                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    _____________

                                     No. 97-1588
                                    _____________

Harrison Jolly,                       *
                                      *
             Appellant,               *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
R. Badgett; Tony Gammon; Jim Moore; * Eastern District of Missouri.
M. K. Rodriguez; Roy Osborne;         *
Richard D. Davis; Huel Jenkins,       *       [PUBLISHED]
                                      *
             Appellees.               *
                                _____________

                                  Submitted: April 23, 1998
                                      Filed: May 19, 1998
                                   _____________

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

PER CURIAM.

       Harrison Jolly, who is serving a prison term in a Missouri penitentiary, appeals
the denial of his motion for appointed counsel and the adverse grant of summary
judgment in his 24 U.S.C. § 1983 action. He claims that defendants were deliberately
indifferent to his serious medical needs by preventing him from leaving his cell to get
water and take his prescribed anti-seizure medication at 4:00 a.m., the prescribed time.
Rather, his guards refused to let him out of his cell to get water and take his medication
before 6:00 a.m. We believe Jolly's evidence is sufficient to make a submissible case
on the issue of whether he had a serious medical need to take his medication at the
prescribed time. We see no evidence, however, that any of the defendants knew that
a mere two-hour delay in Jolly's taking his medicine would have any adverse effect.
Because Jolly has failed to make a submissible case on the issue of deliberate
indifference, and because we cannot say the district court abused its discretion in
denying Jolly's motion for appointment of counsel, the judgment of the district court is
affirmed. See 8th Cir. R. 47B.

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and dissenting.

       I would reverse the district court&s judgment as to corrections officers Richard
Davis, Roy Osburn, and Huel Jenkins, who interfered with Jolly&s prescribed treatment
on two occasions.

       It is uncontroverted that Jolly had a serious medical need, as he was diagnosed
with epilepsy and hypertension and was on medication to prevent the life-threatening
consequences of these diseases. See Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir.
1995) (serious medical need “must be either obvious to the layperson or supported by
medical evidence, like a physician&s diagnosis”). Although Jolly may not have had a
serious medical need to take his medication at “precisely 4:00 a.m.,” he presented
evidence that he had a serious medical need to follow his prescribed dosage schedule:
four doctors, at various times, directed Jolly to take his medication at 4:00 a.m.;
medical reference materials state Dilantin should be taken regularly; Jolly suffered a
seizure, dangerously high blood pressure, and other adverse effects immediately after
defendants interfered with his prescribed medication schedule; and Dr. Freeman
believed Jolly had suffered adverse health consequences when Jolly&s dosage schedule
was altered. This evidence was sufficient to create a triable issue as to whether these
defendants& interference with Jolly&s prescribed dosage schedule interfered with a
serious medical need. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (deliberate
indifference to serious medical need “manifested . . . by prison guards . . . intentionally

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interfering with the treatment once prescribed”); Johnson v. Hay, 931 F.2d 456, 458,
461-62 (8th Cir. 1991) (affirming denial of qualified immunity for prison pharmacist
who refused to fill Dilantin and Phenobarbital prescriptions for inmate with alleged
seizure disorder).

        Further, even if Jolly&s evidence were insufficient to create a genuine issue as to
Jolly&s serious medical need, I would reverse because I believe the district court abused
its discretion in failing to delay ruling on the motion, to enable Jolly to obtain the
affidavits of Dr. Waggener and Dr. Freeman, which Jolly attested would corroborate
his claim that he needed to follow a regular medication regimen. See Fed. R. Civ. P.
56(f) (when affidavits of party opposing summary judgment reflect that party cannot
“present by affidavit facts essential to justify the party&s opposition,” court may refuse
summary judgment application, order continuance, or make other order).

       In addition, given the district court&s refusal to appoint substitute counsel and its
reconsideration of defendants& motion for summary judgment after this court remanded
with instructions “for appointment of counsel and trial on the merits,” I would direct
the district court to appoint substitute counsel and allow the case against these three
defendants to proceed to trial.

       I therefore respectfully dissent from this portion of the court&s judgment.

       A true copy.

              Attest:

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




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