                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1639
                                   ___________

Michael Cleaver,                        *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri
Michael Kemna; Jean Ann Johnson;        *
Russell Hollowell; Ellis; Steve Lakey; *     [UNPUBLISHED]
Baker; Galloway; Jimmie Thomas;         *
Judy Lewis,                             *
                                        *
            Appellees.                  *
                                   ___________

                          Submitted: April 25, 2002

                               Filed: May 1, 2002
                                    ___________

Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.

       Michael Cleaver, a Missouri inmate, appeals from the final judgment entered
in the District Court for the Western District of Missouri, granting summary judgment
in favor of defendants in Cleaver’s 42 U.S.C. § 1983 action. Cleaver filed this action
against Crossroads Correctional Center employees, claiming as relevant to this appeal
that they failed to protect him from getting stabbed by another inmate in violation of
the Eighth Amendment. After the case came before us for a ruling on Cleaver’s
motion to appeal in forma pauperis, we ordered briefing on the sole issue whether the
district court erred in granting summary judgment in favor of defendant Captain
William Galloway. For the reasons discussed below, we affirm in part, reverse in
part, and remand.

      The stabbing occurred after Cleaver was released from administrative
segregation to Housing Unit (HU) 3 where the assailant, inmate Frederick Brown,
was housed. Although prison officials had ordered Cleaver released to HU 5 so
Cleaver could avoid inmate Brown--and this was noted on the prison “docket”--
another prison officer misunderstood and wrote on Cleaver’s movement summary that
he was to be released to HU 3, where he had been housed before his stay in
administrative segregation. Cleaver protested to defendant Robert Ellis, the officer
who escorted him from segregation, that he should be released to HU 5.
Nevertheless, Cleaver was released to HU 3, where Brown stabbed him that evening.

       Cleaver attested that prior to releasing him, Officer Ellis called Captain
Galloway about the discrepancy between the movement summary and the docket, and
Galloway told Ellis to send Cleaver to HU 3 anyway and “[Cleaver] would just be
another nigger getting killed.” Inmate Kenyatta Williams-Bey attested that it was
well known at Crossroads that Cleaver and Brown had had an altercation while
imprisoned elsewhere. Williams-Bey also attested that he had told Galloway at 3:00
p.m. on the day of the attack that Brown and Cleaver would have a violent
confrontation if Cleaver were released from segregation, and Galloway had
responded, “Mind your own f---ing business, I run shit the way I want it ran not the
way no inmate tell me to.” Also, inmate Fred Hamilton testified that he saw five
officers sitting around on the night Cleaver was attacked, and he believed this was
unusual because normally only one or two roved the HUs; Hamilton thought that the
officers “looked like they were waiting on [the attack] to happen” under Galloway’s
directions, because Galloway had brought them to HU 3 earlier that evening. Inmate



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Maurice Hardin attested that he saw several officers exit Galloway’s office and
follow Ellis while he was escorting Cleaver to HU 3.

       Upon de novo review, see Peter v. Wedl, 155 F.3d 992, 996 (8th Cir. 1998), we
conclude that summary judgment for defendant Galloway on the failure-to-protect
claim was improper. Under the Eighth Amendment, prison officials must protect
prisoners from violence at the hand of other prisoners. See Oetken v. Ault, 137 F.3d
613, 614 (8th Cir. 1998). To prevail on a failure-to-protect claim, an inmate must
show that he was incarcerated under conditions presenting a substantial risk of
serious harm, and that a defendant official knew of and disregarded that risk. See id.
(inmate must establish that official knew of facts from which inference of substantial
risk of serious harm could be drawn and that official drew inference); see also Spruce
v. Sargent, 149 F.3d 783, 786 (8th Cir. 1998) (official’s subjective knowledge can be
proved by evidence of surrounding circumstances, or by inference from
circumstantial evidence).

       Cleaver’s attestation of how Galloway responded to Ellis when asked where
Cleaver should be housed is inadmissible hearsay. See Fed. R. Evid. 801(c). We
believe a reasonable jury could find, however, that the remaining evidence showed
Galloway knew, prior to the attack, that Cleaver and Brown posed a risk to one
another. According to Williams-Bey, it was well known at Crossroads that Cleaver
and Brown had an altercation history. More important, inmate Williams-Bey told
Captain Galloway just hours before the attack that Cleaver and Brown would have
a violent confrontation if Cleaver were released from segregation. See Jackson v.
Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) (prison security officer perceived
substantial risk when he received anonymous note warning that inmate would kill his
cellmate that night). Appellees argue that Williams-Bey’s attestation of Galloway’s
response--“Mind your own f---ing business, I run shit the way I want it ran not the
way no inmate tell me to”--shows only that Galloway did not act on Williams-Bey’s
warning, not that Galloway actually believed the warning. However, such

                                         -3-
interpretation of Galloway’s reported response is a question for the jury. Cf.
Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990) (district court could
resolve factual dispute only by deciding to believe defendant’s affidavit rather than
plaintiffs’ affidavits, and “such a credibility determination is inappropriate in ruling
on a motion for summary judgment”).

       Accordingly, we reverse the grant of summary judgment for Galloway on the
failure-to-protect claim and remand for further proceedings. Having carefully
reviewed the summary judgment record as to the remaining claims and the remaining
defendants, we affirm in all other respects, but we modify the judgment to reflect that
the grant of summary judgment does not count as a strike under 28 U.S.C. § 1915(g).

      A true copy.

             Attest:

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




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