                    _________________________

                    Nos. 95-1105NE, 95-1115NE
                    _________________________


Jerry Jensen, on behalf of      *
himself and all others          *
similarly situated; Reginald    *
Pierce; Richard Duff; Al        *
Wilson; Harold Crisp; Laddie    *
Dittrich; Gus Dawson; Victor    *
Carter; George Carter; Michael  *
Kane; Ernest L. Sims; Mohamed   *
Abdul Hafiz El-Tabech; and      *
and Victor Luna,                *
                                *
                                *   On Appeal from the United
   Appellees/Cross-Appellants, *    States District Court
                                *   for the District of
     v.                         *   Nebraska.
                                *
                                *
Harold W. Clarke, individually *
and in his official capacity    *
as Director of the Nebraska     *
Department of Correctional      *
Services; and Frank X. Hopkins, *
individually and in his         *
official capacity as Warden of *
the Nebraska State              *
Penitentiary,                   *
                                *
    Appellants/Cross-Appellees. *

                           ___________

                  Submitted:   October 16, 1995

                      Filed: January 11, 1996
                           ___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit
     Judges.
                           ___________

RICHARD S. ARNOLD, Chief Judge.
     This case began in 1987 when the plaintiff class, inmates in
the Nebraska State Penitentiary (NSP), filed suit challenging their
conditions of confinement. They assert that the practice of double
celling, placing two inmates in a cell designed for one, under
conditions as they existed prior to this case in the NSP, violated
the Eighth Amendment to the United States Constitution.       These
proceedings have included a hearing on liability, a premature
appeal to this Court, hearings and an order on a remedial plan, and
an order on attorneys' fees. Unfortunately, we must remand the
case for further consideration in light of Farmer v. Brennan, 114
S. Ct. 1970 (1994).


                                I.


     The plaintiffs are the class of inmates housed or to be housed
in the four main housing units of the Nebraska State Penitentiary.
They brought this case under 42 U.S.C. § 1983 (1988) to challenge
the conditions of their confinement in two respects. First, they
contended that the practice of double celling at the NSP violated
the Eighth Amendment. Second, they contended that the policy of
holding both inmates responsible for contraband found in a double
cell violated the Due Process Clause of the Fourteenth Amendment.
An 18-day evidentiary hearing was held before a magistrate judge
regarding the validity of the plaintiffs' claims. The District
Court, adopting the report and recommendations of the magistrate
judge, rejected the due-process claim, but held that, while the
practice of double celling inmates did not in itself violate the
Constitution, the manner in which the defendants were conducting
that practice did. Jensen v. Gunter, 807 F. Supp. 1463 (D. Neb.
1992).


     The NSP, opened in 1981, is a maximum security prison, housing
the State's most violent offenders.     At the time this case was




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tried, it consisted of six housing units. Units one through four,1
the main housing units, are at issue in this case. The statistics
and testimony introduced during the 18-day bench trial in this case
portrayed the NSP as a violent place. Moreover, testimony from
inmates persuaded the District Court that the violence had carried
over to the double cells. Several conditions enhanced the level of
tension in the double cells, including noise, exposure to smoke and
offensive odors due to poor ventilation, lack of privacy, and the
contraband rule, under which both cellmates can be punished when
contraband is found in a cell.


     That double celling and overcrowding at the NSP are involved
has the potential of overshadowing the real issues. The District
Court did not hold that either double celling or overcrowding at
the NSP in themselves violated the plaintiffs' Eighth Amendment
rights. In fact, it specifically rejected those claims. Rather,
the District Court found that the inmates in the double cells in
the four main housing units faced a substantial risk of harm in the
form of violence at the hands of their cellmates. The defendants,
moreover, had been deliberately indifferent to that risk. That
indifference was exemplified by the policy of randomly assigning
incoming inmates to double cells without considering whether the
cellmates would be compatible. Stated differently, we read the
District Court's order as holding that, while the practice of
double celling in the NSP is not itself unconstitutional, the
manner in which that practice was being carried out prior to this
lawsuit violated the Eighth Amendment by exposing some prisoners to
a risk of violence that was avoidable. Therefore, the issues in
this case are whether the plaintiffs were exposed to a substantial
risk of physical harm in the form of assaults by cellmates, and, if
so, whether the defendants were deliberately indifferent to that
risk. We do not reach the first issue, because we must remand this


     1
      A fifth main housing unit was constructed during the
pendency of this case.

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case for further findings on the second.


     This case was not final and appealable following the District
Court's liability determination, a point that was made clear when
the defendants attempted to take an appeal directly to this Court.
See El-Tabech v. Gunter, 992 F.2d 183 (8th Cir. 1993).         The
defendants were ordered to propose a remedial plan.      Some time
passed before that plan was proposed and the defendants were
ordered to adopt it.2    Then in yet another order, the District
Court awarded fees to the plaintiffs' attorneys. See El-Tabech v.
Gunter, 869 F. Supp. 1446 (D. Neb. 1994).     More than two years
passed between the time that the District Court found that the
defendants were liable and the District Court's final order.
During that time, the Supreme Court decided a case, Farmer v.
Brennan, that directly impacts the liability determination.


                               II.


     The Eighth Amendment to the United States Constitution
proscribes the infliction of "cruel and unusual punishments." The
Supreme Court counsels that this amendment imposes upon prison
officials the duty to "provide humane conditions of confinement."
Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994). That duty, among
other things, requires those officials to take reasonable measures
to "`protect prisoners from violence at the hands of other
prisoners.'" Ibid. (quoting Cortez-Quinones v. Jimenez-Nettleship,
842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)).
The Eighth Amendment imposes this duty because being subjected to
violent assaults is not "part of the penalty that criminal
offenders pay for their offenses." See Rhodes v. Chapman, 452 U.S.


     2
      Briefly put, the remedy in this case was to order the
defendants to adopt a plan that put an end to randomly assigning
incoming inmates to double cells without considering whether the
new cellmates would be compatible. That injunction is still in
force.

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337, 347 (1981).


     In order to prevail on an Eighth Amendment failure-to-protect
claim, inmates must make two showings.          First, they must
demonstrate that they are "incarcerated under conditions posing a
substantial risk of serious harm." Farmer, 114 S. Ct. at 1977.
The second requirement concerns the state of mind of the prison
official who is being sued. It mandates that the plaintiffs show
that the official "knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference." Id. at
1979. This subjective requirement is necessary because "only the
unnecessary and wanton infliction of pain implicates the Eighth
Amendment." Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal
quotation marks, emphasis, and citations omitted).


     Before Farmer, this Court analyzed failure-to-protect cases in
a somewhat different manner. Under our prior cases, deliberate
indifference, or reckless disregard, of a risk to inmate safety
required proof of a pervasive risk of harm to inmates and a failure
to respond reasonably to that risk on the part of prison officials.
Porm v. White, 762 F.2d 635, 637 (8th Cir. 1985); Martin v. White,
742 F.2d 469, 474 (8th Cir. 1984). A "pervasive risk of harm," in
turn, was said to exist when "violence and sexual assaults
occur . . . with sufficient frequency that . . . prisoners . . .
are put in reasonable fear for their safety and to reasonably
apprise prison officials of the existence of the problem and the
need for protective measures." Martin, 742 F.2d at 474 (quoting
Withers v. Levine, 615 F.2d 158, 161 (4th Cir.), cert. denied, 449
U.S. 849 (1980)).


     This approach allowed inmates to prevail upon a lesser showing
than that mandated by Farmer. All that a plaintiff needed to prove
was that prison officials, given the sufficient frequency of

                               -5-
                                5
assaults, "knew or should have known" of a substantial risk to
inmate safety. Randle v. Parker, 48 F.3d 301, 304 (8th Cir. 1995).
This standard was applicable when the District Court made its
liability determination in this case in 1992. We read the District
Court's opinion as applying this standard. This approach, however,
does not comply with the subjective-state-of-mind component of
deliberate indifference described in Farmer. We must, as a result,
remand this case to the District Court for application of the
Farmer standard for establishing deliberate indifference.


     It is true, as the plaintiffs point out in their briefs, that
some language in the District Court's order appears to apply
something akin to the Farmer standard. When addressing reckless
disregard, the Court wrote that "an inmate must show that prison
officials were aware of a pervasive risk of harm to an inmate and
failed to reasonably respond to that risk." Jensen, 807 F. Supp.
at 1481. That statement, however, loses its force when placed in
the context of the rest of the opinion.


     Later in its order the District Court moved away from the
standard it initially seemed to apply, writing that the risk of
harm faced by the plaintiffs was "of such magnitude as to put
defendants on notice of its existence." Id. at 1483. Likewise, in
a subsequent order addressing the nature of the remedy to be
imposed, the District Court characterized the requirement as a
"risk . . . of sufficient magnitude to place prison officials on
notice." El-Tabech v. Gunter, No. CV87-L-377, slip op. at 4 (D.
Neb. Aug. 23, 1994). Farmer, however, specifically rejects the
idea that liability may be found when a risk is so "obvious that it
should [have been] known."     Farmer, 114 S. Ct. at 1978.       We
conclude that the District Court has yet to determine whether the
defendants were subjectively aware of a substantial risk of harm to
the plaintiffs, as is required by Farmer.


                               III.

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                                6
     This cause is remanded to the District Court with instructions
to find whether the defendants actually knew of and disregarded a
substantial risk to the safety of the plaintiffs.         We retain
jurisdiction over this matter in order to review the findings of
the District Court on remand. That Court will certify its findings
to us as soon as it makes them.


     It is so ordered.


     A true copy.


          Attest:


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




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