United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2136

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Roger Dale Sims, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

G. Lay, Warden, Cummins Unit, ADC; *

Jerry Moore, Mental Health * [UNPUBLISHED]

Administrator, Cummins Unit, ADC; J. *

Hall, Counselor, Cummins Unit, ADC, *

*

Appellees. *

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Submitted: January 23, 2007

Filed: February 2, 2007

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Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Arkansas inmate Roger Dale Sims appeals the dismissal of his 42 U.S.C. § 1983

action claiming Eighth Amendment violations against several employees of the

Arkansas Department of Correction. Reviewing de novo, see Springdale Educ. Ass’n

v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998), we affirm in part and

reverse in part.
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We conclude that Sims’s allegations against Cummins Unit Mental Health

Administrator Jerry Moore and Counselor Jeanette Hall--that they deliberately

disregarded his serious medical need by deciding to move him from mental health

housing, falsely attributing the decision to Sims’s psychiatrist--amount to a

disagreement over a treatment decision. See Jolly v. Knudsen, 205 F.3d 1094, 1096

(8th Cir. 2000) (for deliberate-indifference claim, plaintiff must demonstrate that he

suffered from objectively serious medical need that defendants knew of yet ignored;

mere disagreement with treatment decisions does not rise to level of constitutional

violation). Because this decision in itself did not amount to a constitutional

deprivation, there can be no supervisory liability for the decision. See Madewell v.

Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).

We conclude, however, that Sims stated a deliberate-indifference claim against

Warden Gaylon Lay as a policy maker. Sims alleged that--through his grievances--

Warden Lay knew of the Cummins Unit’s constitutionally inadequate housing and

staffing for mental health inmates yet failed to correct the situation. Cf. Ouzts v.

Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987) (per curiam) (warden’s responsibility

for overseeing prison operations is insufficient to establish personal involvement

required to support § 1983 liability for guards’ beating of inmate, but warden might

be liable for policy decisions resulting in alleged unconstitutional conditions). Sims

alleged that he was unable to see a psychiatrist or psychologist when he needed to, and

that insufficient housing for mental health inmates resulted in their inappropriate

placement in administrative segregation and general population. We believe that

whether the housing and staffing at the Cummins Unit were adequate to meet Sims’s

serious mental health needs is a factual question as to which dismissal on the

pleadings was inappropriate. See Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001)

(medical treatment may so deviate from applicable standard of care as to show

deliberate indifference, but such departure is factual question often requiring expert

opinion to resolve); Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001) (failure to supply

medical care can constitute Eighth Amendment violation).
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Accordingly, we affirm in part, and we reverse and remand for further

proceedings on this deliberate-indifference claim against Warden Lay.

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