                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3261
                                  ___________

Bryan Richard Nei; Alvin King;            *
Paul Leo Amundson,                        *
                                          *
               Plaintiffs-Appellees,      *
                                          *
       v.                                 *
                                          *
Robert Dooley, Warden, Mike               *
Durfee State Prison, Springfield, SD; * Appeal from the United States
Lisa McFletcher, Unit Manager,            * District Court for the District
Mike Durfee State Prison; Sally           * of South Dakota.
Boyd, Head of Special Security at         *
Mike Durfee State Prison, all in          *      [PUBLISHED]
their individual capacities and not       *
their official capacities;                *
                                          *
               Defendants-Appellants,     *
                                          *
Paul Soyars,                              *
                                          *
               Defendant.                 *
                                     ___________

                            Submitted: June 18, 2004
                               Filed: June 25, 2004
                                ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and RILEY, Circuit Judges.
                         ___________
PER CURIAM.

        Bryan Richard Nei, Alvin King, and Paul Leo Amundson, current or former
inmates at the Mike Durfee State Prison in Springfield, South Dakota, brought this
civil rights action against the warden, Robert Dooley, and other prison officials, Unit
Manager Lisa McFletcher and Special Security Head Sally Boyd. The inmates
claimed the prison officials violated their Eighth Amendment rights by failing to
protect them from an HIV-positive inmate, Paul Soyars, who assaulted and threatened
to infect his fellow inmates. The inmates also asserted McFletcher and Boyd
retaliated against Nei and King for bringing the lawsuit by placing them in
segregation, and against Nei, King, and Amundson by denying them access to the
prison law library. The district court* denied the prison officials’ motion for summary
judgment based on qualified immunity. The prison officials appeal.

       We explain the relevant facts in the light most favorable to the inmates, who
opposed the officials’ motion for summary judgment. Pagels v. Morrison, 335 F.3d
736, 738 (8th Cir. 2003). While incarcerated at the Mike Durfee State Prison, Soyars
admitted to inmates and prison staff that he was infected with AIDS. He often
threatened inmates that he would infect them with the virus. While cleaning the
prison restrooms, Soyars urinated on the floor, spit in the sinks and water fountains,
and smeared fecal matter on the floor. In early April of 2000, King approached
McFletcher to report he disapproved of the way Soyars “cleaned” the bathroom, and
he did not want to live with someone who threatened to expose people to AIDS.
Soyars and King got into a fight afterwards. Soyars spit in King’s face. Soyars cut
his lip, and his blood came into contact with an open wound on King’s hand. A few
days later, Soyars got into a fight with another inmate and threatened to infect the
inmate with AIDS. King and Nei told Boyd and McFletcher about Soyars’s threats,
fights, and how he would “clean” the restrooms. Nei and King asked the officials to

      *
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                         -2-
remove Soyars from the prison. Because prison officials took no action, King filed
a grievance later that month asking for Soyars removal. The same day, King obtained
signatures from several inmates to initiate a class action lawsuit. Boyd and
McFletcher accused King and Nei of initiating an illegal petition drive. Four days
later, King received a response from his grievance stating that prison policy
prohibited the segregation of infected inmates outside the population. The next day,
King filed an appeal. On May 1, King filed a federal complaint asking that Soyars
be removed from the prison. McFletcher received an anonymous note the same day,
stating Soyars was improperly cleaning the toilets, Soyars claimed he was HIV
positive, and Soyars had threatened the note’s author. McFletcher concluded either
Nei or King wrote the note, and reported to Boyd, who was told by Soyars that he was
HIV positive. The next day, during a fight, Soyars pushed Nei and threatened to infect
him with AIDS. Some of Soyars’s blood went into Nei’s mouth, on his body, and on
his clothing. Two days later, after the prison received a file stamped copy of the
complaint in this action, King and Nei were placed in segregation. Nei filed a
grievance asking why he had been placed in the hole. The prison responded he was
under investigation and would be in segregation until the investigation was
completed. King filed an appeal demanding a explanation for his placement in the
hole. King and Nei were released from the hole the next day. In mid June, Soyars got
into a fights with Amundson, during which Soyars threatened infection, and a fight
with another inmate involving bloodshed. Prison staff were advised of the fights. In
late October, Boyd sent an e-mail to other prison officials acknowledging that Soyars
admitted he is HIV positive to staff, and during an October fight, Soyars started to
bleed, so the other inmate involved would be tested for AIDS because of possible
blood exchange. Beginning in the fall of 2000, King, Nei, and Amundson requested
access to the inmate law library to research and draft documents for their written
complaint. Boyd and McFletcher denied them access. In December, the inmates
again requested access to draft a response to the inmates’ answer. Boyd and
McFletcher again denied them access to the law library.



                                         -3-
       Qualified immunity protects government officials from lawsuits for their
performance of discretionary functions unless their conduct violates a clearly
established constitutional right of which a reasonable person would have known. Id.
at 739-40. The Eighth Amendment requires prison officials to take reasonable
measures to guarantee the safety of inmates and to protect them from violence by
other prisoners. Id. at 740. To prevail on their Eighth Amendment failure-to-protect
claim, the inmates must show they are incarcerated under conditions posing a
substantial risk of serious harm and the prison officials subjectively knew of and
disregarded that safety risk. Id.; Smith v. Arkansas Dep’t of Correction, 103 F.3d
637, 644 (8th Cir. 1996).

        In this case, the district court concluded the inmates had articulated facts that
would establish they were incarcerated under conditions posing a substantial risk of
harm to them of contracting the AIDS virus. The district court also concluded that
although Boyd and McFletcher denied they knew Soyars was infected with AIDS, the
inmates provided affidavits suggesting otherwise. Indeed, in Boyd’s October e-mail,
she stated Soyars readily admitted he was HIV positive to staff and documented that
while fighting with another inmate, Soyars began to bleed. The district court found
that at the very least, Boyd and McFletcher knew Soyars might have AIDS. The court
concluded that, viewing the evidence in the light most favorable to the inmates, there
was sufficient evidence from which a jury could find that Boyd and McFletcher knew
Soyars was infected with AIDS, that Soyars was threatening to infect other inmates
and was engaging in assaultive behavior towards other inmates, and that Boyd and
McFletcher failed to respond to that risk reasonably. As for the warden, the district
court found that because he read and responded to the grievances, a jury could find
the warden knew Soyars had AIDS, knew Soyars had threatened to infect other
inmates through assault, and failed to respond reasonably to the risk in violation of
the prison’s own policy.




                                          -4-
       The officials argue none of the prison officials had subjective knowledge that
Soyars posed a substantial risk of harm to each inmate. Viewing the facts in the light
most favorable to the inmates, we disagree. There was evidence that Soyars fought
with King, Nei, and Amundson, and the fights involved fluid exchange, threats of
infection, or both. Besides, “[w]e must accept the summary judgment facts as
described by the district court because evidentiary determinations are not presently
appealable.” Moran v. Clark, 359 F.3d 1058, 1060 (8th Cir. 2004). The officials also
contend they acted reasonably as a matter of law and thus did not violate the inmates’
Eighth Amendment rights. Viewing the facts in the light most favorable to the
inmates, we conclude the officials did not respond to the threat of harm in an
objectively reasonable way. Indeed, the officials did little to address the situation for
months after being made aware of the circumstances.

       As for the inmates’ claim that they were retaliated against for filing their
lawsuit by being denied access to the prison law library, the officials contend the
district court should have construed the claim as one of denied access to the courts,
requiring proof of actual injury, rather than one of retaliation. We disagree. “Conduct
that retaliates against the exercise of a constitutionally protected right is actionable,
even if the conduct would have been proper if motivated by a different reason.” Cody
v. Weber, 256 F.3d 764, 770-71 (8th Cir. 2001). To be actionable, the retaliatory
conduct itself need not be unconstitutional because the constitutional violation lies
in the intent to impede access to the courts. Id. The district court applied the proper
standard to the inmates’ retaliation claim based on denial of access to the law library.

        Regarding the inmates’ claim that the officials retaliated against the inmates
for filing their lawsuit by placing them in segregation, the officials argue they merely
transferred the inmates, and did so to investigate whether they were soliciting
signatures in violation of prison rules, rather than in retaliation for filing their lawsuit.
Because the inmates’ allegations create a genuine issue of material fact about whether
the officials retaliated against them, the district court properly denied summary

                                            -5-
judgment on this claim. Id. We reject the officials’ argument that the issue of fact
triggers application of the retaliatory transfer standard rather than the retaliatory
discipline standard. See Goff v. Burton, 7 F.3d 734, 736-39 (8th Cir. 1993)
(comparing claims of retaliatory transfer of inmate to a different, maximum security
facility and claim of retaliatory discipline).

       Having carefully considered all of the officials’ assertions, we affirm the
district court’s denial of qualified immunity.
                         ______________________________




                                        -6-
