                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-3891
                       ___________________________

                                 Patric Patterson

                      lllllllllllllllllllllPlaintiff - Appellant

                                         v.

   Wendy Kelley, Deputy Director Arkansas Department of Correction; Randy
                            Watson, Varner Unit

                           lllllllllllllllllllllDefendants

  Kennie Bolden; Jeremy Andrews; Willie Bankston; Richard Mazzanti; Christie
Simpson, Sergeant, Varner Unit, ADC; Anthony Bradley, Captain, Varner Unit, ADC

                     lllllllllllllllllllllDefendants - Appellees
                                     ____________

                   Appeal from United States District Court
                for the Eastern District of Arkansas - Pine Bluff
                                 ____________

                           Submitted: April 12, 2018
                           Filed: September 5, 2018
                                ____________

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
                         ____________
GRUENDER, Circuit Judge.

      Patric Patterson brought this pro se civil rights action seeking monetary
damages for injuries sustained when he was attacked by a fellow inmate at an
Arkansas prison. He now appeals the district court’s1 denial of appointed counsel and
adverse grant of summary judgment on his failure-to-protect claims against various
corrections officials. For the reasons that follow, we affirm.

                                           I.

       On March 15, 2014, Patterson was housed in Barracks 13, an “open barracks”
at the Arkansas Department of Correction’s (“ADC”) Varner Unit. That afternoon,
Patterson and fellow inmate Michael Black had an altercation. Patterson subdued
Black but released him after Black said, “Ok, it’s over.” Taking Black at his word
and not wanting to be seen as a “snitch,” Patterson did not to report the incident to
prison officials. Unfortunately, his trust proved unfounded. Just after 3 a.m. the next
morning, Black went to Patterson’s bunk while he was sleeping and struck him
repeatedly with a boot in a laundry bag. Over the course of this minute-long beating,
Black also intermittently kicked Patterson. Black then returned several minutes later
to deliver a few additional blows to Patterson, who had fallen to the ground and was
nonresponsive. Patterson eventually received medical attention, but only after he
managed to report the incident nearly ten minutes after the beating began. As a result
of his injuries, Patterson underwent multiple surgeries and now has a glass eye.

       Richard Mazzanti was the duty officer assigned to Barracks 13 and 14 on the
night of the attack. The officer at this post is generally positioned in a control booth

      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendation of the Honorable J.
Thomas Ray, Chief Magistrate Judge, United States District Court for the Eastern
District of Arkansas.

                                          -2-
located between the ends of the two 54-bed barracks, but the officer is also
responsible for monitoring a hallway that runs along one side of Barracks 13 and 14.
The hallway’s glass walls allow the officer to see inside the barracks, including areas
not visible from the control booth. That night, Mazzanti performed a visual check of
the barracks from either the control booth or the hallway every thirty minutes, as
required by ADC policy. A subsequent internal investigation confirmed that his post
and all others were properly staffed during the relevant timeframe.

      In March 2015, Patterson filed a verified, pro se complaint pursuant to 42
U.S.C. § 1983 against the Director of the ADC, Mazzanti, and six other officials at
the Varner Unit. The complaint claims that Black was able to assault Patterson “as
a result of the fact that there was no security in the barracks.” In particular, the
complaint highlights an ADC policy prohibiting officers from entering the barracks
alone. The complaint also alleges that Mazzanti “was not present in the booth or in
the vicinity of the barracks” at the time of the attack, although Patterson later
acknowledged in deposition testimony that he had no knowledge of Mazzanti’s
“comings and goings.”

       The complaint asserts that the policy of assigning one officer to monitor two
barracks was “inadequate” and that the officers’ conduct, taken together, constituted
“a crystal clear case of ‘failure to protect.’” The complaint then identifies three
“causes” of the incident:2 (1) Manzzanti was “inattentive to his duties” despite
“[k]nowing the propensity for violence in an unattended barracks”; (2) supervisory
officials “knew that one . . . security officer was not enough security for two . . .
barracks, housing 54 inmates each”; and (3) that each of the “defendants know that
there are not enough staff members (security) to adequately maintain security, and

      2
        In his complaint, Patterson identifies a fourth “cause”—that supervisory
officials failed to adequately train Mazzanti. But given his failure to mention this
allegation on appeal, we deem the failure-to-train claim abandoned. See Burke v.
N.D. Dep’t of Corr. & Rehab., 294 F.3d 1043, 1044 (8th Cir. 2002) (per curiam).

                                         -3-
provide direct supervision for the number of barracks there are and the number of
inmates housed in those barracks.”

       After commencing the action, Patterson represented himself without issue for
several months. During this time period, he filed a successful application to proceed
in forma pauperis, gathered evidence to support his claims through interrogatories
and affidavits, identified and substituted defendant-officials for John Doe defendants,
and exhibited a good command of relevant law. But in response to the defendants’
first motion for summary judgment, Patterson moved for appointed counsel. The
magistrate judge denied this motion, finding that the “claims are not legally or
factually complex” and that Patterson had proven a capable advocate. The district
court also denied the motion for summary judgment as to all but two of the
defendants, allowing the case to proceed.

       Several months later, the remaining defendants moved to extend their deadline
for dispositive motions by twenty days “due to the complexity of the claim involved,
the amount of damages sought by the Plaintiff and the number of defendants
involved.” After the magistrate judge granted the extension on the basis of “good
cause shown,” Patterson filed a second motion for appointed counsel, which
highlighted the court’s apparently inconsistent findings as to the complexity of the
case. The magistrate judge denied this second request, concluding that Patterson
failed to show cause for reconsidering the denial of his original motion.

       The defendants again moved for summary judgment, arguing that they were
entitled to qualified immunity as to the failure-to-protect claims. Along with his
response in opposition, Patterson attached a variety of documentary evidence. As
relevant here, Patterson submitted Mazzanti’s interrogatory answer, which stated that
he had “performed visual checks approximately every 30 minutes from the hallway
and my control booth” and further confirmed that he was in one of those two
locations at the time of the assault. But an affidavit from a fellow inmate claimed that

                                          -4-
officers regularly skipped security checks and noted that they “can’t even see the
whole barracks from those little windows [in the security booth].” Similarly, in his
own affidavit, Patterson attested that “[o]fficers never came in the [barracks] unless
it was count time or they had their own agenda”; that officers regularly logged
security inspections that were not actually performed; and that “[t]he rack/bed where
[he] was assaulted 23 times with a weapon and stomped on 6 times . . . cannot be seen
from the booth.” The end result, Patterson suggested, was that he had witnessed
“many violent attacks, robberies, gambling, and homosexual activities” during his
time at the Varner Unit.

       The district court referred the matter to the magistrate judge, who issued a
report and recommendation (“R&R”) concluding that the defendant-officials were
entitled to summary judgment. The R&R bifurcated its analysis of Patterson’s
failure-to-protect claim, first considering whether the defendants failed to protect
Patterson against any specific threat before addressing whether they were deliberately
indifferent to a general threat to prisoners in Barracks 13 and 14. Given that
Patterson himself did not anticipate Black’s attack, the magistrate judge found that
the failure-to-protect claim concerning this specific threat failed. As to the general
threat, the R&R began by addressing Patterson’s allegations against Mazzanti. The
magistrate judge concluded that, even if Manzzanti was completely inattentive to his
duties on the night of the attack, his conduct was at worst grossly negligent, which
is not enough to constitute a violation of the Eighth Amendment. See Tucker v.
Evans, 276 F.3d 999, 1001-02 (8th Cir. 2002). The R&R then rejected Patterson’s
suggestion that Varner’s open-barracks policy violates the “constitutional minimum
conditions” we discussed in Smith v. Arkansas Department of Corrections, 103 F.3d
637, 648 (8th Cir. 1996), a case which applied only to the policies and practices at
Arkansas’s Cummins Unit at a time when that facility was under specific remedial
court orders, see Tucker, 276 F.3d at 1002-03. Moreover, the R&R noted, Patterson
failed to adduce any evidence that the defendants were subjectively indifferent to any



                                         -5-
risks. Thus, the magistrate judge concluded that Patterson’s failure-to-protect claims
failed.

       The district court adopted the R&R in full and granted summary judgment on
the remaining claims. Patterson now appeals, arguing that the district court3 abused
its discretion in denying his motions for appointed counsel and erred in granting the
officers summary judgment. We address these challenges in turn.

                                           II.

       Patterson’s primary claim on appeal is that the district court improperly refused
his request for appointed counsel. As a result, Patterson argues, he was unable to
marshal the facts to effectively support his claim. “We review the denial of a motion
for appointment of counsel for an abuse of discretion, according the district court a
good deal of discretion to determine whether representation is warranted given the
nature of the case and the litigants.” Ward v. Smith, 721 F.3d 940, 942 (8th Cir.
2013) (per curiam) (internal quotation marks omitted).

       As Patterson himself acknowledged, pro se litigants have neither a
constitutional nor a statutory right to appointed counsel in civil cases. See Phillips
v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). Instead, district courts may
appoint counsel in such cases if convinced that an indigent plaintiff has stated a
non-frivolous claim, see 28 U.S.C. § 1915(e), and where “the nature of the litigation
is such that plaintiff as well as the court will benefit from the assistance of counsel,”
see Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986). “The relevant criteria
for determining whether counsel should be appointed include the factual complexity


      3
       While aware that the magistrate judge made several of the rulings at issue on
appeal, for ease of reference, we adopt the parties’ approach of referring to these as
rulings of the district court unless otherwise noted.

                                          -6-
of the issues, the ability of the indigent person to investigate the facts, the existence
of conflicting testimony, the ability of the indigent person to present the claims, and
the complexity of the legal arguments.” Phillips, 437 F.3d at 794. Here, the district
court considered these factors in rejecting Patterson’s request for counsel, specifically
finding that the facts and legal issues were not sufficiently complex to justify the
appointment of counsel and that Patterson had proven capable of representing
himself.

       On appeal, Patterson makes four arguments to show that the district court
abused its discretion in making this determination. Three plainly fail. First, Patterson
claims that, as an inmate, he was unable to interview witnesses and secure relevant
information. Second, he suggests that his inartfully worded interrogatories allowed
defendants to give evasive answers. And third, although his appointed appellate
counsel concedes that Patterson did “a fair job of researching the law,” she argues
that “this is complex litigation” requiring the assistance of counsel because the case
involves administrative regulations and government funding issues.

        None of these grounds are sufficient to show an abuse of discretion. As an
initial matter, there is no evidence that the district court failed to consider these
factors in concluding that appointed counsel was unnecessary. Indeed, Patterson
presented similar arguments in his motions for appointed counsel. Moreover, given
that most indigent prisoners will face similar challenges in bringing § 1983 claims,
a finding that the district court abused its discretion on these bases would be
tantamount to recognizing a right to appointed counsel for indigent prisoners in such
cases. This we refuse to do.

       Patterson’s final point, which served as the focus of his second motion for
appointed counsel, seemingly presents a closer question. Patterson claims that the
district court abused its discretion by granting the defendants’ motion to extend the
deadline for dispositive motions— which was based, in part, on the complexity of the

                                          -7-
case—while denying his first request for counsel because the case was not
sufficiently complex. On closer inspection, however, this argument fails. As an
initial matter, Patterson has not shown an actual inconsistency in these two rulings.
While motions to extend deadlines and motions for appointed counsel both call for
the exercise of a district court’s discretion, the inquiries underlying these requests are
far different. Compare Fed. R. Civ. P. 6(b)(1) (motion for extension), with 28 U.S.C.
§ 1915(e) (motion for appointed counsel). Moreover, in granting the defendants’
motion for an extension, the district court did not necessarily signal agreement that
the case was complex, given that the defendants provided three independent reasons
for their requested extension, and the court did not specify which served as its basis
for finding good cause. Thus, the district court could have granted the extension
without necessarily concluding that the factual or legal issues were complex.
However, even assuming that Patterson has identified an inconsistency and that the
district court found the case to be complex, it still retained the discretion to deny his
motion for appointed counsel. Complexity is only one factor for a court to consider
in evaluating a motion for appointed counsel, and it is not dispositive of that inquiry.
See Johnson, 788 F.2d at 1322-23. Significantly, Patterson proved adept at
representing himself both before the district court and this court. Thus, while the
district court had the discretion to appoint Patterson counsel on this record, it did not
abuse this discretion in declining to do so.

                                           III.

       Next, Patterson challenges the grant of summary judgment on his failure-to-
protect claims. He argues that the record contains evidence that Mazzanti did not
make security rounds on the night of the attack and that he was otherwise inattentive
to his duties. Patterson also contends that the district court erred in concluding that
the officers were not deliberately indifferent to a general risk of inmate attacks in
Barracks 13 and 14 because they allegedly knew that the barracks were understaffed,
that a single officer could not adequately secure both barracks, and that the security

                                           -8-
policies were otherwise insufficient to safeguard inmates. “We review de novo the
district court’s grant of summary judgment based on qualified immunity.” LaCross
v. City of Duluth, 713 F.3d 1155, 1157 (8th Cir. 2013). “When reviewing a motion
for summary judgment the question before this court is whether the record, viewed
in the light most favorable to the non-moving party, shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Tucker, 276 F.3d at 1001; see also Fed. R. Civ. P. 56(a).

       Qualified immunity shields state officials from both civil liability and the
burdens of litigation unless their conduct violates a clearly established right of which
a reasonable person would have known. Young v. Selk, 508 F.3d 868, 871 (8th Cir.
2007). Thus, to overcome this defense, Patterson must show that: “(1) the facts,
viewed in the light most favorable to [him], demonstrate the deprivation of a
constitutional or statutory right; and (2) the right was clearly established at the time
of the deprivation.” See Saylor v. Nebraska, 812 F.3d 637, 643 (8th Cir. 2016).
Here, Patterson asserts that defendants violated his Eighth Amendment rights by
failing to protect him from Black.

       The Eighth Amendment “requires prison officials to ‘take reasonable measures
to guarantee’ inmate safety by protecting them from attacks by other prisoners.”
Young, 508 F.3d at 872 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Yet
a constitutional claim does not lie every time one inmate attacks another. Id. Rather,
prison officials violate the Eighth Amendment “only when they exhibit a ‘deliberate
or callous indifference’ to an inmate’s safety.” Tucker, 276 F.3d at 1001. For this
reason, to prevail on a failure-to-protect claim like Patterson’s, an inmate must make
two showings: “[1] an objective component, [that] there was a substantial risk of
harm to the inmate, and [2] a subjective component, [that] the prison official was
deliberately indifferent to that risk.” See id.




                                          -9-
        First, insofar as Patterson alleges that the defendants failed to protect him from
a specific threat posed by Black, his own inability to anticipate the surprise attack and
his decision not to report his altercation with Black the previous afternoon defeat
liability. See id. at 1001-02 (finding qualified immunity appropriate where a
failure-to-protect claim arises from a “surprise attack” by another inmate).
Patterson’s specific claims against Mazzanti also fail. As an initial matter, we note
that Patterson stated in his deposition testimony that he was unaware of Mazzanti’s
“comings and goings.” This admission undercuts the allegation in his complaint that
Mazzanti was either absent or inattentive during the attack. Nevertheless, even
ignoring this evidence, Mazzanti’s conduct represents—at most—gross negligence,
which falls short of deliberate indifference as a matter of law. See id. (concluding
that similar conduct “certainly points to negligence, and quite possibly even gross
negligence, but that is insufficient to prove a violation of [an inmate’s] constitutional
rights.”). Lastly, to the extent Patterson suggests that the Varner Unit’s policies
relating to open barracks, staffing levels, and security are per se unconstitutional
under Smith, the magistrate judge correctly read Tucker as confining Smith’s holding
to “a particular open barracks” during a particular period of time. See id. at 1002-03
(explaining that Smith was limited to a “specific prison unit” that was under a
remedial court order at the time in question).

       Patterson’s remaining claim is that the defendants failed to protect him from
a general risk of harm. He alleges that the barracks are understaffed and that prison
officials routinely fail to conduct security checks. Assuming that Patterson has
satisfied the objective component of his failure-to-protect claim, however, the record
is devoid of evidence suggesting that any of the defendants were subjectively aware
of, or deliberately indifferent to, a substantial risk of harm to inmate safety. See id.
at 1001-03 (reversing the denial of qualified immunity related to an inmate attack
where one guard was responsible for monitoring two open barracks from a control
booth because there was no evidence of subjective indifference).



                                          -10-
       Patterson claimed in his affidavit that he witnessed “many violent attacks,
robberies, gambling, and homosexual activities” during his time at the Varner Unit.
But Patterson expressly stated that this misconduct “never got reported to ADC
officials.” It is true, as the dissenting opinion emphasizes, that an obvious risk of
harm may justify an inference that prison officials subjectively disregarded that risk.
See Farmer, 511 U.S. at 842 (“Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence . . . .”); see also Lenz v. Wade, 490
F.3d 991, 995 (8th Cir. 2007). But to make such an inference, there must be some
evidence showing that the defendants were exposed to the underlying facts revealing
that risk. As the Supreme Court explained,

      [I]f an Eighth Amendment plaintiff presents evidence showing that a
      substantial risk of inmate attacks was longstanding, pervasive, well-
      documented, or expressly noted by prison officials in the past, and the
      circumstances suggest that the defendant-official being sued had been
      exposed to information concerning the risk and thus must have known
      about it, then such evidence could be sufficient to permit a trier of fact
      to find that the defendant-official had actual knowledge of the risk.

Farmer, 511 U.S. at 842 (emphasis added) (internal quotation marks omitted).

      In suggesting that the risks to inmate safety were obvious, the dissenting
opinion overlooks Patterson’s own affidavit admitting that misconduct was not
reported to the ADC.4 Inferring subjective awareness here would be akin to adopting
an objective test for deliberate indifference—an approach the Supreme Court
explicitly rejected. See Farmer, 511 U.S. at 837. Indeed, a comparison of the record


      4
        The prison’s policy prohibiting an officer from entering a barracks without
another officer present tells us little about prison officials’ awareness of a substantial
risk of harm to inmates. The unique risks faced by prison officers could justify such
measures even where inmates faced no substantial risk of harm whatsoever.

                                          -11-
in this case with that in Krein v. Norris is instructive. See 309 F.3d 487, 491-92 (8th
Cir. 2002) (affirming a district court’s denial of qualified immunity where evidence
showed that the “defendants objectively and subjectively knew of, and deliberately
disregarded, an excessive risk of harm to inmate health and safety”). In Krein, the
record showed that:

      defendants’ failure to abide by staffing requirements created an
      environment which posed a risk of harm to all inmates housed in the
      barracks area; the NCU had one guard for three barracks housing 150
      inmates; defendants were or should have been aware of an inadequate
      staffing problem as early as August 1997 and yet they had made no
      staffing changes as of January 1998, when the attack occurred; the level
      of violence in Barracks # 1 was five times that of any other NCU
      barracks and yet staffing adjustments were not made to address the
      disparity; the number of isolation cells was inadequate; and ADC failed
      to keep track of the number and locations of assaults [in] the NCU.

Id. at 489-90, 492. The record here lacks such evidence justifying an inference that
the defendants subjectively disregarded a substantial risk of harm.

       Thus, we conclude that Patterson failed to raise a genuine issue of material fact
as to whether the defendants were deliberately indifferent to a general risk of harm
to inmates in Barracks 13 and 14. The district court did not err in granting the
defendants qualified immunity.

                                          IV.

      Accordingly, we affirm the denial of Patterson’s request for appointed counsel
and the grant of summary judgment to the defendant-officials.




                                         -12-
GRASZ, Circuit Judge, concurring in part and dissenting in part.

       I concur in part because, while the appointment of counsel would have been
appropriate in this case, I agree with the majority that the district court’s failure to do
so was not reversible under our deferential abuse of discretion standard of review.
I respectfully dissent with respect to the district court’s grant of summary judgment
and corresponding qualified immunity to the prison official defendants.

      Under our Constitution, Patric Patterson is afforded the right to protection
against cruel and unusual punishment, including protection from violence at the
hands of other prisoners. U.S. Const. amend. VIII; Farmer v. Brennan, 511 U.S. 825,
833 (1994). Claims brought to enforce this constitutional right are protected against
summary dismissal where there is a genuine dispute of material fact. Fed. R. Civ. P.
56(a). Because this procedural protection has been denied, any chance of Patterson
vindicating his Constitutional right has been lost as well.

       Security video shows Patterson was brutally and repeatedly assaulted in an
open prison barracks. The attacks were so violent he was left with only one eye and
must now walk with the aid of a cane. Although the attacks were recorded by a
security camera, no prison official was watching. Neither did they hear his cries,
even though the video shows the attacks roused virtually the entire barracks.
Patterson eventually gained enough consciousness to make his way to a control booth
before being taken for medical treatment. As horrific as the facts may be, however,
they do not make Patterson’s case; the law does.

       On our de novo review, we must view the evidence in the light most favorable
to Patterson and grant him the benefit of all reasonable inferences. See Fed. Ins. Co.
v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018). So viewing the evidence,
I believe there is a genuine dispute of material fact as to whether the defendants were
deliberately indifferent to the obvious risk of violence by inmates in the prison’s open

                                           -13-
barracks, resulting in the lengthy and brutal beating openly inflicted on Patterson at
the hands of another inmate, all unnoticed by any prison official.

      At the time he was attacked, Patterson was housed in the Varner Unit of the
Arkansas Department of Correction. Barracks # 13 in the Varner Unit is a two-level
barracks unit that held Patterson and fifty-three other inmates. Barracks #13 was
monitored by a single guard, who was also responsible for monitoring the adjacent
Barracks #14, which also held fifty-four inmates. The single guard was assigned to
check on those one hundred eight inmates once every thirty minutes, either from the
control booth between the two barracks or from a hallway with a glass wall that ran
alongside both barracks. Prison policy prevented guards from entering the barracks
without another guard present because of the known risk of violence by inmates.

       As he was sleeping in the early morning of March 16, 2015, Patterson was
attacked by another inmate, Michael Black. Security video footage shows the attack
began at around 3:27 a.m. As most inmates were sleeping, Black approached
Patterson’s bed, wielding what appeared to be a pillow case or bag with a heavy
object inside. Black attacked Patterson with a violent succession of twenty blows to
the general area of Patterson’s head, followed by a kick. During the initial attack,
most of the other inmates in the lower level of the barracks woke up and sat up in
their beds, though none intervened to stop the attack.

       Patterson lay motionless on his bed after this initial attack. However, the
violence was not over. Black stood over him and prodded him a couple of times, as
if to get him to move. Black then stood over Patterson’s bed for about a minute and
a half, striking him three more times with the weapon. Black walked away from
Patterson’s bed, but returned a moment later and kicked him again, after which
Patterson fell, limp, out of his bed and onto the floor. Black stood over or near
Patterson for nearly another minute as he lay on the floor, before giving a “high-five”
or “fist bump” to another inmate as he walked away. Black and other inmates milled

                                         -14-
about the unit as Patterson lay on the floor. At around 3:32 a.m., Black went back
over to where Patterson was lying and kicked him four times and punched him
another two times.

       No prison officials appeared to hear or see the repeated attacks, notice
Patterson lying on the floor, or notice the fact the violent attacks disturbed the other
inmates in the barracks. At around 3:38 a.m., a bloodied Patterson pulled himself up
and staggered up the stairs from the lower level of Barracks #13, down the hallway
to the end of the barracks, and then knocked on the window of the control booth to
get someone’s attention. He was let out of the barracks and escorted to the infirmary
at 3:40 a.m., after which he was taken to the hospital. As a result of the attack,
Patterson underwent two or three surgeries and ultimately lost one of his eyes.
Patterson also testified that he has “nerve damage all on the side of [his] head [and]
in [his] mouth,” that his “sinuses are messed up all the time,” that his “back’s been
messed up,” so that he has to walk with a cane, and that he “get[s] muscle spasms in
[his] back and on [his] face,” which have to be treated with muscle relaxers.

       To be clear, evidence of mere negligence by a prison guard is not sufficient to
survive summary judgment. See Farmer, 511 U.S. at 835. Likewise, prison officials
cannot be held liable for unforeseeable “surprise attacks.” See Krein v. Norris, 309
F.3d 487, 491 (8th Cir. 2002). I agree with the majority in its conclusion that the
evidence does not support an inference that the defendants knew about the specific
threat posed by the specific inmate who attacked Patterson. But Patterson’s
arguments, as I read them, focus on the defendants’ deliberate indifference to the risk
of substantial harm posed by the overall lax security at the prison, not on the failure
of the defendants to foresee the risk posed by the particular prisoner who attacked
him. The absence of evidence showing that the defendants were aware of the risk
posed to Patterson by Black in particular is not fatal to Patterson’s claim. See
Farmer, 511 U.S. at 843 (“Nor may a prison official escape liability for deliberate
indifference by showing that, while he was aware of an obvious, substantial risk to

                                         -15-
inmate safety, he did not know that the complainant was especially likely to be
assaulted by the specific prisoner who eventually committed the assault.”); Krein, 309
F.3d at 491–92.

       My disagreement with the majority is based on its application of the summary
judgment standard. Regardless of whether Patterson would ultimately prevail, at this
stage of the litigation we are required to resolve factual disputes in his favor and grant
him the benefit of all reasonable inferences. See Fed. Ins. Co., 893 F.3d at 1102.

       I would conclude there is a genuine dispute of material fact as to whether the
risk of inmate violence in the open barracks in this particular prison constituted a
substantial risk of serious harm. The dangers posed by housing numerous violent
felons together in open barracks has been the source of much litigation. See, e.g.,
Krein, 309 F.3d at 491–92 (affirming the denial of prison official defendants’ motion
for summary judgment where the inmate plaintiff alleged and provided evidence
showing that the defendants “fail[ed] to provide adequate security in an open
barracks”); Smith v. Arkansas Dep’t of Corr., 103 F.3d 637, 644 (8th Cir. 1996)
(noting “the danger to inmates living in open and unsupervised barracks,” and that
“[t]he thievery, assaults, and hand-crafted weapons that are common in the
unsupervised environment of the open barracks illustrate its inherent danger,” thus
demonstrating a “threat of imminent harm”).

       Patterson testified that he had “observed many violent attacks [and] robberies”
in the barracks. He said that inmates who were labeled as “snitches” were “hurt
and/or killed.” Patterson had been the victim of a prior assault. Defendant Mazzanti
stated that he had been assaulted by inmates twice and had observed another inmate-
on-inmate assault. As a firsthand observer, Patterson also stated in his verified
complaint that there was “the propensity for violence in an unattended barracks,” and
“due to staff shortage, the likelihood of inmate assaults [was] highly likely.” See
Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994–95 (8th Cir. 2001) (discussing

                                          -16-
verified complaints). Prison policy dictated that officers could not even enter the
barracks unless accompanied by another officer because of the risk of violence by
inmates. And at least one inmate had previously been killed by another inmate in the
Varner Unit.

       In Jensen v. Clarke (Jensen II), this Court affirmed the district court’s finding
that the Nebraska State Penitentiary’s practice of housing two inmates in a single cell
and assigning cellmates on a random basis resulted in a substantial risk to inmates of
serious harm by cellmate assault. 94 F.3d 1191, 1198 (8th Cir. 1996). While the
record in this case is not as well developed as that in Jensen II — likely due in large
part to Patterson litigating this case without the assistance of counsel and the
defendants’ refusal to produce in discovery any information about the number of prior
assaults in Barracks #13 and the Varner Unit — there is nevertheless sufficient
evidence upon which a reasonable factfinder could conclude that Patterson was
“incarcerated under conditions posing a substantial risk of serious harm.” Smith, 103
F.3d at 644 (quoting Jensen v. Clarke (Jensen I), 73 F.3d 808, 810 (8th Cir. 1996)).

       I would also conclude there is a genuine dispute of material fact as to whether
the defendants knew of the risk of harm. See Farmer, 511 U.S. at 837 (“[A] prison
official cannot be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of . . . an excessive risk
to inmate health or safety.”). As the Supreme Court explained in Farmer, “Whether
a prison official had the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference from circumstantial
evidence.” Farmer, 511 U.S. at 842. As a result, “a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was obvious.”
On this issue too, we are required to view the evidence in the light most favorable to
Patterson and give him the benefit of all reasonable inferences. Fed. Ins. Co., 893
F.3d at 1102.



                                          -17-
       Viewing the evidence in the light most favorable to Patterson, a reasonable
factfinder could conclude that the defendants knew about the obvious risk of violence
inmates like Patterson faced at the hands of other inmates in this barracks.
Patterson’s verified complaint states that the defendants knew of the substantial risk
of inmate violence and knew that this risk was exacerbated by a lack of sufficient
security and supervision. He also stated that “[t]he Varner Unit is a Maximum
Security Unit, housing a variety of potentially violent inmates.” The prison’s own
policy against an officer entering prison barracks without another officer is evidence
that the defendants knew of, and took seriously, the risk of inmate violence in the
barracks. A reasonable factfinder could infer that the defendants knew that housing
fifty-four violent felons together in an open barracks with minimal supervision and
apparently no real-time video monitoring produces a substantial risk of inmate-on-
inmate violence.

       I would also conclude that there is a genuine dispute of material fact as to
whether the defendants were deliberately indifferent to the risk of harm. The record
contains conflicting evidence as to whether security checks were regularly performed
and whether the entire barracks could even be seen from the control booth. While
several defendants stated in interrogatory answers that security checks are performed
every thirty minutes, Patterson presented an affidavit of a former Varner Unit inmate
who worked cleaning hallways and witnessed many officers not performing security
checks and sitting in their chairs in the control booth with their backs turned to the
barracks. Patterson stated in his own affidavit that he had “witnessed [multiple]
officers logging down security checks in their logs and never doing them.” He also
stated that he had seen zone sergeants not doing their security checks for 2 to 3 hours
at a time and had seen “officers catching up their logs hours later[,] falsifying their
documents.” He also stated that he had seen “officers watching fights in the
[barracks] and not reporting it to their superior.” Patterson stated in his verified
complaint that the guard on duty at the time of the attack “was not present in the
booth or in the vicinity of the barracks where he could observe the activity in the

                                         -18-
barracks,” but that the guard “knew that if he did not pay attention to what was going
on inside the barracks with direct supervision, the potential for inmate assaults
existed.”

       It is undisputed that security checks were not regularly performed inside the
barracks and there is conflicting evidence regarding whether the barracks can be
safely monitored from the outside. Defendant Bolden stated, “Due to [the fact] the
wall facing the hall is made of glass, visual checks can be conducted from the hallway
and the control booth for each barracks.” However, Patterson stated that “[t]he
rack/bed where I was assaulted 23 times with a weapon and stomped on 6 times for
approx[imately] 11 minutes cannot be seen from the booth.” He also said that in the
hallway, only one barracks is visible at a time — and one officer is responsible for
monitoring two different two-level barracks. Another inmate who had worked in the
hallways doing janitorial work stated in his affidavit that “you can’t even see the
whole barracks from those little [control booth] windows.”

       The statements in the record by the defendants are ambiguous as to whether
they claim security checks were performed every thirty minutes from both the booth
and hallway or from either the booth and hallway, which is relevant because of the
evidence that the entire barracks could not be seen from the security booth (and this
ambiguity must be construed in favor of Patterson on summary judgment). Moreover,
the record establishes activity in the barracks was recorded on security cameras, but
monitoring the video was not described by the defendants as part of the security
routine. A reasonable factfinder could conclude that the defendants knew their
security policy as practiced was insufficient to protect inmates from the obvious and
substantial risk of violence by other inmates and that the defendants disregarded that
risk. The fact that Patterson was openly and repeatedly attacked with most of the
other inmates in the unit looking on, while prison officials apparently had no idea this
was occurring until a blood-covered Patterson pulled himself off the floor and



                                         -19-
staggered up the stairs and down the hall to the control booth window, lends support
to that conclusion.

       The applicable legal standard here does not allow for summarily rejecting
Patterson’s claim without a trial. The Federal Rules of Civil Procedure contain a
clear requirement that a movant seeking summary judgment must show that “no
genuine dispute as to any material fact” exists. The “material fact” provision is a
textual standard authorized by Congress, 28 U.S.C. §§ 2071–2074, and this Court,
under de novo review, must apply the rule as written. Under this standard, I believe
Patterson’s claim should survive.

       In sum, viewing the evidence in the light most favorable to Patterson and
granting him the benefit of all reasonable inferences, I would conclude there is a
genuine dispute of material fact precluding summary judgment. I would affirm the
district court’s denial of Patterson’s motions for appointed counsel under our abuse
of discretion standard of review, but reverse its grant of the defendants’ motion for
summary judgment.
                         ______________________________




                                        -20-
