Miller v. Schoenen

• Decision Date: 15 February 1996
• Docket Number: No. 95-1766WM,95-1766WM
• Citation: 75 F.3d 1305
• Parties: Edward J. MILLER, Appellee, v. Dr. Robert SCHOENEN and Dr. David White, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1305

75 F.3d 1305

Edward J. MILLER, Appellee, v. Dr. Robert SCHOENEN and Dr. David White, Appellants.

No. 95-1766WM.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1995.

Decided Feb. 15, 1996.

On Appeal from the United States District Court for the Western District of Missouri; Hon. Scott O. Wright, U.S. Judge.

Sara Louise Trower, Jefferson City, Missouri, argued, for appellant.

Denise E. Farris, Overland Park, KS, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Edward Miller is an inmate at the Jefferson City Correctional Center in Missouri. In this lawsuit, brought under 42 U.S.C. § 1983 (1988), he alleges that the defendants deprived him of the care he required as a heart-transplant patient. This deprivation, in turn, it is said, deprived him of his Eighth Amendment right to be free from cruel and unusual punishment. The District Court, ¹ adopting the report and recommendation of a Magistrate Judge, ² held that Miller's evidence was sufficient to survive a summary-judgment motion, and that the defendants were not shielded from his claim by qualified immunity. The defendants now appeal that order. We lack jurisdiction to hear a portion of the appeal, and dismiss as to that portion. To the extent that we do have jurisdiction, we affirm the order of the District Court.

I.

Edward Miller received a heart transplant in 1985. In 1989, he began serving a lengthy sentence at the Jefferson City Correction Center (JCCC), a part of the Missouri Prison System. The defendants are doctors in charge of caring for the medical needs of inmates at the JCCC. Miller asserts that they were directly in charge of his care for all or part of the period from his initial incarceration until the present.

Miller alleges that, as a heart-transplant patient, he requires specialized care from the time of the transplant operation onward. Specifically, Miller identifies, through his expert medical witness Dr. Alan Forker, six types of specialized care required by all heart-transplant patients. They are daily administration of immunosuppressive drugs, the frequent taking of cyclosporine blood levels, immediate attention to infections, frequent monitoring by blood samples of the patient's white count, repeated myocardial biopsies as often as every three to four months, and annual cardiac catheterization and coronary arteriography. Miller alleges that the defendants, while knowing of his need for this care, did not administer regular immunosuppresives, myocardial biopsies, and catheterization; repair broken wires in his sternum or treat the resulting pain; surgically treat his chronic mastoiditis; or return Miller to the University of Missouri Hospital for treatment following his March 1993 carotid endarterectomy surgery, remove sutures from the resulting incision, or treat an infection in the incision.

The defendants moved for summary judgment in the District Court. They argued that they were entitled to summary judgment because Miller had not produced evidence from which a jury could conclude that he was deprived of the necessary care, or that, if he was, the defendants were responsible for that deprivation. They also argued that Miller was not damaged by any deprivation that might have occurred because he had not rejected his donor heart during the nine years since his transplant operation. In addition, the defendants argued that they were shielded from liability by qualified immunity. The District Court rejected these arguments, holding that the adequacy of the treatment Miller received, and whether any inadequate treatment damaged Miller, depended on "whose version of the facts is believed."

II.

We must first address the issue of our jurisdiction over this appeal. Ordinarily, we have no jurisdiction of an appeal challenging the denial of a motion for summary judgment. Johnson v. Jones, --- U.S. ----, ---- - ----, 115 S.Ct. 2151, 2154-55, 132 L.Ed.2d 238 (1995). Such orders are not final orders in the traditional sense. Ibid.; 28 U.S.C. § 1291 (1993). One exception to this rule occurs when a summary-judgment order denies a motion based on qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); Reece v. Groose, 60 F.3d 487, 489 (8th Cir.1995). Qualified immunity shields state actors from liability in civil lawsuits when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Reece, 60 F.3d at 491 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). As we discussed in Reece, however, the qualified-immunity question involves more than merely determining whether the law governing a plaintiff's claim is "clearly established." We must examine the information possessed by the government official accused of wrongdoing in order to determine whether, given the facts known to the official at the time, a reasonable government official would have known that his actions violated the law. Id. at 489; Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

That some issues must be reviewed in a qualified-immunity appeal does not mean that we have jurisdiction to review all of the points addressed in the summary-judgment motion. Only those issues that concern what the official knew at the time the alleged deprivation occurred are properly reviewed in this type of interlocutory appeal. We have jurisdiction to review those issues because their review is necessary in order to determine whether a reasonable state actor would have known that his actions, in light of those facts, would violate the law.

By way of example, whether an inmate has alleged sufficient facts to allow a jury to conclude that the inmate faces a risk of assault from other inmates, prison officials know of the risk, and the reasonableness of their actions in light of a known risk are all reviewable in an appeal of a denial of qualified immunity at the summary-judgment stage. Reece, 60 F.3d at 490. That much is so because prison officials must protect inmates from violence at the hands of other inmates, if they are aware of a substantial risk that such violence will occur. See Farmer v. Brennan, --- U.S. ----, ----, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994). That is the "clearly established" law. Examination of the facts known to the prison officials is necessary in order to determine whether a reasonable official would have known that his failure to take some particular action to protect the inmate would violate that law.

On the other hand, if police officers who are accused of violating a plaintiff's rights by using excessive force when they arrested him move for summary judgment on the ground that they were not involved in the incident, we may not review that portion of the appeal as part of an appeal of a denial of qualified immunity. See Johnson, --- U.S. at ----, 115 S.Ct. at 2156. We have no jurisdiction over that portion of an appeal because whether the officers were actually involved is a factual question that does nothing to inform us about whether, given the facts known at the time, reasonable officers would have known that the level of force they employed was excessive. Such orders "determine[ ] only ... question[s] of 'evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial." Ibid.

We are thus left with the following distinction. The question of what was known to a person who might be shielded by qualified immunity is reviewable, to determine if the known facts would inform a reasonable actor that his actions violate an established legal standard--the right to speak freely, the right to be free from unreasonable searches and seizures, a prisoner's right to adequate medical care, for example. Conversely, if the issues relate to whether the actor actually committed the act of which he is accused, or damages, or causation, or other similar matters that the plaintiff must prove, we have no jurisdiction to review them in an interlocutory appeal of a denial of a summary-judgment motion based on qualified immunity.

Applying these principles to the case before us, we hold that we lack jurisdiction over much of the defendants' appeal. Initially, the defendants argue that Miller has failed to identify evidence that these defendants were the doctors who actually deprived Miller of adequate care. This argument is no different from the one rejected by the Supreme Court in Johnson v. Jones. In Johnson the officers said that, even if the plaintiff had been subjected to excessive force, they did not do it. Id. at ----, 115 S.Ct. at 2153. Here, the defendants are saying that, according to the evidence Miller has produced, if Miller's right to adequate medical care was abridged, someone else did it. The Supreme Court held that no jurisdiction existed in Johnson, id. at ----, 115 S.Ct. at 2156, and we must do the same here.

The defendants also argue that Miller has failed to put forth "verifying medical evidence" of a severe deprivation of medical care, as required by Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.1995). We held in Reece, however, that the Supreme Court's opinion in Johnson v. Jones overturned that portion of Beyerbach that held that we have jurisdiction to hear such an argument. Reece, 60 F.3d at 492. Whether there is verifying medical evidence that Miller failed to receive the treatment he desired, and, if he did not, whether there is verifying medical evidence that the failure to treat him was sufficiently serious, are questions beyond our jurisdiction in this interlocutory appeal.

We do, however, have jurisdiction to hear a portion of the defendants' appeal. Miller asserts that the defendants violated his Eighth Amendment rights by failing to provide him with adequate medical care. In order...