Judge Henley died on October 18, 1997. This opinion is consistent with his

1

vote at the panel's conference following oral argument on June 9, 1997.

The Honorable Jean C. Hamilton, Chief Judge, United States District Court for 2

the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2534

___________

Andrew Keeper, *

*

Appellant, * On Appeal from the United

States

 * District Court for the

v. * Eastern District of

Missouri.

*

Fred King, Dr.; Anthony Gammon, *

*

Appellees. *

___________

Submitted: June 9, 1997

 Filed: December 11, 1997

___________

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

1

Circuit Judge, and 

 WOLLMAN, Circuit Judge.

___________

RICHARD S. ARNOLD, Chief Judge.

Andrew Keeper, a Missouri inmate who had been

incarcerated at the Moberly Correction Center (MCC),

appeals from a judgment of the District Court entered

2
-2-

upon
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a jury verdict in favor of Dr. Fred King, a former MCC

physician, and Anthony Gammon, superintendent of MCC. We

affirm. 

I.

On October 24, 1991, Keeper submitted a medical

services request (MSR), complaining of headaches and

blurred vision, but failed to appear for sick call. On

October 28 Keeper complained of dizziness, abdominal pain,

and blurred vision and was examined by a nurse, who

diagnosed a likely muscle strain, prescribed Motrin, and

told Keeper to return the next morning. On October 29

Keeper was examined by Dr. Hampton, who referred him to

an ophthalmologist. On November 11 Keeper submitted an

MSR, complaining of blurred vision and right eye and head

pain, but again failed to appear for sick call. On

November 18 Keeper, complaining of left-sided numbness,

blurred vision, pain in the right eye, weakness, and an

inability to stand at times, was again examined by Dr.

Hampton, who prescribed Elavil for headaches and ordered

a psychological examination, including testing.

On December 30 Keeper submitted two MSRs. At 4:20

p.m. he complained of headaches and blurred vision. A

nurse examined and released him. At 6:00 p.m. he noted

that he had run out of Elavil and that his pain had

returned. He requested a complete physical "before

something seriously does go wrong" and also submitted a

letter detailing his complaints of headaches, blurred

vision, and left-sided weakness and numbness. Later that

day, King reviewed Keeper's medical records and renewed

his prescription for Elavil. On January 1, 1992, Keeper
-4-

submitted another MSR, claiming his condition was worse

and that he had had "mild strokes off and on." On January

2 Keeper was brought to the medical unit on a stretcher,

complaining of difficulty standing, dizziness, headaches,

and numbness. King examined him, but found "no medical

problem" and ordered that Keeper complete psychological

testing. Although Keeper walked out of the unit on his

own, he was brought back by a guard a few minutes later

because he could not stand. King did not reexamine

Keeper. However, 
-5-

Keeper was placed in administrative segregation for

medical observation. As a routine matter, a nurse looked

in on Keeper four times a day. He was also seen by a

nurse on at least three other occasions, including January

17, when he was found lying on the floor unable to move.

After returning to his regular cell on January 21, he was

again found lying on the floor and was admitted to the

infirmary for overnight observation. The next morning

Keeper stated he was feeling fine and was discharged.

Keeper did not request or receive medical services

again until Saturday, February 29, when he was brought to

the medical unit after he was found sitting on a toilet

unable to move or speak. A nurse called the MCC health

care supervisor, Debra Williams, who was at home.

Williams instructed the nurse to admit Keeper to the

infirmary, check his vital and neurological signs every

hour, and contact King. Although nurses tried to reach

King by telephone several times on February 29, King, who

did not carry a pager, was finally reached on March 1 at

noon. King did not come to the infirmary, but instructed

the staff to observe Keeper. At 3:00 p.m. that day Keeper

was found lying on the floor wet with urine. His clothes

were changed and his mattress was placed on the floor. He

was found on the mattress wet with urine on Monday, March

2, at 1:30 a.m and 6:30 a.m. At 7:35 a.m. King came to

the infirmary and examined Keeper. Although the doctor

found "no apparent neurological defect" and gave a

provisional diagnosis of conversion hysteria, King

transferred Keeper to a hospital to rule out an

obstruction in the brain. At the hospital a CAT scan

revealed that Keeper had had a large stroke to the right

side of the brain. An examining doctor noted that the
-6-

slow progression of the stroke was "a little unusual." 

Keeper filed an action under 42 U.S.C. §1983 against

King and Gammon, alleging that they had been deliberately

indifferent to his serious medical needs, in violation of

the Eighth Amendment. At trial, Keeper, who was then

forty-one years old, testified that he could no longer

use his left arm or leg, had difficulty speaking and

seeing, and that his condition had worsened since the

stroke. In addition to introducing the medical records,

Keeper also presented the testimony of Debra Williams and

Dr. Peter Lewitt, a neurologist.

Williams testified that although King was the fulltime physician and Hampton was the part-time physician on

the medical unit staff, as health care supervisor she had

the over-all responsibility for the medical unit, and, in

the event of an emergency, could order an inmate's

transfer to a hospital. Although Williams was not

involved in the day-to-day treatment of patients, she

stated she was familiar with Keeper's case. In November

1991 she had reviewed his records and discussed his

condition with her staff after Gammon had informed her

that Keeper's mother had contacted him regarding Keeper's

condition. After her review, Williams reported to Gammon

that Keeper was being monitored. She was also aware that

Gammon had informed the unit that Keeper's mother had

again inquired about his condition on December 29.

According to Williams, by mid-January Keeper's symptoms

had become consistent with transient ischemic attacks

(TIA), which are brief neurological attacks that could be

precursors to a stroke.
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As to the events of February 29 to March 2, Williams

testified that she was at home when she received a call

from a nurse informing her that Keeper had been brought to

the unit because he had difficulty moving his left leg and

could not move his left arm. Williams returned to work on

March 2 and examined Keeper. Williams testified that she

was ''shocked" that King had found "no apparent

neurological defect" during his examination, because her

examination revealed that Keeper had facial drooping,

halting and slurred speech, and a limp left arm. 

On cross-examination, Williams admitted that on

February 29 she had instructed her staff to call her at

home if they could not reach King or if Keeper's condition

had changed, but that no one called her. Williams also

stated that she was aware that a list of physicians who

were on call was posted on a bulletin board in the medical

unit, but admitted that she had never called a doctor on

the list and did not know how the list was to be used. 

 

Dr. Lewitt, who practices and teaches neurology in

Michigan, testified by video-taped deposition. He stated

that risk factors for a stroke were high blood pressure

and an abnormal heart rhythm and that symptoms of a stroke

included numbness, but generally not a headache. Based on

his review of Keeper's medical records, Dr. Lewitt

believed that as of December 30, 1991, Keeper presented a

medical emergency, and that a brain scan would have been

appropriate. The doctor stated that on February 29 Keeper

had a stroke, and King's order to observe was an

inappropriate response. Lewitt believed that Keeper's

stroke had progressed slowly, and that had it been

diagnosed and treated earlier there was a possibility that
-8-

some of the effects of the stroke could have been

prevented. In sum, the doctor believed that there was "a

major neglect of a treatable neurological condition."

Gammon testified that as superintendent of MCC he was

responsible for the over-all operation of the MCC, but

that he had no medical training or expertise. Gammon

stated that although he knew Keeper's name, he was not

personally familiar with him and had never received a

grievance or letter concerning Keeper's care. Gammon

stated that when he or his office had received telephone

inquiries from Keeper's mother, the inquiries were

referred to Williams because she was responsible for the

operation of the infirmary. 

King, who at the time of trial was employed by the

Iowa Department of Corrections, testified that it was a

nurse's responsibility to refer a patient to a physician,

and in an emergency, if a nurse could not reach a doctor,

the nurse or the health care supervisor could order a

transfer of the inmate to a hospital. King admitted he

did not carry a pager, but explained that, although he

volunteered to see patients on nights and weekends, he was

not on call twenty-four hours a day, seven days a week.

Instead, he stated five to six physicians were on call.

King believed that he had treated Keeper's symptoms

appropriately and explained that he had ordered

psychological testing because some of Keeper's symptoms

could have been caused by a conversion hysteria,
-9-

a process whereby a person converts a mental problem into

an actual physical problem, or by malingering, whereby a

person "fakes" symptoms. According to King, malingering

was a common problem in prison. King stated that he

reported that Keeper had "no apparent neurological defect"

on March 2 because physical examination revealed "no

evidence of pathological neurological signs," such as a

positive Babinski response, deep tendon reflex, or ankle

clonus. 

King also presented the testimony of Dr. Michael

Hatlelid, a neurologist in private practice in St. Louis,

Missouri, and on the faculty of a local medical school.

The doctor, who in the year before trial had treated three

hundred stroke patients and three to four hundred headache

patients, testified about the differences in symptoms

between a TIA and a migraine headache. According to the

doctor, symptoms of a TIA were numbness on one side of the

body, double vision, blindness, and vertigo, but not as a

general rule dizziness and blurred vision. Symptoms of a

migraine headache were throbbing head pain, nausea,

blurred vision, and numbness. Dr. Hatlelid also noted

that, other than cigarette smoking, Keeper did not present

the major risk factors for stroke, such as high blood

pressure, blood clotting problems, heart disease, or

diabetes. 

Although Dr. Hatlelid believed that before February

29 Keeper's symptoms had been consistent with migraine

headaches, nonetheless the doctor testified that around

mid-January he would have ordered an ultrasound

examination to determine whether there was an abnormality

in the carotid artery in Keeper's neck. If the ultrasound

showed a significant abnormality, the doctor would have
-10-

performed an angiogram of the artery to determine whether

there was a surgically correctable condition. However,

Dr. Hatlelid stated that had an ultrasound been performed

in January, it would have been normal, since a March 3

ultrasound examination was essentially normal, showing

only "minimal atherosclerotic disease of the carotid

artery with a 0-19 percent diameter reduction of the

internal artery." The doctor also noted that additional

testing at the hospital failed to reveal the cause of the

stroke. Thus, according to the doctor, "the fact

additional workup was not done in January 1992 ha[d] no

practical significance." 
-11-

Based on his review of the medical records, Dr. Hatlelid

expressed the opinion that Keeper did not have a series of

strokes, but had one single catastrophic stroke on

February 29, which was caused by a dissection, or a tear,

of the carotid artery. The doctor explained that

irreversible damage occurs when the artery tears "like

that, quickly," and it "wouldn't have mattered if [Keeper]

had been transported . . . in seconds to any hospital."

The jury returned verdicts in favor of King and

Gammon. Keeper filed a motion for a judgment as a matter

of law, or, in the alternative, for a new trial, which the

district court denied.

II.

On appeal Keeper argues that the District Court erred

in denying his motion for judgment as a matter of law or

for a new trial. "We review de novo the District Court's

denial of [Keeper's] motion for judgment as a matter of

law, applying the same standards as the District Court."

Nicks v. Missouri, 67 F.3d 699, 704 (8th Cir. 1995).

"Judgment as a matter of law is appropriate when the

nonmoving party has not offered sufficient evidence 'to

support a jury verdict in his or her favor.' " Id.

(quoting Abbott v. City of Crocker, 30 F.3d 994, 997 (8th

Cir. 1994)). " 'Our task in reviewing a judgment entered

on a jury verdict is simply to inquire whether, viewed in

the light most favorable to [the nonmoving party], the

evidence at trial supports the verdict.' " Id. (quoting

Rademaker v. Nebraska, 906 F.2d 1309, 1313 (8th Cir.

1990)). In so doing, we give the nonmoving party " 'the

benefit of all reasonable inferences from the evidence,'
-12-

and [we] may not reassess the jury's credibility

decisions." Id. (quoting Abbott, 30 F.3d at 997). 

We review the district court's denial of Keeper's

motion for a new trial for an abuse of discretion. Keenan

v. Computer Assoc. Int'l, Inc., 13 F.3d 1266, 1269 (8th

Cir. 1994). Where, as here, "the basis of the motion for

a new trial is that the jury's
-13-

verdict is against the weight of the evidence, the

district court's denial of the motion 'is virtually

unassailable on appeal.' " Id. (quoting Peterson v.

General Motors Corp.,904 F.2d 436, 439-40 (8th Cir.

1990)). "The key question is whether a new trial should

have been granted to avoid a miscarriage of justice.''

Id.

We now turn to Keeper's section 1983 claim. In this

deprivation-of-medical-care case, Keeper had to "show that

the prison official[s] w[ere] deliberately indifferent to

[his] serious medical needs." Coleman v. Rahija, 114 F.3d

778, 784 (8th Cir. 1997). To prove deliberate

indifference, Keeper had to show that King and Gammon

"knew of, yet disregarded, an excessive risk to his

health." Logan v. Clarke, 119 F.3d 647, 649 (8th

Cir.1997) (citing Farmer v. Brennan, 511 U.S. 825, 837

(1994)). In Farmer, the Supreme Court made clear that an

official had to have actual knowledge of a serious risk.

The Court stated that "an official's failure to alleviate

a significant risk that he should have perceived but did

not, while no cause for commendation, cannot . . . be

condemned" under the Eighth Amendment. 511 U.S. at 838.

As to Gammon, the district court did not err in

denying Keeper's motion for judgment or for a new trial.

It is well settled that " '[r]espondeat superior is not

a basis for liability under 42 U.S.C. § 1983.' " Kulow v.

Nix, 28 F.3d 855, 858 (8th Cir. 1994) (quoting Smith v.

Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990)). In

particular, this Court has noted that "a general

responsibility for supervising the operations of a prison
-14-

is insufficient to establish the personal involvement

required to support liability." Camberos v. Branstad, 73

F.3d 174, 176 (8th Cir. 1995). Because Gammon was not

involved in treatment decisions made by the medical unit's

staff and "lacked medical expertise, [he] cannot be

liable for the medical staff's diagnostic decision[s]."

Id. Moreover, Gammon never received a complaint or

grievance from Keeper, and when his mother inquired about

Keeper Gammon referred inquiries to Williams, who assured

Gammon that Keeper's condition was being monitored. "In

these circumstances, 'if any claim of medical

indifference . . . is to succeed, it must be brought

against the individual[s] directly responsible for

[Keeper's] medical care.' " Kulow, 28 F.3d at 859
-15-

(quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir.

1992)). 

The district court also did not err in denying

Keeper's motion for judgment as to King. Keeper is

correct that "[t]he factual determination that a prison

official had the requisite knowledge of a substantial risk

may be inferred from . . . the very fact that the risk was

obvious." Coleman, 114 F.3d at 786. However, Dr.

Hatlelid's testimony was that the risk of stroke from

Keeper's symptoms before February 29 was not obvious.

Even Dr. Lewitt's testimony shows only a disagreement as

to diagnosis, which is not actionable under the Eighth

Amendment. See Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th

Cir. 1995). Keeper also relies on Dr. Hatlelid's

testimony that he would have ordered an ultrasound

examination in mid-January. Keeper's reliance is

misplaced. " '[W]hen [an] inmate alleges that the delay

in treatment is the constitutional deprivation, the

objective seriousness of the deprivation should also be

measured by reference to the effect of delay in

treatment.' " Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th

Cir. 1997) (quoting Beyerbach v. Sears, 49 F.3d 1324, 1326

(8th Cir. 1995)). In this case, Dr. Hatlelid testified

that although an ultrasound examination would have been

appropriate, the fact that it was not ordered had "no

practical significance." Thus, the doctor's testimony

does not help Keeper's case. 

It is undisputed that Keeper had a stroke on February

29, and it is indeed regrettable that he was not

transferred to the hospital immediately, but instead was

allowed to lie on a mattress on the floor, repeatedly
-16-

voiding on himself. However, King cannot be held liable

for the nursing staff's failure to order an immediate

transfer, to contact another doctor, or to inform him

fully of Keeper's condition. See Smith, 910 F.2d at 502

(prison doctor could not be held liable for "claims of

inadequate treatment by other medical personnel"). As

King points out, even Williams testified that although she

had instructed her staff to call her if they could not get

in touch with King or if Keeper's condition had changed,

no one called her. In any event, even if King had had

actual knowledge of Keeper's condition on February 29, Dr.

Hatlelid's testimony that the delay in getting Keeper to

the hospital had no detrimental effect would support the
-17-

verdict. See Coleman, 114 F.3d at 784; Crowley, 109 F.3d

at 502.

Nor did the district court abuse its discretion in

denying Keeper's motion for a new trial as to King.

"[W]here reasonable [persons] can differ in evaluating

credible evidence, a new trial on the ground of weight of

the evidence should not be granted." White v. Pence, 961

F.2d 776, 781 (8th Cir. 1992). In addition, a motion

should not be granted merely " 'because judges feel that

other results are more reasonable.' " Id. at 780 (quoting

Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d

179, 186 (8th Cir. 1972), cert. denied, 410 U.S. 930

(1973)). Although the jury could have chosen to believe

Williams's or Dr. Lewitt's testimony, it chose to believe

Dr. Hatlelid's testimony. Thus, the District Court did

not err in denying Keeper's motion for a new trial.

On appeal Keeper also raises evidentiary and

instructional issues. He argues that the District Court

erred in sustaining King's motion in limine to exclude

evidence relating to King's alleged mistreatment of other

inmates and of King's alleged intoxication on two

occasions in 1990 and 1991. However, as King points out,

because Keeper failed to make offers of proof he has

failed to preserve the issues for review. Keeper suggests

that an offer of proof was unnecessary since the District

Court granted the motion in limine. We disagree. This

Court has indicated that, as a general rule, in order to

preserve an evidentiary issue for appeal an offer of proof

is necessary, even if the district court grants a motion

in limine. Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 336

(8th Cir. 1997). In this case, there is no reason to

depart from that rule. In particular, we note that in its
-18-

pretrial ruling the Court indicated that it would exclude

evidence of King's alleged mistreatment of other inmates

as to King, but might allow such evidence if relevant to

establish Gammon's knowledge. When Keeper's counsel

attempted to question Gammon about one of the incidents,

the District Court found the incident was not relevant,

but told Keeper's counsel "[t]hat may well be something

you want to get in if Dr. King takes the stand." Despite

this invitation, counsel made no effort to question King

concerning the incident. In any event, had Keeper

preserved the issues for review we would find no abuse of

discretion in excluding evidence
-19-

relating to King's alleged mistreatment of other inmates

or King's alleged intoxication on other occasions.

Keeper also argues that the verdict director

instructions were incorrect statements of the law.

However, he did not raise his objections in the District

Court. "Our law on this subject is crystal clear: to

preserve an argument concerning a jury instruction for

appellate review, a party must state distinctly the matter

objected to and the grounds of the objection on the

record." Id. at 334. Thus, we have reviewed for plain

error only, and find none.

 Accordingly, we affirm the judgment. 

A true copy.

Attest:

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