           ___________

           No. 95-1169
           ___________

Joseph L. Stephens and Inmate        *
Workers of Arkansas                  *
Correctional Industries;             *
Stephen Caster; Jerrol L.            *
White; Charles Helloms;              *
Reginald O. Davis,                   *
                                     *
           Plaintiffs/Appellees,     *
                                     *
     v.                              *
                                     *
Charlie Johnson, Supervisor,         *
Arkansas Correctional                *
Industries; Larry Norris,            *
Acting Director, Arkansas            *
Department of Correction;            *   Appeals from the United States
Ray Hobbs, Warden,                   *   District Court for the
Wrightsville Unit, Arkansas          *   Eastern District of Arkansas.
Department of Correction,            *
                                     *
           Defendants,               *
                                     *
Jerry Campbell, Administrator,       *
Arkansas Correctional                *
Industries,                          *
                                     *
           Defendant/Appellant.      *

           ___________

           No. 95-1285
           ___________

Joseph L. Stephens and Inmate        *
Workers of Arkansas                  *
Correctional Industries;             *
Stephen Caster; Jerrol L.            *
White,                               *
                                     *
           Plaintiffs/Appellants,*
                                     *
Charles Helloms,                     *
                                     *
           Plaintiff,                *
                                     *
Reginald O. Davis,                   *
                                     *
           Plaintiff/Appellant,      *
                                     *
     v.                              *
                                     *
Charlie Johnson, Supervisor,         *
Arkansas Correctional                *
Industries; Larry Norris,            *
Acting Director, Arkansas            *
Department of Correction;            *
Ray Hobbs, Warden,                   *
Wrightsville Unit, Arkansas          *
Department of Correction,            *
                                     *
            Defendants,              *
                                     *
Jerry Campbell, Administrator,       *
Arkansas Correctional                *
Industries,                          *
                                     *
            Defendant/Appellee.      *
                                ___________

                     Submitted:    December 11, 1995

                          Filed:   May 2, 1996
                                   ___________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     Jerry Campbell appeals the district court's entry of judgment on a
jury verdict finding him liable for violating inmates' Eighth Amendment
rights based on working conditions at a prison warehouse.   Because we find
that the evidence is insufficient to establish a constitutional violation,
we reverse.


                                        I.


     Jerry Campbell was Chief Administrator of the Arkansas Correctional
Industry (ACI), a prison work program directed by the Arkansas Department
of Correction (ADC).      As part of the ACI work program, some inmates
incarcerated at the Wrightsville Unit were assigned to work at the prison
warehouse.    Inmates assigned to the




                                      -2-
warehouse were in charge of moving materials and finished products, loading
and unloading delivery trucks, and delivering furniture.


     In February 1993, five1 inmate workers brought suit against the ADC,
ACI, Campbell, and other prison officials alleging that unsafe working
conditions at the warehouse violated their Eighth Amendment right to be
free from cruel and unusual punishment.       After a three-day trial in
September 1994, a jury found liability as to Campbell only and awarded each
inmate $1 in compensatory damages and $10 in punitive damages.    Campbell
appeals the district court's order denying his motion for judgment as a
matter of law or, in the alternative, a new trial.      The inmates cross-
appeal, contending that the district court erred in not granting injunctive
relief and in denying their motion for a new trial on the issue of damages.


                                   II.


     Although Campbell raises three issues on appeal, we find it necessary
to rule only on his contention that the evidence is insufficient to support
an Eighth Amendment violation.


     In reviewing an evidence-insufficiency claim in the context of a
motion for judgment as a matter of law, we must:


           (1) resolve direct factual conflicts in favor of
           the nonmovant, (2) assume as true all facts
           supporting the nonmovant which the evidence tended
           to prove, (3) give the nonmovant the benefit of all
           reasonable inferences, and (4) affirm the denial of
           the motions if the evidence so viewed would allow
           reasonable jurors to differ as to the conclusions
           that could be drawn.




     1
      One inmate withdrew from the case prior to trial.

                                   -3-
            v. Douglas County                                                     g
Hastings v. Boston Mut. Life Ins. Co.               506, 509 (8th Cir. 1992)).
In                        , 943 F.2d 26, 27 (8th Cir. 1991),                  , 502
U.S. 1110 (1992), we recognized that prison work
to scrutiny under the Eighth Amendment.      To succeed on an Eighth Amendment
          the prisoner must first prove that the conditions challenged were
                  `sufficiently serious.'"                      , 114 S. Ct. 1970,
        (1994)    (quoting                    ,   501   U.S.   294,   298   (1991)).
             the prisoner must prove that the prison official acted with a
                                             Id. (q            Wilson, 501 U.S. at
                         enging prison conditions, "that state of mind is one
of                                                                     Id. (citin
Wilson,     01 U.S. at 302-03).       In other words, under this subjective
                                                        official "acted or failed
to    ct despite his knowledge of a substantial risk of serious harm."
        , 114 S. Ct. at 1981.


        Each of the inmates testified about the working conditions at the
                 An examination of their testimony reveals the following main
        aints:    (1) inmates were not issued safety equipment such as har
hats,                                                                             e
forkl       had no backup warning beeper; (3) the forklift and trucks had
      anical problems; (4) inmates were lifted up on bare forks of th
forklift                                                                          d
to                                 retrieve objects; (6) dollies used to move
furniture                                                                         t
heavy        iture up stairs and into awkward places; (8) inmates had to
                          from the bathroom sink; (9) the trucks had no first
aid                                 not receive safety training.       The inmates
alleged                                  the employees at the warehouse about
these conditions.      No written grievances were ever filed, however.




                                       -4-
     Each inmate also testified that he had received various injuries
while working at the warehouse.       There was testimony that all of the
inmates had injured their backs while lifting furniture.     There were also
complaints of knee injuries that occurred when the inmates jumped off
trucks. The inmates also testified about hand and foot injuries they had
received while working at the warehouse.      Two of the inmates complained
about getting dust in their eyes.     Despite this testimony, there were no
prison records documenting injuries received at the warehouse.


     Even giving the inmates the benefit of all reasonable inferences, we
believe that they have failed to establish that Campbell was deliberately
indifferent to their health and safety.     In the workplace safety context,
we have held that mere negligence or inadvertence is insufficient to
constitute deliberate indifference.    Choate v. Lockhart, 7 F.3d 1370, 1374
(8th Cir. 1993) (citing Wilson, 501 U.S. at 305).       See also Estelle v.
Gamble, 429 U.S. 97, 104-06 (1976) (stating that deliberate indifference
state of mind requires a showing of more than mere negligence).


     In Bibbs, an inmate was injured when two of his fingers became
entangled in the gears of an inker in a license plate facility.   The inmate
claimed that his Eighth Amendment rights were violated because the prison
guards allegedly knew that the safety guards had been removed and failed
to repair the machine.   We held that the inmate essentially complained of
negligence in the prison officials' failure to repair, and thus we found
no constitutional violation.   Bibbs, 943 F.2d at 27.   Similarly, in Warren
v. Missouri, 995 F.2d 130 (8th Cir. 1993), an inmate who injured his wrist
while operating a table saw at a prison furniture factory alleged that
prison officials were deliberately indifferent by failing to add a safety
device to the saw, despite knowledge of similar injuries that had occurred
in the past.    We held that even assuming that prison officials "had
knowledge of the allegedly




                                      -5-
similar prior accidents    . . . this showing falls far short of creating a
                       berate indifference to a serious issue of work place
safety."        at 131.


        Likewise, in the instant case, even
of                                                                         g
a genuine issue of deliberate indifference to workplace safety.    To convert
                                                   ent into conduct violative
of the Eighth Amendment, "more than ordinary lack of due care for the
             interests or safety" must be shown.                   , 475 U.S.
      319 (1986).   Simply failing to provide inmates who move furniture wit
steel-toed boots, protective eyewear, and hard hats, for example, does not
     ablish a constitutional violation any more than failing to install
safety device on a saw despite                                    See      ,
995 F.2d at 131.


            from establishing an attitude of deliberate indifference to
                       ampbell's part, testimony revealed that Campbell had
had discussions with various prison officials regarding back braces, steel-
        boots, and a backup warning beeper for the forklift.    In fact, th
inmates                                                                    s
installed                               also had a safety rail installed on
an upper storage area
against providing the inmates with steel-toed boots.


        In short, the evidence as to the working conditions at the prison
     ehouse at most establishes that Campbell was negligent in not takin
greater                                                                    h
to           sh a constitutional violation.    See Choate, 7 F.3d at 1376
Because there was no such violation,
award                                                                      r
Campbell.
HEANEY, Circuit Judge, dissenting.


     I disagree that our precedents lead us to reverse on the basis that
the evidence did not permit a reasonable jury to find that Campbell acted
with deliberate indifference to the inmate's health and safety.       More
important, I believe that the Supreme Court's instruction in Farmer v.
Brennan, 114 S. Ct. 1970 (1994), propels us to reach the opposite
conclusion.   Therefore, I respectfully dissent.


     I agree with the majority that an inmate must show something more
than negligence or inadvertence to successfully challenge prison conditions
under the Eighth Amendment.     Choate v. Lockhart, 7 F.3d 1370, 1374 (8th
Cir. 1993) (citing Wilson v.    Seiter, 501 U.S. 294, 305 (1991)).   As the
Supreme Court recently clarified, Eighth Amendment liability in the context
of prison conditions requires a subjective consciousness of the risk on the
part of the prison officials.   Farmer v. Brennan, 114 S. Ct. 1970 (1994).
As the jury found, there is ample evidence in this record that the
warehouse conditions were unreasonably dangerous and that Campbell was
aware of--and disregarded--the substantial risk of harm to inmates.


     The inmates testified at length about unsafe warehouse conditions
including:    inmates were routinely lifted up on the bare forks of the
forklift and moved around the warehouse while in that position; furniture
and other heavy items were precariously stacked to the ceiling overhanging
high-traffic areas; forklifts and trucks had defects including nonworking
brakes, broken lifts, and no warning devices; inmates were required to
climb onto high shelves to retrieve objects; inmates were required to move
large furniture using dollies too small for the job and without safety
straps; inmates were required to lift objects too heavy for their physical
ability; lack of safety equipment such as hard hats, protective eyewear,
back braces, gloves, and steel-toed boots; inmates had no




                                     -7-
access to drinking water except at the bathroom sink; and inmates did not
          safety training or instruction on proper lifting techniques.             In
              the   inmates   described   an   atmosphere   in   which    supervisors
       tantly demanded that the inmates work very quickly, make do wit
whatever materials were (or were not) available to assist them, and no
complain.     The evidence also permitted
never filed written grievances because they
officials,                                                                         e
warehouse.                                     testimony, the warehouse job was a
desirable one despite the harsh conditions because it afforded contact with



        Campbell, the Chief Administrator of ACI, had an office located five
      six feet from the warehouse.        He testified that he regularly walked
       gh and made inspections of the warehouse.            As the majority notes
Campbell                                                                            :
providing inmates wit
the forklift, and adding a safety railing to the upper storage area of the
                                                      apparently drew inferences
that                                      by the majority, namely, that Campbell
had a subjective awar
could have taken precautions to correct them.


        The    jority relies heavily on two of our prior cases to reach the
                        suming that Campbell was aware of safety problems at
the                                         short of creating a genuine issue of
deliberate indifferen                                 Infra at 6.    Neither
v. Armont       , 943 F.2d 26 (8th Cir. 1991), cert. denied                        0
(1992), nor              Missouri, 995 F.2d 130 (8th Cir. 1993), however, is
                        r legally equivalent to this case.        Bibbs
distinguishable                                                                    d
the
record did not contain any evidence that the prison officials intentionally
placed prisoners in a dangerous situation.      943 F.2d at 27.     In Warren, we
affirmed a grant of summary judgment in favor of prison officials where the
inmate produced only marginal evidence that the officials might have known
of prior similar accidents and no evidence to support a finding that the
officials were deliberately indifferent to a serious issue of workplace
safety.    995 F.2d at 131.     After reviewing the full record in this case,
including the transcript of a three-day trial, I fail to understand how
this case is controlled by either Bibbs or Warren.
     The     Supreme   Court   specifically   addressed   the   concern   that   the
subjective requirement of an Eighth Amendment challenge in this context
might permit prison officials to ignore obvious dangers to inmate health
and safety.    The Court explained:


     [A]n Eighth Amendment claimant need not show that a prison
     official acted or failed to act believing that harm actually
     would befall an inmate; it is enough that the official acted or
     failed to act despite his knowledge of a substantial risk of
     serious harm. . . .       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, and a factfinder may conclude
     that a prison official knew of a substantial risk from the very
     fact that the risk was obvious.


Farmer, 114 S. Ct. at 1981 (internal citations omitted).                  Under the
standards announced by the Court, the inmates in this case presented the
jury with evidence which, if believed, supported a finding that prison
officials were deliberately indifferent to the serious safety risks at the
warehouse.     Out of the four named defendants, the jury believed that
Campbell was liable.     Unlike my colleagues, I would respect that finding.




                                       -9-
A true copy.


     Attest:
