In Farmer, the Supreme Court rejected an objective test for "deliberate indifference." Rather, it looked to the subjective knowledge of the defendants, holding:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
511 U.S. 825, 837, 114 S.Ct. 1970.

The Eighth Circuit has held that courts must reject the conclusion that the fact the harm occurred is proof itself of deliberate indifference. See Rellergert by Rellergert v. Cape Girardeau County, Mo., 924 F.2d 794, 796 (8th Cir.1991); Liebe v. Norton, 157 F.3d 574, 577-78 (8th Cir.1998). The question is whether the measures that were taken "were so inadequate as to be deliberately indifferent to the risk." Id.

In this case, there are no facts to support the conclusion that Warden Timothy Schuetzle was deliberately indifferent to any harm or threat of harm towards Roberson from other inmates. The evidence does not support a finding Schuetzle had knowledge that the inmate who fought with Roberson posed a substantial risk to him under the circumstances. More, important, the evidence clearly does not show that Schuetzle had the requisite culpable state of mind. Finally, even if there was a risk of harm to Roberson, Schuetzle's actions in light of that risk were reasonable.

The relevant Incident Report of the inmate ("G.L.") who was involved in a fight with Roberson that caused Roberson's injury indicates that Roberson was in his own "cage" area, as were all AS inmates, during the time that they were taking recreation. See Affidavit of Timothy Schuetzle, Ex. 1, Attach. 1-9. The report indicates that Roberson had threatened G.L. G.L. claimed that Roberson was trying to break the door down to his cage and was threatening to harm him and that G.L. only pushed the door to Roberson's cage because he was trying to keep Roberson from pushing open the cage door and attacking him. There was no evidence to the contrary concerning this claim. There is no evidence presented that G.L. had ever threatened to harm or had ever harmed Roberson before this incident.

Roberson has not presented any evidence and cannot prove that Warden Schuetzle had any knowledge that G.L. was a substantial danger or risk to Roberson. Even if Roberson could prove that Schuetzle had knowledge that G.L. was a danger to Roberson, he cannot prove that Schuetzle did not take reasonable measures to keep him safe from G.L. Roberson was housed in AS and had no contact with other inmates, including G.L. When Roberson went for recreation, he was also placed in a cage by himself with a locked door. G.L. was placed in a similar locked cage. Merely because some harm may have occurred to Roberson does not demonstrate that Schutezle was indifferent to his safety. "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. 825, 844, 114 S.Ct. 1970. This alleged claim is devoid of merit.

E. ROBERSON'S PLACEMENT IN ADMINISTRATIVE SEGREGATION DID NOT VIOLATE HIS CONSTITUTIONAL RIGHTS.

It is undisputed that Roberson was placed in AS upon his arrival at NDSP in *1059 February 2001. This was due to the fact that Roberson had exhibited aggressive and threatening behaviors while he had been an inmate at the Cass County Jail awaiting trial. Roberson remained in AS because of a number of factors, including (1) Roberson was unwilling to go through the orientation process; (2) Roberson refused to meet with the AS Committee to discuss alternative placements; (3) Roberson displayed paranoid characteristics and refused to sign any documents; (4) Roberson displayed uncooperative and sometimes violent behavior; (5) Roberson refused to cooperate with a psychological evaluation; (6) Roberson had numerous disciplinary reports, including disorderly conduct (numerous), threats towards others (both inmates and staff), possession of contraband (homemade shank twice), possession of other inmates' property, destruction of state property, disobeying staff orders, foul language. See Affidavit of Timothy Schuetzle, Ex. 1, Attach. 1-1.

There is nothing inherently unconstitutional about housing an inmate in administrative segregation when it is not for punitive reasons. Jones v. Mabry, 723 F.2d 590, 594 (8th Cir.1983) (administrative segregation that is non-punitive "looks to the present and the future rather than to the past"); Brown-El v. Delo, 969 F.2d 644, 647-48 (8th Cir.1992). In Mabry, the Eighth Circuit held as follows:

It is safe to say that in all prisons, except perhaps some extremely minimum security institutions, it is found to be absolutely necessary for a number of non-punitive reasons to segregate individual inmates from the general prison population, and to hold them in segregated status for varying or indefinite periods of time. [citation omitted] As long as there is a procedure for reviewing periodically the situations of inmates who are in administrative segregation """ due process is satisfied, and no pre-deprivation hearing is required by the federal constitution.
723 F.2d 590, 594 ( citing Kelly v. Brewer, 525 F.2d 394, 399 (8th Cir.1975)).

It is only when the special confinement occurs because of an intent to punish the inmate for past misconduct that the Due Process Clause is implicated and requires a pre-deprivation hearing. That is clearly not the case here. Roberson was confined in AS because of a concern that the aggressive and threatening behavior he displayed in the county jail would continue if he was placed in the general population. An attempt was made to transfer Roberson so that he could go through the orientation phase of his incarceration. However, Roberson refused to agree to participate in orientation or to participate in any classes or programs. Roberson also refused to visit with a psychiatrist.

While housed in AS, Roberson refused to meet with the AS Committee to discuss his transfer to other housing. See Affidavit of Timothy Schuetzle, Ex. 1, Attach. 1-1 (AS Committee Reviews). Roberson indicated he wanted to remain in AS. Id. (AS Committee Review 5/11/01; Warden's AS Review 10/9/02). In addition, Roberson had a number of Incident Reports while in AS and Warden Schuetzle found that Roberson had not shown that he was able to follow the rules so that he could be transferred to other housing. Despite Roberson's continued threatening behavior, Warden Schuetzle attempted to have Roberson released to general population. (AS Committee Reviews 7/5/02, 8/8/02).

It is clear and undisputed from the record that Roberson remained in AS during his incarceration at NDSP because of his consistent refusals to take any action to permit a plan to be prepared for his integration into general population. There is no evidence of any punitive element to Roberson's placement in AS and his status *1060 in AS was reviewed every 30 days. There is no merit to Roberson's claim that his placement in Administrative Segregation violated his constitutional rights.

F. THERE WAS NO VIOLATION OF ROBERSON'S CONSTITUTIONAL RIGHTS WHEN ROBERSON'S FINGERS WERE CAUGHT IN THE TRAY DOOR TO HIS CELL.

The Court allowed Roberson to pursue the claim that Warden Schuetzle allegedly allowed guards to slam Roberson's fingers in his cell door. Roberson has never identified when or how this occurred.

According to the unrefuted Incident Report, one of the guards had approached Roberson's cell to attempt to move Roberson to the infirmary because of his behavior. Roberson began ranting and raving, threatening to kill the guard and his family, and throwing items around his cell. Roberson refused to obey the guard's orders to put his hands out of the tray door so that they could be cuffed. On two occasions, Roberson tried to punch the guard in the groin area by reaching his hands and arms through the tray door. On the second occasion Roberson attempted to punch the guard and the guard kicked at the tray door in an attempt to shut it. Roberson then stuck a container with liquid in it and "threw it/sprayed it" on the guards. After the incident, Roberson was taken to the infirmary by was uncooperative in being evaluated. He was assessed by a nurse who observed no injuries. See Ex. 2, Attach. 2-2. Under these facts, construed in a light most favorable to Roberson, he cannot prove that any violation of his constitutional rights occurred.

The Supreme Court has considered the parameters of what constitutes "cruel and unusual" punishment in the context of excessive physical force. See Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). It is only the unnecessary and wanton infliction of pain which implicates the Eighth Amendment.

Where a prison security measure is undertaken to resolve a disturbance, """ the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Whitley, 475 U.S. 312, 320-21, 106 S.Ct. 1078 ( quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.1973)).

The Supreme Court has said that it may be proper to evaluate the need for application of force, the relationship between the need and the amount of force used, and the extent of injury suffered. However, equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as perceived by prison officials on the basis of the facts known to them. 475 U.S. 312, 319, 106 S.Ct. 1078. Further, "the infliction of pain in the course of a prison security measure does, therefore, not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense." Id.

Under these standards and given the facts of the incident with the tray door, Roberson cannot prove that he was subjected to cruel and unusual punishment. When Roberson focused his attack on the guard's groin area, the guard obviously perceived it as a serious threat and felt the need to respond. The guard was merely trying to protect himself and was not attempting*1061 to subject Roberson to unnecessary and wanton pain and suffering. Rather, the guard applied the force he did to shut the tray door in a good faith effort to prevent Roberson from hurting him. There is no evidence under these facts that it was done "maliciously and sadistically for the very purpose of causing harm."
In evaluating the seriousness of the force used, evidence of a lack of an injury also defeats Roberson's claim that excessive force rising to the level of cruel and unusual punishment was inflicted upon him. This claim is devoid of merit.

III. CONCLUSION

For the reasons set forth above, the Court GRANTS the State Defendants' Motion for Summary Judgement (Docket No. 44).