                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 96-3840
                                   ___________

Lonell Newman; Hoseia Chestnut,         *
                                        *
      Plaintiffs - Appellees,           *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Levi Holmes,                            *
                                        *
      Defendant - Appellant,            *
                                   ___________

                                Submitted: May 22, 1997
                                    Filed: September 3, 1997
                                  ___________

Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN, Circuit
      Judge.
                               ___________

LOKEN, Circuit Judge.

       In this § 1983 action, Arkansas inmates Lonell Newman and Hoseia Chestnut
sued Correctional Officer Levi Holmes for violating their Eighth Amendment rights by
failing to protect them from an attack by another inmate. The jury returned a verdict
for plaintiffs and awarded Newman and Chestnut damages of $500 each. Holmes
appeals the denial of his motion for judgment as a matter of law. We affirm.
                                          I.

       On May 7, 1994, inmate Johnson was housed in Barracks 4 at the Tucker
Maximum Security Unit prison. Johnson was on disciplinary court review status
(“DCR”), charged with violating prison rules. DCR is a type of isolated confinement.
The inmate is fed in his cell and is not allowed out of the cell unless handcuffed and
escorted by a prison official. One reason for isolating DCR inmates in this manner is
to protect other inmates and guards from a presumptively dangerous prisoner until his
disciplinary hearing is completed. The record does not reflect the disciplinary issue
that caused Johnson to be on DCR status.

       On May 7, Newman and Chestnut were in the general prison population but were
also housed in Barracks 4. At about 4:15 P.M., Newman and Chestnut were watching
TV in the cell block day room when Johnson attacked first Newman and then Chestnut,
cutting both with a homemade knife. They escaped the day room and alerted prison
officials, who subdued Johnson after a struggle. The attack was unanticipated.
Newman had never had any other problem with Johnson. Chestnut testified that he and
Johnson had exchanged heated words playing basketball the previous day, but “it
wasn’t nothing but talk.”

        Officer Holmes was assigned to the Barracks 4 control booth on May 7 and was
responsible for opening and closing the doors in Johnson’s cell block. At trial, Holmes
testified that he knew of Johnson’s DCR status, which was shown on the cell block
roster. He also knew that DCR inmates may not leave their cells unescorted because
they are presumptively dangerous to others. When he began his shift that morning, he
placed a prominent DCR tag on the switch controlling Johnson’s cell door, the standard
reminder to the control booth operator not to open a DCR inmate’s cell door. Holmes
flatly denied opening Johnson’s cell door but admitted that his supervisor, Lieutenant
Curtis Hampton, had accused Holmes of being responsible for Johnson’s escape.


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        The cell block log for May 7 was a trial exhibit. It reflects that a routine check
at 4:00 P.M. showed Johnson’s cell door closed, and that he was fed in his cell at 4:01
P.M. The normal procedure for feeding a DCR inmate is to handcuff him through the
cell bars, open the cell door, place his food tray inside, and then secure the cell door
before uncuffing the inmate. The log does not reflect who fed Johnson at 4:01, and that
prison official did not testify. There was testimony that escapes from isolated
confinement are not uncommon, that inmates in isolation are clever at wedging
obstructions that keep their cell doors from fully closing or locking, and that Johnson’s
cell block nickname was “Houdini.” Lieutenant Hampton testified that he investigated
the incident and concluded that Johnson most likely escaped because Holmes
inadvertently opened the cell door, for example, by hitting an “override” button that
opens seventeen cell doors at once. The jury was told that Holmes and another officer
were subjects of a disciplinary hearing, but it was not told the results of that hearing.

                                           II.

       Holmes argues that the evidence was insufficient to support a finding that he
violated plaintiffs’ Eighth Amendment right to be free from cruel and unusual
punishment by failing to protect them from Johnson’s unprovoked attack. The jury
necessarily found that Johnson escaped because Holmes for some reason opened
Johnson’s cell door, and the evidence is clearly sufficient to support that finding. The
question is whether the evidence supports the additional finding of an Eighth
Amendment violation. We view the facts and all reasonable inferences in the light most
favorable to the jury’s verdict. “Negligence, however, is not enough to establish [an
Eighth Amendment] violation.” Stephens v. Johnson, 83 F.3d 198, 201 (8th Cir. 1996).

       In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court confirmed that
a prison official violates the Eighth Amendment if he is deliberately indifferent to the
need to protect an inmate from a substantial risk of serious harm from other inmates.


                                           -3-
The Court then undertook to define more precisely the concept of deliberate
indifference. Because the Eighth Amendment bans cruel and unusual punishment, suits
against prison officials must satisfy a subjective requirement, an inquiry into the prison
official’s state of mind. The Court concluded that deliberate indifference in this context
means 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. See 511 U.S.
at 835-40.

        On appeal, Holmes first argues that there was insufficient evidence of an
excessive risk of harm because there was no evidence that inmate Johnson was a risk
to attack Newman or Chestnut unless they were kept separated. We disagree. There
was testimony that prison officials isolate all DCR inmates because they are a potential
danger to others. No doubt some prison rule violations suggest a greater propensity
toward violence than others. But when prison administrators conclude that all inmates
charged with rule violations should be isolated as dangerous, it would encroach upon
the administrators’ greater knowledge of prison conditions for us to hold as a matter
of law that release of such inmates to the general prison population does not create a
substantial risk that they will attack others.
        Holmes next argues that there was insufficient evidence that he was deliberately
indifferent to an excessive risk of harm to plaintiffs. This issue requires more lengthy
consideration. In Farmer and our prior Eighth Amendment cases applying Farmer, the
defendant prison officials consciously decided not to provide the plaintiff inmate greater
protection, or to disregard her medical complaints. See, e.g., Coleman v. Rahija, 114
F.3d 778 (8th Cir. 1997); Prater v. Dahm, 89 F.3d 538 (8th Cir. 1996). This case is
somewhat different. It is undisputed that prison officials took elaborate steps to isolate
Johnson from other inmates, procedures that included Holmes putting a DCR tag on
Johnson’s cell door switch in the control room. Johnson escaped to attack Newman
and Chestnut because these procedures failed. Though he denied opening the cell door,
Holmes was found responsible for that failure. Knowledge of the risk is not in issue --


                                           -4-
Holmes admitted knowing that he should not open Johnson’s cell door without a guard
escort because DCR inmates are a danger to others. The critical question is whether
Holmes was merely negligent, or did his conduct manifest the requisite deliberate
indifference for an Eighth amendment violation.

       Plaintiffs argue that Holmes should be liable because he “knowingly released
Johnson from his cell.” But the Eighth Amendment issue is whether Holmes
disregarded a known risk that other inmates would be harmed. If Holmes had ignored
the procedures for isolating Johnson and intentionally opened Johnson’s cell door for
the purpose of assisting Johnson in assaulting others, that intent to cause harm would
clearly constitute deliberate indifference for Eighth Amendment purposes. Likewise,
if Holmes had opened Johnson’s cell door knowing that harm to other inmates would
almost certainly result, Holmes’s conduct would constitute deliberate indifference. But
there is nothing in the record supporting a finding of malicious intent, and nothing
approaching knowledge of harm given the complete absence of evidence that Holmes
knew anything about Johnson other than the fact that he was on DCR status, a status
that includes a wide range of rule violations that do not suggest a propensity to assault
other inmates.

       That leaves the question whether the jury could reasonably find that Holmes
nonetheless recklessly disregarded a known excessive risk to inmate safety by opening
the cell door of a DCR inmate. In Prater, where the issue was knowledge of the risk,
we restated the Farmer standard as being whether “prison officials failed to act
reasonably despite knowledge of a substantial risk of serious harm.” 89 F.3d at 541.
But the duty to act reasonably is a negligence standard, and Farmer stands for the broad
proposition that deliberate indifference includes something more than negligence but
less than actual intent to harm. If Holmes was merely negligent in creating a known
risk by opening Johnson’s cell door, he is not liable under the Eighth Amendment, like
the prison guard who failed to prevent an inmate assault because he left his post in
McGill v. Duckworth, 944 F.2d 344, 350-51 (7th Cir. 1991), cert. denied, 503 U.S.

                                          -5-
907 (1992), or the prison doctor who negligently mistook a heart attack for indigestion
in Bellecourt v. United States, 994 F.2d 427, 431 (8th Cir. 1993), cert. denied, 510
U.S. 1109 (1994). See also Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995)
(“[d]eliberate indifference, i.e., the subjective intent to cause harm, cannot be inferred
from a prison guard’s failure to act reasonably”), cert. denied, 116 S. Ct. 167 (1995).

       Having thus defined the appropriate standard, we find the question to be very
close, particularly because it is well-settled that Holmes’s violation of an internal prison
regulation does not by itself give rise to an Eighth Amendment claim. See Falls v.
Nesbitt, 966 F.2d 375, 379-80 (8th Cir. 1992). But we owe great deference to the
jury’s view of the evidence. Holmes’s testimony lacked credibility because he denied
ever opening Johnson’s cell door, whereas the Barracks 4 log showed that Johnson was
fed a few minutes before his escape. In addition, despite obvious access to prison
records, the defense failed to explain why Johnson was on DCR status. These
unexplained holes in the defense may well have persuaded the jurors that the defense
had not been candid with them. On balance, we conclude that the circumstantial
evidence of deliberate indifference is sufficient to require that the jury verdict be
upheld.

       The judgment of the district court is affirmed.

       A true copy.

              Attest:

                      CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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