United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3981

___________

Cynthia F. Gordon, as Trustee *

for the Heirs and Next of Kin of Walter *

Valentino Gordon, Deceased, *

*

Plaintiff–Appellee, *

*

v. *

* 

Sheriff James Frank; Deputy William *

Harrell, *

*

Defendants, *

*

Sgt. David Frantsi, *

*

Defendant–Appellant, * Appeal from the United States

* District Court for the District of

Sgt. Garrett Kleinendorst, * Minnesota.

*

Defendant, *

*

Corrections Officer Lois Arends; *

Corrections Officer Vincent Deschene, *

*

Defendants–Appellants, *

*

Corrections Officer John Kuenkel; *

Allen Clevenger, R.N.; John Doe; *

Jane Row, (whose true names are *

unknown), *

*

Defendants, *
1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

2

In her brief, Gordon objects to the district court's refusal to permit

supplementing the record with an affidavit. A denial of summary judgment may be

treated as a final order when based on qualified immunity, but only to decide whether

a certain point of law is "clearly established." Sanders v. Brundage, 60 F.3d 484, 486

(8th Cir. 1995), quoting Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985). A motion

to supplement the record is not a judgment subject to review under 28 U.S.C. § 1291,

or a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949).

-2-

*

County of Washington, *

*

Defendant–Appellant. *

___________

Submitted: May 19, 2006

Filed: July 21, 2006

___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.

___________

BENTON, Circuit Judge.

Cynthia F. Gordon sued Washington County, its sheriff and prison staff under

both Minnesota tort law and 42 U.S.C. § 1983 for violating her husband's Eighth

Amendment right to be free from cruel and unusual punishment. Sgt. David E.

Frantsi, Officers Lois Arends and Vincent Deschene, and Washington County moved

for summary judgment based on qualified and official immunity. The district court1

denied the motion. Defendants appeal.2 Having jurisdiction under 28 U.S.C. § 1291,

this court affirms.
-3-

I.

Walter V. Gordon, Jr., was arrested and sentenced to 10 days in jail for driving

without a license. He was released to a hospital to treat heart problems. After

treatment, he did not return to jail. Washington County issued a warrant for Gordon

to serve his five remaining days. 

A year later, he returned to a hospital complaining of pain. After waiting in the

emergency room, Gordon left without receiving treatment but called police for a ride

home. Finding a warrant for his arrest, the police turned him over to a county deputy.

Gordon told the deputy he had congestive heart failure and pneumonia. 

At 5:23 p.m., Gordon arrived at the Washington County jail. He immediately

complained of pain and informed prison staff that he had pneumonia, congestive heart

failure, high blood pressure and diabetes. He presented his hospital discharge form,

including a list of prescribed drugs. The jail nurse examined him. He concluded that

Gordon was stable but might have to be rechecked. He placed Gordon on "high

observation" for 24 hours and arranged for medications to be administered the next

day.

After 11:00 p.m., Gordon was taken to his cell. He requested help climbing the

stairs from the officers on duty, Arends and Deschene. He did not receive help,

climbing the stairs on his own. Between 11:55 p.m. and 12:00 a.m., Gordon rang the

officers' intercom three times. Both officers answered the calls. First, Gordon

requested a blood pressure test and complained of other medical issues. Deschene

stated he would relay the information. Gordon rang again and requested medication.

Arends replied that he had already been seen. Finally, Gordon again requested

medication, saying he could not breathe and was in extreme pain. Arends repeated he

had been seen, stated they had no orders to provide him with medicine, and explained
-4-

he could see medical staff in the morning. She threatened to place him in lockdown

if he continued to buzz for non-emergency issues.

Gordon did not buzz again. Arends filed an incident report and notified her

supervisor, Sgt. Frantsi, before 12:30 a.m. No immediate action was taken. The

officers conducted wellness checks on inmates every 30 minutes throughout the night.

During two checks early in the morning, Deschene spoke with Gordon, who said

something about medication and trouble breathing. The officers observed Gordon

resting on his bunk throughout the night. He changed positions restlessly. At 5:15

a.m., Deschene noticed that Gordon lay partially propped against the wall, blood

flowing from his mouth, eyes open, and no sign of breathing. Deschene immediately

notified Arends; she called Frantsi, who examined Gordon, finding no pulse. Gordon

died of hypertensive and artherosclerotic heart disease. 

II.

Denying summary judgment, the district court rejected claims of qualified

immunity and official immunity. A denial of qualified immunity is immediately

appealable "to the extent that it turns on an issue of law." Powell v. Johnson, 405

F.3d 652, 654 (8th Cir. 2005), quoting Mitchell, 472 U.S. at 530. Here, qualified

immunity turns on the legal question whether appellants clearly violated the Eighth

Amendment. 

This court may reach issues of official immunity under the collateral order

doctrine. See Alternate Fuels, Inc. v. Cabanas, 435 F.3d 855, 858 (8th Cir. 2006),

citing Mitchell, 472 U.S. at 525 ("[A] denial of absolute immunity is appealable

before final judgment because 'the essence of absolute immunity is its possessor's

entitlement not to have to answer for his conduct in a civil damages action.'").
-5-

This court reviews de novo a denial of summary judgment based on qualified

immunity. Powell, 405 F.3d at 654. Summary judgment is appropriate when there

is no genuine issue of material fact and the moving party is entitled to a judgment as

a matter of law. Fed. R. Civ. P. 56(c). This court considers the facts most favorably

to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III.

Qualified immunity shields government officials from suit under 42 U.S.C. §

1983 if they acted reasonably and in a manner that did not violate clearly established

law. Anderson v. Creighton, 483 U.S. 635, 638 (1987). First, the alleged conduct

must violate a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). Next,

the right violated must be clear "so that a reasonable official would understand that

what he is doing violates that right." Id. at 202, citing Creighton, 483 U.S. at 640.

"[Q]ualified immunity would be defeated if an official 'knew or reasonably should

have known that the action he took within his sphere of official responsibility would

violate the constitutional rights of the [plaintiff], or if he took the action with the

malicious intention to cause a deprivation of constitutional rights or other injury. . .

.'" Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982), quoting Wood v. Strickland, 420

U.S. 308, 322 (1975). 

Deliberate indifference to a prisoner's serious medical needs is cruel and

unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429

U.S. 97, 106 (1976). To show deliberate indifference, plaintiffs must prove an

objectively serious medical need and that prison officers knew of the need but

deliberately disregarded it. Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005),

citing Farmer v. Brennan, 511 U.S. 825, 838 (1994); see also Dulany v. Carnahan,

132 F.3d 1234, 1239 (8th Cir. 1997). The subjective inquiry must show a mental state

akin to criminal recklessness: disregarding a known risk to the inmate's health. Olson
-6-

v. Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003), citing Gregoire v. Class, 236 F.3d

413, 419 (8th Cir. 2000). Knowledge of risk may be inferred from the record.

Gregoire, 236 F.3d at 417, citing Farmer, 511 U.S. at 842. Intentional delay in

providing medical treatment shows deliberate disregard if a reasonable person would

know that the inmate requires medical attention or the actions of the officers are so

dangerous that a knowledge of the risk may be presumed. Plemmons v. Roberts, 439

F.3d 818, 823 (8th Cir. 2006). 

The officers do not challenge Gordon's objective medical need. At issue is

whether Sgt. Frantsi, Officer Deschene and Officer Arends knew that Gordon was at

a high risk of heart failure and disregarded it. "Particularly when considering such

fact specific issues," the facts must be interpreted most favorably to Gordon, the

nonmoving party. See Johnson v. Blaukat, No. 05-3866, 2006 WL 1736380, at *4

(8th Cir. June 27, 2006).

Officer Arends knew Gordon's risk was substantial when he spoke with her over

the intercom. At roll call before her shift, Arends learned that Gordon had medical

issues that placed him on high observation. She also knew he was released a year

before for heart problems. During her shift, Gordon refused to climb the stairs to the

cell because of his medical condition. She said, "We have nothing that says that you

cannot go up the stairs. . . . You will go there." She observed him struggling up the

stairs. On his third intercom call, he stated to her that he could not breathe, was in

pain, and wanted a blood pressure check. Arends knew that the symptoms Gordon

described over the intercom indicated high risk, yet she delayed medical treatment.

She threatened to discipline Gordon. She eventually reported Gordon's statements

Sgt. Frantsi, but after Gordon's complaints did nothing other than observe him. 

Officer Deschene also knew that Gordon was on high observation. Gordon

asked him for help up the steps, and Deschene watched him ascend. Deschene spoke

to Gordon over the intercom about medication and overheard his conversation with
-7-

Arends. Gordon at least once requested medicine from Deschene. He mentioned

trouble breathing during Deschene's wellness checks after midnight. Deschene knew

that Gordon was complaining of symptoms of heart trouble, but did not initiate

medical treatment. In response to Gordon's complaints over the intercom and from his

cell, Deschene promised to pass on the information and told him to relax. 

Sgt. Frantsi knew that Gordon had medical issues that required extra

observation. Officer Arends told him that Gordon had complained over the intercom

of breathing trouble and chest pain. Sgt. Frantsi noted the incident but waited for the

officers to ask him to initiate medical treatment. 

This court has found deliberate disregard when officers ignore an inmate who

tells them he has heart disease and is experiencing related symptoms. See Plemmons,

439 F.3d at 825. Likewise here, a reasonable officer would consider chest pain and

difficulty breathing to be symptoms that require medical attention in anyone who

claims to have heart disease. The intentional delay by these officers shows deliberate

disregard sufficient to reject qualified immunity.

Qualified immunity still protects officers accused of violating a right if the right

is not clearly established. "For a constitutional right to be clearly established, its

contours 'must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.'" Hope v. Pelzer, 536 U.S. 730, 739 (2002),

quoting Creighton, 483 U.S. at 640. "Even if officials know of a risk . . . [they] are

protected by qualified immunity if they could reasonably believe that their response

was not deliberately indifferent to that risk." Drake ex rel. Cotton v. Koss, 445 F.3d

1038, 1042 (8th Cir. 2006). 

A reasonable officer would know that it is unlawful for officers to delay

medical treatment for an inmate with obvious signs of medical distress, especially one

who communicates this distress directly to officers. See Plemmons, 439 F.3d at 824
-8-

(inmate "told the booking officer he was a heart patient, and . . . began experiencing

classic heart attack symptoms"); Olson, 339 F.3d at 736 (deliberate disregard when

"there was direct, first-hand communication from [inmate] to [officer] of [inmate's]

intent to commit suicide and the method by which [inmate] intended to carry out his

threat"); Tlamka v. Serrell, 244 F.3d 628, 633 (8th Cir. 2001) (inmate collapsed and

stopped breathing). Officers have a strong claim for qualified immunity when inmates

do not tell them they are sick or have no obvious physical symptoms. See Drake, 445

F.3d at 1042 (no disregard when only a medical report was presented); Mays v.

Rhodes, 255 F.3d 644, 649 (8th Cir. 2001) (officers saw no "signs of physical

difficulty prior to [inmate's] collapse"); Ruark v. Drury, 21 F.3d 213, 216 (8th Cir.

1994) (lone observation of "labored" breathing "but not choking" did not create

disregard). Given the facts in this case, a reasonable office would know that delaying

treatment violated Gordon's constitutional rights. 

 The officers assert that they reasonably believed Gordon was not at risk because

he was able to yell over the intercom. They thought yelling indicated he was not

having trouble breathing. Citing Parks v. Pomeroy, 387 F.3d 949, 957 (8th Cir. 2004)

and Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004), they argue that this court

upholds an officer's immunity when he or she makes a mistake. 

The Parks and Davis cases make clear that an officer has immunity for

reasonable mistakes. Parks, 387 F.3d at 957; Davis, 375 F.3d at 720. "Federal

officials will not be liable for mere mistakes in judgment, whether the mistake is one

of fact or one of law." Butz v. Economou, 438 U.S. 478, 507 (1978). An officer

"may misunderstand important facts . . . and assess the legality of his conduct based

on that misunderstanding." Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy,

J., dissenting) (citations omitted). But an officer's mistake must be objectively

reasonable. Id. at 565 (majority opinion), quoting United States v. Leon, 468 U.S.

897, 923 (1984); see also id. at 568 (Kennedy, J., dissenting) ("The question is

whether the officer's mistaken belief . . . was a reasonable belief."). 
-9-

Here, defendants mistook a fact – Gordon could yell and still have trouble

breathing. This mistake, though, was unreasonable because they did not act upon the

available information. They dismissed his complaints, relying only upon Arends'

corrections experience. Yet they knew the nurse's concern and had access to Gordon's

medical-screening form indicating he had congestive heart failure and high blood

pressure. Arends did not read the screening form until hours after Gordon complained

of trouble breathing. Deschene and Frantsi did not read it at all that night. A

reasonable officer would do more than dismiss Gordon's complaints given the

seriousness of his symptoms and the screening information available. See Olson, 339

F.3d at 738 (conduct of an officer may be considered unreasonable even if officer took

"some measures in response" to a high medical risk).

The officers also argue they relied on the jail nurse's medical assessment

ordering medications in the morning. True, reliance on the recommendations of a

trained medical professional can disprove deliberate disregard. Drake, 445 F.3d at

1042; Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002). Reliance on medical

assessment, however, must be "objectively reasonable in light of the legal rules in

place at the time of . . . adherence." Meloy, 302 F.3d at 849. It is reasonable to rely

on medical assessments when an officer is "not responsible for examining or treating

[the inmate]." Id. It may also be reasonable when the medical assessment does not

indicate that the inmate was seriously ill. Drake, 445 F.3d at 1042. 

In this case, it was unreasonable for Arends, Deschene and Frantsi to ignore

Gordon's shortness of breath and chest pain because they were responsible for

responding to medical emergencies and knew Gordon was on high observation. A

medical assessment does not justify qualified immunity when officers ignore it.

Viewing the facts most favorably to Gordon, the officers knew of Gordon's high

risk and disregarded it, violating his Eighth Amendment rights.
-10-

IV.

This court reviews de novo a grant of summary judgment based on official

immunity, using the same standard as applied by the district court. Porter v.

Williams, 436 F.3d 917, 920 (8th Cir. 2006). Under Minnesota law, officials are

entitled to official immunity unless the plaintiff shows: "1) a ministerial duty is either

not performed or performed negligently, or 2) . . . a willful or malicious wrong is

committed." Schroeder v. St. Louis County, 708 N.W.2d 497, 505 (Minn. 2006),

citing Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 662

(Minn. 2004). First, the conduct under scrutiny must be defined. Mumm v. Mornson,

708 N.W.2d 475, 490 (Minn. 2006), citing Anderson, 678 N.W.2d at 656. Plaintiff

alleges the officers failed to follow the Washington County Sheriff's medical

emergency policies and procedures that state: " 3. Assessment: When any officer

becomes aware of an ill or injured inmate, county employee or citizen, he/she will

immediately notify the Correctional Sergeant, who will assess the situation for the

appropriate medical response." The conduct under question is the officers' failure to

immediately notify Sgt. Frantsi and his subsequent failure to assess the situation.

The nature of these duties determines whether they are ministerial. See

Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998). A ministerial

duty is "absolute, certain and imperative, involving the execution of a specific duty

arising from fixed and designated facts." Rico v. State, 472 N.W.2d 100, 107 (Minn.

1991), citing Cook v. Trovatten, 274 N.W. 165, 167 (Minn. 1937). A written policy

by itself does not make an act ministerial. Bailey v. City of St. Paul, 678 N.W.2d 697,

702 (Minn. Ct. App. 2004). Instead, a written policy indicates a ministerial duty if it

creates "a sufficiently narrow standard of conduct" that the employees feel "bound to

follow." Anderson, 678 N.W.2d at 659. 
-11-

In the present case, the officers' duties are ministerial. When an inmate is ill,

the Washington County Sheriff's policy narrows the standard of an officer's conduct

to simple and definite tasks. Officers must notify the sergeant. The sergeant must

assess the situation. The policy uses an imperative "will." The policy also uses the

word "immediately," which generally indicates a ministerial duty. Wiederholt, 581

N.W.2d at 316 ("[The] duty to have the sidewalk immediately repaired was clearly

ministerial in nature because it was 'simple and definite,' dictated by the city's own

written policy."). Officers are bound by these policies in medical emergencies, since

all jail staff must follow them (according to page one). The officers agree that the

policy governed their conduct in emergency situations. Deschene specifically stated

that this policy was relevant to Gordon that night. 

But the defendants failed to follow their ministerial duties as outlined in the

sheriff's policy. Arends and Deschene may have notified Frantsi that they had a

"disruptive inmate" but not a medical emergency. Sgt. Frantsi stated that he "wait[s]

for an officer's assessment to determine whether or not [he] should address an inmate."

Frantsi made no attempt to assess Gordon's situation, stating that he "left it up to the

officers." Thus, the defendants are not protected by official immunity.

The officers argue that deciding how to treat an inmate and whether to fill a

prescription is not ministerial, citing Drake ex rel. Cotton v. Koss, 393 F.Supp.2d 756,

766 (D.Minn. 2005), aff'd, 445 F.3d 1038. The present policy differs from the policy

in Drake because it does not require the officers to classify inmates as "special need."

There, officers had to "evaluate available data and make a discretionary judgment

about the inmate's needs." Drake, 445 F.3d at 1043. Here, the policy requires the

officers to act "when any officer becomes aware of an ill or injured inmate." The

officers were aware of the nurse's evaluation and Gordon's immediate complaints.

The policy does not require Arends and Deschene to evaluate Gordon's condition.

Frantsi has discretion while making an assessment, but the policy requires that he will

make an assessment.
-12-

The officers also contend that Gordon did not appear in dire need of medical

care, so there was no duty to respond. This argument, however, addresses a predicate

fact immaterial to whether the duty is ministerial. See Thompson v. City of

Minneapolis, 707 N.W.2d 669, 675 (Minn. 2006). 

Since official immunity does not apply to a ministerial duty, an inquiry into

malice is not necessary. The conduct of Arends, Duschene and Frantsi is not

protected from suit by official immunity.

Because the officers have no official immunity, Washington County has no

vicarious official immunity. Wiederholt, 581 N.W.2d at 317 ("[B]ecause we hold

here that official immunity does not apply to the ministerial nature of the [official's]

duty . . . we hold that the city is not entitled to vicarious official immunity."). 

V.

The district court's denial of summary judgment is affirmed.

 ______________________________