                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-3824
                                 ___________

Ramon Sanchez, also known as         *
Ramond Vega Lopez,                   *
                                     *
            Appellant,               *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Mike Taggart; Glenda Walker; Lori    * Western District of Missouri.
Campbell; Tracy Frank; William       *
Galloway; William Cox,               *
                                     *
            Appellees.               *
                                ___________

                        Submitted: May 4, 1998

                             Filed: May 22, 1998
                                 ___________

Before BOWMAN, Chief Judge, WOLLMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                             ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Former inmate Ramon Sanchez appeals from the district court&s grant of
summary judgment to Missouri Department of Corrections (MDOC) officials in his 42
U.S.C. § 1983 action. With one exception, we conclude the district court properly
entered summary judgment for the reasons it stated, and we will not address those
claims. As to the Eighth Amendment claim against defendant Mike Taggart, however,
we reverse the entry of summary judgment and remand to the district court for further
proceedings.

      Although the facts are contested, we recount the facts and inferences therefrom
most favorably to Mr. Sanchez, the non-moving party. See Dulany v. Carnahan, 132
F.3d 1234, 1237 (8th Cir. 1997).

      On July 27, 1993, Mr. Taggart was the Functional Unit Manager assigned to
Mr. Sanchez&s housing unit at Algoa Correctional Center (ACC). At approximately
11:15 a.m., in response to road flooding, Acting Assistant Superintendent Amile
Holmes directed defendant and other supervisors to assign ACC students, including Mr.
Sanchez, to emergency sandbagging. Mr. Holmes attested that because of the
expediency of the situation, inmates had not been screened, and that inmates should
have brought any question regarding their duty status to the supervisor&s attention.

       Mr. Taggart called Mr. Sanchez to his office before 11:30 a.m. and ordered him
to report for sandbagging duty at 1:00 p.m. Mr. Sanchez responded that he was on “no
duty status” and that housing unit documents prohibited him from participating in hard
labor. Mr. Taggart, without checking the records, replied, “I&m giving you a direct
order” to report for sandbagging. Shortly before 1:00 p.m., Mr. Sanchez reported for
duty and was instructed to load sandbags into trucks. Between 1:45 and 2:00 p.m., he
realized he had “seriously reinjured his back.” He was taken on a stretcher to the
prison hospital, where he was examined by a nurse and placed on pain medication. The
next day, after Mr. Sanchez experienced severe pain and numbness and was unable to
stand, he was seen by a physician, who provided him crutches and muscle relaxants in
addition to the pain medication.

       Each housing unit maintained a file for each inmate in the unit; the files included
physicians& orders for bunk and job assignments. At the time of Mr. Taggart&s order,
Mr. Sanchez&s medical condition was reflected in a July 1992 lumbar spine radiology

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report, which included an impression of two herniated disks; and Mr. Sanchez testified
by deposition that other documents in the medical files placed him on no-duty or light-
duty status because of his prior injury. A June 24 MDOC interoffice communication
from “ACC-Medical” to “Classification” listed Mr. Sanchez&s “Duty Status” as “Light
duty. sitting down job.”

       Mr. Sanchez claimed that Mr. Taggart violated the Eighth Amendment&s
prohibition against cruel and unusual punishment by ordering him to report for
sandbagging. The district court rejected the magistrate judge&s recommendation to
allow the claim to proceed, finding that Mr. Sanchez did not offer evidence establishing
Mr. Taggart knew he was physically incapable of performing sandbagging work, and
concluding that the order to sandbag during an emergency did not violate Mr. Sanchez&s
clearly established constitutional rights, and thus Mr. Taggart was entitled to qualified
immunity.

       The Eighth Amendment&s prohibition against cruel and unusual punishment
forbids knowingly compelling an inmate to perform labor that is beyond the inmate&s
strength, dangerous to his or her life or health, or unduly painful. See Madewell v.
Roberts, 909 F.2d 1203, 1207 (8th Cir. 1990). The evidence here, viewed favorably to
Mr. Sanchez, established that he was compelled to perform labor beyond his physical
capacity that endangered his health: his previous back injury had resulted in herniated
disks; the June 24 document showed he was on light-duty status; and no document
showed a change in this work status by July 27.

       The evidence and inferences therefrom also established Mr. Sanchez told Mr.
Taggart that he had a medical condition restricting his ability to work and that
confirmation of his physical limitations was in his file, and Mr. Taggart failed to inquire
further. We conclude this evidence of deliberate indifference was sufficient to survive
summary judgment. See Farmer v. Brennan, 511 U.S. 825, 842-43 & n.8 (1994)
(requisite actual knowledge of substantial risk to inmate is factual inquiry and may be

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inferred from circumstantial evidence; prison official “would not escape liability [under
the Eighth Amendment] if the evidence showed that he merely refused to verify
underlying facts that he strongly suspected to be true, or declined to confirm inferences
of risk that he strongly suspected to exist”).

       We disagree with the district court&s conclusion that Mr. Taggart was entitled to
qualified immunity in light of “emergency” conditions. Although some emergencies
may warrant issuing orders without first reviewing an inmate&s physical limitations, Mr.
Taggart failed to establish such circumstances here. The evidence showed Mr. Sanchez
brought his physical limitations to Mr. Taggart&s attention, as Mr. Holmes attested an
inmate should have done; Mr. Sanchez was ordered before 11:30 a.m. to report for
sandbagging at 1:00 p.m., supporting an inference of sufficient time for Mr. Taggart to
check his file; only students, rather than all available inmates, were ordered to
participate in sandbagging; and little evidence was offered of the actual emergency
circumstances. Therefore, we conclude that Mr. Taggart&s conduct was not “objectively
legally reasonable,” see Munz v. Michael, 28 F.3d 795, 799 (8th Cir. 1994), and that
he should not have been granted summary judgment, see Buckley v. Rogerson, 133 F.3d
1125, 1127, 1129 (8th Cir. 1998) (official has burden of proving qualified immunity);
Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989) (official asserting
qualified immunity has burden of proving any “extraordinary circumstances”).

       We deny Mr. Sanchez&s motion for appointment of appellate counsel. We also
deny appellees& motion to strike and dismiss, but decline to consider new facts or legal
theories raised in Mr. Sanchez&s reply brief. See French v. Beard, 993 F.2d 160, 161
(8th Cir. 1993), cert. denied, 510 U.S. 1051 (1994).

      Accordingly, we reverse as to the Eighth Amendment claim against Mr. Taggart,
and affirm the district court&s judgment in all other respects.




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A true copy.

      Attest:

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




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