United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2836

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Ecclesiastical Denzel Washington,

Appellee,

v.

Matt Blunt; Larry Crawford; Lisa

Jones; Dave Dormire; Steve Long;

Wendell Enloe; Jay Cassady; Brad

Hall; Baslee; J. Lange; J. Caviness;

Lucreta R. Bright; Mike Kemna;

Stanley Swicord,

Appellants.

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Appeal from the United States

District Court for the 

Western District of Missouri.

 [UNPUBLISHED]

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Submitted: June 14, 2010

 Filed: July 19, 2010

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Before MELLOY, HANSEN, and SMITH, Circuit Judges.

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PER CURIAM.

Ecclesiastical Denzel Washington is confined at the Jefferson City Correctional

Center. Washington suffers from asthma. He filed a pro se complaint under 42

U.S.C. § 1983 alleging that certain named prison officials were, and continue to be,
1

The Honorable William A. Knox, United States Magistrate Judge for the

Western District of Missouri, acting pursuant to the Magistrate Act. 28 U.S.C. § 636.

2

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

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deliberately indifferent to his serious medical needs by exposing him to dangerous

levels of environmental tobacco smoke. 

The parties filed cross-motions for summary judgment. The motions were

referred to a magistrate judge1

 for a report and recommendation. The prison officials

argued that they were entitled to qualified immunity because their conduct did not

violate Washington's clearly established rights. The magistrate judge analyzed the

qualified immunity issue and recommended that the district court deny the prison

officials' motion for summary judgment. The magistrate judge noted that Washington

was indigent and had been unable to secure expert medical testimony or scientific

testing of his cell. The magistrate judge recommended that counsel be appointed to

represent Washington in order to "determine what medical evidence is needed or what

scientific testing should be obtained, and [counsel] could request the reopening of

discovery for very limited and specified purposes." (Add. at 7.) The magistrate judge

explicitly noted that he did not reach the merits of Washington's complaint. Each

party filed written exceptions to the report and recommendation, and the district court2

conducted a de novo review. The district court adopted the report and

recommendation and provided a short additional explanation. The court was "not

persuaded that exposing plaintiff to known triggers and then treating his symptoms

is constitutionally adequate, if the triggers are sufficiently severe and present an

unreasonable risk to his health or safety. And on that issue, there are genuine issues

of material fact." (Add. at 1.) The district court ordered that counsel be appointed and

given an opportunity to conduct limited discovery. It also stated that "defendants may

seek leave to file a supplemental dispositive motion." (Add. at 1.)
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The prison officials appeal, arguing that they are entitled to summary judgment

on their claim of qualified immunity. Generally, our jurisdiction is limited to appeals

from final decisions of federal district courts, 28 U.S.C. § 1291, and denials of

summary judgment and orders compelling discovery are not appealable final

judgments, Nee v. Byrne, 35 Fed. Appx. 296, 297 (8th Cir. 2002). The prison

officials urge that we have jurisdiction pursuant to the collateral order doctrine. The

collateral order doctrine does apply to some denials of qualified immunity on

summary judgment. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that

a district court's denial of qualified immunity, "to the extent that it turns on a question

of law," is a final order for purposes of § 1291). Such a denial, however, must fulfill

three elements of the collateral order doctrine before we may exercise jurisdiction; the

order must (1) conclusively determine a disputed question that is (2) completely

distinct from the merits, and (3) would be effectively unreviewable if review were

delayed until after final judgment. Nee, 35 Fed. Appx. at 297 (citing Krein v. Norris,

250 F.3d 1184, 1187 (8th Cir. 2001)). In this case, the district court explicitly

reserved to the prison officials the right to file a supplemental dispositive motion.

Thus, the district court's order in this case does not conclusively decide the prison

official's entitlement to immunity, and the collateral order doctrine does not apply.

See id. (disclaiming jurisdiction of appeal from denial of summary judgment motion

because denial "subject to reassertion" does not conclusively decide qualified

immunity issue); Petersen v. Reisch, 585 F.3d 1091, 1093 (8th Cir. 2009) ("Where .

. . the denial of a summary judgment motion based upon qualified immunity

contemplates the filing of another such motion well before trial, Mitchell is not

implicated.").

The prison officials correctly note that the purpose of qualified immunity is to

protect government officials from the burdens of litigation and that discovery is one

such major burden. See Behrens v. Pelletier, 516 U.S. 299, 308 (1996). The

implication is that, though the qualified immunity issue is not conclusively

determined, the officials will have nonetheless lost one of the major benefits of
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qualified immunity. We do not read the order appealed from, however, as providing

for discovery relative to the merits of the case. The magistrate's report and

recommendation would have allowed counsel "to request the reopening of discovery

for very limited and specified purposes." (Add. at 1.) The district court's order,

adopting the report and recommendation, likewise refers to limited discovery. Neither

the magistrate judge nor the district court judge addresses the merits of the case.

Instead, both the report and recommendation and the order discuss the underlying

claim only as it is relevant to resolving the issue of qualified immunity. Given the

context, we interpret the district court's order to be limited to that discovery sufficient

to resolve the issue of qualified immunity. Such discovery would not unfairly strip

the prison officials of the benefits of their asserted qualified immunity. As such, the

collateral order doctrine does not apply, and we lack jurisdiction to hear the appeal.

Accordingly, the appeal is dismissed for lack of jurisdiction.

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