Carroll W. Erickson v. Jeff Birdsall

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No. 94-3901SD
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Carroll W. Erickson, *
*
Plaintiff-Appellee, *
*
v. *
*
Don Holloway, Pennington *
County Sheriff; Pennington *
County, South Dakota, an *
organized county in the state *
of South Dakota; *
*
Defendants, *
*
Jeff Birdsall, guard employed *
by the Pennington County Jail; *
Robert Johnle, guard employed *
by the Pennington County Jail; * Appeals from the United States
Dan Carver, Pennington County * District Court for the District
Deputy Sheriff; * of South Dakota.
*
Defendants-Appellants,*
*
Mary Evelyn Rogers, Pennington *
County Deputy Sheriff, *
*
Defendant. *
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No. 94-4008SD
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Carroll W. Erickson, *
*
Plaintiff-Appellant, *
*
v. *
*
Don Holloway, Pennington County *
Sheriff; Pennington County, *
South Dakota, an organized *
county in the state of South *
Dakota; *
*
Defendants-Appellees, *
*
Jeff Birdsall, guard employed *
by the Pennington County Jail; *
Robert Johnle, guard employed *
by the Pennington County Jail; *
Dan Carver, Pennington County *
Deputy Sheriff; *
*
Defendants, *
*
Mary Evelyn Rogers, Pennington *
County Deputy Sheriff, *
*
Defendant-Appellee. *
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Submitted: October 18, 1995
Filed: February 28, 1996
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Before FAGG, HEANEY, and HANSEN, Circuit Judges.
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FAGG, Circuit Judge.
After Carroll W. Erickson was beaten by a fellow inmate in the
protective custody cell block at the Pennington County Jail,
Erickson brought this action under 42 U.S.C. § 1983 alleging
several officials failed to protect him from the assault and
interfered with a doctor's recommendations for treating his
injuries. Deputy Sheriff Dan Carver and jail guards Robert Johnle
and Jeff Birdsall appeal the district court's denial of their
motion for summary judgment based on qualified immunity. Erickson
cross-appeals the district court's grant of summary judgment to
Pennington County, Sheriff Don Holloway, and Deputy Sheriff Mary
Evelyn Rogers. We affirm in part, reverse in part, and dismiss in
part for lack of jurisdiction.
We grant the motion to supplement the record on appeal, and
state the facts in the light most favorable to Erickson, Reece v.
Groose, 60 F.3d 487, 488 (8th Cir. 1995). On September 8, 1990,
Erickson told Johnle, the jail guard on duty at the time, that
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Herbert Flying Horse, an inmate assigned to the protective custody
cellblock for punitive segregation, had threatened to assault
Erickson. Because Johnle's shift was nearly finished, Johnle
passed the information on to Birdsall, the guard for the next
shift. After coming on duty, Birdsall told Erickson that Johnle
had informed him of the threat and that he would watch for
potential trouble. Later, Flying Horse verbally harassed Erickson
in the cell block's common area, and Birdsall told Flying Horse to
go somewhere else. When Erickson and another inmate asked
permission to play basketball in the recreation area, Birdsall
unlocked the recreation room door from the cell block's control
panel. After Erickson and the other inmate entered the recreation
area, Birdsall locked the door behind them.
Birdsall later left the control panel unattended for about six
minutes to make a routine check of the cell block. The control
panel is located in the common area and physically accessible to
inmates. Birdsall saw Flying Horse moving toward the recreation
area, but continued with his rounds because he knew the door to the
recreation area was locked. Contrary to jail policy, however,
Birdsall had not disabled the control panel to prevent inmates from
operating the locks. While Birdsall was away from the panel, an
inmate opened the electronic lock to the recreation area to let
Flying Horse enter. Once inside, Flying Horse punched and kicked
Erickson, then left. Erickson's face was cut and bleeding.
Deputies Carver and Rogers took Erickson to the hospital for
immediate treatment. An emergency room doctor stitched a 1.5
centimeter cut beneath Erickson's eye. According to Erickson, the
doctor also wanted to x-ray Erickson's head and chest and keep
Erickson at the hospital overnight for observation, but Carver
refused to allow the x-rays or Erickson's admittance to the
hospital. Carver and Rogers then returned Erickson to the jail.
On appeal, Johnle, Birdsall, and Carver assert they are
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entitled to qualified immunity because they did not violate
Erickson's clearly established constitutional rights. Prosser v.
Ross, 70 F.3d 1005, 1007 (8th Cir. 1995). Before addressing the
appeal's merits, we discuss our jurisdiction. Some of Erickson's
claims remain in the district court awaiting trial, so the district
court has not entered a final order in this case to confer
jurisdiction under 28 U.S.C. § 1291. Nevertheless, under Mitchell
v. Forsyth, 472 U.S. 511 (1985), we have jurisdiction to consider
certain limited issues when officials bring an immediate appeal
from the denial of a summary judgment motion based on qualified
immunity. We have jurisdiction to consider whether given facts
show a violation of clearly established law, but not "evidence
sufficiency," that is, which facts the parties might be able to
prove at trial. Johnson v. Jones, 115 S. Ct. 2151, 2155-59 (1995).
In other words, we can examine the information possessed by an
official to decide whether, given those facts, a reasonable
official would have known his or her actions violated an
established legal standard, but we cannot examine whether the
official committed the alleged act, damages, causation, or other
similar matters. Miller v. Schoenen, No. 95-1766, 1995 WL 63301,
at *2-3 (8th Cir. Feb. 15, 1996).
Johnle, Birdsall, and Carver devote much of their brief to
challenging the credibility of Erickson's evidence. We lack
jurisdiction to consider these challenges. Instead, we can decide
whether the facts as Erickson presents them show a violation of
clearly established law.
Before the attack on Erickson, it was clear that the Eighth
Amendment requires prison officials to protect inmates from
violence at the hands of other inmates. See Farmer v. Brennan, 114
S. Ct. 1970, 1976 (1994). When prison officials know an inmate
faces a substantial risk of serious harm from another inmate and
fail to take reasonable measures to lessen the risk, the Eighth
Amendment is violated. Id. at 1984; Reece, 60 F.3d at 490.
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Viewing the information known to the guards in Erickson's
favor, Reece, 60 F.3d at 490, both Johnle and Birdsall had been
told of Flying Horse's threat and thus knew Erickson faced a
substantial risk of serious harm. Birdsall failed to disable the
control panel and investigate Flying Horse's sudden movement toward
the recreation area. These facts could establish Birdsall's
response was unreasonable. See Porm v. White, 762 F.2d 635, 637-38
(8th Cir. 1985). The district court thus properly denied summary
judgment to Birdsall. Johnle's shift ended more than two hours
before Flying Horse attacked Erickson, however, and Johnle told
Birdsall about Flying Horse's threat when Birdsall came on duty.
Because this response was reasonable as a matter of law, the
district court should have granted summary judgment to Johnle.
Deputy Carver asserts qualified immunity shields him from
Erickson's claim that Carver deprived him of adequate medical care.
Erickson can succeed on his claim by showing Carver intentionally
interfered with treatment prescribed for a serious medical
condition. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
Challenging the district court's finding that Erickson had a
serious medical condition, Carver contends there is no evidence
that Erickson's condition was acute or escalating, or that the
alleged refusal of x-rays or hospitalization caused Erickson any
harm. See Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995).
After Johnson, however, we lack jurisdiction to review these
contentions in this appeal. Reece, 60 F.3d at 491-92; Miller, 1995
WL 63301, at *3. Because Carver's disregard of a doctor's order
would show Carver intentionally interfered with prescribed
treatment, see Estelle, 429 U.S. at 104-05 (explaining deliberate
indifference), the district court properly denied Carver summary
judgment on the ground of qualified immunity.
Because a jury must decide whether Birdsall and Carver acted
with deliberate indifference, the district court properly refused
to dismiss Erickson's claims for punitive damages against them.
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See Smith v. Wade, 461 U.S. 30, 56 (1983).
In his cross-appeal, Erickson challenges the grant of summary
judgment to Pennington County, Sheriff Holloway, and Deputy Rogers
on the ground of qualified immunity. Erickson asserts no basis for
our jurisdiction over his cross-appeal in his brief, however. As
we explained earlier, there is no final order in this case, and
Erickson's cross-appeal does not fall within the Mitchell
exception. We also lack pendent jurisdiction over Erickson's
cross-appeal. See Johnson, 115 S. Ct. at 2159.
In conclusion, we affirm the denial of summary judgment to
Birdsall, reverse the denial of summary judgment to Johnle, affirm
the denial of summary judgment to Carver, and dismiss Erickson's
cross-appeal for lack of jurisdiction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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