1

The Hon. Scott O. Wright, United States District Judge for

the Western District of Missouri.

_____________

No. 95-1766WM

_____________

Edward J. Miller, *

*

Appellee, *

* On Appeal from the United

* States District Court

v. * for the Western District

* of Missouri.

Dr. Robert Schoenen and *

Dr. David White, ** Appellants. *

___________

 Submitted: November 17, 1995

 Filed: February 15, 1996 ___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit

Judge, and FAGG, Circuit Judge. ___________

RICHARD S. ARNOLD, Chief Judge.

Edward Miller is an inmate at the Jefferson City Correctional

Center in Missouri. In this lawsuit, brought under 42 U.S.C.

§ 1983 (1988), he alleges that the defendants deprived him of the

care he required as a heart-transplant patient. This deprivation,

in turn, it is said, deprived him of his Eighth Amendment right to

be free from cruel and unusual punishment. The District Court,1
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The Hon. William A. Knox, United States Magistrate Judge for

the Western District of Missouri.

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adopting the report and recommendation of a Magistrate Judge,2 held

that Miller's evidence was sufficient to survive a summary-judgment

motion, and that the defendants were not shielded from his claim by

qualified immunity. The defendants now appeal that order. We lack

jurisdiction to hear a portion of the appeal, and dismiss as to

that portion. To the extent that we do have jurisdiction, we

affirm the order of the District Court.

I.

Edward Miller received a heart transplant in 1985. In 1989,

he began serving a lengthy sentence at the Jefferson City

Correction Center (JCCC), a part of the Missouri Prison System.

The defendants are doctors in charge of caring for the medical

needs of inmates at the JCCC. Miller asserts that they were

directly in charge of his care for all or part of the period from

his initial incarceration until the present.

Miller alleges that, as a heart-transplant patient, he

requires specialized care from the time of the transplant operation

onward. Specifically, Miller identifies, through his expert

medical witness Dr. Alan Forker, six types of specialized care

required by all heart-transplant patients. They are daily

administration of immunosuppressive drugs, the frequent taking of

cyclosporine blood levels, immediate attention to infections,

frequent monitoring by blood samples of the patient's white count,

repeated myocardial biopsies as often as every three to four

months, and annual cardiac catheterization and coronary

arteriography. Miller alleges that the defendants, while knowing

of his need for this care, did not administer regular

immunosuppresives, myocardial biopsies, and catheterization; repair

broken wires in his sternum or treat the resulting pain; surgically
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treat his chronic mastoiditis; or return Miller to the University

of Missouri Hospital for treatment following his March 1993 carotid

endarterectomy surgery, remove sutures from the resulting incision,

or treat an infection in the incision.

The defendants moved for summary judgment in the District

Court. They argued that they were entitled to summary judgment

because Miller had not produced evidence from which a jury could

conclude that he was deprived of the necessary care, or that, if he

was, the defendants were responsible for that deprivation. They

also argued that Miller was not damaged by any deprivation that

might have occurred because he had not rejected his donor heart

during the nine years since his transplant operation. In addition,

the defendants argued that they were shielded from liability by

qualified immunity. The District Court rejected these arguments,

holding that the adequacy of the treatment Miller received, and

whether any inadequate treatment damaged Miller, depended on "whose

version of the facts is believed." 

II.

We must first address the issue of our jurisdiction over this

appeal. Ordinarily, we have no jurisdiction of an appeal

challenging the denial of a motion for summary judgment. Johnson

v. Jones, 115 S. Ct. 2151, 2154-55 (1995). Such orders are not

final orders in the traditional sense. Ibid.; 28 U.S.C. § 1291

(1993). One exception to this rule occurs when a summary-judgment

order denies a motion based on qualified immunity. Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985); Reece v. Groose, 60 F.3d 487,

489 (8th Cir. 1995). Qualified immunity shields state actors from

liability in civil lawsuits when "their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known." Reece, 60 F.3d at 491

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As we

discussed in Reece, however, the qualified-immunity question
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involves more than merely determining whether the law governing a

plaintiff's claim is "clearly established." We must examine the

information possessed by the government official accused of

wrongdoing in order to determine whether, given the facts known to

the official at the time, a reasonable government official would

have known that his actions violated the law. Id. at 489; Anderson

v. Creighton, 483 U.S. 635, 640 (1987). 

That some issues must be reviewed in a qualified-immunity

appeal does not mean that we have jurisdiction to review all of the

points addressed in the summary-judgment motion. Only those issues

that concern what the official knew at the time the alleged

deprivation occurred are properly reviewed in this type of

interlocutory appeal. We have jurisdiction to review those issues

because their review is necessary in order to determine whether a

reasonable state actor would have known that his actions, in light

of those facts, would violate the law.

By way of example, whether an inmate has alleged sufficient

facts to allow a jury to conclude that the inmate faces a risk of

assault from other inmates, prison officials know of the risk, and

the reasonableness of their actions in light of a known risk are

all reviewable in an appeal of a denial of qualified immunity at

the summary-judgment stage. Reece, 60 F.3d at 490. That much is

so because prison officials must protect inmates from violence at

the hands of other inmates, if they are aware of a substantial risk

that such violence will occur. See Farmer v. Brennan, 114 S. Ct.

1970, 1984 (1994). That is the "clearly established" law.

Examination of the facts known to the prison officials is necessary

in order to determine whether a reasonable official would have

known that his failure to take some particular action to protect

the inmate would violate that law.

On the other hand, if police officers who are accused of

violating a plaintiff's rights by using excessive force when they
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arrested him move for summary judgment on the ground that they were

not involved in the incident, we may not review that portion of the

appeal as part of an appeal of a denial of qualified immunity. See

Johnson, 115 S. Ct. at 2156. We have no jurisdiction over that

portion of an appeal because whether the officers were actually

involved is a factual question that does nothing to inform us about

whether, given the facts known at the time, reasonable officers

would have known that the level of force they employed was

excessive. Such orders "determine[] only . . . question[s] of

`evidence sufficiency,' i.e., which facts a party may, or may not,

be able to prove at trial." Ibid.

We are thus left with the following distinction. The question

of what was known to a person who might be shielded by qualified

immunity is reviewable, to determine if the known facts would

inform a reasonable actor that his actions violate an established

legal standard -- the right to speak freely, the right to be free

from unreasonable searches and seizures, a prisoner's right to

adequate medical care, for example. Conversely, if the issues

relate to whether the actor actually committed the act of which he

is accused, or damages, or causation, or other similar matters that

the plaintiff must prove, we have no jurisdiction to review them in

an interlocutory appeal of a denial of a summary-judgment motion

based on qualified immunity.

Applying these principles to the case before us, we hold that

we lack jurisdiction over much of the defendants' appeal.

Initially, the defendants argue that Miller has failed to identify

evidence that these defendants were the doctors who actually

deprived Miller of adequate care. This argument is no different

from the one rejected by the Supreme Court in Johnson v. Jones. In

Johnson the officers said that, even if the plaintiff had been

subjected to excessive force, they did not do it. Id. at 2153.

Here, the defendants are saying that, according to the evidence

Miller has produced, if Miller's right to adequate medical care was
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abridged, someone else did it. The Supreme Court held that no

jurisdiction existed in Johnson, id. at 2156, and we must do the

same here.

The defendants also argue that Miller has failed to put forth

"verifying medical evidence" of a severe deprivation of medical

care, as required by Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th

Cir. 1995). We held in Reece, however, that the Supreme Court's

opinion in Johnson v. Jones overturned that portion of Beyerbach

that held that we have jurisdiction to hear such an argument.

Reece, 60 F.3d at 492. Whether there is verifying medical evidence

that Miller failed to receive the treatment he desired, and, if he

did not, whether there is verifying medical evidence that the

failure to treat him was sufficiently serious, are questions beyond

our jurisdiction in this interlocutory appeal.

We do, however, have jurisdiction to hear a portion of the

defendants' appeal. Miller asserts that the defendants violated

his Eighth Amendment rights by failing to provide him with adequate

medical care. In order to succeed, he must show that he had an

objectively serious medical need, Estelle v. Gamble, 429 U.S. 97,

105 (1976), and that the defendants knew of and disregarded that

need, Farmer, 114 S. Ct. at 1979. Facts relating to the subjective

component of the claim, unlike facts relating to the objective

component of the claim, would inform a reasonable prison official

whether his actions violated the Eighth Amendment's mandate that

the State "provide medical care for those whom it is punishing by

incarceration." Estelle, 429 U.S. at 103. We thus have

jurisdiction to review whether sufficient evidence exists that the

defendants actually knew of Miller's need for specialized care and

acted reasonably in light of that knowledge, the subjective

component of the claim.
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III.

Summary judgment is appropriate when there is no genuine issue

of material fact that would allow a reasonable jury to find in

favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S.

242, 247-48 (1986). In order to survive summary judgment in this

case, Miller must point to evidence, admissible at trial, that

would allow a reasonable jury to conclude that he had a particular

medical need, and the defendants knew of this need. Fed. R. Civ.

P. 56(c). The defendants may show that they acted without

deliberate indifference in light of their knowledge of Miller's

condition. Farmer, 114 S. Ct. at 1983. Those are the "material

facts" in this appeal because they are the facts relevant to the

defendants' qualified-immunity defense.

There is ample evidence that Miller needed the care he claims

was denied. Dr. Forker testified that, in his expert opinion, all

heart-transplant patients, including Miller, have the six definite

treatment needs we have described. Dr. Forker's assessment is

similar to the care prescribed in medical reports from Callaway

County Hospital, where Miller received his initial medical

evaluation after being incarcerated, and the University of Missouri

Medical Center, where Miller received follow-up treatment during

his incarceration. This evidence is certainly enough to allow the

jury to conclude that Miller needed specialized care.

The defendants place great emphasis on certain statements in

Miller's expert's testimony to attempt to rebut this evidence.

Testimony by Dr. Forker indicates that the benefit of some

treatments, namely myocardial biopsies, can, over time, decrease so

much that they are outweighed by the risk. Because Miller was, at

that time, nine years removed from his surgery, that point has

arguably been reached. They also note that one treatise on which

Dr. Forker relied did not state with specificity how often this

treatment should be given.
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That some of Miller's treatment should decrease or change at

some point is not the dispositive question. Rather, the question

is whether the defendants provided Miller with the care he needed

at the time he needed it. Miller alleges inadequacies in his care

from the beginning of his incarceration on. At that time, he was

not a long-term transplant patient. Moreover, even if the

frequency of some treatment should change, or varies to some degree

from what Dr. Forker asserts is necessary, the defendants have

introduced no evidence as to how much or when. It would be mere

speculation on our part to conclude that Miller's care needs had

reached a point where the care identified by his records and his

expert was unnecessary. These arguments must be supported by proof

and presented to the jury.

Likewise, evidence exists that would allow a jury to conclude

that the defendants knew of these needs. The records to which we

just referred were in Miller's file, and a jury could infer that

the defendants, who were allegedly in charge of Miller's care, were

familiar with them. See Reece, 60 F.3d at 491. Miller also points

to an interoffice communication of February 6, 1990, in which

defendant Schoenen admits that Miller "[h]as had a heart transplant

and takes medication which reduces immunity to infection." He

recommends "extremely light duty." A jury could infer that this

communication is an acknowledgment by one of the defendants of

Miller's special and precarious medical condition. Finally, Miller

notes documents in his file that expressly designate Dr. Schoenen

as the physician in charge of carrying out Miller's follow-up

treatment.

The defendants do not argue that they performed alternative

treatments that were reasonable under the circumstances. Instead

they assert principally that, because Miller has not rejected his

heart and is still alive, their treatment must have been adequate.

We suppose that a jury could so conclude. It could also conclude,
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on the other hand, that Miller has survived in spite of the

defendants' inadequate treatment. That decision is for the jury,

not for this Court in an interlocutory appeal.

The defendants also stress that Dr. Forker was unable to state

that either Dr. Schoenen or Dr. White had failed to provide

adequate care to Miller. That much is true, but it is not the end

of Dr. Forker's testimony. While he could not identify these

defendants as being the doctors responsible for the inadequacies in

Miller's care, he did unequivocally state that the care was

inadequate, and that some doctor was responsible. As we have

pointed out previously, we have no jurisdiction to review whether

these doctors were the culprits. It is enough, at this stage, that

Miller has produced enough evidence to allow a reasonable jury to

conclude that he had particular needs and that these defendants

(assuming for present purposes that they were the responsible

physicians) did nothing about them.

Miller has pointed out that there is no record of his

receiving the care Dr. Forker and the outside hospitals where he

received treatment say he needs. Records from Miller's outside

physicians express concern over inadequacies in Miller's care.

These records, and the lack of records indicating that any care was

given, are the bases for Dr. Forker's conclusion that Miller's care

was inadequate. A reasonable jury could, even if the defendants

have expert testimony that Miller's survival indicates reasonable

care, conclude that Miller's care was inadequate based on this

evidence.

Moreover, Miller points to specific incidents, involving

infections that went untreated, where his medical needs were

ignored. What he describes as a chronic ear infection was never
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The defendants claim that Miller never had an ear infection.

Whether he did or not is a question of fact for the jury.

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treated.3 Following surgery in 1993, he asserts, the area around

his incision became infected. Several months passed before this

infection was treated. One record actually indicates that this

infection progressed to the point of swelling up and bursting

before any action was taken.

Miller has produced adequate proof to allow a reasonable jury

to conclude that he had serious medical needs, and that the

defendants knew of those needs. Whether the defendants acted with

deliberate indifference to Miller's needs is a question of fact,

not clear one way or the other on this record. Thus, they are not

entitled to qualified immunity.

IV.

To the extent that we have jurisdiction to hear the

defendants' appeal, the order of the District Court is affirmed.

The remainder of the defendants' appeal is dismissed for want of

jurisdiction. Miller's motion for sanctions and double fees under

Rule 38 of the Federal Rules of Appellate Procedure is denied. We

thank Miller's appointed counsel for her services and commend her

for her diligence.

It is so ordered.

A true copy.

Attest:

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