. But “an official’s failure to alleviate a significant risk
that he should have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at
838. We agree with the district court that the evidence cannot establish Terry acted
with deliberate indifference and that Terry is entitled to judgment as a matter of law.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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