                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3732
                                    ___________

Gerald Smith,                          *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Gray, Correctional Officer; Rucker,    *
Correctional Officer; Harkins,         *      [PUBLISHED]
Correctional Officer,                  *
                                       *
             Appellees.                *
                                  ___________

                          Submitted: July 6, 2001
                              Filed: August 7, 2001
                                  ___________

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                         ___________

PER CURIAM.

       Missouri inmate Gerald Smith appeals the District Court’s1 adverse grant of
summary judgment in his 42 U.S.C. § 1983 action against three correctional officers.
Smith claimed the officers failed to protect him from an assault by another inmate, and
violated his due process rights by failing to follow administrative regulations.



      1
      The late Honorable D. Brook Bartlett, United States District Judge for the
Western District of Missouri.
       Inmates in the administrative segregation unit in which Smith was housed
became upset over not receiving clean linens, and created a flood in the unit in protest.
Smith was ordered out of his cell to mop up the water. While he mopped, other
inmates kicked and banged on their cell doors and threatened Smith, because he was
defeating their tactics. As Smith mopped, the defendants opened the cell door of
another inmate, without first placing the inmate in restraints, and the inmate attacked
Smith with a sharp instrument, causing injuries that required medical care and stitches.

       The District Court granted summary judgment to the defendants based on
qualified immunity, concluding that Smith had not presented evidence that the
defendants were aware of any risk posed to Smith, and that the defendants responded
reasonably to the situation when the attack occurred.

        After de novo review of the record and the parties’ briefs, see Thomas v. Gunter,
103 F.3d 700, 702 (8th Cir. 1997), we conclude that the District Court properly granted
summary judgment to the defendants, because Smith’s evidence did not show that the
officers knew that allowing the unrestrained inmate out of his cell presented a
significant risk to Smith. See Farmer v. Brennan, 511 U.S. 825, 838 (1994)
("[O]fficial’s failure to alleviate a significant risk that he should have perceived but did
not, while no cause for commendation, cannot . . . be condemned as the infliction of
punishment"); Falls v. Nesbitt, 966 F.2d 375, 378 (8th Cir. 1992) (holding that inmate
must show a "pervasive risk sufficient to put prison officials on notice of imminent
harm or danger" in order to establish an Eighth Amendment claim and that "a 'pervasive
risk' is something more than a single incident and something less than a riot.").

       We conclude Smith’s due process argument also fails. See Kennedy v.
Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (holding that inmate did not state a
claim by asserting that the State failed to follow its own procedural rules and further
holding that the Due Process Clause does not federalize state-law procedural
requirements).

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      Accordingly, we affirm the judgment of the District Court.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       I respectfully dissent from the court's conclusion that the district court correctly
granted summary judgment on Mr. Smith's claim that the defendants failed to protect
him from assault. In view of the fact that inmates were registering their disapproval of
Mr. Smith's actions in a threatening and vociferous manner, a reasonable jury could
conclude that the defendants knew of the risk that an unrestrained inmate would pose
to Mr. Smith. The court's action in affirming the judgment of the district court deprives
Mr. Smith of his right to have disputed facts resolved by a jury.

       I would therefore reverse the judgment of the district court and remand for
further proceedings.

      A true copy.

             Attest:

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




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