Stephen McCrary v. Kenneth Baudwin ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2079
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Stephen D. McCrary
lllllllllllllllllllll Plaintiff - Appellant
v.
Kenneth N. Baldwin; Shawne Pernell; Mark Wedlock; Rhonda Tackett; Lori
Lakey; John Doe, Functional Unit Manager; John Doe, Superintendent/Designee;
Brent Jestes; Mark Parkhurst; Francis; Steve Larkins; Larry Denney; Shawn Pettigrew
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
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Submitted: February 5, 2013
Filed: March 25, 2013
[Unpublished]
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Before WOLLMAN, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Stephen McCrary appeals the district court’s1 dismissal of his 42 U.S.C. § 1983action. This court previously affirmed on all issues except the claim that appellees
failed to protect McCrary from harm, as to which briefing was ordered. After
reviewing the parties’ briefs on the issue, we now affirm.
McCrary’s complaint included allegations that in May 2010, Western Missouri
Corrections Center (WMCC) inmate Juan Morrin initiated a fight with McCrary and
struck him repeatedly with a push-broom, which broke during the fight and became
a dangerous instrument; and that Officer Kenneth Baldwin did not attempt to disarm
Morrin, but ordered McCrary to get on the ground and cuff up while Morrin still had
the weapon. To the extent McCrary’s claim is based on Baldwin’s conduct, we hold
the district court did not err in dismissing the claim. See Hastings v. Wilson, 516
F.3d 1055, 1058 (8th Cir. 2008) (de novo review). This court has held that prison
guards have no constitutional duty to intervene in an armed assault of one inmate
upon another when intervention would place the guard in danger of physical harm,
see Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995); Arnold v. Jones, 891 F.2d
1370, 1372-73 (8th Cir. 1989), and McCrary’s allegation that Baldwin ordered him
to get on the ground and cuff up indicates that Baldwin was trying to stop the
altercation. To the extent the claim was based on allegations that the defendants
failed to protect him from assault by allowing Morrin to be in the general population,
McCrary did not sufficiently allege that Morrin’s presence in the general population
created an excessive risk of harm to inmate safety, or that defendants knew of such
a risk. See Norman v. Schuetzle, 585 F.3d 1097, 1105 (8th Cir. 2009) (prisons are
not required to segregate indefinitely inmates who engage in violence while in
prison), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).
Accordingly, the judgment is affirmed.
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1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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