James McGuire v. CMS Health Service ( 1996 )

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No. 95-2184
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James McGuire, *
*
Appellee, *
*
v. *
*
Dora Schriro; Michael L. Kemna, *
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Defendants, *
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Correctional Medical Services, *
Agency for the Missouri * Appeal from the United States
Department of Corrections, St. * District Court for the
Louis, MO, * Western District of Missouri.
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Appellant, * [UNPUBLISHED]
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John Langland, CMS Administrator,*
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Defendant, *
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Mary Lou Wilson; Diane Schmille; *
Dr. John Matthews, CMS Medical *
Examiner, *
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Appellants. *
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Submitted: May 1, 1996
Filed: May 21, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
James McGuire, an inmate at Western Missouri Correctional Center
(WMCC), brought this 42 U.S.C. § 1983 action against, among others,
Correctional Medical Systems (CMS) and various CMS personnel
("defendants"). McGuire claimed defendants acted with deliberate
indifference to his serious medical need by delaying for
several months the surgical repair of his hernia. Defendants moved for
summary judgment and argued they were entitled to qualified immunity.
McGuire opposed the motion. The district court1 denied the motion,
concluding defendants were not entitled to summary judgment based on
qualified immunity because genuine issues of material fact existed
regarding their roles in McGuire's medical treatment, and McGuire had
alleged the violation of a clearly established constitutional right.
Defendants appeal.
An order denying a motion for summary judgment based on qualified
immunity may be final and appealable depending on the issue appealed.
Johnson v. Jones, 115 S. Ct. 2151, 2154-55 (1995). If the issue concerns
whether a certain point of law is clearly established, or whether
reasonable officials would have known based on the facts available to them
that their actions violated the law, the order is immediately appealable.
Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985); Reece v. Groose, 60 F.3d
487, 489 (8th Cir. 1995). If, on the other hand, the issue on appeal is
whether the pretrial record creates a genuine issue of material fact as to
the occurrence of particular conduct, the order is not immediately
appealable. Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996); Johnson v.
Jones, 115 S. Ct. at 2158-59.
We agree with the district court that this appeal falls within this
latter category. Accordingly, we dismiss for lack of jurisdiction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri.
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