                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 8 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 RICHARD D. COLLINS,

          Plaintiff-Appellant,
 v.
                                                         No. 99-1458
                                                    (D.C. No. 96-WM-487)
 ROBERT FURLONG; IRVING
                                                          (D. Colo.)
 JAQUEZ; LLOYD WAIDE; ENDRE
 SAMU; JULIE JOFFE,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.


      Richard Collins is an inmate in a Colorado state prison. On September 2,

1995, he was attacked by James Pickle, another inmate, in a blind spot of the

prison yard nicknamed “the thunderdome.” Collins received a laceration, a bruise,

and superficial abrasions on his face, and a fractured little finger. He and Pickle



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
were charged with fighting, and after being found guilty, Collins was given 20

days’ punitive segregation, which was probated, and 30 days’ loss of good time.

Defendant Waide presented the case for the department of corrections and

Defendant Samu was the hearing officer.

      Collins brought this action under 42 U.S.C. § 1983. Only two issues remain

in the case. First, Collins argues that the evidence at his hearing did not support

the conviction for fighting. 1 The district court dismissed this part of the complaint

under former 28 U.S.C. § 1915(d) as frivolous. Second, Collins argues that

Defendants Furlong and Jaquez, the Warden and Assistant Warden of the

correctional facility respectively, violated his Eighth Amendment rights by failing

to protect him from the attack by Pickle. The district court granted summary

judgment for the Defendants on this issue. 2

                            I. Sufficiency of the Evidence

      We review a district court’s decision to dismiss a complaint under former

§ 1915(d) 3 for abuse of discretion. See Green v. Seymour, 59 F.3d 1073, 1077



      1
       In his briefs, Collins asserts that Defendants falsified evidence against
him. Because this is not alleged in his complaint, we decline to address it. Cf.
Scott v. Hern, 216 F.3d 897, 908 n.5 (10th Cir. 2000) (declining to review the
merits of an issue not alleged in the complaint but raised in the appellate brief).
      2
        The court also granted summary judgment to Defendants Waide and Joffe
on this issue. Collins has not appealed this aspect of the ruling.
      3
          This provision has since been amended and is now codified at

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(10th Cir. 1995). “[T]he requirements of due process are satisfied if some

evidence supports the decision by the prison disciplinary board to revoke good

time credits.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445,

455, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985) (citation and quotation marks

omitted) (emphasis added). Here, Collin’s complaint alleges that he “sought to

defend himself” against Pickle and “attempt[ed] to hold” him. On the basis of this

allegation, it was not an abuse of discretion for the district court to find that there

was some evidence of fighting. Collins argues that uncontradicted evidence

established that he was acting in self-defense. The prison’s penal code provides

that self-defense is an affirmative defense to the charge of fighting; however, the

hearing officer was entitled to disbelieve all of the evidence establishing it. Cf.

United States v. 121 Allen Place, 75 F.3d 118, 121 (2d Cir. 1996) (noting that

“assessment of the credibility of witnesses is peculiarly within the province of the

trier of fact” who is “entitled to credit or disbelieve any or all of [one side’s]

testimony”). 4 We therefore AFFIRM the district court’s dismissal of this issue.




      (...continued)
      3

§ 1915(e)(2).
      4
        We see no reason to believe that Waide’s alleged stipulation that Pickle
started the fight could itself establish self-defense. Self-defense generally also
requires that the defender believes use of force is necessary. See, e.g., Model
Penal Code § 3.04(1).

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                            II. Eighth Amendment Claim

       We review the district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party. See Simms v.

Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d

1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S. Ct. 53, 146 L. Ed. 2d

46 (1999). “[P]rison officials have a duty to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833, 114 S. Ct. 1970,

128 L. Ed. 2d 811 (1994) (alteration omitted). To prove a violation of the Eighth

Amendment, Collins must show that (1) prison conditions posed a substantial risk

of serious harm and (2) officials knew of and disregarded this risk. See id. at 834,

837.

       Affidavits of inmates submitted by Collins establish that “thunderdome”

was a dangerous location, the site of at least three to four violent attacks each

month. At least one of these attacks resulted in a near fatality. The question,

therefore, is whether Furlong and Jaquez actually knew of this risk. In its order

granting summary judgment, the district court found evidence that they did, and

Defendants have not challenged this. Reviewing the issue de novo, we agree

Collins has presented evidence that Defendants actually knew of the risk. “[A]

factfinder may conclude that a prison official knew of a substantial risk from the

very fact that the risk was obvious.” Farmer, 511 U.S. at 842. Defendants


                                         -4-
admitted that the area “has been the site of several incidents” since the prison was

opened. In addition, several affidavits note that prison officials were aware of the

assaults in the area and its nickname.

      The district court granted summary judgment because there was no

evidence that Defendants were aware of a specific threat to Collins from Pickle.

However, a prison official may not escape liability

      by showing that, while he was aware of an obvious, substantial risk
      to inmate safety, he did not know that the complainant was
      especially likely to be assaulted by the specific prisoner who
      eventually committed the assault. . . . [I]t does not matter whether
      the risk comes from a single source or multiple sources, any more
      than it matters whether a prisoner faces an excessive risk of attack
      for reasons personal to him or because all prisoners in his situation
      face such a risk.

Farmer , 511 U.S. at 843. Accordingly, we REVERSE the district court’s grant of

summary judgment on the Eighth Amendment issue and REMAND for further

proceedings.

                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




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