Taylor v. Bowers

• Decision Date: 31 July 1992
• Docket Number: No. 90-2539,90-2539
• Citation: 966 F.2d 417
• Parties: Wesley TAYLOR, Appellee, v. Richard K. BOWERS, Carl Doerhoff, Kent Grewe, Appellants. Maryland Butts, Helen Farr, Loren Stout.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 417

966 F.2d 417

Wesley TAYLOR, Appellee, v. Richard K. BOWERS, Carl Doerhoff, Kent Grewe, Appellants Maryland Butts, Helen Farr, Loren Stout.

No. 90-2539.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1992.

Decided June 10, 1992.

Rehearing Granted in Part,

Opinion Modified and Rehearing En

Banc Denied July 31, 1992.

Gary L. Gardner, Jefferson City, Mo., argued, for appellants.

William A. Frerking, Kansas City, Mo., argued, for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and LOKEN, Circuit Judge.

BRIGHT, Senior Circuit Judge.

I. INTRODUCTION

Appellants Richard K. Bowers, D.O., Kent Grewe, M.D., and Carl R. Doerhoff, M.D., each of whom is sued individually and in his official capacity as an employee of the Missouri Department of Corrections and Human Resources, appeal from the district court's denial of their motion for summary judgment on appellee Wesley Taylor's claims under 42 U.S.C. § 1983 (1988). On appeal, they allege: (1) they are entitled to summary judgment on the basis of qualified immunity and (2) the eleventh amendment bars Taylor's state law malpractice claims. We conclude that summary judgment is appropriate for Grewe and Doerhoff, who are entitled to qualified immunity, but not for Bowers. Accordingly, we affirm in part and reverse in part.

II. BACKGROUND

Wesley Taylor is an inmate at the Missouri State Penitentiary [MSP] in Jefferson City, Missouri. He alleges that in the early morning of February 1, 1987, he experienced stomach pains and vomited blood. Taylor reported to the MSP hospital at approximately 1:00 p.m., where he was examined by Dr. Kent Grewe. Taylor alleges that he told Grewe that he had repeatedly thrown up blood and experienced a severe burning pain in his stomach. Taylor also alleges that Grewe questioned him about drug ingestion, which Taylor denied.

After an examination, Grewe concluded that Taylor had a small bowel obstruction. Grewe admitted Taylor to the MSP hospital for observation. Taylor alleges that he continued to experience severe pain and vomit blood. In the evening of February 2, Taylor alleges, a (non-defendant) doctor recommended the transfer of Taylor to the University of Missouri-Columbia Medical Center "ASAP." This transfer failed to materialize until two weeks later.

Taylor alleges that on February 2 or 3, nurse Karen Zumwalt told him that Doctors Grewe and Bowers suspected that he had swallowed drug-filled balloons. Zumwalt also indicated, according to Taylor, that nothing would be done for him until he confessed to swallowing the balloons. Taylor denied the accusations.

Taylor alleges that he continued to experience great pain and vomit repeatedly. On February 4, after allegedly being subjected to repeated questioning by nurses and doctors about the drug-laden balloons, Dr. Doerhoff performed exploratory surgery. Doerhoff found that Taylor's appendix had ruptured. Doerhoff removed the appendix and treated Taylor.

Taylor alleges that he continued to experience stomach pains and vomiting after the surgery. He was transferred to the University of Missouri-Columbia Hospital on February 16. Doctors performed a second surgery to drain an abscess. Taylor alleges that Doerhoff's improper treatment necessitated the second surgery. ¹

Taylor sued Grewe, Doerhoff and Bowers under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and state negligence law. In his section 1983 claim, set forth in count I, he alleged that the defendants had been deliberately indifferent to his serious medical needs. In his section 1985 claim (count II), he alleged that the defendants conspired to deprive him of urgently needed medical treatment in violation of his rights under the fourteenth amendment and section 1983. Count III set forth the bases for Taylor's negligence claims against Grewe, Bowers and Doerhoff.

The defendants moved for summary judgment on counts I and II, raising the defense of qualified immunity. They also moved to dismiss the negligence count for lack of jurisdiction. After reviewing the depositions, suggestions and affidavits submitted by the parties, the Magistrate Judge concluded that a dispute over material facts precluded the entry of summary judgment. Specifically, the Magistrate Judge relied upon the affidavit of Dr. Glenn A. Barr, which stated that Taylor did not receive necessary medical care. Barr also stated that the deficiency of the pre- and post-operative care damaged Taylor. ² App. 464-65. After de novo review of the record, the district court denied the defendants' summary judgment motion. App. 471. This appeal followed.

III. DISCUSSION

As a preliminary matter, we note that we have jurisdiction to hear this appeal even though the district court has not yet rendered a final judgment. To the extent that a district court's denial of a claim of qualified immunity turns upon an issue of law, the denial is an appealable final decision within the meaning of 28 U.S.C. § 1291 (1988), notwithstanding the absence of a final judgment. Johnson v. Hay, 931 F.2d 456, 459 (8th Cir.1991) [Hay ] (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)); Givens v. Jones, 900 F.2d 1229, 1231 (8th Cir.1990) (citing 472 U.S. at 530, 105 S.Ct. at 2817). Even when an appeal from the denial of summary judgment implicates fact-based issues, we have held that we have jurisdiction when the record fails to establish a triable issue of fact and can be decided as a matter of law, Hay, 931 F.2d at 460 (citing Wright v. South Arkansas Regional Health Ctr., Inc., 800 F.2d 199, 203 (8th Cir.1986)) or when the appeal presents the largely legal question of whether an official's acts violate clearly established law of which a reasonable person would have known. Id. We thus have jurisdiction over the instant appeal.

The case law that governs whether the defendants are entitled to a qualified immunity defense is well established. See, e.g., Givens, 900 F.2d at 1231. Government officials are shielded from liability under section 1983 for the performance of discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations and footnote omitted). "Clearly established" law, the Supreme Court has explained, means "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

The burden on the section 1983 plaintiff at the summary judgment phase is also well defined. When the plaintiff fails to allege a violation of clearly established law, "a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Even when the plaintiff competently alleges the commission of acts that violate clearly established law, "the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Id.; see also Hay, 931 F.2d at 460 (defendant entitled to summary judgment if discovery failed to uncover sufficient evidence to create a genuine issue as to whether his conduct violated clearly established law); Johnson v. Boreani, 946 F.2d 67, 70 (8th Cir.1991) [Boreani] (same).

We review the district court's denial of summary judgment de novo, applying the same standard the district court invoked to decide the motion. Hay, 931 F.2d at 460. Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Hay, 931 F.2d at 460 (citation omitted).

Taylor seeks to recover via section 1983 under the eighth amendment which prohibits cruel and unusual punishment. Cruel and unusual punishment constitutes the " 'unnecessary and wanton infliction of pain.' " Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion)). In order to demonstrate an eighth amendment violation upon the basis of inadequate medical care, a prisoner must allege acts or omissions that reveal "deliberate indifference to serious medical needs." Estelle, 429 U.S. at 104, 106, 97 S.Ct. at 291, 292. A physician's mere negligent failure to diagnose or treat a condition fails to state a valid claim of mistreatment under the eighth amendment. E.g., id. at 105-06, 97 S.Ct. at 291-92; Givens, 900 F.2d at 1231.

Taylor essentially alleges that the defendants withheld medical treatment in order to coerce him into confessing that he ingested drug-filled balloons. At the time in question, February 1987, the law in this circuit was "clearly established" within the meaning of Harlow. 457 U.S. at 818, 102 S.Ct. at 2738. This court had repeatedly held that a prisoner's mere difference of opinion over matters of expert medical judgment or a course of medical treatment failed to rise to the level of a constitutional violation. E.g., Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir.1981) (citations omitted); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985) (citation omitted). Nor was an alleged delay in the receipt of medical treatment sufficient to state a claim of deliberate indifference in and of itself. Compare Fields v. Gander, 734 F.2d 1313, 1315 (8th Cir.1984) (county sheriff allegedly delayed prisoner's access to dental care for three weeks to compel payment of bill for earlier dental...