Krein v. Norris

• Decision Date: 16 October 2002
• Docket Number: No. 01-3087.,01-3087.
• Citation: 309 F.3d 487
• Parties: Ben KREIN, Plaintiff-Appellee, v. Larry NORRIS, Director of the Arkansas Department of Correction, individually and in his official capacity; David Guntharp, Deputy Director of the Arkansas Department of Correction, individually and in his official capacity; John Belken, Assistant Warden of the North Central Unit, individually and in his official capacity (originally sued as John Belkins); Robert Perry, Major, individually and in his official capacity; Bill Killian, Col., individually and in his official capacity; David Beatty, Lieutenant, individually and in his official capacity; Jackie Goggins, Sergeant, individually and in his official capacity; Larry May, Warden of the North Central Unit, Arkansas Department of Correction, individually and in his official capacity, Defendants-Appellants. Susan Jill Miller, Nurse Practitioner, Correctional Medical Services, Inc., Individually and in her official capacity (originally sued as S. Jill Miller); Gerrold Wood, Nurse, Correctional Medical Services, Inc., individually and in his official capacity (originally sued as Glen Woods), Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 487

309 F.3d 487

Ben KREIN, Plaintiff-Appellee, v. Larry NORRIS, Director of the Arkansas Department of Correction, individually and in his official capacity; David Guntharp, Deputy Director of the Arkansas Department of Correction, individually and in his official capacity; John Belken, Assistant Warden of the North Central Unit, individually and in his official capacity (originally sued as John Belkins); Robert Perry, Major, individually and in his official capacity; Bill Killian, Col., individually and in his official capacity; David Beatty, Lieutenant, individually and in his official capacity; Jackie Goggins, Sergeant, individually and in his official capacity; Larry May, Warden of the North Central Unit, Arkansas Department of Correction, individually and in his official capacity, Defendants-Appellants Susan Jill Miller, Nurse Practitioner, Correctional Medical Services, Inc., Individually and in her official capacity (originally sued as S. Jill Miller); Gerrold Wood, Nurse, Correctional Medical Services, Inc., individually and in his official capacity (originally sued as Glen Woods), Defendants.

No. 01-3087.

United States Court of Appeals, Eighth Circuit.

Submitted: March 11, 2002.

Filed: October 16, 2002.

Ryan P. Blue, argued, Little Rock, AR, for appellant.

Sheila F. Campbell, argued, Little Rock, AR, for appellee.

Before McMILLIAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

Arkansas inmate Ben Krein (hereinafter "plaintiff") brought this prisoner civil rights action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Arkansas. Larry Norris, the Director of the Arkansas Department of Corrections ("ADC") and other ADC officials and staff (hereinafter collectively "defendants") now appeal from an order of the district court¹ denying their motion for summary judgment on plaintiff's claim alleging that, by failing to provide adequate security, defendants were "deliberately indifferent" to a known risk of harm to inmates, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Krein v. Norris, No. 1:98CV00124 (E.D.Ark. Aug. 24, 2001) (hereinafter "District Court Order"). For reversal, defendants argue that the district court erred in failing to hold that they are entitled to judgment as a matter of law on their qualified immunity defense because plaintiff may not, as a matter of law, recover money damages for injuries resulting from a "surprise attack" by another inmate.

This is the second time this matter has come before us on interlocutory appeal. The first time, we dismissed the appeal for lack of jurisdiction. See Krein v. Norris, 250 F.3d 1184, 1186 (8th Cir.2001).

Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 1343. The notice of appeal was timely filed pursuant to Fed R.App. P. 4(a). As more fully explained below, we now have limited jurisdiction over the present appeal based upon 28 U.S.C. § 1291 and the collateral order doctrine. To the limited extent we have jurisdiction, we affirm the order of the district court.

Background

On January 6, 1998, while plaintiff was sleeping in Barracks # 1 of ADC's North Central Unit ("NCU"), plaintiff was attacked by another inmate, Michael Pruett, who was also housed in Barracks # 1 at that time. As a result of the attack, plaintiff sustained a broken jaw. He filed the present action in federal district court, asserting several claims, including an Eighth Amendment deliberate indifference claim. He requested damages, among other forms of relief. Defendants moved for summary judgment on the basis of qualified immunity and other grounds. Upon the recommendation of a magistrate judge, the district court granted partial summary judgment for defendants and dismissed all but plaintiff's Eighth Amendment deliberate indifference claim. Defendants then filed an interlocutory appeal, arguing that the deliberate indifference claim should also have been dismissed based upon qualified immunity. Upon review, we dismissed that appeal for lack of appellate jurisdiction because "there ha[d] been no decision, conclusive or otherwise, rendered below on the disputed question of qualified immunity." Krein v. Norris, 250 F.3d at 1188.

On remand, defendants renewed their qualified immunity argument in the district court, and the matter was again submitted to the magistrate judge for initial consideration. This time, the magistrate judge recommended dismissal of the deliberate indifference claim, reasoning that plaintiff had essentially alleged that he was the victim of a "surprise attack," and thus defendants were entitled to qualified immunity as a matter of law. See Krein v. Norris, No. 1:98CV00124, slip op. at 5-6 (E.D.Ark. Aug. 3, 2001) (Proposed Findings and Recommendation) (citing cases).

Upon review, the district court did not fully adopt the magistrate judge's recommendation. The district court agreed with the magistrate judge that plaintiff's deliberate indifference claim would fail as a matter of law "if a surprise attack by [Pruett] were plaintiff's theory of recovery." See District Court Order at 1. However, the district court noted, plaintiff's deliberate indifference claim was primarily based upon allegations of inadequate security, not the attack itself. The district court continued: "Prison officials may be found liable under the Eighth Amendment if they know of and disregard an excessive risk to inmate health and safety." Id. at 1-2 (citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

Upon examination of the record before it (including affidavits of other inmates, the affidavit of a security officer who worked in the NCU at the time plaintiff was attacked, and the affidavit of a prison security expert), the district court determined that there was evidence in the record to support the following assertions: defendants' failure to abide by staffing requirements created an environment which posed a risk of harm to all inmates housed in the barracks area; the NCU had one guard for three barracks housing 150 inmates; defendants were or should have been aware of an inadequate staffing problem as early as August 1997 and yet they had made no staffing changes as of January 1998, when the attack occurred; the level of violence in Barracks # 1 was five times that of any other NCU barracks and yet staffing adjustments were not made to address the disparity; the number of isolation cells was inadequate; and ADC failed to keep track of the number and locations of assaults occurring within the NCU. Id. at 2.

The district court thus concluded: "plaintiff has asserted the violation of a constitutional right; the right is clearly established; and the record, viewed in the light most favorable to plaintiff, shows genuine issues of material fact as to whether a reasonable official would have known that his course of conduct violated that right." Id. Accordingly, the district court denied defendants' motion for summary judgment based on qualified immunity, and this second interlocutory appeal followed.

Discussion

As a threshold matter, we must again begin by considering whether or not we have interlocutory appellate jurisdiction. As a general rule, non-final orders, such as denials of motions for summary judgment, may not be raised on interlocutory appeal. However, under the collateral order doctrine, a small class of orders (which includes some orders denying summary judgment based on qualified immunity) is exempt from that general rule. See Krein v. Norris, 250 F.3d at 1187. As indicated above, the first time this case came before us on interlocutory appeal, defendants asserted jurisdiction based upon their qualified immunity defense, but we dismissed that appeal because the district court had not specifically and conclusively ruled on the issue of qualified immunity. See id.

This time, the district court has specifically ruled on the qualified immunity issue. However, that still does not end our jurisdictional inquiry. For our present purposes, we must now determine whether or not we have interlocutory appellate jurisdiction in light of the Supreme Court's mandates in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In so doing, we separately consider the two distinct holdings of the district court: (1) that "plaintiff has asserted the violation of a constitutional right [and] the right is clearly established" and (2) that "the record, viewed in the light most favorable to plaintiff, shows genuine issues of material fact as to whether a reasonable official would have known that his course of conduct violated that right." District Court Order at 2.

Interlocutory appellate jurisdiction: clearly established constitutional right

We first consider whether or not we have interlocutory appellate jurisdiction to review the district court's holding that "plaintiff has asserted the violation of a constitutional right [and] the right is clearly established." Id. In Johnson v. Jones, the Supreme Court discussed in great detail the scope of interlocutory appellate jurisdiction in qualified immunity cases. Quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court explained that a district court's order addressing qualified immunity at the summary judgment stage may be reviewed on interlocutory appeal where the issue is "`a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law.'" Johnson v. Jones, 515 U.S. at 313, 115 S.Ct. 2151. More specifically, a court of appeals may consider on interlocutory appeal "whether the plaintiff has alleged the deprivation of an actual constitutional right at all" and "whether that right was clearly established at the time of the alleged violation." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct....