Scott A. Crow v. Marty Montgomery, 403 F.3d 598 (8th Cir. 2005). · Go Syfert
Scott A. Crow v. Marty Montgomery, 403 F.3d 598 (8th Cir. 2005). Cases Citing This Book View Copy Cite
Quick Summary

A section 1983 claim requires intentional conduct rather than mere negligence to establish deliberate indifference toward pretrial detainees.

A pretrial detainee sued jail officials under 42 U.S.C. § 1983, alleging that chronic overcrowding and understaffing created a substantial risk of harm that the officials knowingly disregarded. The officials moved for summary judgment based on qualified immunity, which the district court denied. The court of appeals reviews the denial of qualified immunity on interlocutory appeal to determine whether the facts alleged support a claim of violation of clearly established law. The court applies the deliberate-indifference standard to pretrial detainees, requiring proof that officials actually knew of and disregarded a substantial risk of serious harm. Because the allegations show at most negligence rather than deliberate indifference, the officials are entitled to qualified immunity.

164 citation events (164 in the last 25 years) across 11 distinct courts.
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Cited for
At page 602 Establishing deliberate indifference to inmate health risks21 citing casesexplaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim under both the Eighth Amendment and the Fourteenth Amendment applicable to pre-trial detainees3 citing courts put it this way
  • Robinson v. Clark, No. 4:21-cv-00674 (E.D. Ark. Feb. 10, 2025).
    See Patterson v. Kelley, 902 F.3d 845, 852 (8th Cir. 2018) (plaintiff’s allegations of understaffing and prison officials’ routine failure to conduct security checks does not establish deliberate indifference where “the record is devoid of…
  • Peterson v. Washington Cnty. Jail, No. 0:18-cv-02640 (D. Minn. Oct. 29, 2024).
    The subjective component requires a showing that “the official knows of and disregards an excessive risk to inmate health and safety.” Id. (quoting Farmer, 511 U.S. at 837 ). “[D]eliberate indifference includes something more than negligen…
  • Boivin v. Huckabee-Sanders, No. 4:24-cv-00034 (E.D. Ark. Feb. 6, 2024).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim under both the Eighth Amendment and the Fourteenth Amendment applicable to pre-trial detainees)
  • Hall v. Higgins, No. 4:21-cv-00106 (E.D. Ark. July 1, 2022). 2 cites
    Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005).
  • Foell v. Cnty. of Lincoln, No. 4:17-cv-03044 (D. Neb. July 9, 2019).
    Langdon v. Norris, 614 F.3d 445 , 459-60 (8th Cir. 2010) (citing Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005)).
  • Wallace Beaulieu v. Cal Ludeman, 690 F.3d 1017 (8th Cir. 2012).published
    “In order to establish a constitutional violation, [the plaintiffs] must show: (1) that [the conditions of their confinement] posed a substantial risk of serious harm (objective component), and (2) the [DHS defendants] actually knew of but…
  • Langford v. Norris, 614 F.3d 445 (8th Cir. 2010).published 2 cites
    Ordinarily, we lack jurisdiction “to hear an immediate appeal from a district court’s order denying summary judgment, because such an order is not a final decision.” Krout v. Goemmer, 583 F.3d 557, 563-64 (8th Cir.2009) (citing § 1291, and…
  • Sandy Krout v. Luke Sawdy, No. 08-2781 (8th Cir. Oct. 6, 2009).published
    Crow, 403 F.3d at 602 (internal quotation omitted); see Gregoire, 236 F.3d at 418 .
  • Krout v. Goemmer, 583 F.3d 557 (8th Cir. 2009).published
    Crow, 403 F.3d at 602 (internal quotation omitted); see Gregoire, 236 F.3d at 418 .
  • Lee Ambrose v. Major Darin Young, 474 F.3d 1070 (8th Cir. 2007).published 2 cites
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005).
Show 11 more citing cases
  • Cynthia F. Gordon v. Sgt. David Frantsi, 454 F.3d 858 (8th Cir. 2006).published
    Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir.2005), citing Farmer v. Brennan, 511 U.S. 825, 838 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994); see also Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.1997).
  • Grayson ex rel. Est. of Grayson v. Ross, 454 F.3d 802 (8th Cir. 2006).published 3 cites
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005).
  • Vaughn v. Greene Cnty., 438 F.3d 845 (8th Cir. 2006).published 3 cites
    During oral argument, when pressed that the only issue properly appealed was whether Sheriff Langston was entitled to qualified immunity, Vaughn's counsel essentially conceded Sheriff Langston could be dismissed from this suit, stating "as…
  • Susan Vaughn v. Greene Cnty., AR, 438 F.3d 845 (8th Cir. 2006).published 4 cites
    Although a party generally cannot appeal a district court’s order denying summary judgment, Pool v. Sebastian County, Arkansas, 418 F.3d 934 , 937 (8th Cir.2005), this court has limited authority to review the denial of qualified immunity,…
  • Kiera S. Jackson v. Gray, No. 2:26-cv-00014 (E.D. Ark. July 8, 2026).
    See Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005); see also Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) ( . . . “‘deliberate indifference includes something more than negligence but less than actual intent to harm’; it…
  • Hickman, No. 3:26-cv-00129 (E.D. Ark. June 23, 2026).
    See Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005); see also Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) ( . . . “‘deliberate indifference includes something more than negligence but less than actual intent to harm’; it…
  • Andaluz-Prado v. ADC, No. 3:25-cv-00147 (E.D. Ark. Sept. 16, 2025).
    See Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005); see also Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) ( . . . “‘deliberate indifference includes something more than negligence but less than actual intent to harm’; it…
  • Moore v. Payne, No. 4:23-cv-00445 (E.D. Ark. Oct. 8, 2024).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim)
  • Boals v. Budnik, No. 2:24-cv-00022 (E.D. Ark. Feb. 9, 2024).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim)
  • Mayfield v. Raymond, No. 3:20-cv-03007, 2020 WL 7714715 (W.D. Ark. Dec. 29, 2020).
    (finding no constitutional violation where a pretrial detainee failed to prove that he put the defendants on actual notice that he might be attacked by his cellmate)
  • Williams v. Jackson, 600 F.3d 1007 (8th Cir. 2010).published
    See Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir.2009) (“Even if an official acts unreasonably in failing to take particular measures to improve conditions at a jail facility, for example, ‘reasonableness is a negligence standard,’ and ‘ne…
At page 601 Reviewing jurisdiction over summary judgment denials20 citing cases“however, because, 'under the fourteenth amendment, pretrial detainees are entitled to at least as great protection as that afforded convicted prisoners under the eighth amendment,' we apply the identical deliberate-indifference standard as that applied to conditions-of- confinement claims made by c…”2 citing courts quote it
  • Charles Short v. J. Hartman, 87 F.4th 593 (4th Cir. 2023).published
    See, e.g., Upham v. Gallant, 99-2224, 2000 WL1425759, at *1 (1st Cir. 2000); Caiozzo v. Koreman, 581 F.3d 63, 66 (2d Cir. 2009); Serafin v. City of Johnstown, 53 F. App’x 211 , 213-14 (3d Cir. 2002); Hare v. City of Corinth, 74 F.3d 633, 6…
  • Duke Grider v. B. Bowling, 785 F.3d 1248 (8th Cir. 2015).published 2 cites
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005); id. at 604 (Smith, J., dissenting) (“If the facts required to determine whether the [defendants] are entitled to qualified immunity are not genuinely in *1252 dispute, we have jurisdict…
  • Langford v. Norris, 614 F.3d 445 (8th Cir. 2010).published 2 cites
    Ordinarily, we lack jurisdiction “to hear an immediate appeal from a district court’s order denying summary judgment, because such an order is not a final decision.” Krout v. Goemmer, 583 F.3d 557, 563-64 (8th Cir.2009) (citing § 1291, and…
  • Johnson v. Boyd, 676 F. Supp. 2d 800 (E.D. Ark. 2009).published
    Lenz v. Wade, 490 F.3d 991, 995-996 (8th Cir.2007); Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005).
  • Vaughn v. Gray, 557 F.3d 904 (8th Cir. 2009).published
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005). -5- In order to demonstrate that a defendant actually knew of, but deliberately disregarded, a serious medical need, the plaintiff must establish a “mental state akin to criminal reckl…
  • Mindy Kahle v. Deputy Tim Malone, 477 F.3d 544 (8th Cir. 2007).published
    Qualified immunity protects state actors from civil liability when their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 8…
  • Lee Ambrose v. Major Darin Young, 474 F.3d 1070 (8th Cir. 2007).published 2 cites
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005).
  • Grayson ex rel. Est. of Grayson v. Ross, 454 F.3d 802 (8th Cir. 2006).published 3 cites
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005).
  • Kevin Lee Austin v. Craighead Cty. Jail, 189 F. App'x 583 (8th Cir. 2006).unpublished
    See Farmer v. Brennan, 511 U.S. 825, 832-33, 837 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994); Crow v. Montgomery, 403 F.3d 598, 601-02 (8th Cir.2005).
  • Kenneth R. Henderson v. Les Munn, 439 F.3d 497 (8th Cir. 2006).published 2 cites
    Although a party generally cannot appeal a district court’s order denying summary judgment, Pool v. Sebastian County, Ark., 418 F.3d 934 , 937 (8th Cir. 2005) (citation omitted), this court has limited authority to review the denial of qua…
Show 10 more citing cases
  • Vaughn v. Greene Cnty., 438 F.3d 845 (8th Cir. 2006).published 3 cites
    During oral argument, when pressed that the only issue properly appealed was whether Sheriff Langston was entitled to qualified immunity, Vaughn's counsel essentially conceded Sheriff Langston could be dismissed from this suit, stating "as…
  • Susan Vaughn v. Greene Cnty., AR, 438 F.3d 845 (8th Cir. 2006).published 4 cites
    Although a party generally cannot appeal a district court’s order denying summary judgment, Pool v. Sebastian County, Arkansas, 418 F.3d 934 , 937 (8th Cir.2005), this court has limited authority to review the denial of qualified immunity,…
  • Cathryn E. Hinshaw v. LOPFI, 436 F.3d 997 (8th Cir. 2006).published
    See Johnson v. Jones, 515 U.S. 304, 311 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995); Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005) (qualified immunity); Maitland v. Univ. of Minn., 260 F.3d 959 , 962 (8th Cir.2001) (legislative immuni…
  • Margaret Andrews v. Robert Fuoss, 417 F.3d 813 (8th Cir. 2005).published
    When determining whether a grant of summary judgment based on qualified immunity was proper, we “must first consider the threshold question of whether, construed in the light most favorable to the party asserting the injury, the facts alle…
  • James Geitz v. Terry Barnes, 137 F. App'x 927 (8th Cir. 2005).unpublished
    Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir.2005).
  • Andersen v. Carver Cnty. Sheriffs Off., No. 0:22-cv-03137 (D. Minn. July 22, 2024).
    See Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005).
  • David P. Leonard v. Tanya S. Muhm, 181 F. App'x 614 (8th Cir. 2006).unpublished
  • Duggin v. Douglas Cnty., No. 8:19-cv-00406 (D. Neb. Feb. 5, 2020).
  • Doe v. Univ. of Arkansas - Fayetteville, No. 5:18-cv-05182, 2019 WL 1493701 (W.D. Ark. Apr. 3, 2019).
  • Franklin v. Griffith, No. 2:17-cv-02016 (W.D. Ark. Apr. 19, 2019).
explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claimno pin page on record · 7 citing cases listed
  • Jackson v. Payne, No. 4:25-cv-01045 (E.D. Ark. Oct. 9, 2025).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim)
  • Scarver v. Swift, No. 3:23-cv-00176 (E.D. Ark. Aug. 18, 2025).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim)
  • Phelan v. Payne, No. 4:25-cv-00494 (E.D. Ark. June 26, 2025).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim under both the Eighth Amendment and the Fourteenth Amendment applicable to pre-trial detainees)
  • Tayborn v. Ricketts, No. 4:25-cv-00485 (E.D. Ark. May 20, 2025).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim)
  • Payne v. Langley, No. 4:24-cv-00278 (E.D. Ark. May 9, 2024).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim under both the Eighth Amendment and the Fourteenth Amendment applicable to pre-trial detainees)
  • Abshure v. Brown, No. 4:23-cv-01090 (E.D. Ark. Jan. 30, 2024).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim under both the Eighth Amendment and the Fourteenth Amendment applicable to pre-trial detainees)
  • Brookins v. Brown, No. 4:23-cv-01092 (E.D. Ark. Jan. 5, 2024).
    (explaining that intentional conduct, rather than negligence, is required to sustain a § 1983 claim under both the Eighth Amendment and the Fourteenth Amendment applicable to pre-trial detainees)
finding overcrowding and understaffing showed jail officials may have been negligent but did not “rise to the level of deliberate indifferenceno pin page on record · 2 citing cases listed
  • Ballard v. Thurman, No. 8:22-cv-00090 (D. Neb. Apr. 4, 2022).
    (finding overcrowding and understaffing showed jail officials may have been negligent but did not “rise to the level of deliberate indifference)
  • Moser v. Helton, No. 8:18-cv-00551 (D. Neb. July 17, 2019).
    (finding that the plaintiff’s allegations of overcrowding and understaffing demonstrated prison officials may have been negligent but did not “rise to the level of deliberate indifference)
�A prison official’s duty under the Eighth Amendment ... incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” (quoting Farmer, 511 U.S. at 844-45 , 114 S.Ct. 1970 )no pin page on record · 2 citing cases listed
  • Norman v. Schuetzle, 585 F.3d 1097 (8th Cir. 2009).published 2 cites
    (�A prison official’s duty under the Eighth Amendment ... incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” (quoting Farmer, 511 U.S. at 84…)
  • James E. Norman v. Tim Schuetzle, No. 08-1686 (8th Cir. Nov. 9, 2009).published
    ('A prison official's duty under the Eighth Amendment . . . incorporates due regard for prison officials' unenviable task of keeping dangerous men in safe custody -10- under humane conditions.'" (quoting Farmer, 511 U.S…)
At page 600 Applying deliberate indifference standard to detainee violence claims2 citing casesapplying deliberate indifference standard to pretrial detainee’s claim that jail officials failed to adequately protect him from violence of other detainees; noting plaintiff alleged that officials acted with deliberate indifference1 citing court put it this way
  • Craddock v. Wellpath LLC., No. 2:21-cv-12827 (E.D. Mich. Feb. 26, 2024).
    See, e.g., Britt v. Hamilton Cnty., No. 21-3424, 2022 WL 405847 , at *2-3 (6th Cir. Feb. 10, 2022) (applying Fourteenth Amendment to claim arising from inmate’s death in jail after being arrested for a probation violation); Stefan v. Olson…
  • Kevin Scott Karsjens v. Tony Lourey, 988 F.3d 1047 (8th Cir. 2021).published
    (applying deliberate indifference standard to pretrial detainee’s claim that jail officials failed to adequately protect him from violence of other detainees; noting plaintiff alleged that officials acted with deliberate…)
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Scott A. CROW, Appellee,
v.
Marty MONTGOMERY, Individually and as Sheriff of Faulkner County, Arkansas; Kyle Kelly, Individually and as Administrator of the Faulkner County Detention Center; Lieutenant Gene Stephens, Individually and in His Official Capacity as Disciplinary Officer for the Faulkner County Detention Center, Appellants
03-3859.
Court of Appeals for the Eighth Circuit.
Apr 12, 2005.
Published opinion
403 F.3d 598
2005 U.S. App. LEXIS 5928
Michael R. Rainwater, argued, Little Rock, Arkansas (Jason E. Owens, on the brief), for appellant., Morgan E. Welch, argued, Little Rock, Arkansas (J.G. “Gerry” Schulze and David H. Williams, on the brief), for appellee.
Loken, Beam, Smith.
Cited by 1 opinion  |  Published

Lead Opinion

BEAM, Circuit Judge.

Scott A. Crow brought this 42 U.S.C. § 1983 and 42 U.S.C. § 1988 civil rights action against officials of Faulkner County Detention Center (FCDC), alleging violations of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Appellants Marty Montgomery, Sheriff of Faulkner County; Kyle Kelly, jail administrator of the FCDC; and Gene Stephens, lieutenant and disciplinary officer for the FCDC (collectively referred to as “FCDC officials”) moved for summary judgment based upon qualified immunity. The district court denied the motion, finding genuine issues of material fact existed and therefore the FCDC officials were not entitled to summary judgment on their qualified immunity defense. The FCDC officials now appeal that ruling. We reverse and remand.

I. BACKGROUND

In June 2001, Crow surrendered himself to the custody of the FCDC after violating his probation. Crow, a nonviolent offender, expected to be released on bond the next morning. FCDC placed Crow in cell 305, which consisted of a day room and two bedroom cells. Shortly thereafter, two inmates in cell 305 punched Crow and broke his jaw.[1] FCDC personnel removed Crow from the cell and took him to a local hospital for emergency treatment. Crow’s jaw was surgically repaired and he remained in the hospital for several days.

In the ensuing litigation, Crow sued the FCDC officials in their individual and official capacities. Crow alleged that the FCDC was unreasonably dangerous due to chronic overcrowding and that the FCDC officials knew it. Crow also alleged that the FCDC officials exacerbated the already unsafe conditions by operating with insufficient staff who were inadequately trained and supervised. Finally, Crow alleged that the FCDC officials acted with deliberate indifference by allowing overcrowding, failing to take reasonable measures to protect Crow from violence at the hands of other detainees, and disregarding Crow’s safety and medical needs, all in[*601] violation of the Eighth Amendment. None of the defendants was on duty or even present at the FCDC when Crow was classified, placed in cell 305, and assaulted.

II. DISCUSSION

Ordinarily, there is no appeal from a trial court order denying summary judgment. Moore v. Duffy, 255 F.3d 543, 545 (8th Cir.2001). However, we do have limited authority through interlocutory appeals to review the denial of qualified immunity. Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Such review is limited to issues of law raised by the denial. Moore v. Briggs, 381 F.3d 771, 772 (8th Cir.2004). “[A] defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at 319-20, 115 S.Ct. 2151. “ ‘[T]he appealable issue is a purely legal one: whether the facts alleged ... support a claim of violation of clearly established law.’ ” Id. at 313, 115 S.Ct. 2151 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Accordingly, at this point, we may not assume any fact asserted by the FCDC officials which the district court has deemed to be genuinely disputed. Parks v. Pomeroy, 387 F.3d 949, 954 (8th Cir.2004).

Qualified immunity shields government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A court required to rule upon the qualified immunity issue must first consider the threshold question of whether, construed in the light most favorable to the party asserting the injury, the facts alleged show the officers’ conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Id. Only if a violation could be made out on a favorable view of the parties’ submissions, do we take the next step and ask whether the right was clearly established. Id. at 201, 121 S.Ct. 2151. For these inquiries, we conduct a de novo review. Parks, 387 F.3d at 954.

We first consider whether the facts as alleged show the FCDC officials’ conduct violated a constitutional right. As a pretrial detainee, Crow’s claims against the FCDC officials are analyzed under the Fourteenth Amendment’s Due Process Clause rather than the Eighth Amendment. Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir.2003). The FCDC officials violated Crow’s due process rights if the FCDC’s conditions of confinement constituted punishment. Id. However, because, .“[u]nder the Fourteenth Amendment, pretrial detainees are entitled to ‘at least as great’ protection as that afforded convicted prisoners under the Eighth Amendment,” we apply the identical deliberate-indifference standard as that applied to conditions-of-confinement claims made by convicts. Id. (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)); see also Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir.1994).

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. The Supreme Court has held that the Eighth Amendment requires prison officials to[*602] take “reasonable measures to guarantee the safety of the inmates [and] ... to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotations omitted). In order to establish a constitutional violation, Crow must show: (1) that his incarceration in cell 305 posed a substantial risk of serious harm (objective component), and (2) the FCDC officials actually knew of but disregarded, or were deliberately indifferent to, Crow’s health or safety (subjective component). Pagels v. Morrison, 335 F.3d 736, 740 (8th Cir.2003); Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir.1998).

For purposes of this appeal we assume that Crow’s incarceration in cell 305 posed a substantial risk of serious harm to Crow and that the FCDC officials were aware of the risk. However, we reverse the district court’s denial of qualified immunity because, as a matter of law, the facts alleged by Crow do not establish that the FCDC officials disregarded any known risk alleged by Crow.

To satisfy the subjective element of Crow’s Eighth Amendment claim, the FCDC officials “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. “In short, [Crow] must show that [the FCDC officials] acted, or failed to act, with ‘deliberate indifference’ to the safety of [Crow].” Pagels, 335 F.3d at 740 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). “ ‘[Deliberate indifference includes something more than negligence but less than actual intent to harm’; it requires proof of a reckless disregard of the known risk.” Jackson, 140 F.3d at 1152 (quoting Newman v. Holmes, 122 F.3d 650, 653 (8th Cir.1997)).

Crow alleges that the FCDC officials failed to keep adequate records. He also alleges that the facility was overcrowded, poorly supervised and understaffed and that the detainees were inadequately classified. All of this, he claims, contributed to the June 2001 incident in cell 305 and provides evidence of the reckless disregard of a known risk sufficient to constitute deliberate indifference. The district court held that the reasonableness of the FCDC officials’ actions in response to the known risks at the facility was a jury question. We disagree. At most, Crow’s allegations show that the FCDC officials may have acted unreasonably in failing to take particular measures to improve the conditions at the facility, but that does not rise to the level of deliberate indifference. Even if they were unreasonable, and might have done various things to prevent the blow Crow endured, “reasonableness is a negligence standard” and negligence cannot give rise to an Eighth Amendment failure-to-protect claim. Id.

“The Supreme Court has generously construed qualified immunity protection to shield ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Davis v. Hall, 375 F.3d 703, 711-12 (8th Cir.2004) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “ ‘Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.’ ” Id. at 712 (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992)). “A prison official’s duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970 (quotations omitted).

[*603] Crow alleges, at most, institution-wide deficiencies which were known to these supervisory officials but over which they had only partial control. On these facts, we refuse to hold supervisory jail officials liable for acts that may or may not have contributed to Crow’s injury in June of 2001. In short, there is no record evidence of anything beyond the FCDC officials’ simple negligence. Thus, on the facts taken in the light most favorable to Crow, he has not made out a constitutional violation.

III. CONCLUSION

We reverse that part of the district court’s order denying qualified immunity to the FCDC officials, and remand the case for further proceedings consistent with this opinion.

1

The facts are disputed as to what precipitated the attack. Crow contends he was the victim of an unprovoked attack while the FCDC officials contend Crow made provocative remarks. For purposes of our review, we accept the facts as alleged by Crow.

Dissent

SMITH, Circuit Judge,

dissenting.

I am unable to join the panel’s decision. The district court ruled that there remain material factual disputes regarding the FCDC officials’ knowledge and conduct. It is my view that, under our applicable precedents, we cannot review the denial of summary judgment on the issue of qualified immunity in this interlocutory appeal.

Our jurisdiction to review the denial of summary judgment in qualified immunity cases is limited. Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Parks v. Pomeroy, 387 F.3d 949 (8th Cir.2004); Krein v. Norris, 309 F.3d 487, 489 (8th Cir.2002). In Johnson, the Court held “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at 319-20, 115 S.Ct. 2151. The Court reasoned that “the appealable issue is a purely legal one: whether the facts alleged support a claim of violation of clearly established law.” Id. at 313, 115 S.Ct. 2151 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1995)).

In Krein, we applied Johnson and held that “summary judgment is not appropriate when there is a genuine issue of material fact surrounding the question of the plaintiffs or defendant’s relevant conduct-because, under those circumstances, the court cannot determine as a matter of law what predicate facts exist in' order to decide whether or not the defendant’s conduct violated clearly established law.” Krein, 309 F.3d at 493 (emphasis in original). We concluded that interlocutory appellate jurisdiction was lacking over the district court’s determination that there remain genuine issues of material fact and challenges to the sufficiency of the plaintiffs evidence to support that conclusion. Id.

In this case, Crow specifically alleged that FCDC was increasingly and unreasonably unsafe due to chronic overcrowding and that the FCDC officials were aware and had even acknowledged these facts. Crow also alleged that the unreasonable danger to detainees due to overcrowding was exacerbated by under-staffing of trained personnel to provide reasonable safety to detainees. Finally, Crow alleged that the FCDC officials acted with deliberate indifference in allowing over-crowding, failing to take reasonable measures to protect Crow from violence at the hands of other detainees, and showed deliberate indifference to Crow’s safety and medical needs. The district court found that the facts respecting the subjective knowledge of the FCDC officials and their actions in response to what they knew were genuinely disputed and thus not sufficiently conclusive to entitle the FCDC officials to[*604] summary judgment. This is precisely the type of case we are unable to hear on interlocutory appeal under both Johnson and Krein.

As the majority correctly notes, an Eighth Amendment failure-to-protect claim requires proof greater than negligence. Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The plaintiff must show that the defendants subjectively knew that an excessive risk to detainees- existed and that they disregarded that risk. Id. The proper question under an analysis for deliberate indifference is whether the FCDC officials intended to avoid taking action that would have addressed the known serious risk of harm to Crow or purposely took ineffective action. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Alleging and showing the FCDC officials failed to respond reasonably is insufficient under Farmer to establish deliberate indifference.

If the facts required to determine whether the FCDC officials are entitled to qualified immunity are not genuinely in dispute, we have jurisdiction and may resolve the question as a matter of law. Prosser v. Ross, 70 F.3d 1005 (8th Cir.1995). However, in this case, the district court has definitively found that material factual disputes exist regarding the FCDC officials’ knowledge and conduct. The FCDC officials raise sound arguments that upon further factual development could prove meritorious for the application of qualified immunity, but at this stage of the litigation, it is not our call.

For the foregoing reasons, I respectfully dissent.