United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-2385

___________

Ben Krein, *

*

 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 * Appeal from the United States

Warden of the North Central Unit, * District Court for the

individually and in his official capacity * Eastern District of Arkansas.

(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; *

*

 Appellants, *

*

Susan Jill Miller, Nurse Practitioner, *

Correctional Medical Services, Inc., *
1The Honorable Susan W. Wright, United States District Court Chief Judge for

the Eastern District of Arkansas. 

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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. *

___________

Submitted: February 13, 2001

Filed: May 22, 2001

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Before LOKEN, HEANEY, and, BYE, Circuit Judges.

___________

HEANEY, Circuit Judge.

Larry Norris, Director of the Arkansas Department of Corrections (ADC); David

Guntharp, acting Deputy Director of the ADC; Larry May, Warden of ADC's North

Central Unit (Unit); John Belkins, Assistant Warden of the Unit; and security officers

Robert Perry; Bill Killian; David Beatty; and Jackie Goggins appeal from the district

court's1 partial denial of summary judgment in their favor in a lawsuit filed by Arkansas

inmate Ben Krein. The sole issue on appeal is whether the district erred in rejecting

defendants' qualified immunity defense to Krein's inadequate security claim. Because
2The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the

Eastern District of Arkansas.

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the district court's order adopting the magistrate's2 report recommending denial of

summary judgment on the merits was not a ruling on appellants' qualified immunity

defense, we lack jurisdiction under 28 U.S.C. § 1291 to consider this appeal and

remand for further proceedings in the district court.

I. BACKGROUND

This interlocutory appeal stems from a civil suit filed by Krein after he was

injured in an attack by a fellow inmate. Krein brought suit under 42 U.S.C. § 1983 and

the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution against

various officials and staff directly employed by the ADC. In his amended complaint,

Krein claimed that defendants violated his rights by failing to maintain adequate

security within the prison and by failing to provide him with medical treatment.

While Plaintiff0s motion to extend the discovery deadline was apparently

pending, defendants filed a motion for summary judgment arguing, in relevant part, that

they were entitled to qualified immunity. In their supporting brief, defendants conceded

that Krein had "stated a valid constitutional right for purposed [sic] of determining

whether the defendants are entitled to qualified immunity." (Appellants’ Appendix at

23). They also acknowledged that "[c]learly established law states that plaintiff has a

right to be free from being incarcerated under conditions posing a serious risk of harm."

(Appellant's Appendix at 24). 

The magistrate judge's report recommended, inter alia, that the defendants'

motion be granted with respect to Krein's medical treatment claim against them. With

respect to Krein's inadequate security claim, however, the magistrate recommended that

defendants' motion be denied, concluding that a genuine issue of material fact rendered
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summary judgment on the merits inappropriate as to defendants Norris, Guntharp, May,

Belkins, Perry, Killian, Beatty, and Goggins. Separately, the magistrate specifically

addressed defendants' qualified immunity defense in the context of the inadequate

security claim:

With respect to defendants' claim that they are protected from liability by

qualified immunity, the Court disagrees at this point. Defendants claim

that plaintiff fails to allege a proper constitutional violation, and that since

defendants were unaware of danger posed by inmate Pruett, that their

conduct did not violate any clearly established right. However, while the

Court earlier acknowledged the fact that no one anticipated harm from

that particular inmate directed toward plaintiff, a material dispute of fact

exists concerning whether defendants should have been aware based on

Pruett's violent history and recent disciplinary conviction, and whether

certain court-mandated staffing numbers were disregarded. Therefore, in

light of this dispute, the Court is unable to determine, at this juncture that

defendants' conduct did not violate plaintiff's clearly-established right to

remain free from harm.

Krein v. Norris, No. 98-CV-00124-HLJ, slip op. at 5 (E.D. Ark. May 9, 2000)

(Proposed Findings and Recommendation) (emphasis added). The district court

adopted the magistrate's report and recommendation and denied defendants' motion

with respect to Krein's inadequate security claim. The defendants now appeal.

II. DISCUSSION

In this case, the parties assume that the district court denied defendants' claim

of qualified immunity as to Krein's inadequate security claim. A review of the record

reveals, however, that the court did not decide the question of a qualified immunity

defense to that claim. Because the district court did not deny qualified immunity, we

may lack jurisdiction over this interlocutory appeal. Appellee Krein has raised the

issue of our jurisdiction over this appeal, but not for this particular reason. Although
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the parties have not raised this particular issue, "every federal appellate court has a

special obligation to consider its own jurisdiction. In fact, jurisdiction issues will be

raised sua sponte by a federal court when there is an indication that jurisdiction is

lacking, even if the parties concede the issue." Thomas v. Bashim 931 F.2d 521, 522-

523 (8th Cir.1991) (internal citations omitted). We must, therefore, address sua sponte

whether we have jurisdiction over this appeal.

In resolving this issue we first determine whether the district court's order

contains a specific, final decision that conclusively denies to appellants the defense of

qualified immunity. The general rule is that courts of appeals may hear appeals from

"final decisions" of federal district courts. 28 U.S.C. § 1291. Usually, a denial of

summary judgment is not treated as final and cannot be appealed until the conclusion

of the case on the merits because "[t]he requirement of finality precludes consideration

of decisions that are subject to revision, and even of 'fully consummated decisions [that]

are but steps towards final judgment in which they will merge.'" Behrens v. Pelletier,

516 U.S. 299, 305 (1996) (alteration in original) (quoting Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949)).

Under the collateral order doctrine, an otherwise non-final order is deemed final

for purposes of appeal only if the order "(1) conclusively determine[s] the disputed

question, (2) resolve[s] an important issue completely separate from the merits of the

action, and (3) [is] effectively unreviewable on appeal from a final judgment." Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)

(citation omitted). Jurisdiction over an interlocutory appeal from this "small class" of

orders is the exception, not the rule. See Cantu v. Rocha, 77 F.3d 795, 802 (5th

Cir.1996). More specifically, in Shannon v. White, 992 F.2d 791, 792-93 (8th

Cir.1993), we acknowledged that 

[a]lthough interlocutory appeals are generally not allowed, a denial of a

claim of qualified immunity is immediately appealable. Mitchell v.
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Forsyth, 472 U.S. 511, 530 (1985). However, when the order appealed

from does not decide the issue of qualified immunity, this court lacks

jurisdiction over the appeal . . . .

See also Washington v. Wilson, 46 F.3d 39, 41 (8th Cir.1995); Jones v. Coonce, 7 F.3d

1359, 1365 (8th Cir. 1993); Moutray v. Butts, 985 F.2d 426, 427 (8th Cir.1993).

Defendants' argument presupposes that the magistrate denied their qualified

immunity defense, and that the district court adopted this "recommendation" in its

subsequent order. However, the record does not reveal a decision conclusively

resolving defendants' claim to qualified immunity. The magistrate's repeated use of

qualifying phrases such as "at this point" and "at this juncture" evinces the tentative and

inconclusive disposition of the magistrate concerning the issue of defendants' qualified

immunity. We conclude that here, as in Craft v. Wipf, 810 F.2d 170, 173 (8th

Cir.1987), "[t]he District Court in this case simply did not rule on the qualified

immunity issue."

Similarly, our review of the record provides no reason to infer that the district

court intended to postpone or otherwise refuse to rule on the issue of defendants'

qualified immunity defense until trial. In Craft, we determined that the district court's

denial of defendants' motion for summary judgment constituted an implied refusal to

rule prior to trial. We observed that a reference to "the plaintiff's day in court" in the

district court's opinion signaled an intention not to decide the immunity issue before

trial. Id. at 173. Here, we find nothing suggesting any such intention on the part of the

district court.

We are mindful of the fact that the Supreme Court has repeatedly emphasized

that qualified immunity should be determined at the earliest possible stage in litigation.

See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991). However,
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[t]his does not mean . . . that courts may always decide questions of

qualified immunity on summary judgment. . . . Where there is a genuine

issue of material fact surrounding the question of plaintiff's [or

defendants'] conduct, we cannot determine, as a matter of law, what

predicate facts exist to decide whether or not the officer's conduct clearly

violated established law.

Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir.1993). Cf. Brown v. Nix, 33 F.3d 951,

953 (8th Cir.1994) (finding district court erred in not ruling on qualified immunity

defense where no dispute existed as to the material facts).

Overall, we are satisfied that the record before us evinces neither the need, nor

the opportunity, to read into the proceedings any kind of an implied denial of the

qualified immunity defense as having been incorporated into the order denying

defendants of summary judgment on the merits. As such, we do not find in the district

court's order a final decision -- express or implied -- conclusively deciding the qualified

immunity question. Additionally, to conclude that the proceedings below constituted

a refusal or impermissible postponement in ruling on the issue would be untenable

against the record on its face. Under the present circumstances, remanding the issue

for timely resolution is appropriate. See Robinson v. Mericle, 56 F.3d 946, 947 (8th

Cir.1995) (concluding that remand is appropriate where district court did not rule on

issue of qualified immunity under appeal); Parton v. Ashcroft, 16 F.3d 226, 228 (8th

Cir.1994) (same).

III. CONCLUSION

Because there has been no decision, conclusive or otherwise, rendered below on

the disputed question of qualified immunity, the defendants’ appeal is premature.

Accordingly, we remand to the district court for further proceedings.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.