United States Court of Appeals

For the Eighth Circuit

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No. 17-3234

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Ismael Paul Martinez

lllllllllllllllllllllPlaintiff - Appellee

v.

Larry Norris, Director, Arkansas Department of Correction; Wendy Kelley,

Director, Arkansas Department of Correction; James Gibson, Warden, ADC, Delta

Unit; Shamone McPhadden, Classification Officer, ADC, Delta Unit; Larry

Manning, Lieutenant, ADC, Delta Unit

lllllllllllllllllllllDefendants

Toni Perry, Sergeant, ADC, Delta Unit (originally named as T. Perry); Ladarius

Williams, Corporal, ADC, Delta Unit (originally named as Williams); S. Baker,

Trainee Officer, ADC, Delta Unit

lllllllllllllllllllllDefendants - Appellants

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Appeal from United States District Court 

for the Eastern District of Arkansas - Pine Bluff

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Submitted: December 13, 2018

Filed: February 8, 2019 

[Unpublished]

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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

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PER CURIAM.

Ismael Paul Martinez brought this 42 U.S.C. § 1983 action against several

Arkansas Department of Correction (ADC) officials, claiming that they had failed to

protect him from an attack by another inmate. The ADC officials appeal the district

court’s interlocutory order denying their motion for summary judgment based on 1

qualified immunity. They argue that the district court erred in relying on inadmissible

evidence, misstating the law, and concluding that disputed material facts precluded

entry of summary judgment based on qualified immunity. For the reasons set forth

below, we dismiss the appeal.

According to Martinez, he and several other inmates housed on two different

levels in ADC Delta Unit were attacked by a fellow inmate shortly after lights out on

December 8, 2014. The attacks spanned approximately fifteen minutes. Martinez

was attacked after he attempted to assist his fellow inmate, Ronnie Chapman, who

had been injured by the attacker. Martinez, who is disabled, was struck on the head

and side, thrown to the floor, and kicked in the back. He claims that the attacks

occurred in full view of the prison guards, who did nothing.

Our jurisdiction over an interlocutory order denying qualified immunity is

limited to reviewing abstract issues of law. See, e.g., Jones v. McNeese, 746 F.3d

887, 899 (8th Cir. 2014) (reviewing admissibility of evidence); Shannon v. Koehler,

616 F.3d 855, 860-62 (8th Cir. 2010) (reviewing whether summary judgment facts

established a violation of a clearly established constitutional right). We review de

novo the district court’s qualified immunity determination, viewing the record in the

light most favorable to Martinez, drawing all reasonable inferences in his favor, and

accepting as true those facts that the district court found to be sufficiently supported,

to the extent they are not blatantly contradicted by the record. See Thompson v. City

The Honorable James M. Moody, Jr., United States District Judge for the

1

Eastern District of Arkansas.

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of Monticello, 894 F.3d 993, 997-98 (8th Cir. 2018); Shannon, 616 F.3d at 861-62. 

We conclude that the district court’s denial of qualified immunity based on a finding

of disputed materialfacts deprives us ofjurisdiction to consider the order. See Raines

v. Counseling Assocs., Inc., 883 F.3d 1071, 1074 (8th Cir. 2018). 

The district court permissibly relied on inmate Chapman’s excerpted deposition

testimony submitted by the ADC officials with their summary judgment motion. See

Jones, 746 F.3d at 899 (requiring admissible evidence to defeat summary judgment). 

While the ADC officials now contend that Chapman’s statements constituted

inadmissible speculation, they reflected Chapman’s firsthand observations from the

night of the event and were therefore admissible. See Fed. R. Evid. 401 (defining

relevant evidence); 602 (“Evidence to prove personal knowledge may consist of the

witness’s own testimony.”). Further, the district court did not abuse its discretion by

thereafter denying the ADC officials’ motion to amend the judgment by

supplementing the record with the already-possessed evidence they had originally

chosen not to submit. See Fed. R. Civ. P. 56(e) (“If a party fails to properly support

an assertion of fact . . . the court may . . . give an opportunity to properly support or

address the fact.”). 

We agree with the ADC officialsthat the district court misstated the applicable

legal standard by ruling thatChapman’s deposition constituted “evidence fromwhich

a jury could conclude that Defendants objectively should have known of the

substantial risk of harm to Martinez.” D. Ct. Order of Sept. 11, 2017, at 3; see Jensen

v. Clarke, 94 F.3d 1191, 1195 (8th Cir. 1996) (requiring “actual knowledge on the

part of prison officials”). We conclude that the error was harmless, for the district

court found that Chapman’s deposition testimony alleged facts that, if credited by a

trier of fact, could support a reasonable inference that the ADC officials knew of a

substantial risk of harm to Martinez. See Krein v. Norris, 309 F.3d 487, 491 (8th Cir.

2002) (“[P]laintiff’s evidence at the summary judgment stage supported the

allegations that, at the time he was attacked by Pruett, defendants objectively and

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subjectively knew of . . . an excessive risk of harm.”); Cohrs v. Norris, 210 F.3d 378

(8th Cir. 2000) (unpublished table decision) (“[I]t appears that Johnson, from the

safety ofthe control booth, witnessed the twenty-five-minute fight and did nothing.”).

Likewise, Chapman’s deposition testimony could support a reasonable inference that

the ADC officials were deliberately indifferent to the risk to Martinez by failing to

intervene in time to prevent his injuries. See Krein, 309 F.3d at 491 (“[Plaintiff’s

claim] arises from plaintiff’s substantiated allegation that defendants were

deliberately indifferent to a known substantial risk that such an attack would occur. 

The district court therefore did not err in declining to grant summary judgment under

our ‘surprise attack’ line of cases.”); cf. Tucker v. Evans, 276 F.3d 999, 1002 (8th

Cir. 2002) (“[B]y the time Daniels knew something was wrong, the fight was already

over. Therefore . . . Daniels would not have been able to intervene in time to rescue

Tucker.”). 

Deprived as we are of jurisdiction by the existence of disputed material facts,

we dismiss the appeal.

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