                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1111
                                     ___________

Kenneth Dean Perkins,                     *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Arkansas.
Gary Grimes, et al.,                      *       [PUBLISHED]
                                          *
             Appellees.                   *
                                     ___________

                               Submitted: September 25, 1998

                                    Filed: November 16, 1998
                                     ___________

Before WOLLMAN, LOKEN, and KELLY,1 Circuit Judges.
                           ___________

PER CURIAM.

       Kenneth Dean Perkins appeals from the adverse judgment entered by the district
court2 on his section 1983 failure-to-protect claim. Perkins argues that the court clearly



      1
       Judge Kelly died on October 21, 1998. This opinion is consistent with the vote
he cast at conference on this case.
      2
        The Honorable Beverly R. Stites, United States Magistrate Judge for the
Western District of Arkansas, to whom the case was submitted by consent of the
parties pursuant to 18 U.S.C. § 636(c).
erred in finding that appellees adequately protected him while he was a pretrial
detainee. We affirm.

                                  I. BACKGROUND

      On September 8, 1995, Perkins was arrested for public intoxication. He was
booked at the Sebastian County, Arkansas, Adult Detention Center and placed in a
holding cell for approximately five and one-half hours. During his last one and one-
quarter hours there, Perkins shared the cell with R.B. Lee Wilson, who was also
booked for public intoxication.

      Perkins had previously been housed with Wilson without incident. On this
occasion, however, the larger and heavier Wilson threatened Perkins and demanded
sexual favors from him. At some point during this confrontation, Perkins began
knocking on the cell door. Jailer Robert Seibech came to the door after “a little while”
and peered through a small cell window. Perkins testified that he stood in front of the
window and silently mouthed “help” but that Seibech closed the window cover and left.
Perkins did not either knock on the door or yell for help again.

       Perkins further testified that after some twenty minutes had passed Wilson threw
him against a wall and then raped him. Perkins testified that following the rape, a jailer
opened the cell door and asked whether Wilson was “getting some.” Perkins, however,
could neither identify this jailer nor explain why he had entered the cell. After the jailer
left, Wilson pinned Perkins face-down on the floor and proceeded to rape him again.
Perkins yelled twice, but succeeded only in angering Wilson, receiving further abuse
as a result.

      Upon being released, Perkins did not tell the jailers about the rapes, saying only,
“That guy in there is a crazy fucker.” Perkins then went to a local emergency room to
obtain treatment for his injuries. An hour later, the sheriff’s office advised William

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Hollenbeck, a Sebastian County Criminal Investigator, that Perkins was at a local
hospital and complaining of inmate rape. Hollenbeck investigated the complaint and
determined that rape charges should be filed against Wilson. Wilson ultimately pleaded
guilty to those charges.

       Jailer Seibech, who was the intake/booking officer on duty on the night of the
rapes, made the decision to place Wilson in the same holding cell as Perkins. Seibech
acknowledged that Wilson had been in the jail numerous times for public intoxication
and was well known by the jailers. However, Seibech denied any knowledge that
Wilson had ever instigated any physical altercations. Seibech testified that once in his
cell, Wilson desired only to lay down and sleep, that Wilson started problems only
when other inmates bothered him, and that although Wilson “mouthed off,” he obeyed
commands. Jail Administrator Jim Rush provided similar testimony. Rush stated that
Wilson was often jailed for public intoxication and normally beat on the doors and
screamed but was not considered a threat or danger to other inmates.

        Seibech explained that he had placed Perkins and Wilson in the same cell
because Perkins was not obnoxious -- i.e., provoking -- and was to be released soon.
Seibech perceived no potential risk of harm, especially since the jailers conducted
routine cell checks. Seibech added that he was no more than twenty feet away from
the holding cell at all relevant times, and that the jail’s policy is to check the cells at
least four to five times an hour. Also, with respect to notice, Seibech testified that he
had no memory of Perkins’ mouthing the word “help.” Seibech expressed his doubt
that Perkins had actually mouthed the word and testified that if Perkins had done so,
he would have taken Perkins into the hall for questioning.




                                           -3-
                                  II. DISCUSSION

       The Eighth Amendment imposes a duty on the part of prison officials to protect
prisoners from violence at the hands of other prisoners. Farmers v. Brennan, 511 U.S.
825, 833 (1994). Pretrial detainees are entitled to at least as much protection as a
convicted inmate. See generally Thomas v. Booker, 784 F.2d 299 (8th Cir.) (en banc),
cert. denied, 476 U.S. 1117 (1986) (analyzing a pretrial detainee’s failure-to-protect
claim under the same Eighth Amendment analysis used for similar claims brought by
prisoners). Nevertheless, not every injury suffered by one prisoner or detainee at the
hands of another translates into constitutional liability for prison officials responsible
for the victim’s safety. Farmers, 511 U.S. at 834.

        A prison official violates the Eighth Amendment only if he acts with deliberate
indifference to a substantial risk of harm to the prisoner/detainee. Id. To show
deliberate indifference, the prisoner/detainee must prove both that the official’s acts
objectively caused a sufficiently serious deprivation and that the official had a
subjectively culpable state of mind. Id. With respect to the latter requirement, the
prisoner/detainee must prove that the official was aware of facts from which the
inference could be drawn that a substantial risk of serious harm existed and that the
official drew that inference. Id. at 837. This subjective element must be met, because
“only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”
Jensen v. Clark, 73 F.3d 808, 810 (8th Cir. 1996). Each stage of the analysis is fact-
intensive. Jensen v. Clarke, 94 F.3d 1191, 1197 (8th Cir. 1996).

       The district court found no constitutional violation because the defendants did
not act with a subjectively culpable state of mind. Although the court agreed that the
defendants were on notice that Wilson was a disruptive inmate, it found that they had
no notice that Wilson posed a threat of serious injury to Perkins because Perkins did
not effectively alert them that he faced such a threat. Moreover, the defendants’
periodic cell checks yielded no information that would have put them on such notice.

                                           -4-
      Perkins argues that the district court erred in applying the deliberate indifference
standard by relying on unreliable jailer testimony and by upholding the jail’s
unconstitutional random cell assignment policy.

       We review the district court’s factual findings for clear error. Coleman v.
Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Clear error exists when, although there is
evidence to support the finding, “the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). If a district court’s finding is
plausible in light of the record, the reviewing court “may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

      We are not persuaded by Perkins’ argument that the district court imposed what
he characterizes as a “novel individual risk requirement.” We find no indication in its
memorandum opinion that the district court ignored or improperly applied precedent
regarding the requirement of notice.

       We cannot say that the district court clearly erred in finding that Perkins’ jailers
had no notice of his predicament. Although the testimony indicated that Wilson was
an easily provoked detainee, the evidence also shows that Perkins and Wilson had
previously been housed together without incident and that Perkins’ jailers neither knew,
nor had reason to know, that Wilson was a violent sexual aggressor, either on this or
on a previous occasion. However degrading the attacks upon Perkins, we conclude that
the district court not clearly err in finding that the defendants did not act with deliberate
indifference to Perkins’ safety.

      Because he failed to raise this issue in the district court, we decline to address
Perkins’ argument that his jailers implemented a constitutionally violative random cell
assignment policy.

                                            -5-
      We express our appreciation to appointed counsel for his zealous efforts on
Perkins’ behalf.

      The judgment is affirmed.

      A true copy.

            Attest:

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




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