Anthony Devose v. David Rittenhouse ( 1996 )

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No. 95-3444
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Anthony Devose, *
*
Appellant, *
*
v. *
*
David Rittenhouse, CO-1, *
Diagnostic Unit, Arkansas *
Department of Correction; James * Appeal from the United States
Massey, CO-1, Diagnostic Unit, * District Court for the
Arkansas Department of * Eastern District of Arkansas.
Correction; A. L. Lockhart, * [UNPUBLISHED]
Arkansas Department of *
Correction; Willis H. Sargent, *
Warden, Diagnostic Unit, *
Arkansas Department of *
Correction; John Byus, Medical *
Services Adm., *
*
Appellees, *
*
PHP Healthcare Corporation, *
originally sued as PHP *
Healthcare Services, *
*
Defendant. *
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Submitted: July 1, 1996
Filed: July 30, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Anthony Devose, an Arkansas inmate, appeals from the district
court's1 dismissal of his 42 U.S.C. § 1983 claim against various
1
The Honorable William R. Wilson, Jr., United States District
Judge for the Eastern District of Arkansas, adopting the report and
recommendations of the Honorable John F. Forster, Jr., United
States Magistrate Judge for the Eastern District of Arkansas.
prison officials for violating his Eighth Amendment rights. Devose alleged
that he was beaten with a broken broom handle by a fellow inmate, that
defendants made no effort to stop the attack, and that as a result he
suffered severe and permanent injuries. We affirm.
After an evidentiary hearing before a magistrate judge, the district
court found Devose was beaten by another inmate with a metal-tipped mop
handle and defendant correctional officers were on duty, present, and alert
in Devose's barracks at the time. The court determined that defendant
officers had no warning of the attack and responded as quickly as possible;
their inability to prevent the harm to Devose resulted from the rapidity
with which events took place. The court further concluded that there was
no clear evidence that Devose's attacker presented a risk to Devose of
which defendants should have been aware.
As Devose did not request a jury trial, we review "the district
court's findings of fact made after the court's de novo review of the
magistrate judge's findings under the clearly erroneous standard," Choate
v. Lockhart, 7 F.3d 1370, 1373 n.1 (8th Cir. 1993), and its legal
conclusions de novo, see Whitmore v. Gaines, 24 F.3d 1032, 1033 (8th Cir.
1994). The district court did not clearly err in determining defendant
officers responded as quickly and as reasonably as they could. The court
credited defendants' testimony that when the officers heard the first crack
of the mop handle they ran to help Devose while ordering his attacker to
stop, and that they both yelled for help and received it without delay.
See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (trial
judge's finding based on decision to credit testimony virtually never clear
error). It was uncontroverted that the officers had no warning and that
the attack was brief. In light of these findings, the district court
correctly concluded that defendants did not violate Devose's Eighth
Amendment rights. Cf. Farmer v. Brennan, 114 S. Ct. 1970, 1982-83 (1994)
(prison officials aware of a substantial risk to inmate safety may be free
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from liability if they responded reasonably to risk). Devose's contention
that prison policy required the mop be secured proves nothing more than
negligence, which is insufficient to support an Eighth Amendment claim.
See Falls v. Nesbitt, 966 F.2d 375, 377-78, 380 (8th Cir. 1992) (prison
official's violation of internal regulation does not give rise to Eighth
Amendment claim unless inmate shows something more than inadvertence or
negligence).
We deny Devose's motion for appointment of counsel on appeal.
The district court's judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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