     ____________

     No. 95-1565
     ____________

Ernest Smith; Jimmy Rudd,       *
                                *
          Plaintiffs-Appellees, *
                                *
     v.                         *
                                *
Arkansas Department of          *
Correction; A. L. Lockhart,     *
Director of the Arkansas        *
Department of Correction;       *
                                *
          Defendants,           *
                                *
Larry Norris, Acting Director   *
of the Arkansas Department of   *
Correction; Willis H. Sargent, *
Warden of the Cummins Unit of   *
the Arkansas Department of      *   Appeals from the United States
Correction; A. J. Hall, Major, *    District Court for the
Chief of Security; R. R. Wood, *    Eastern District of Arkansas.
Lieutenant, Shift Supervisor;   *
J. Cleveland, Guard; John Hood, *
Officer; James Banks,           *
Classification and Assignment   *
Officer,                        *
                                *
          Defendants-Appellants,*
                                *
Ron Smyers, Medical Services    *
Administrator; John Does, I - X,*
                                *
          Defendants,           *
                                *
Dale Reed, Warden, Cummins Unit,*
Arkansas Department of          *
Correction,                     *
                                *
          Defendant-Appellant. *
                                *
     ____________

     No. 95-2744
     ____________

Linda C. Smith, Administratrix   *
of the Estate of John E.         *
Stewart,                         *
                                 *
          Plaintiff-Appellee,    *
                                 *
     v.                          *

Arkansas Department of          *
Correction; A. L. Lockhart,     *
Director of the Arkansas        *
Department of Correction,       *
                                *
          Defendants,           *
                                *
Larry Norris, Acting Director   *
of the Arkansas Department of   *
Correction; Willis H. Sargent, *
Warden of the Cummins Unit of   *
the Arkansas Department of      *
Correction; A. J. Hall, Major, *
Chief of Security; R. R. Wood, *
Lieutenant, Shift Supervisor;   *
J. Cleveland, Guard; John Hood, *
Officer,                        *
                                *
          Defendants-Appellants,*
                                *
James Banks, Classification and *
Assignment Officer; Ron Smyers, *
Medical Services Administrator; *
John Does, I - X,               *
                                *
          Defendants.           *

                          _____________

                    Submitted:   January 8, 1996

                        Filed: December 18, 1996
                          _____________




                                 2
Before MAGILL, REAVLEY,1 and HANSEN, Circuit Judges.
                          _____________


HANSEN, Circuit Judge.

     These two prisoners' civil rights cases arise out of an
incident where an Arkansas inmate stabbed two fellow inmates,
Ernest Smith and John Stewart, murdering Stewart and seriously
injuring Smith.   Smith sought declaratory and injunctive relief
based on the conditions of his confinement; Smith and Stewart's
estate both sought damages based on the stabbing incident. In this
consolidated appeal, the Arkansas Department of Correction prison
officials appeal the district court's grant of declaratory and
injunctive relief requiring additional staffing, the denial of
their motions for summary judgment based on qualified immunity, and
the district court's grant of partial summary judgment in favor of
the plaintiffs on liability.

                          I.   BACKGROUND


     Ernest Smith and John Stewart were both inmates at the Cummins
Unit of the Arkansas Department of Correction. During the early
morning hours of August 10, 1992, while they were asleep in their
beds, they were brutally stabbed by fellow inmate Robert Lewis.
Smith was seriously injured, and Stewart died as a result of the
attack. Lewis accomplished the act with a hobby craft knife that
he had either borrowed or stolen from another inmate within the
barracks.


     These inmates were all incarcerated together in Barracks No.
8, a large, open, dormitory-style room in the West Hall of the
Cummins Unit of the Arkansas Department of Correction. Inmates in
the open barracks are free to move about the entire room. Barracks

     1
      The HONORABLE THOMAS M. REAVLEY, United States Circuit
     Judge for the Fifth Circuit, sitting by designation.

                                 3
No. 8 housed 86 general population inmates at the time of this
incident and was not staffed with a correctional officer inside the
room. Barracks Nos. 5 and 6 are similarly organized and similarly
lack the presence of a supervising correctional officer inside
them.


     Following the stabbing incident, Ernest Smith sought damages
for his injuries pursuant to 42 U.S.C. § 1983, claiming that the
prison conditions at the time of the attack, including the prison
officials' failure to protect him by not posting a guard inside the
open barracks, violated his Eighth Amendment right to be free from
cruel and unusual punishment in the form of inmate on inmate
attacks. Smith also sought injunctive relief to remedy the current
conditions of confinement, contending that the prison officials
were not complying with the requirements imposed in a prior case.
See Finney v. Mabry, 546 F. Supp. 628 (E.D. Ark. 1982).         The
district court determined that Smith lacked standing to seek
injunctive relief for the current conditions of confinement at the
Cummins Unit because he had been transferred from that facility
over one year prior to the commencement of this suit. For the sake
of judicial economy, however, the court allowed Smith to add a co-
plaintiff to bring that claim. Smith joined Jimmy Rudd, who was a
current resident of the Cummins Unit, for the purpose of seeking
injunctive relief to remedy the current conditions of confinement.
The administrator of John Stewart's estate filed a separate § 1983
action, seeking damages for the defendants' failure to protect
Stewart from the violent attack.


     The district court determined that Rudd was not entitled to a
jury trial on his equitable claim for an injunction and held a
five-day bench trial. In its findings of fact, the district court
found that prison policy at the time of the stabbing incident
allowed some inmates to possess dangerous hobby craft tools in the
open barracks for purposes of making arts and crafts. Subsequent
to the filing of this case, however, the prison officials adopted

                                4
a new policy, which removes all hobby craft tools from the open
barracks and thus provides an adequate remedy for the dangers
inherent in the old policy.


     The district court also determined that the prison officials
were inadequately staffing the open barracks and had done nothing
to alleviate the dangers posed by this shortcoming. Supervision of
the open barracks is provided by one correctional officer stationed
in the hallway between two open barracks.        This correctional
officer monitors the open barracks by looking through the bars, but
this officer is not allowed to enter the barracks because he holds
the keys.    A different correctional officer periodically walks
through the barracks to check on the inmates at unscheduled and
unrecorded times. No hourly security checks are logged in security
records; neither are random hourly security checks listed in the
post orders which inform individual officers what is required
during their shifts.       Although the post orders include a
requirement for random security checks, the court found no
indication that random checks must be (or were) accomplished hourly
as required by Finney, 546 F. Supp. at 640. The district court
credited the testimony of various correctional officers, some of
the defendants, and many inmate witnesses, which indicated that
random hourly security checks in fact were not made.


     The district court concluded that even assuming the defendants
were complying with the standards found to be adequate in Finney,
the evidence now proves that those standards are inadequate to
guarantee inmate safety in the open barracks. Prison records do
demonstrate that an officer had walked through the barracks for a
security check only ten minutes before Smith and Stewart were
violently attacked.   Consequently, the district court concluded
that even compliance with the random hourly security check found to
be adequate in Finney would not have provided the inmates with
adequate protection.


                                5
     Additionally, the district court found that a great deal of
both reported and unreported criminal activity goes on at night in
the open barracks that is not deterred by periodic security checks.
Since 1986, reports by independent investigators have indicated
that operating large, open barracks with no correctional officer
stationed inside presents a serious danger to the inmates so
housed. In 1986, the Arthur Young Company, at the request of the
Arkansas legislature, compiled two reports concerning the
conditions in the open barracks at the Cummins Unit. The first
report found that the absence of correctional officers inside the
barracks "is contrary to the most fundamental security and safety
practices." (Appellants' Addend. at 14.) It also noted that "the
almost total lack of direct monitoring could be resulting in the
criminal activities currently being charged." (Id.) The report
recommended that at least two correctional officers be stationed
inside each of the open barracks whenever the majority of the
inmates are present there. The second Arthur Young report stated
that "[h]ousing units of 100 inmates with no direct supervision
cannot be thought to be under control." (Id. at 16.) Again, the
second report recommended at least two correctional officers for
each open barracks.


     In 1989, the United States Department of Justice investigated
the situation and notified then Governor Clinton that the staffing
and supervision at the Cummins Unit were inadequate to ensure the
safety of inmates, especially those inmates in the crowded
dormitories. The Justice Department recommended that a minimum of
92 additional correctional officers would be needed to ensure
inmate safety. To avoid a Justice Department lawsuit challenging
the conditions at the state's prisons, the State of Arkansas
entered into an agreement with the Justice Department to implement
the additional staff recommendations. Funding was approved in 1991
but was subsequently cut back, providing for only 62 additional
staff members.     At the time of trial, however, the parties
stipulated that all 92 positions had been funded.

                                6
     A 1991 report by the Department of Justice specifically
recommended that two correctional officers should be posted in each
of the large open dormitories during the night shift. The Arkansas
Department of Correction determined that four new positions should
be created for each of the open barracks. As of April 22, 1992, a
list outlining where the new positions are located showed that
sixteen new correctional officers had been assigned to the four
open, inadequately supervised barracks. At the time of trial in
February 1995, one of the four open barracks was adequately
staffed, but the three others, including Barracks No. 8, still did
not have an officer regularly stationed inside them as contemplated
by the agreement.


     The district court found that the State of Arkansas has
avoided costly litigation by agreeing to implement these staffing
changes and the legislature has provided funding for additional
staff, yet to date it has not complied with the agreement. The
prison officials argued that they had not staffed the barracks with
the new correctional officers because in their professional
judgment, the additional officers were needed in other parts of the
prison.    The court dismissed this as a feeble post hoc
rationalization since the prison officials had earlier agreed that
staffing inside the barracks was a high priority. The court found
that these problems have existed for years and that the defendants
have recognized the problems and agreed to an appropriate solution,
yet nothing has been done.     Based upon all of the facts, the
district court concluded that the prison officials had not been and
were not currently meeting their constitutional duty to reasonably
protect inmates in the open barracks from danger.


     To remedy this situation, the district court granted Rudd's
request for declaratory and injunctive relief.      The injunction
requires the defendants to station at least two correctional
officers inside the open barracks at issue and to document and
record all entries and exits of prison personnel into or out of the

                                7
open barracks. To demonstrate compliance, the court required the
defendants to make periodic progress reports, the last of which was
due in December 1995. The court did not grant Rudd's request for
specific orders to remedy the need for quick response procedures,
effective communication devices, or shakedown policies, but instead
permitted the prison officials, in their discretion, to fashion an
appropriate remedy to meet these problems.


     In Smith's § 1983 action, the district court determined that
the defendants are not entitled to qualified immunity on Smith's
claim for damages and that Smith is entitled to partial summary
judgment on the issue of liability for the injuries he suffered in
the stabbing incident. Thus, only the issue of Smith's damages
remains for trial. The district court denied Smith's claim for
injunctive relief based upon the prison's hobby craft policy, which
allowed inmates in the open barracks to possess dangerous tools
such as hobby craft knives, because the new hobby craft policy
implemented by the prison since this litigation began satisfies all
constitutional concerns on this issue.


     In the Stewart estate's § 1983 case, the district court
determined that the issues are exactly the same as those litigated
in the Ernest Smith and Jimmy Rudd case. Accordingly, the court
concluded that the doctrine of collateral estoppel bars the
defendants from relitigating the issues of qualified immunity and
liability. The prison officials in each case appeal.

                          II. DISCUSSION
                       A. Injunctive Relief


     Before proceeding to the merits of the injunction, we address
two preliminary issues. The first is the question of mootness.
The injunction issued in Jimmy Rudd's case required the defendants
to file reports detailing their compliance. Reports were due on


                                8
May 1, 1995, August 1, 1995, and December 1, 1995.   The injunction
order concluded as follows:


     If no report or challenge is filed setting forth any
     violation of the Court's orders, before December 31,
     1995, then and in that event, the injunction granted
     hereby shall expire without further action by the Court,
     otherwise to continue in full force and effect. After
     the expiration of the injunction, the Court assumes that
     defendants will continue to staff and operate the open
     barracks in compliance with the Constitution.


(Appellant's Addend. at 2.)     The defendants timely filed the
required reports.   Rudd filed responses, suggesting methods for
documenting and verifying compliance by the prison officials but
setting forth no violations of the district court's injunction.


     By its own terms, therefore, the injunction issued in this
case expired on December 31, 1995.     Because the injunction has
expired and Rudd has alleged no further violations of the district
court's order, this issue appears to be moot.        See generally
Hedberg v. State Farm Mut. Auto. Ins. Co., 350 F.2d 924, 933 (8th
Cir. 1965) ("There are instances where the Supreme Court and this
court have dismissed as moot appeals where the injunctive period
has passed or where the situation toward which the injunction was
directed has ceased to exist.") (citations omitted). The prison
officials contend that the injunction is not moot, however, because
the question of its validity is a question "capable of repetition,
yet evading review." Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 603 (1982) (internal quotation omitted). "This doctrine
applies if `(1) the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration, and (2)
there was a reasonable expectation that the same complaining party
would be subjected to the same action again.'" McFarlin v. Newport
Special Sch. Dist., 980 F.2d 1208, 1211 (8th Cir. 1992) (quoting
Murphy v. Hunt, 455 U.S. 478, 482 (1982)). "The party need not
show with certainty that the situation will recur, but a mere

                                9
physical or theoretical possibility is insufficient to overcome the
jurisdictional hurdle of mootness." Van Bergen v. State of Minn.,
59 F.3d 1541, 1547 (8th Cir. 1995).


     In this case, the injunction expired shortly after the prison
officials fulfilled their reporting requirements. The injunction
was therefore too short in duration to be fully litigated before
its expiration. Furthermore, the effect of the injunction has not
been eliminated. The district court expressly stated, "After the
expiration of the injunction, the Court assumes that defendants
will continue to staff and operate the open barracks in compliance
with the Constitution" -- presumably as set forth in the district
court's order. (Appellant's Addend. at 2.) If we deem the issue
moot, then there is a reasonable probability that the complaining
parties (in this instance, the prison officials) will face a
situation where they must either continue to comply with the
requirements of an order that has evaded appellate review or most
assuredly be subjected to further prisoner litigation for their
noncompliance. Thus, we conclude that the injunction issue is not
moot but "`capable of repetition, yet evading review.'"        Id.
(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)).


     The second preliminary issue we must address is that of
standing. As a prerequisite to any inquiry about the conditions of
confinement, as with all claims, an inmate seeking relief must
satisfy basic constitutional standing requirements. This requires
Rudd to demonstrate, among other things, either an actual or
imminent injury in fact. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). See also Lewis v. Casey, 116 S. Ct. 2174,
2179 (1996) (stating that the court's role is "to provide relief to
claimants, in individual or class actions, who have suffered, or
will imminently suffer, actual harm"). "The courts should not get
involved unless either a constitutional violation has already
occurred or the threat of such a violation is both real and
immediate." Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982).

                                10
We bear in mind, however, that an inmate "`does not have to await
the consummation of threatened injury to obtain preventive
relief.'" Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1983
(1994) (internal citation omitted).


     At the time he joined this suit, Rudd was a resident of
Barracks No. 8, one of the unsupervised open barracks at the
Cummins Unit. In his trial testimony, Rudd did not specifically
state that he fears an imminent threat of harm from the prison
conditions. Nevertheless, Rudd's testimony and his other evidence
clearly indicate that he, along with every inmate living in the
open barracks, is subjected to an imminent threat of harm in these
conditions. Rudd admitted that he has stolen from and harmed other
inmates in the open barracks and that he often has trouble sleeping
for fear of retaliation against him. The parties stipulated to the
several reports summarized above, which all warn of the danger to
inmates living in open and unsupervised barracks. The thievery,
assaults, and hand-crafted weapons that are common in the
unsupervised environment of the open barracks illustrate its
inherent   danger.      Accordingly,   Rudd   has   satisfied   the
constitutional requirement of demonstrating that he suffers from
the threat of imminent harm.


     Turning now to the merits of the injunction, we review the
district court's grant of injunctive relief for an abuse of
discretion. Hosna v. Groose, 80 F.3d 298, 303 (8th Cir.), cert.
denied, 117 S. Ct. 164 (1996). "`Abuse of discretion occurs if the
district court rests its conclusion on clearly erroneous factual
findings   or   if  its   decision  relies   on  erroneous   legal
conclusions.'" Id. (quoting International Ass'n of Machinists &
Aerospace Workers v. Soo Line R.R., 850 F.2d 368, 374 (8th Cir.
1988) (en banc), cert. denied, 489 U.S. 1010 (1989)). The prison
officials appeal the district court's grant of equitable relief to
Jimmy Rudd, arguing that the grant of an injunction in this case
amounts to an abuse of discretion.

                                11
     The Eighth Amendment to the United States Constitution, which
proscribes cruel and unusual punishments, "`does not mandate
comfortable prisons'" but does impose a duty on prison officials
"to provide humane conditions of confinement." Farmer, 114 S. Ct.
at 1976 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
Among other things, this duty requires prison officials to take
reasonable steps to protect inmates from violence and assault by
fellow inmates, because being subjected to violent assault is not
"`part of the penalty that criminal offenders [must] pay for their
offenses.'" Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996)
(quoting Rhodes, 452 U.S. at 347).      To prevail on a claim of
failure to protect, prisoners must demonstrate "that they are
`incarcerated under conditions posing a substantial risk of serious
harm'" and that the prison officials subjectively knew of and
disregarded that safety risk. Id. (quoting Farmer, 114 S. Ct. at
1977); see also Jensen v. Clarke, 94 F.3d 1191, 1197 (8th Cir.
1996) (Jensen II) (explaining the two essential showings necessary
to a failure-to-protect case). An inmate seeking injunctive relief
on a failure-to-protect claim must adequately plead a violation of
prison officials' duty to protect; moreover


     to survive summary judgment, he must come forward with
     evidence from which it can be inferred that the
     defendant-officials were at the time suit was filed, and
     are at the time of summary judgment, knowingly and
     unreasonably disregarding an objectively intolerable risk
     of harm, and that they will continue to do so; and
     finally to establish eligibility for an injunction, the
     inmate must demonstrate the continuance of that disregard
     during the remainder of the litigation and into the
     future. . . . If the court finds the Eighth Amendment's
     subjective and objective requirements satisfied, it may
     grant appropriate injunctive relief.


Farmer, 114 S. Ct. at 1983 (citing Hutto v. Finney, 437 U.S. 678,
685-88 & n.9 (1978)). The prison officials may defend against a
failure-to-protect claim on the basis that they responded



                                12
reasonably to the known risk of harm.   Id. at 1982-83; Jensen II,
94 F.3d at 1197.


     In this case, the district court determined that Rudd was
living in conditions that constituted a substantial risk of serious
harm and that the prison officials knew of but disregarded this
safety risk.    After reviewing the record, we conclude that the
district court did not rely on either clearly erroneous findings of
fact or make erroneous legal conclusions in issuing the injunction.


     The evidence adduced from witnesses and stipulated reports
indicates that violence, robbery, rape, gambling, and use of
weapons by inmates are prevalent in the open, unsupervised
barracks. Rudd's testimony illustrates the danger inherent in the
open, unsupervised barracks. Rudd testified that he is sometimes
unable to rest at night, but he believes he can take care of
himself better than the guards because he has a weapon, as do other
inmates, and the guards do not. He said that he would rather be
caught with a weapon by a guard than be caught without one by a
fellow inmate in the open barracks.


     We acknowledge that Rudd is not a blameless victim in this
scenario. His own misdeeds have often bred his inability to rest
at night because he feared retaliation from inmates whom he has
harmed.   Nevertheless, it is painfully obvious that Rudd's own
misdeeds and the violence of other inmates thrive in the open
barracks due to the lack of supervision. The dangers of the open
barracks are further illustrated by the incident where Smith and
Stewart were violently stabbed while asleep in their beds.
Response time on the part of correctional officers to disarm such
volatile situations is limited because the guard in the hallway
cannot enter the barracks while in possession of the keys, even if
an altercation is in progress. The evidence clearly supports the
existence of an objectively substantial risk of personal injury to
Rudd and others who live in these conditions. The evidence also

                                13
supports the court's finding that the prison officials were aware
of this objectively intolerable risk of harm and subjectively
disregarded it. Finding no clear error of fact or law, we conclude
that the district court did not abuse its discretion in granting
injunctive relief for this constitutional violation.


     We note that the open barracks at the Cummins Unit have been
a source of frequent litigation since the 1960s.     See Hutto v.
Finney, 437 U.S. 678, 681 & n.2 (1978) (and cases cited therein);
Finney v. Mabry, 546 F. Supp. at 629-30 & 639-40. In a previous,
unrelated case, our brother Henley, then Chief Judge of the United
States District Court for the Eastern District of Arkansas, stated
as follows:


       that if the State of Arkansas chooses to confine
       penitentiary inmates in barracks with other inmates, they
       ought at least to be able to fall asleep at night without
       fear of having their throats cut before morning, and that
       the State has failed to discharge a constitutional duty
       in failing to take steps to enable them to do so.


Holt    v.   Sarver,
                   300 F. Supp. 825, 831 (E.D. Ark. 1969).
Unfortunately, Judge Henley's conclusion rendered more than 25
years ago bears repeating.


     We reject the prison officials' contention that the district
court erred by ignoring Rudd's own testimony, in which, they
contend, he does not allege any concern for his own personal
safety. We agree that Rudd's testimony alone does not render him
a model candidate for equitable relief. As we indicated earlier in
our discussion, however, Rudd's testimony together with his other
evidence suffices to demonstrate that he was subjected to prison
conditions that present a substantial risk of serious harm. Thus,
the district court did not clearly err.




                                  14
     Additionally, we have considered whether the district court
abused its equitable power and imposed a remedy beyond the scope of
the injury, within the meaning of Lewis v. Casey, 116 S. Ct. 2174
(1996). In Lewis, the Court warned against the dangers of allowing
district courts to fashion excessively intrusive, systemwide
remedies absent a systemwide injury; the remedy must not go beyond
what is necessary to remedy the particular constitutional injury.
See 116 S. Ct. at 2184-85.       In assessing the nature of the
constitutional injury and the scope of the remedy in this case, we
conclude that the remedy does not go beyond the scope of the
injury.    We are not prepared to hold that stationing two
correctional officers inside a crowded open barracks is a
constitutional necessity in every case, but we agree that here it
was a reasonable remedy, narrowly tailored to the constitutional
injury in this case, as shown by the evidence.


     Unlike in Lewis, the injury here stems from living in and thus
being subjected to the perils of the crowded, unsupervised open
barracks.   To suffer a constitutional injury in the denial-of-
access-to-the-courts situation discussed in Lewis, each individual
plaintiff must demonstrate prejudice, and an individual remedy will
be adequate for each injured plaintiff. To the contrary, in the
conditions-of-confinement challenge of the case before us, Rudd and
all the inmates living in the same room are similarly subjected to
the same unconstitutional condition, and no individual remedy will
be adequate unless it eliminates the unconstitutional condition in
the barracks as a whole, which necessarily benefits all the inmates
residing there.     It would have made little sense to further
narrowly tailor the remedy by ordering a guard whose duty would be
to protect just Rudd. Because Rudd's injury cannot be remedied on
a more individualized basis, we conclude that the district court
"carefully tailored" the remedy to the specific harm suffered by
the plaintiff. Butler v. Dowd, 979 F.2d 661, 674 (8th Cir. 1992),
cert. denied, 508 U.S. 930 (1993); see Brown v. Trustees of Boston
Univ., 891 F.2d 337, 361 (1st Cir. 1989) ("[A]n injunction is not

                                15
necessarily made overbroad by extending benefit or protection to
persons other than prevailing parties in a lawsuit -- even if it is
not a class action -- if such breadth is necessary to give
prevailing parties the relief to which they are entitled.")
(internal quotations and alterations omitted), cert. denied, 496
U.S. 937 (1990).


     In Lewis, the Supreme Court also stressed that district courts
must accord adequate deference to the judgment of the prison
authorities when considering an appropriate remedy. See 116 S. Ct.
at 2185.   The prison officials in this case complain that the
district court did not accord sufficient deference to their
judgment that the additional personnel could be best used in other
areas. We disagree.


     The district court judge in this case has a record of giving
the prison officials at the Cummins Unit the first opportunity to
apply their expertise to fashion a remedy for the open barracks
problem, which has existed for many years.    See Finney, 546 F.
Supp. 628 (E.D. Ark. 1982); Finney v. Mabry, 534 F. Supp. 1026
(E.D. Ark. 1982). At least since 1986, the prison officials have
known of the continuing safety concern inherent in the open
barracks, and they have formally and consensually agreed to
implement the Department of Justice recommendations for additional
staffing.     Thus, it was originally the prison officials'
discretionary professional judgment, not the court's, that the open
barracks need additional personnel, and the legislature responded
to that need by providing funding for the additional staff. Yet,
the prison officials had not implemented the agreed upon additional
staffing recommendations by the time of trial -- four years after
they agreed that it was appropriate and necessary.       The prison
officials undoubtedly were given the first opportunity to cure the
problem. The district court's injunction merely gave force to the
prison officials' professional judgment after they demonstrated
their reluctance to implement the agreed-upon solution.         The

                                16
district court specifically denied Rudd's request that it impose
more specific procedures regarding the guards' ability to make a
quick response, the need for effective communication devices, and
specific shakedown policies.    In light of the evidence in this
case, the district court did not abuse its equitable power by
requiring the Department of Correction to abide by its agreement to
place additional staff in the open barracks.


     For the same reasons, we also conclude that Rudd's failure to
file a prison grievance complaining of the conditions of
confinement is not fatal to his claim.     In Farmer, the Supreme
Court counseled that "[w]hen a prison inmate seeks injunctive
relief, a court need not ignore the inmate's failure to take
advantage of adequate prison procedures, and an inmate who
needlessly bypasses such procedures may properly be compelled to
pursue them." 114 S. Ct. at 1984. The Court explained that this
requirement flows from the concept that a litigant seeking the
court's equity jurisdiction "must show that the intervention of
equity is required." Id. Also, by giving prison officials the
first opportunity to address the situation through the prison
grievance procedure, the district court respects its own limited
role in prison administration.   See Lewis, 116 S. Ct. at 2185.
Rudd's failure to file a grievance is not fatal in this case,
however, because he has nevertheless demonstrated that the
intervention of equity is required and that the prison officials,
though given the first opportunity to fashion a remedy for the
situation, have failed adequately to do so.     Given the prison
officials' long-standing reluctance to implement the necessary
supervision of the open barracks, we do not believe that one
prisoner's grievance complaining of the situation would have had
any significant impact.


     Since oral argument in this case, Congress has enacted the
Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626.          We
requested supplemental briefing on the potential effect of this Act

                                17
on the present appeal. The Act provides that the power to grant
injunctive relief "in any civil action with respect to prison
conditions shall extend no further than necessary to correct the
violation of the Federal right of a particular plaintiff or
plaintiffs." 18 U.S.C. § 3626(a)(1). The Act also provides that
"[t]he court shall not grant or approve any prospective relief
unless the court finds that such relief is narrowly drawn, extends
no further than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to correct the
violation of the Federal right." Id.

     The district court did not have an opportunity to apply this
statute in the first instance, but we are satisfied, and the
parties agree, that the Act merely codifies existing law and does
not change the standards for determining whether to grant an
injunction. See Williams v. Edwards, 87 F.3d 126, 133 (5th Cir.
1996). We conclude that the district court applied the appropriate
standards, and in any event, the injunction expired well before the
enactment of the Prison Litigation Reform Act. Accordingly, we
need not address this issue further.


     We conclude that the district court did not abuse its
discretion in granting Jimmy Rudd's request for injunctive relief.

                      B.   Summary Judgments


     In Ernest Smith's 42 U.S.C. § 1983 action for damages arising
out of the brutal attack by fellow inmate Lewis, the defendant
prison officials moved for summary judgment on qualified immunity
grounds, asserting that they acted in conformity with the clearly
established law as set forth in Finney v. Mabry, 546 F. Supp. 628
(E.D. Ark. 1982), and could not reasonably have known that
compliance with Finney would violate Smith's constitutional rights.
The district court assessed the facts and concluded that the prison
officials had not complied with the requirements of Finney. Thus,

                                18
the district court denied their request for qualified immunity.
Further, the district court granted partial summary judgment to
Smith on the issue of liability, saving only the issue of damages
for trial. The prison officials appeal both the district court's
denial of qualified immunity and the district court's grant of
partial summary judgment on liability.     We conclude that the
district court erred by resolving issues of disputed fact in a
summary judgment context.


     When a district court denies a summary judgment motion based
on qualified immunity, we view the facts in the light most
favorable to the nonmoving party and consider "`whether the facts
as alleged (by the plaintiff, or, in some cases, the defendant)
support a claim of violation of clearly established law.'" Johnson
v. Jones, 115 S. Ct. 2151, 2156 (1995) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 528 n.9 (1985)). We have jurisdiction "to
examine the information possessed by the government official
accused of wrongdoing in order to determine whether, given the
facts known to the official at the time, a reasonable government
official would have known that his actions violated the law."
Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996) (citing
Reece v. Groose, 60 F.3d 487, 489 (8th Cir. 1995)).


     The district court's prior opinion in 1982 in the Finney case
sets forth the clearly established law with which the defendants
must demonstrate compliance.     The Finney litigation involved a
comprehensive review of the Arkansas prison system. Specifically,
the district court addressed a number of challenges to the
conditions of confinement at the Cummins Unit, including the
problems of overcrowding and violence in the open barracks. 546 F.
Supp. at 639-40.     The district court, in a proper display of
judicial restraint, allowed the Department of Correction to devise
its own remedy for the unconstitutional conditions and specifically
"avoid[ed] imposing any specific solution which could cause a
hardship for the Department."      Id.   Upon final review of the

                                19
Department's proposed solution, the district court found:     "The
alternative solution now devised by the respondents is adequate to
bring the security in those open barracks to an acceptable level
without requiring a population reduction." Id. at 640. The court
then listed the changes that the Department had made. Inmates were
no longer allowed to stack beds or hang sheets or clothing from
their beds, and the lighting had been increased in order to make
continual visual supervision possible. Id. Also, the Department
was conducting random "shake downs" to curtail contraband, an
officer was always present in the hallways to visually monitor the
barracks, and a patrol officer entered and inspected each open
barracks "at least once an hour at irregular times."     Id.   The
district court concluded:


      The Court has determined that these measures, if
      continued as represented to the Court, are sufficient to
      provide adequate safety and inmate security in the open
      barracks despite the numbers of inmates now housed there.
      Therefore, no order requiring a reduction of the
      population in those barracks will be entered. If the
      respondents continue the security measures as represented
      to the Court, they will be in compliance with the
      requirements of the Constitution, the Consent Decree, and
      all prior orders of the Court on the issue of inmate
      safety and overcrowding in the open barracks.


Id.


     Thus, in Finney, the district court allowed the prison
officials to devise their own solution to the overcrowding and
supervision problems in the open barracks, and the district court
adopted those solutions as providing constitutional minimum
conditions of confinement. The prison officials now argue that
"Finney, in reality, did not establish any requirements for
security in the open barracks." (Appellants' Br. at 46-47.) We
disagree. While the "requirements" set forth in Finney may not be
inflexible, they certainly represent the constitutional minimum
conditions that the court required to be maintained at the Cummins

                                 20
Unit. Thus, the district court in this case properly measured the
prison officials' conduct and knowledge against the standards set
forth in Finney.

     The district court's ultimate finding that the prison
officials were not acting in compliance with Finney, however, is
beyond the scope of a summary judgment proceeding. Material issues
of fact and credibility were present that precluded granting
summary judgment to the prison officials on the ground of qualified
immunity.   See Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir.
1995).   Smith presented evidence from which a reasonable juror
could conclude that the prison officials were not in fact complying
with Finney, as the testimony of some witnesses and the stipulated
reports indicated that regular security checks were not being made.
On the other hand, the evidence also indicated that a correctional
officer had walked through the barracks only minutes before the
attack and that a guard had been posted out in the hall all night.
Prison officials testified that they had instructed officers to
make the security checks and that they were under the impression
that they were in fact being made.           Further, the officer
responsible for making rounds on the night of the assault testified
that hourly checks were made, though he could not remember at what
times they were made.     Additionally, though not regulated by
Finney, prison officials knew of the presence of hobby craft tools
and the danger posed by them from Department of Justice reports
that specifically set forth the risk inherent in the hobby craft
policy.


     Viewing the evidence in the light most favorable to the
nonmoving party, there exists a material dispute of fact concerning
whether the prison officials were complying with the terms of
Finney and providing adequate protection to inmates. To conclude
definitively that the defendants were not complying with Finney, as
it did, the district court made credibility assessments, weighed
the conflicting evidence presented, and resolved disputed issues of

                                21
fact. See Mem. Op., filed Feb. 23, 1995, at 25 ("The defense of
qualified immunity, to be of any value, must usually be disposed of
before trial. In the great majority of the cases, the facts are
not in dispute and the issue is therefore one of law.         This,
however, is not such a clear cut case.") (emphasis added); id. at
28 ("Mr. Smith contends that security checks were almost never
made. The defendants contend that they were made routinely on an
hourly basis as required by Finney.     The Court finds that such
security checks were made on an irregular and random basis . . .
.") (emphasis added); id. at 32 ("The Court has heard and
considered the testimony of the witnesses for both the plaintiff
and the defendants and has received and considered the documentary
evidence, and finds therefrom that the requirements of Finney have
not been adhered to, or followed, in recent years, and certainly
not since the first of 1992.") (emphasis added); id. at 30
("Generally the Court was impressed by the credibility of Sergeant
Johnson, but felt that he was under pressure to support the ADC's
claimed adherence to the Finney security check requirement while
knowing that such was not the case."). This is improper in the
summary judgment context. We conclude that the district court took
the evidence presented on the equitable claim for an injunction and
used it to decide the disputed issues of fact not only on the
injunction issue but also on the qualified immunity issue.       We
conclude that "[t]he evidence in this case presents material issues
of fact on which the issue of qualified immunity turns and
`presents a sufficient disagreement to require submission to a
jury.'" Ludwig, 54 F.3d at 474 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986)).     Accordingly, though for a
different reason than that articulated by the district court, we
conclude that the district court's denial of the prison officials'
motion for summary judgment on grounds of qualified immunity must
be affirmed. See Dicken v. Ashcroft, 972 F.2d 231, 233 (8th Cir.
1992) (court of appeals may affirm district court on any basis
supported by the record).


                                22
     The same factual dispute that precludes a grant of qualified
immunity -- whether the prison officials were actually complying
with the requirements of Finney at the time of the incident -- also
precludes summary judgment in favor of Smith on the issue of
liability. In an appeal from the denial of qualified immunity, we
do not have jurisdiction to address any issues that are not
themselves immediately appealable unless they are "inextricably
intertwined" with the qualified immunity determination of whether
the alleged facts support a violation of clearly established law.
Swint v. Chambers County Comm., 115 S. Ct. 1203, 1212 (1995);
Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 395 (8th Cir.
1995), cert. denied, 116 S. Ct. 1565 (1996).       Partial summary
judgment on the issue of liability would not ordinarily be
immediately appealable. See Swint, 115 S. Ct. at 1208 ("a mere
defense to liability" is not immediately reviewable).      In this
case, however, the material dispute of fact that precludes a grant
of qualified immunity is not only "inextricably intertwined" with,
but is precisely the same issue of fact that precludes summary
judgment on liability. Id. at 1212. The district court granted
summary judgment on the issue of liability only because it first
found that no reasonable juror could conclude that the prison
officials had complied with Finney. Thus, we have jurisdiction to
consider this issue.      Our independent review of the record
convinces us, as we have demonstrated above, that disputed issues
of fact exist on Smith's § 1983 Finney noncompliance claim. We
respectfully disagree with the district court's conclusion that the
evidence is so one-sided regarding what happened on the night Smith
was stabbed that no reasonable juror could conclude that the
officials had complied with the clearly established law.


     Because we conclude that a material question of fact exits on
the issue of whether the prison officials complied with Finney, the
premise on which the district court granted partial summary
judgment establishing liability no longer exists.     The material
dispute of fact that precludes summary judgment on the ground of

                                23
qualified immunity also precludes summary judgment on the issue of
liability under a Finney theory.     With respect to the district
court's grant of summary judgment establishing liability against
the defendants based on the prison's policy of permitting inmates
to have hobby craft tools, including sharp knives, in the open
barracks, we note that the court held that that policy, in
combination with the staffing shortcomings the district court had
found, created a pervasive risk of harm.         To reach such a
conclusion, the court relied on its own factual findings. See Mem.
Op., filed Feb. 23, 1995, at 39. Accordingly, we must reverse the
district court's grant of partial summary judgment on liability and
remand Smith's § 1983 case for a trial on the merits.


     In the John Stewart estate's case, we conclude for the same
reasons that the district court properly denied the prison
officials' request for qualified immunity but improperly granted
summary judgment on the issue of liability.           We have no
jurisdiction in this qualified immunity appeal to review the
district court's decision that the defendants' failure to respond
to the Administratrix's Requests for Admissions results in the
requests being deemed admitted. The district court did not rely on
any of the deemed admissions in reaching its decision with respect
to the defendants' qualified immunity motion.      This discovery
dispute is not "inextricably intertwined" with the qualified
immunity issue, and its resolution must await the appeal from the
final judgment if any is taken. This case must also be remanded
for a trial on the merits.

                         III.   CONCLUSION


     We affirm the district court's grant of injunctive relief to
Jimmy Rudd. In each § 1983 case, we affirm the denial of qualified
immunity but reverse the grant of summary judgment on the issue of
liability. We remand the § 1983 claims in each case for a trial on
the merits.

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A true copy.


     Attest:


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




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