Reece v. Groose

• Decision Date: 20 July 1995
• Docket Number: No. 94-2165,94-2165
• Citation: 60 F.3d 487
• Parties: Gerry D. REECE, Appellee, v. Michael GROOSE, James Eberle, Delores Phillips, Charles Verdugo, John Motel, Gerald Bommel, Henry Jackson, Daniel Kempker, and Jack Kirk, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 487

60 F.3d 487

Gerry D. REECE, Appellee, v. Michael GROOSE, James Eberle, Delores Phillips, Charles Verdugo, John Motel, Gerald Bommel, Henry Jackson Daniel Kempker, and Jack Kirk, Appellants.

No. 94-2165.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 10, 1995.

Decided July 20, 1995.

Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, MO, argued, for appellant.

Patrick J. Gregory, Overland Park, KS, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, and MURPHY, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Gerry Reece, an inmate at the Jefferson City Correctional Center, filed this lawsuit under 42 U.S.C. Sec. 1983 against the defendants, all officers and employees of the Missouri Penal System. Reece alleges that all of the defendants except for Charles Verdugo failed to protect him from a substantial risk of serious harm in violation of the Eighth Amendment. Reece alleges that Charles Verdugo violated the Eighth Amendment by being deliberately indifferent to a serious medical need. In the District Court, ¹ the defendants moved for summary judgment on, among other things, qualified-immunity grounds. That motion was denied, and this interlocutory appeal followed. We affirm.

I.

This lawsuit grew out of an assault on Reece while he was in administrative segregation for his own protection. That the assault occurred is not the question before us; the defendants' responsibility for it is. At this preliminary stage of the proceedings, we view the facts in the light most favorable to Reece, Wright v. South Arkansas Regional Health Center, Inc., 800 F.2d 199, 203 (8th Cir.1986), and recite them now accordingly.

Before entering prison, Reece had been an informant for the Drug Enforcement Administration and had testified against Nick Nodine in Nodine's 1989 murder trial. Because of these activities, Reece's fellow prisoners considered him a "snitch," thus placing him at substantial risk of injury at their hands. Because of this risk, Reece was placed in administrative segregation for his own protection.

On November 23, 1992, an inmate named Albert Davis assaulted Reece by throwing hot water on him. Davis was, at the time, a "walkman" in the administrative-segregation unit. Walkmen are inmates charged with duties such as sweeping the walk in a unit of the prison. They are the only inmates who have access to inmates in administrative segregation. Walkman Davis's conduct record prior to this assault listed numerous violations, including threats, destroying property, possessing dangerous contraband, creating a disturbance, and insulting behavior.

Following this assault, Reece could not get anyone's attention, so he set some paper on fire outside his cell. Officer Charles Verdugo noticed the smoke, came to Reece's cell, and extinguished the fire. Reece told Verdugo that he needed medical attention, but Verdugo, who says he believed that Reece had no injuries, refused. Within two hours, however, Reece did receive treatment. Medical personnel found that Reece had no first-degree burns and treated him with an ointment. There is no indication that the delay aggravated his condition.

II.

We first address the issue of our jurisdiction. The denial of a motion for summary judgment based on qualified immunity is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Reece asserts, however, that the defendants are going beyond their qualified-immunity defense and are reasserting their summary-judgment argument that there is no genuine issue of fact for the jury. We hold that we have jurisdiction to hear the appeal.

It is instructive to define the jurisdictional line drawn by the Supreme Court in two separate cases. In Swint v. Chambers County Commission, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), the plaintiff sued individual deputies, the county sheriff, and the county for civil-rights violations. The individual defendants moved for summary judgment based on qualified immunity. The county also moved for summary judgment, arguing that the sheriff was not a policy-maker for the county. Both motions were denied by the District Court, and an immediate appeal was taken to the Eleventh Circuit, where that Court addressed not only the qualified-immunity issue, but also the policy-maker issue.

The Eleventh Circuit relied on "pendent-party" appellate jurisdiction in order to address the policy-maker issue. The Supreme Court held that no such jurisdiction exists. Therefore, the Court of Appeals had no jurisdiction to hear the appeal. Notably, the pendent issue, whether the sheriff was a policy-maker for the county, was separate and distinct from the qualified-immunity issue, whether the law that the individual defendants were alleged to have violated was clearly established.

On the other side of the line is Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). There, following a warrantless search by the defendant, Anderson, the plaintiffs sued, alleging a violation of their Fourth Amendment right to be free from unreasonable searches. The District Court granted Anderson's motion for summary judgment, but this Court reversed, holding that there was a question of fact as to whether the warrantless search was supported by probable cause and exigent circumstances. We also held that Anderson was not entitled to qualified immunity, because the right allegedly violated, freedom from unreasonable searches, was clearly established.

The Supreme Court reversed, holding that the standard we employed was too narrow. The "relevant question" for qualified-immunity purposes was not whether the right to be free from unreasonable searches was clearly established, but rather "whether a reasonable officer could have believed Anderson's warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed." Id. at 641, 107 S.Ct. at 3040. Thus, in this sort of case, the qualified-immunity standard not only requires courts of appeals to examine what law is clearly established, but also "require[s] an examination of the information possessed by" government officials accused of violating that law. Ibid.

The Supreme Court has thus delineated our jurisdiction in qualified-immunity cases. If, as in Swint, a party asks us, in an interlocutory appeal, to examine a question that is separate and distinct from the qualified-immunity issue, we must dismiss the appeal for want of jurisdiction. If, on the other hand, the party asserting qualified immunity asks us to examine the facts as they were known to the government official in order to determine whether clearly established law would be violated by his actions, Anderson requires that we accept jurisdiction and address their arguments.

We believe this holding is consistent with the Supreme Court's latest opinion on the subject, Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). That was an action against five police officers claiming that they had beaten the plaintiff during an arrest. Three of the defendant officers moved for summary judgment on the ground that there was no evidence that they had beaten the plaintiff, or that they had been present while others did so. The District Court denied their motion, and the officers appealed. The Court of Appeals dismissed the appeal for want of jurisdiction, and the Supreme Court agreed. The case was a qualified-immunity case, in the sense that the officers were entitled to assert this defense, but the issue they pressed on appeal was simply one of sufficiency of the evidence. Such a question is conceptually distinct from the legal question, raised by the qualified-immunity defense, whether the defendants' conduct violated law that was clearly established at the time.

To be sure, the issue raised by the present appeal--whether reasonable officers would have done more to protect Reece after placing him in administrative segregation--is fact-intensive. Parts of the Supreme Court's opinion in Johnson can be read to prohibit the exercise of appellate jurisdiction over such issues on a pretrial appeal. The Court says, for example, that a number of considerations "argue in favor of limiting interlocutory appeals of 'qualified immunity' matters to cases presenting more abstract issues of law." --- U.S. at ----, 115 S.Ct. at 2158. " '[I]mmunity appeals ... interfere less with the final judgment rule if they [are] limited to cases presenting neat abstract issues of law.' " Ibid., quoting 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure Sec. 3914.10, at 664 (1992).

The issue we are asked to decide on this appeal can hardly be categorized as "neat" or "abstract." It is unquestionably fact-intensive. We believe nevertheless that we have jurisdiction to decide it, because, by analogy to Anderson v. Creighton, supra, the legal question of qualified immunity is itself fact-intensive. As we have explained, Anderson holds that an officer has qualified immunity if he or she reasonably believed, in the light of all facts known at the time, that a warrantless search would be valid. So here, we think the defendants in this case would have qualified immunity if, in the light of all facts known at the time, they reasonably believed that they had taken proper measures to protect the plaintiff. The Supreme Court's opinion in Johnson does not cite Anderson v. Creighton, so we cannot know for sure what view of appellate jurisdiction the Court would take in a case like the one before us. We think the safer course is to apply the root principle that denials of qualified immunity are immediately appealable, and to apply this principle even in cases where the issue of qualified immunity is itself fact-intensive.

If we are wrong about this, and if in fact Johnson requires us to dismiss this appeal, the result, of course, would be that the...