_____________

No. 94-3901SD

_____________

Carroll W. Erickson, *

*

Plaintiff-Appellee, *

*

v. *

*

Don Holloway, Pennington *

County Sheriff; Pennington *

County, South Dakota, an *

organized county in the state *

of South Dakota; *

*

Defendants, *

*

Jeff Birdsall, guard employed *

by the Pennington County Jail; *

Robert Johnle, guard employed *

by the Pennington County Jail; * Appeals from the United States

Dan Carver, Pennington County * District Court for the District

Deputy Sheriff; * of South Dakota.

*

Defendants-Appellants,*

*

Mary Evelyn Rogers, Pennington *

County Deputy Sheriff, *

*

Defendant. *

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No. 94-4008SD

_____________

Carroll W. Erickson, *

*

Plaintiff-Appellant, *

*

v. *

*

Don Holloway, Pennington County *

Sheriff; Pennington County, *

South Dakota, an organized *

county in the state of South *

Dakota; *

*

Defendants-Appellees, *

*
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Jeff Birdsall, guard employed *

by the Pennington County Jail; *

Robert Johnle, guard employed *

by the Pennington County Jail; *

Dan Carver, Pennington County *

Deputy Sheriff; *

*

Defendants, *

*

Mary Evelyn Rogers, Pennington *

County Deputy Sheriff, *

*

Defendant-Appellee. *

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Submitted: October 18, 1995

 Filed: February 28, 1996 _____________

Before FAGG, HEANEY, and HANSEN, Circuit Judges. _____________

FAGG, Circuit Judge.

After Carroll W. Erickson was beaten by a fellow inmate in the

protective custody cell block at the Pennington County Jail,

Erickson brought this action under 42 U.S.C. § 1983 alleging

several officials failed to protect him from the assault and

interfered with a doctor's recommendations for treating his

injuries. Deputy Sheriff Dan Carver and jail guards Robert Johnle

and Jeff Birdsall appeal the district court's denial of their

motion for summary judgment based on qualified immunity. Erickson

cross-appeals the district court's grant of summary judgment to

Pennington County, Sheriff Don Holloway, and Deputy Sheriff Mary

Evelyn Rogers. We affirm in part, reverse in part, and dismiss in

part for lack of jurisdiction.

We grant the motion to supplement the record on appeal, and

state the facts in the light most favorable to Erickson, Reece v.

Groose, 60 F.3d 487, 488 (8th Cir. 1995). On September 8, 1990,

Erickson told Johnle, the jail guard on duty at the time, that
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Herbert Flying Horse, an inmate assigned to the protective custody

cellblock for punitive segregation, had threatened to assault

Erickson. Because Johnle's shift was nearly finished, Johnle

passed the information on to Birdsall, the guard for the next

shift. After coming on duty, Birdsall told Erickson that Johnle

had informed him of the threat and that he would watch for

potential trouble. Later, Flying Horse verbally harassed Erickson

in the cell block's common area, and Birdsall told Flying Horse to

go somewhere else. When Erickson and another inmate asked

permission to play basketball in the recreation area, Birdsall

unlocked the recreation room door from the cell block's control

panel. After Erickson and the other inmate entered the recreation

area, Birdsall locked the door behind them.

Birdsall later left the control panel unattended for about six

minutes to make a routine check of the cell block. The control

panel is located in the common area and physically accessible to

inmates. Birdsall saw Flying Horse moving toward the recreation

area, but continued with his rounds because he knew the door to the

recreation area was locked. Contrary to jail policy, however,

Birdsall had not disabled the control panel to prevent inmates from

operating the locks. While Birdsall was away from the panel, an

inmate opened the electronic lock to the recreation area to let

Flying Horse enter. Once inside, Flying Horse punched and kicked

Erickson, then left. Erickson's face was cut and bleeding.

Deputies Carver and Rogers took Erickson to the hospital for

immediate treatment. An emergency room doctor stitched a 1.5

centimeter cut beneath Erickson's eye. According to Erickson, the

doctor also wanted to x-ray Erickson's head and chest and keep

Erickson at the hospital overnight for observation, but Carver

refused to allow the x-rays or Erickson's admittance to the

hospital. Carver and Rogers then returned Erickson to the jail.

On appeal, Johnle, Birdsall, and Carver assert they are
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entitled to qualified immunity because they did not violate

Erickson's clearly established constitutional rights. Prosser v.

Ross, 70 F.3d 1005, 1007 (8th Cir. 1995). Before addressing the

appeal's merits, we discuss our jurisdiction. Some of Erickson's

claims remain in the district court awaiting trial, so the district

court has not entered a final order in this case to confer

jurisdiction under 28 U.S.C. § 1291. Nevertheless, under Mitchell

v. Forsyth, 472 U.S. 511 (1985), we have jurisdiction to consider

certain limited issues when officials bring an immediate appeal

from the denial of a summary judgment motion based on qualified

immunity. We have jurisdiction to consider whether given facts

show a violation of clearly established law, but not "evidence

sufficiency," that is, which facts the parties might be able to

prove at trial. Johnson v. Jones, 115 S. Ct. 2151, 2155-59 (1995).

In other words, we can examine the information possessed by an

official to decide whether, given those facts, a reasonable

official would have known his or her actions violated an

established legal standard, but we cannot examine whether the

official committed the alleged act, damages, causation, or other

similar matters. Miller v. Schoenen, No. 95-1766, 1995 WL 63301,

at *2-3 (8th Cir. Feb. 15, 1996).

Johnle, Birdsall, and Carver devote much of their brief to

challenging the credibility of Erickson's evidence. We lack

jurisdiction to consider these challenges. Instead, we can decide

whether the facts as Erickson presents them show a violation of

clearly established law.

Before the attack on Erickson, it was clear that the Eighth

Amendment requires prison officials to protect inmates from

violence at the hands of other inmates. See Farmer v. Brennan, 114

S. Ct. 1970, 1976 (1994). When prison officials know an inmate

faces a substantial risk of serious harm from another inmate and

fail to take reasonable measures to lessen the risk, the Eighth

Amendment is violated. Id. at 1984; Reece, 60 F.3d at 490. 
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Viewing the information known to the guards in Erickson's

favor, Reece, 60 F.3d at 490, both Johnle and Birdsall had been

told of Flying Horse's threat and thus knew Erickson faced a

substantial risk of serious harm. Birdsall failed to disable the

control panel and investigate Flying Horse's sudden movement toward

the recreation area. These facts could establish Birdsall's

response was unreasonable. See Porm v. White, 762 F.2d 635, 637-38

(8th Cir. 1985). The district court thus properly denied summary

judgment to Birdsall. Johnle's shift ended more than two hours

before Flying Horse attacked Erickson, however, and Johnle told

Birdsall about Flying Horse's threat when Birdsall came on duty.

Because this response was reasonable as a matter of law, the

district court should have granted summary judgment to Johnle.

 Deputy Carver asserts qualified immunity shields him from

Erickson's claim that Carver deprived him of adequate medical care.

Erickson can succeed on his claim by showing Carver intentionally

interfered with treatment prescribed for a serious medical

condition. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).

Challenging the district court's finding that Erickson had a

serious medical condition, Carver contends there is no evidence

that Erickson's condition was acute or escalating, or that the

alleged refusal of x-rays or hospitalization caused Erickson any

harm. See Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995).

After Johnson, however, we lack jurisdiction to review these

contentions in this appeal. Reece, 60 F.3d at 491-92; Miller, 1995

WL 63301, at *3. Because Carver's disregard of a doctor's order

would show Carver intentionally interfered with prescribed

treatment, see Estelle, 429 U.S. at 104-05 (explaining deliberate

indifference), the district court properly denied Carver summary

judgment on the ground of qualified immunity.

Because a jury must decide whether Birdsall and Carver acted

with deliberate indifference, the district court properly refused

to dismiss Erickson's claims for punitive damages against them.
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See Smith v. Wade, 461 U.S. 30, 56 (1983).

In his cross-appeal, Erickson challenges the grant of summary

judgment to Pennington County, Sheriff Holloway, and Deputy Rogers

on the ground of qualified immunity. Erickson asserts no basis for

our jurisdiction over his cross-appeal in his brief, however. As

we explained earlier, there is no final order in this case, and

Erickson's cross-appeal does not fall within the Mitchell

exception. We also lack pendent jurisdiction over Erickson's

cross-appeal. See Johnson, 115 S. Ct. at 2159.

In conclusion, we affirm the denial of summary judgment to

Birdsall, reverse the denial of summary judgment to Johnle, affirm

the denial of summary judgment to Carver, and dismiss Erickson's

cross-appeal for lack of jurisdiction.

A true copy.

Attest:

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