Judge He nley died on October 18, 1997. This opinion is consistent with hi s 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 Unite d States * District Court for t he v. * Eastern District o f Missouri.
* Fred King, Dr.; Anthony Gammon, *
* Appellees. *

___________ Submitted: June 9, 1997 Filed: December 11, 1997

___________ Befor e RICHARD S. ARNOLD, Chief Judge, HENLEY, Senio r 1 Circuit Judge, and WOLLMAN, Circuit Judge.

___________ RICHARD S. ARNOLD, Chief Judge.
Andrew Keeper, a Missouri inmate who had bee n inca rcerated at the Moberly Correction Center (MCC) , app eals from a judgment of the District Court entere d 2-2-

upon-3-

a ju ry verdict in favor of Dr. Fred King, a former MC C physician, and Anthony Gammon, superintendent of MCC. We affirm.

I.

On October 24, 1991, Keeper submitted a medica l services request (MSR), complaining of headaches an d blurred vision, but failed to appear for sick call. O n October 28 Keeper complained of dizziness, abdominal pain , and b lurred vision and was examined by a nurse, wh o diagnosed a likely muscle strain, prescribed Motrin, and told Keeper to return the next morning. On October 2 9 Keeper was examined by Dr. Hampton, who referred him to
anophthalmologist. On November 11 Keeper submitted a n MSR, complaining of blurred vi sion and right eye and head pain, but again failed to appear for sick call. O n Nove mber 18 Keeper, complaining of left-sided numbness , blur red vision, pain in the right eye, weakness, and a n ina bilityto 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 4:2 0 p.m . he complained of headaches and blurred vision. A
nurse examined and released him. At 6:00 p.m. he note d that he had run out of Elavil and that his pain ha d retur ned. He requested a complete physical "befor e something seriously does go wrong" and also submitted a le tter detailing his complaints of headaches, blurre d vision, and left-sided weaknes s and numbness. Later that day, King reviewed Keeper's medical records and renewe d his prescription for Elavil. On January 1, 1992, Keeper-4-

submi tted another MSR, claiming his condition was wors e andthat he had had "mild strokes off and on." On Januar y 2 Keeper was brought to the medical unit on a stretcher, complaining of difficulty stan ding, dizziness, headaches, and numbness. King examined him, but found "no medica l prob lem" and ordered that Keeper complete psychologica l testing. Although Keeper walked out of the unit on hi s own, he was brought back by a guard a few minutes late r because he could not stand. King did not reexamin e Keeper. However,-5-

Keeper was placed in administrative segregation fo r 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 Januar y 17, when he was found lying o n 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 th e infir maryfor overnight observation. The next mornin g Keeper stated he was feeling fine and was discharged.

Ke eper did not request or receive medical service s again until Saturday, February 29, when he was brought to the medical unit after he was found sitting on a toile t unable to move or speak. A nurse called the MCC healt h
care supervisor, Debra Williams, who was at home

. Williams instructed the nurse to admit Keeper to th e infir mary, check his vital and neurological signs ever y hour , and contact King. Although nurses tried to reac h King by telephone several time s on February 29, King, who did not carry a pager, was finally reached on March 1 at noon. King did not come to th e infirmary, but instructed the staff to observe Keeper. At 3:00 p.m. that day Keepe r was found lying on the floor w et with urine. His clothes
were changed and his mattress was placed on the floor. H e 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 t o the infirmary and examined Keeper. Although the docto r found "no apparent neurological defect" and gave a provisional diagnosis of conversion hysteria, Kin g transferred Keeper to a hospital to rule out a n obstructionin the brain. At the hospital a CAT sca n revealed that Keeper had had a large stroke to the right side of the brain. An examining doctor noted that th e-6-

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

Keepe r filed an action under 42 U.S.C. §1983 against King and Gammon, alleging that they had been deliberately indifferent to his serious med ical needs, in violation of th e Eighth Amendment. At trial, Keeper, who was the n fort y-one years old, testified that he could no longe r use his left arm or leg, had difficulty speaking an d seeing , and that his condition had worsened since th e stroke. In addition to introducing the medical records, Keeper also presented the test imony of Debra Williams and Dr. Peter Lewitt, a neurologist.

Wi lliams testified that although King was the full

time physician and Hampton was the part-time physician on the medical unit staff, as hea lth care supervisor she had the over-all responsibility fo r the medical unit, and, in the eve nt of an emergency, could order an inmate' s transfe r to a hospital. Although Williams was no t invol ved in the day-to-day treatment of patients, sh e stated she was familiar with Keeper's case. In November 1991 she had reviewed his records and discussed hi s con ditionwith her staff after Gammon had informed he r that Keeper's mother had conta cted him regarding Keeper's condition. After her review, Williams reported to Gammon that Keeper was being monitore d. She was also aware that Gammon had informed the unit that Keeper's mother ha d again inquired about his condition on December 29

. Acco rding to Williams, by mid-January Keeper's symptom s ha d become consistent with transient ischemic attack s (TIA), which are brief neurolo gical attacks that could be precursors to a stroke.-7-

As to the events of February 29 to March 2, Williams testified that she was at home when she received a cal l from a nurse informing her that Keeper had been brought t o the unit because he had difficulty moving his left leg an d couldnot move his left arm. Williams returned to work o n March 2 and examined Keeper. Williams testified that she
was ' 'shocked" that King had found "no apparen t neurological defect" during his examination, because her
ex aminationrevealed that Keeper had facial drooping , halting and slurred speech, and a limp left arm.

Oncross-examination, Williams admitted that o n February29 she had instructed her staff to call her a t home if they could not reach King or if Keeper's conditio n had changed, but that no one called her. Williams als o stated that she was aware that a list of physicians wh o were on call was posted on a bulletin board in the medica l 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 i n Michigan, testified by video-t aped deposition. He stated that risk factors for a stroke were high blood pressur e andan abnormal heart rhythm and that symptoms of a strok e includednumbness, but generally not a headache. Based o n his review of Keeper's medical records, Dr. Lewit t believed that as of December 3 0, 1991, Keeper presented a medical emergency, and that a brain scan would have been appropriate. The doctor stated that on February 29 Keepe r had a stroke, and King's order to observe was a n ina ppropriate response. Lewitt believed that Keeper' s stroke had progressed slowly, and that had it bee n diagnosedand treated earlier there was a possibility tha t-8-

some of the effects of the stroke could have bee n 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
res ponsible for the over-all operation of the MCC, bu t th at he had no medical training or expertise. Gammo n sta ted that although he knew Keeper's name, he was no t person allyfamiliar with him and had never received a griev ance or letter concerning Keeper's care. Gammo n stated that when he or his office had received telephone inqui ries from Keeper's mother, the inquiries wer e referred to Williams because she was responsible for the operation of the infirmary.
King, who at the time of trial was employed by th e Iowa Department of Corrections, testified that it was a nurse's responsibility to refe r a patient to a physician, and in an emergency, if a nurs e could not reach a doctor, th e nurse or the health care supervisor could order a transfer of the inmate to a hospital. King admitted h e did not carry a pager, but explained that, although h e volunteeredto see patients on nights and weekends, he wa s not on call twenty-four hours a day, seven days a week

. Inst ead, he stated five to six physicians were on call

. King believed that he had treated Keeper's symptom s ap propriatelyand explained that he had ordere d 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
anactual physical problem, or by malingering, whereby a person"fakes" symptoms. According to King, malingering
was a common problem in prison. King stated that h e reported that Keeper had "no apparent neurological defect "
on Ma rch 2 because physical examination revealed "n o evide nce of pathological neurological signs," such as a positive Babinski response, deep tendon reflex, or ankle clonus.

Ki ng also presented the testimony of Dr. Michae l Hatlelid, a neurologist in pri vate practice in St. Louis, Miss ouri, and on the faculty of a local medical school

. The doctor, who in the year before trial had treated thre e hundredstroke patients and three to four hundred headach e pa tients, testified about the differences in symptom s betweena TIA and a migraine headache. According to the doctor, symptoms of a TIA were numbness on one side of th e body, double vision, blindness , and vertigo, but not as a general rule dizziness and blu rred vision. Symptoms of a migraine headache were throbbing head pain, nausea , blu rred vision, and numbness. Dr. Hatlelid also note d that, other than cigarette smoking, Keeper did not presen t th e major risk factors for stroke, such as high bloo d pressure, blood clotting problems, heart disease, o r diabetes. AlthoughDr. Hatlelid believed that before Februar y 29 Ke eper's symptoms had been consistent with migrain e head aches, nonetheless the doctor testified that aroun d mi d-Januaryhe would have ordered an ultrasoun d examination to determine wheth er there was an abnormality inthe carotid artery in Keeper's neck. If the ultrasoun d showe d a significant abnormality, the doctor would hav e-10-

performed an angiogram of the artery to determine whether there was a surgically correctable condition. However , Dr. Hatlelid stated that had a n ultrasound been performed in Ja nuary, it would have been normal, since a March 3 ultrasound examination was essentially normal, showin g only "minimal atherosclerotic disease of the caroti d artery with a 0-19 percent diameter reduction of th e internal artery." The doctor also noted that additional testing at the hospital failedto reveal the cause of the st roke. Thus, according to the doctor, "the fac t addi tional workup was not done in January 1992 ha[d] n o practical significance."-11-

Based on his review of the medical records, Dr. Hatlelid expressedthe opinion that Keeper did not have a series o f strok es, but had one single catastrophic stroke o n February 29, which was caused by a dissection, or a tear, of the carotid artery. The doctor explained tha t irrev ersible damage occurs when the artery tears "lik e that, quickly," and it "wouldn't have mattered if [Keeper ] had been transported . . . in seconds to any hospital."

Th e jury returned verdicts in favor of King an d Gammon. Keeper filed a motionfor a judgment as a matter of law, or, in the alternative, for a new trial, which th e district court denied.

II.
On appeal Keeper argues that the Distric t Court erred indenying his motion for judgment as a matter of law or for a new trial. "We review de novo the District Court's deni al of [Keeper's] motion for judgment as a matter o f 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 th e nonmo ving party has not offered sufficient evidence 't o supp ort a jury verdict in his or her favor.' " Id

. (quoting Abbott v. City of Cro cker , 30 F.3d 994, 997 (8th Cir. 1994)). " 'Our task in r eviewing a judgment entered on a jury verdict is simply to inquire whether, viewed in the light most favorable to [the nonmoving party], th e 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 credibilit y decisions." Id. (quoting Abbott , 30 F.3d at 997).

We review the district court's denial of Keeper' s motionfor a new trial for an abuse of discretion. Keena n
v. C omputer Assoc. Int'l, Inc. , 13 F.3d 1266, 1269 (8t h 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, th e distr ict court's denial of the motion 'is virtuall y unassailable on appeal.' " Id. (quoting Peterson v

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

. 1990)). "The key question is whether a new trial should hav e been granted to avoid a miscarriage of justice.' ' Id.

We no w turn to Keeper's section 1983 claim. In this deprivation-of-medical-care case, Keeper had to "show tha t the prison official[s] w[ere] deliberately indifferent to [his] serious medical needs." Coleman v. Rahija , 114 F.3 d 778 , 784 (8th Cir. 1997). To prove deliberat e indiff erence, Keeper had to show that King and Gammo n "kne wof, yet disregarded, an excessive risk to hi s health. " Logan v. Clarke , 119 F.3d 647, 649 (8t h Cir .1997) (citing Farmer v. Brennan , 511 U.S. 825, 83 7 (1994)). In Farmer , the Supre me Court made clear that an official had to have actual knowledge of a serious risk. The Court stated that "an offi cial's failure to alleviate
a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . b e condemned" under the Eighth Amendment. 511 U.S. at 838.

As t o Gammon, the district court did not err i n 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)). I n parti cular, this Court has noted that "a genera l responsibility for supervisingthe operations of a prison-14-

is insufficient to establish the personal involvemen t required to support liability. " Camberos v. Branstad , 73 F.3d 174, 176 (8th Cir. 1995). Because Gammon was no t involvedin treatment decisions made by the medical unit' s staff and "lacked medical expertise, [he] cannot b e liab le for the medical staff's diagnostic decision[s]. " Id. Moreover, Gammon never received a complaint o r grievance from Keeper, and whe n his mother inquired about Keeper Gammon referred inquiri es to Williams, who assured Gammonthat Keeper's condition was being monitored. "In these circumstances, 'if any claim of medica l indif ference . . . is to succeed, it must be brough t against the individual[s] directly responsible fo r [Keeper's] medical care.' " Kulow , 28 F.3d at 859-15-

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

. 1992)).

The d istrict court also did not err in denyin g Keeper's motion for judgment as to King. Keeper i s corre ct that "[t]he factual determination that a priso n official had the requisite knowledge of a substantial ris k may be inferred from . . . the very fact that the risk wa s obvious. " Coleman , 114 F.3d at 786. However, Dr

. Hatlel id's testimony was that the risk of stroke fro m Keepe r's symptoms before February 29 was not obvious

. EvenDr. Lewitt's testimony shows only a disagreement as to diagnosis, which is not actionable under the Eight h Amendment. See Vaughan v. Lacey , 49 F.3d 1344, 1346 (8th Ci r. 1995). Keeper also relies on Dr. Hatlelid' s testi monythat he would have ordered an ultrasoun d
exam inationin mid-January. Keeper's reliance i s misplaced. " '[W]hen [an] inmate alleges that the delay intreatment is the constitutional deprivation, th e objec tive seriousness of the deprivation should also b e measur ed by reference to the effect of delay i n treatment.' " Crowley v. Hedgepeth , 109 F.3d 500, 502 (8t h Cir. 1997) (quoting Beyerbach v. Sears , 49 F.3d 1324, 132 6 (8th Cir. 1995)). In this case, Dr. Hatlelid testifie d that although an ultrasound examination would have bee n ap propriate, the fact that it was not ordered had "n o pra ctical significance." Thus, the doctor's testimon y does not help Keeper's case.
It is undisputed that Keeper had a strok e on February 29, an d it is indeed regrettable that he was no t transferred to the hospital immediately, but instead was al lowed to lie on a mattress on the floor, repeatedl y-16-

voiding on himself. However, King cannot be held liable for th e nursing staff's failure to order an immediat e transf er, to contact another doctor, or to inform hi m fullyof Keeper's condition. See Smith , 910 F.2d at 502 (pr isondoctor could not be held liable for "claims o f inade quate treatment by other medical personnel"). A s Kingpoints out, even Williams testified that although sh e hadinstructed her staff to call her if they could not ge t intouch with King or if Keeper's condition had changed,
no one called her. In any event, even if King had ha d actual knowledge of Keeper's condition on February 29, Dr

. Hatlelid's testimony that the delay in getting Keeper to the hospital had no detriment al effect would support the-17-

verdict. See Coleman , 114 F.3 d at 784; Crowley , 109 F.3d at 502.

Nor did the district court abuse its discretion i n denying Keeper's motion for a new trial as to King

. "[W ]here reasonable [persons] can differ in evaluatin g credible evidence, a new trial on the ground of weight of the evidence should not be gra nted." White v. Pence , 961 F.2d 776, 781 (8th Cir. 1992). In addition, a motio n should not be granted merely " 'because judges feel that other results are more reasonable.' " Id. at 780 (quotin g Fire man's Fund Ins. Co. v. Aalco Wrecking Co. , 466 F.2 d 179, 186 (8th Cir. 1972), cert. denied , 410 U.S. 93 0 (1973)). Although the jury could have chosen to believe Williams's or Dr. Lewitt's tes timony, it chose to believe Dr. Hatlelid's testimony. Thus, the District Court di d not err in denying Keeper's motion for a new trial. On ap peal Keeper also raises evidentiary an d instructional issues. He argues that the District Court
err ed in sustaining King's motion in limine to exclud e evidence relating to King's al leged mistreatment of other inmat es and of King's alleged intoxication on tw o occasions in 1990 and 1991. H owever, as King points out, because Keeper failed to make offers of proof he ha s failedto preserve the issues for review. Keeper suggest s that an offer of proof was unn ecessary since the District Cou rt granted the motion in limine. We disagree. Thi s Court has indicated that, as a general rule, in order to preserve an evidentiary issue for appeal an offer of proo f is necessary, even if the district court grants a motion inlimine. Dupre v. Fru-Con Eng'g Inc. , 112 F.3d 329, 33 6 (8thCir. 1997). In this case, there is no reason t o depart from that rule. In particular, we note that in it s-18-

pretrial ruling the Court indi cated 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 counse l 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 somethin g you want to get in if Dr. Kingtakes the stand." Despite this invitation, counsel made no effort to question King
concern ing the incident. In any event, had Keepe r preserved the issues for revie w 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.

Keepe r also argues that the verdict directo r instr uctions 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: t o prese rve an argument concerning a jury instruction fo r appellate review, a party must state distinctly the matte r objected to and the grounds of the objection on th e record. " Id. at 334. Thus, we have reviewed for plai n error only, and find none.
Accordingly, we affirm the judgment.

A true copy.

Attest:

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

.