Johnson v. Hay

• Decision Date: 15 April 1991
• Docket Number: No. 90-1517,90-1517
• Citation: 931 F.2d 456
• Parties: Earsel L. JOHNSON, Appellee, v. Bill HAY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 456

931 F.2d 456

Earsel L. JOHNSON, Appellee, v. Bill HAY, Appellant.

No. 90-1517.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 15, 1990.

Decided April 15, 1991.

Bruce Farmer, Jefferson City, Mo., for appellant.

Bernard F. Weinand, Kansas City, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and CONMY, ^* District Judge.

JOHN R. GIBSON, Circuit Judge.

Bill Hay, a pharmacist formerly employed by the Missouri Department of Corrections, appeals from an order denying his motion for summary judgment. Earsel Larry Johnson brought suit against Hay claiming that Hay violated his eighth amendment rights by intentionally refusing to fill prescriptions for anti-seizure medicines. Hay claims that he is entitled to summary judgment based on qualified immunity and on the merits of Johnson's claim. Johnson also seeks an award of sanctions pursuant to Fed.R.App.P. 38. We affirm the judgment of the district court ¹ and deny Johnson's request for sanctions.

Johnson was transferred from the county jail in Farmington, Missouri, to the Missouri Department of Corrections on January 20, 1984. At that time, Dr. Vo, a prison doctor, examined Johnson. Although Johnson's medical records were not forwarded with him, Johnson told Dr. Vo that he suffered from seizures and that he had been taking Dilantin and Phenobarbital. Dr. Vo noted this in his medical records, and wrote prescriptions for these medications.

On May 5, 1986, Dr. McElroy, another prison doctor, issued Johnson a 30-day prescription for Phenobarbital and Dilantin. These prescriptions expired 30 days later, on June 4, 1986. Johnson did not, however, obtain another prescription for either of these medicines until after these prescriptions expired. On July 3, 1986, Dr. Bowers issued a six-month prescription for Dilantin, and on July 18, 1986, another prison doctor, Dr. Charles Tillman, issued 30-day prescriptions for Phenobarbital and Dilantin. On August 4, 1986, Dr. McElroy issued Johnson a six-month prescription for Phenobarbital and Dilantin.

Hay refused to fill the July 18 or August 4 prescriptions, and Johnson suffered one seizure on approximately July 21 and another seizure about one week later. On August 12, Dr. Bowers examined Johnson and renewed Johnson's prescriptions for Phenobarbital and Dilantin, and these medications have been provided to Johnson since that time.

Hay did not fill the July 18 and August 4 prescriptions based on his determination that the seizure medications were not appropriate. Hay made this determination based on his review of Johnson's medical records and discussions with Dr. Bowers and Johnson's housing unit sergeant, who both indicated that they had not observed Johnson having a seizure during the period of time when he would have been without medication.

Hay also stated that he did not fill the prescriptions because he found certain discrepancies in the prescriptions, and numerous inconsistencies in Johnson's version of his medical history to penitentiary authorities. In particular, he noted that the July 18 thirty-day prescription for Dilantin overlapped with the July 3 six-month prescription for that drug. Hay testified that his initials on the July 3 prescription for Dilantin indicate that he filled the July 3 prescription, but that he did not know if Johnson received Dilantin pursuant to that prescription. Hay stated that when a six-month prescription is written, the medication is actually distributed on a daily basis for six months. He also testified the prison had a computerized system that generates a print-out identifying medications prescribed and distributed to each inmate. Evidently this print-out was not a part of the record in the district court.

Hay also conducted a review of Johnson's medical records and found no diagnosis of a seizure disorder, only a statement that he claimed to have such a disorder. The penitentiary, however, did not receive Johnson's medical records from the county jail in Farmington, Missouri, where Johnson had been seen by Dr. Carl Artman. Johnson filed Dr. Artman's affidavit in the summary judgment proceedings. Dr. Artman stated that he examined Johnson in 1984 and determined that Johnson suffered from seizure activity. After prescribing Dilantin, Johnson's condition improved. When Johnson was sentenced to prison, Dr. Artman forwarded Johnson's medical records to Jefferson City.

Hay states that his investigation into Johnson's medical history led him to have serious doubts about the legitimacy of the July 18 and August 4 prescription orders and, therefore, he exercised his professional judgment not to dispense the medication.

Johnson filed suit under 42 U.S.C. Sec. 1983 (1988) claiming that Hay violated his eighth amendment rights by intentionally withholding his medications. After filing this action, the parties conducted extensive discovery. Hay filed a motion for summary judgment based on qualified immunity and on the merits of Johnson's claim.

The district court transferred Hay's summary judgment to the United States Magistrate under 28 U.S.C. Sec. 636(c) (1988), and entered an order setting the case for jury trial on March 26, 1990. On March 22, 1990, after the parties filed cross motions for summary judgment, the magistrate judge denied Hay's summary judgment motion concluding that a dispute of fact existed as to whether Hay acted reasonably in refusing to fill the prescriptions. Johnson v. Hay, No. 86-4559-CV-C-5, slip op. at 3 (W.D.Mo. March 22, 1990).

Hay filed a notice of appeal. The district court refused to continue the trial, so Hay filed a motion to stay with this court. After we issued a temporary stay, the district court continued the trial, and we issued an order denying the motion for stay as moot. ²

I.

Hay first contends that the district court erred in denying his summary judgment motion based on qualified immunity. At the outset, we must decide whether we have jurisdiction to consider whether Hay is entitled to summary judgment based on qualified immunity.

The Supreme Court has made clear that qualified immunity is "an immunity from suit rather than a mere defense to liability," and that "it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original). For this reason, the district court's denial of a claim of qualified immunity, "to the extent that it turns on an issue of law," is an appealable final decision under the collateral order doctrine notwithstanding the absence of a final judgment. Id. at 530, 105 S.Ct. at 2817.

The district court's denial of Hay's summary judgment motion was not based on a ruling that Hay violated clearly established law. Instead, the district court denied the motion because it concluded that a dispute of fact existed as to whether Hay acted reasonably in refusing to fill the prescriptions.

We have held that we have jurisdiction to hear an appeal of an order denying defendant's motion for summary judgment based on qualified immunity even when the appeal presents an issue that is not purely "legal". Wright v. South Arkansas Regional Health Center, Inc., 800 F.2d 199, 203 (8th Cir.1986). In Wright, the district court denied defendant's motion for summary judgment based on qualified immunity concluding that a genuine issue of fact existed as to whether the official retaliated against the plaintiff for exercising his first amendment rights. Id. at 202-03. We reversed, holding that because the record did not create a triable issue of fact the issue could be decided on appeal as one of law. Id. at 203.

We believe that the circumstances here are analogous to those in Wright. In essence, Hay's appeal, although largely fact-based, presents the legal question of whether Hay's conduct violated clearly established law of which a reasonable official would have known. We therefore believe it appropriate to decide this appeal. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816 ("To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff's claim for relief"). See also Johnson-El v. Schoemehl, 878 F.2d 1043, 1047 (8th Cir.1989) (appellate review includes prima facie legal and factual issues); Walker v. Schaeffer, 854 F.2d 138, 141 (6th Cir.1988) (whether defendants' actions violated plaintiffs' clearly established constitutional rights is "essentially a legal question").

In ascertaining whether Hay is protected by qualified immunity, we must decide "the essentially legal question whether the conduct of which [Johnson] complains violated clearly established law," and if Johnson's complaint adequately alleges commission of such acts. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. The Supreme Court's later decision in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), further clarifies that the test for qualified immunity at the summary judgment stage is an objective one. To be clearly established "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right ... [and] that in the light of pre-existing law the unlawfulness must be apparent." Id. at 640, 107 S.Ct. at 3039; see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) ("On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether the law was clearly established at the time an action occurred"). Hay, therefore, is entitled to summary judgment if discovery failed to uncover evidence sufficient to create a genuine issue as to whether his conduct violated clearly established law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.

We review the district court's denial of summary judgment under the same standard as that the district court applied to the motion. A party...