Patrick Hawkinson, Plaintiff-appellee, v. Roy Romer, Governor of the State of Colorado; Frank Gunter,george Sullivan, Deputy Superintendent of the Department Ofcorrections; Gary Stonebridge, Major; Sherry Patterson,lieutenant; William Buck, Lieutenant; Ron Bird, Captain;john Clarkson, Lieutenant; Warren Dieslin, Superintendentof the Buena Vista Correctional Facility; William Bell,captain; Fnu Broaddus, Classification Supervisor of Thebuena Vista Correctional Facility, Defendants-appellants,and Bill Boggs, Superintendent of the Rifle Correctionalcenter; John Clark, Captain, Unit Supervisor Ofthe Buena Vista Correctional Facility, Defendants, 57 F.3d 1080 (10th Cir. 1995)

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Patrick Hawkinson filed this 42 U.S.C.1983 action (pro se), alleging that defendants' deliberate indifference to his safety while in custody with the Colorado Department of Corrections resulted in cruel and unusual punishment in violation of the Eighth Amendment. Defendants--Colorado state and correctional officials and employees--appeal denial of their motions to dismiss and for summary judgment asserting qualified immunity.

Plaintiff asserted that after his incarceration other inmates threatened him with sexual assault and that he reported this to prison staff. Shortly thereafter he was forcibly raped, for which he received medical treatment. He continued to complain of harassment, and was transferred to Rifle Correctional Center, as were two of the prisoners who had previously harassed him. Plaintiff continued to report sexual abuse and harassment, although he refused to provide his perpetrators' names because he feared retribution. After continued harassment and another alleged sexual assault, plaintiff escaped. He apparently turned himself in and was acquitted on the escape charges pursuant to his defense of duress stemming from alleged sexual harassment. Plaintiff continued to report incidents of sexual abuse to prison officials, but alleges that the abuse continued, and that his requests for protective custody were denied. After he was assaulted again in November 1991 he filed this complaint.

After some discovery, defendants filed their motions to dismiss or for summary judgment asserting, inter alia, that they were entitled to qualified immunity. The district court granted the motions of defendants Boggs and Clark, supervising personnel at correctional facilities, and denied those of the remaining defendants. Those defendants appeal, asserting that the district court erred in ruling they are not entitled to qualified immunity.

Qualified immunity protects governmental officials performing discretionary functions from suit if their conduct "does not violate clearly established ... constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Because qualified immunity shields a defendant from the burdens of trial, Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988), we review a district court's denial of summary judgment on a qualified immunity defense somewhat differently than other summary judgment decisions. Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992), cert. denied, 113 S. Ct. 2445 (1993). Once a defendant raises the defense the burden shifts to the plaintiff to "demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited." Id. (quoting Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990)). If the plaintiff does not show how the defendant violated a clearly established right, summary judgment is proper.

Defendants here assert that the district court erroneously applied a subjective test in determining whether the conduct alleged violated plaintiff's Eighth Amendment right to personal safety from attacks by other inmates. See Wilson v. Seiter, 501 U.S. 294, 298-99 (1991); Blankenship v. Meachum, 840 F.2d 741, 742 (10th Cir. 1988). Defendants correctly note that in Harlow the Supreme Court rejected the subjective test--whether an official "knew or reasonably should have known" that his action would violate the constitutional rights of a plaintiff--and moved to an objective test--whether the challenged conduct "violate [d] clearly established statutory or constitutional rights of which a reasonable person would have known."²  Harlow, 457 U.S. at 818. Thus Harlow made it clear that we do not ask whether the particular defendant knew of the legal standard in effect at the time, but whether a reasonable person would have known of that standard. We agree with the defendants that this is an objective inquiry.

The next question, however, is whether the conduct alleged violated that standard. The Supreme Court has stated that a prisoner advancing an Eighth Amendment claim must establish both an objective component--" [w]as the deprivation sufficiently serious"--and a subjective component--" [d]id the officials act with a sufficiently culpable state of mind." Wilson, 501 U.S. at 298. The subjective inquiry in this type of case is whether defendants were "deliberately indifferent" to the risk of harm. Id. at 303.

Defendants point out that the district court cited Farmer v. Brennan, 114 S. Ct. 1970 (1994), decided several years after the conduct in question, in applying the subjective prong of the deliberate indifference test. But Farmer did not originate the idea of a subjective inquiry into the defendant's state of mind in Eighth Amendment cases. Before Farmer, we relied on Harlow as allowing an inquiry into subjective factors when an essential element of a plaintiff's claim is the defendant's state of mind. See Pueblo Neighborhood Health Centers, 847 F.2d at 648. Thus, in the Eighth Amendment context, a subjective "state of mind" inquiry was firmly established in 1991, and defendants' argument to the contrary fails.

The district court applied both the subjective and objective standards in its decision, and found that plaintiff raised questions of fact as to whether defendants knew of a substantial risk of serious harm, and whether defendants failed to take reasonable measures to abate it. Although defendants point to plaintiff's deposition as compelling the factual conclusion that defendants were unaware of any specific risk of harm to plaintiff, the record provides support for a finding that defendants knew plaintiff needed protection from threatened sexual assaults. Further, although defendants provided some evidence of actions they took to protect plaintiff, whether those actions were sufficient depends on the degree and type of threatened risk.

The state of the record at the time of this interlocutory appeal supports the district court's conclusion that there is sufficient admissible evidence supporting the allegations in the complaint to create triable issues of fact. Therefore we AFFIRM the decisions of the district court and remand for further proceedings in accordance with this opinion.