          United States Court of Appeals
                        For the First Circuit


No. 13-2040

         KATHERINE M. CADY, as Personal Representative
           of the Estate of Paul Victor Galambos, III,

                        Plaintiff, Appellee,

                                  v.

       BARBARA WALSH; MICHAEL TRUEWORTHY; LINDA WILLIAMS,

                       Defendants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]



                                Before

                         Lynch, Chief Judge,
                  Selya and Kayatta, Circuit Judges.



     Michael E. Saucier, with whom Robert C. Hatch, Hillary J.
Bouchard, and Thompson & Bowie were on brief, for appellants.
     Eric M. Mehnert, with whom Hawkes & Mehnert, LLP was on brief,
for appellee.


                             June 4, 2014
            LYNCH, Chief Judge.     Katherine Cady, on behalf of the

estate of her son, Paul Victor Galambos, III, brought this 42

U.S.C. § 1983 action after Galambos's death from self-inflicted

injuries that he suffered while he was a pretrial detainee at the

Cumberland County Jail (CCJ). The action alleged that employees of

Corizon, Inc., the private company providing healthcare services at

CCJ, were deliberately indifferent to Galambos's serious medical

needs in violation of his Fourteenth Amendment rights.                  The

defendants sought summary judgment, arguing that they were within

a category of private employees protected by qualified immunity by

virtue of their duties, and were also entitled to immunity on the

particular facts.

            The district court assumed dubitante that the employees

fell into a category of private employees eligible for qualified

immunity,   and   denied   the   summary   judgment   motions   filed    by

defendants Michael Trueworthy, Barbara Walsh, and Linda Williams,

all employees of Corizon.    It reasoned, after a detailed review of

the facts, that there remained material and disputed issues of fact

as to the claims against all three individuals which precluded the

grant of immunity at this point.

            The three defendants now appeal, arguing that they are

entitled to qualified immunity.       The plaintiff, noting there are

material issues of fact in dispute, including conflicts in the

opinions of expert witnesses, argues that there is no appellate


                                   -2-
jurisdiction under the doctrine of Johnson v. Jones, 515 U.S. 304

(1995), even if the defendants were theoretically eligible for the

protections of qualified immunity.            Like the district court, we

bypass the question of whether qualified immunity is categorically

unavailable to these defendants, because the district court's

denial of immunity turned on findings that there remain disputed

issues of material fact and inference. We do not have jurisdiction

over this interlocutory appeal under Johnson.              We dismiss this

appeal for want of appellate jurisdiction.

                                      I.

              We have jurisdiction over an interlocutory appeal of a

denial of summary judgment on qualified immunity only insofar as

the appeal rests on legal, rather than factual grounds.                    See

Johnson, 515 U.S. at 313.       We therefore summarize the facts in the

light       most   favorable   to   the     non-moving   party,   taking    as

unchallenged any inferences that the district court drew in that

party's favor.

A.            Background and Named Defendants

              Corizon is a private independent contractor that provided

healthcare services to inmates at CCJ under a contract with CCJ

effective January 1, 2007 through December 31, 2009.1             Corizon was



        1
        Corizon was paid a management fee for its services. It is
unclear from the record what the relationship was between costs
incurred and the management fee. The parties have not adequately
briefed that question.

                                      -3-
responsible for healthcare at CCJ, and to that end developed a set

of governing policies and procedures. Corizon was also required to

regularly confer with the Cumberland County Sheriff or his designee

concerning both existing healthcare procedures and any changes to

those procedures.

            1.   Michael Trueworthy

            Defendant   Michael     Trueworthy,    a     psychiatric      Nurse

Practitioner, worked as a per diem employee of Corizon from August

through December 2008, and reported directly to Dr. Alfonso Corona,

Corizon's   psychiatrist     for   CCJ.     Trueworthy    saw   inmates     for

medication evaluation and management, and renewed prescriptions for

inmates who had already been prescribed those medications.                He was

never on-call during his employment at CCJ, and was not present at

the facility for all emergencies. Generally, social workers at CCJ

would provide Trueworthy with lists of inmates for him to attend to

during his shifts.

            2.   Barbara Walsh

            Defendant Barbara Walsh, a Registered Nurse, became

Corizon's director of nursing in 2006, and she was employed in that

position during the 2008 events that gave rise to this case.                She

supervised the infirmary and the nursing staff.           She described CCJ

as "chaotically busy."       She reported directly to Corizon's Health

Services    Administrator,    Diane    North.     North   is    not   a   named

defendant. Walsh was a party to the "constant discussion among the


                                      -4-
Corizon staff" regarding sending inmates out to the emergency room

(ER).   The cost of having an inmate transported to a local ER by

ambulance had risen dramatically, and was nearly $3,000 in the fall

of 2008.   Corizon apparently wanted to keep costs contained, and

also assure that nurses were performing only medically necessary

actions.   In light of these concerns, Walsh instructed the nursing

staff to contact her at any time, even when she was not on duty, so

that she could assess a given situation before deciding to send an

inmate out to the ER for additional care.        According to the

parties' stipulated facts, the reason given for this policy was

that "the [staff nurses'] excuse of their nursing licenses being at

risk was not an acceptable basis for a decision to send an inmate

out to the ER."

           3.   Linda Williams

           Defendant Linda Williams, a Licensed Clinical Social

Worker, was responsible for assessing inmates' current mental

health status. She undertook these health assessments from outside

inmates' cells, and never entered Galambos's cell to assess him.

When Galambos first came to CCJ, Williams took part in his intake

and initial evaluations and subsequent evaluations.   From December

2 through December 11, 2008, Williams observed Galambos each day

and spoke with him on some days.




                                 -5-
B.           Events at CCJ

             Galambos entered CCJ as a pretrial detainee on August 3,

2008, following his arrest for robbery, refusal to submit to

arrest, and violation of bail conditions.              He had an extensive

history of mental illness and substance abuse, was diagnosed at the

time with schizoaffective disorder, had a history of suicide

attempts,    and    had   previously      received   in-patient   psychiatric

treatment.

             On    his    arrival   at     CCJ,   Galambos    resisted   being

fingerprinted and headbutted an intake officer.              His condition was

described by the plaintiff's expert as "actively psychotic,"2 and

a jury could so conclude. He initially refused his medications and

he was placed on suicide watch, where he remained for a few days.

At this point, Corizon's mental health staff, including Williams,

was aware of Galambos's history of mental illness. They had access

to his past records, including from his stay at an in-patient

treatment program at Spring Harbor Hospital called ACCESS, where

Galambos had been admitted in the past, most recently in June 2008.




     2
        The three Corizon defendants objected to the magistrate
judge's admission of statements from the plaintiff's two experts,
Dr. Grassian and Dr. Jagminas, on the grounds that they did not
research standards of mental health care for inmates and were
relying on a malpractice standard of care. The magistrate judge
did not conduct an exhaustive Rule 702 inquiry, but also overruled
the defendants' objections and included several statements from the
experts in the Recommended Decision.

                                         -6-
Dr. Grassian, one of the plaintiff's experts, said the record shows

no evidence that Trueworthy ever reviewed those records.

             Galambos agreed to take an oral dose of Haldol on August

6, at which point he was "stepped down" to "psych" watch from

suicide watch.     He was taken off psych watch on August 10.

             During September 2008, Galambos underwent additional

evaluations     that   resulted    in    a    medication   recommendation.

Trueworthy     offered   a   recommendation      and   medication   plan   on

September 12, which recommended continued use of the medications he

was on when he entered CCJ: Zyprexa (for psychosis) and Cogentin

(for potential side effects of Zyprexa). Trueworthy was aware that

Galambos had a history of suicide attempts and believed that

Galambos's prognosis was poor without proper medication management.

Nonetheless, Trueworthy said he believed that because Galambos was

"logical and involved" as of September 12, Trueworthy did not need

to see him regularly.        The plaintiff's expert, Dr. Grassian, has

noted that on September 9, Galambos was observed to be actively

psychotic; Dr. Grassian opined that Trueworthy's September 12 plan,

which left Galambos's medication regimen unchanged, was a violation

of "any standard of care."        He also opined that the failure of the

record to note Galambos's activity from September to November was

unacceptable.

             By November, Williams did note that Galambos exhibited a

pattern of irregular acceptance of his medication.               There is a


                                        -7-
dispute over whether CCJ could forcibly administer medication to

inmates.   On November 8, Galambos submitted a medical request slip

asking that he be given Seroquel instead of Zyprexa.         There was no

response and, according to the plaintiff's expert, the record

contains   no   explanation   for    ignoring   Galambos's    request.

Trueworthy and Dr. Corona had previously discussed safety issues

surrounding prescribing Seroquel in a correctional setting, but it

was listed on Corizon's medication formulary at the time.

           On November 8, Galambos was placed in maximum security

after assaulting another inmate, and he remained there until

November 12.     During this period, Galambos asked to see the

psychiatrist and reiterated his medication change request.               On

November 11, Debra Konieczko, a Licensed Clinical Social Worker who

had treated Galambos when he was in the ACCESS program, visited

Galambos in CCJ. After meeting with Galambos and observing that he

was "highly agitated and anxious," "demonstrating psychomotor

agitation," and was "difficult to interrupt," Konieczko spoke with

a Corizon social worker about Galambos.     The Corizon social worker

met with Galambos and reportedly did not observe the problems that

Konieczko noted.     After Galambos was allowed out of maximum

security on November 12, he continued to ask to switch to Seroquel,

saying that Zyprexa made him feel sedated in the morning and unable

to sleep at night.




                                    -8-
             On November 15, Corizon accepted from Galambos a signed

"release of responsibility" form that allowed him to refuse the

Zyprexa.     On November 17, he again asked to see a psychiatrist for

a change in medication, and also asked for a change of housing,

reporting that other inmates were threatening to kill him.                      No

change in medication took place, and on November 17, Trueworthy

renewed Galambos's Zyprexa and Cogentin prescriptions.

             Galambos's chart indicates that at some point on December

1, he completed a "Request Slip" seeking mental health services, on

which he indicated: "I need to find out what meds will work for

me."    Also on December 1, Galambos met with Trueworthy to discuss

his medication situation for the first time since Galambos began

requesting     new    medication   in    early    November.      Galambos      told

Trueworthy     that   he   had   not    taken    the   Zyprexa   for    a   week.

Trueworthy did not discuss substitute medications with Galambos.

That Galambos was no longer on his medication did not concern

Trueworthy, because Trueworthy "believed that Galambos already

would have had problems [due to stopping his medication] since he

had not been taking Zyprexa for a while" as of that date.

             As of this December 1 meeting, Trueworthy discontinued

all    of   Galambos's     psychiatric    medications,      which      meant   that

Galambos would no longer be offered medication on a daily basis.

Trueworthy did not see Galambos again, and he maintains that he

never saw Galambos's December 1 Request Slip.


                                        -9-
              Sometime in the 24 hours following his meeting with

Trueworthy, Galambos verbally threatened to commit suicide to a

correctional officer.       Social worker Williams met with Galambos on

December 2 to discuss the threat, and at the meeting he told her

that he was not serious about committing suicide and that he wanted

to   change    his   housing    assignment    so   he   was   not    housed   with

pedophiles.      According to Williams, it was common for inmates to

complain about being housed with inmates charged with sex crimes.

But according to Dr. Grassian's assessment of Galambos's records,

Williams made no effort to determine whether Galambos was or was

not housed with pedophiles and so did not make the differential

diagnosis as to whether his fears were reasonable or delusional.

Dr. Grassian opined that Williams should have undertaken such an

inquiry.      On December 2 Williams was not concerned that Galambos

was suicidal based on her overall assessment, which included that

Galambos told her he was not suicidal.                   Dr. Grassian called

Williams's assessment at this juncture and failure to inquire

further into Galambos's mental state a "cavalier dismissal of his

suicidality," and opined that it was "grossly negligent" and "a

failure to meet her professional responsibilities."                   The record

suggests      that   Williams   did   not    discuss    Galambos's    medication

situation with him on this date.            The information that he was not

on any medication was set forth in his file.




                                      -10-
            Despite Williams's assessment, Galambos in fact tried to

commit suicide that night.    On the evening of December 2, Galambos

was found in his cell with a self-inflicted stab wound in his neck,

made with a pencil that was found under his bed.     The stab wound

narrowly missed his carotid artery.     The plaintiff characterizes

this as a suicidal action and a sign of how very sick and in need

of care Galambos was.     He was sent outside the jail to Brighton

First Care, an affiliated medical center, for appropriate medical

services.     He was placed on suicide watch upon his December 3

return to CCJ.    On December 3, Williams observed that Galambos was

talking to himself, laughing, and standing naked in front of the

window.     He was not responsive to her attempts to engage him in

conversation.     Williams placed a call to Dr. Corona regarding

Galambos's condition, and Dr. Corona recommended giving him a dose

of Abilify, which was done.   The next day, Williams again observed

Galambos and thought that he was talking to someone who was not

there and did not appear to be thinking coherently.

            On December 5 and 6, Galambos continued to regress.   He

reported to Williams that he was hearing voices and that he felt

like someone had "stolen his brain."      Dr. Corona observed that

Galambos was "floridly psychotic" when he examined him on December

6.   Dr. Corona and Williams both observed Galambos standing on the

table in his cell, talking to the wall.      The Facility Hot Book

indicates that on December 7 the water was turned off in Galambos's


                                 -11-
cell because he had been trying to fill the sink and inhale the

water.   On December 8, Galambos's condition continued to worsen,

and he was unable to hold a conversation.

          In the afternoon, Galambos did what is referred to at

several points in the record as a "swan dive": he stood naked on

top of the table in his cell, and while a staff member was trying

to talk him down, he jumped into the air and spun around to land on

his upper back and shoulders on the cement floor of the cell.            The

staff members were concerned and immediately brought Galambos to

the medical unit to receive emergency attention.          However, he was

not sent out to a hospital that day for treatment of his injuries.

          He   was   badly   bruised   by   the   fall,   and   though   the

diagnosis would not be confirmed until two days later when he was

sent out to a hospital following a different incident, he sustained

several broken ribs and a transverse process fracture.          One of the

plaintiff's experts also opined that Galambos likely suffered a

concussion and had a serious head injury.

          When Galambos was in the medical unit following this

incident, Director of Nursing Walsh performed a "'walk through'

assessment" of him, but did not document her observations.

Galambos was placed on suicide observation in a cell in the medical

unit, but was not admitted to the medical infirmary, where he would

have been seen by a doctor.        Walsh could not recall Galambos

receiving any x-ray services in the medical unit either.             Walsh


                                  -12-
asserts that she did not consider this incident to be an emergency

situation, and that she considered Galambos's jump from the table

"aberrant behavior" rather than a "serious suicide attempt."

               Until this point, Williams said that she felt that CCJ

was capable of treating Galambos.             It was only after the "swan

dive"       incident   that   Williams   felt    that   Galambos   should    be

transferred to Riverview, a psychiatric facility.3 Acting within

her authority, she then faxed the transfer requests for Galambos

and another inmate on the morning of December 9.            She had not done

so for Galambos before and in particular had not done so after

Galambos stabbed himself in the neck with a pencil.                Soon after

making this inquiry, she learned that Riverview did not have the

capacity to admit Galambos at that point and that he would be put

on the waiting list.           A Riverview staff member suggested to

Williams that Spring Harbor, a private hospital, might be an

alternative      placement.      There   is     no   evidence   that   Williams

attempted to follow up on the Spring Harbor option.              Williams did

not contact Dr. Corona at this point, nor did anyone else.

               Rather than being placed in some sort of outside medical

facility, Galambos remained in his cell, on suicide watch, in the

medical unit.



        3
         Dr. Grassian has opined that had Galambos been in a
psychiatric hospital, he would not have had a table or platform
from which he could have done a swan dive, and the walls would have
been padded.

                                     -13-
            On December 10, Williams found Galambos lying on the

floor of his cell with blood on his face.          He was not responsive to

her.    A nurse treated his wounds, and Galambos told her that he

fell off his toilet and was suicidal.           Williams placed a call to

the Maine Attorney General's Office to explore the possibility of

securing an expedited transfer to Riverview. Later that afternoon,

a correctional officer observed Galambos lurch forward and down and

after making no attempt to break his fall, hitting his nose and

face on the floor.        This, in addition to his injuries from the

December 8 jump from the table, would have caused him significant

pain.     Walsh spoke with Galambos and asked if she could give him

some medication.       He responded, "yes, I'll take anything at this

point."    Based on this consent, Walsh sought and received an order

for a heavy dose of emergency psychotropic medication to be

administered.     In the view of the plaintiff's expert, Galambos was

overdosed    in   a   dangerous    manner,   and   that   may     have   been    a

contributing factor in his death.

            To    deal    with    Galambos's    obviously       out-of-control

behavior,    several     staff    members,   including    Walsh    and    Health

Services Administrator North, decided that the use of restraints

was necessary.        Galambos was put into a pro-restraint chair,

covered with a blanket to preserve his privacy, and was given this

heavy, emergency dose of medication before he was strapped in.                  At

this point, he was observed to be calm and cooperating.                  When he


                                     -14-
was strapped into the chair at approximately 2:40 PM, he began

yelling loudly.        He was told that he would be released from the

restraint chair when he calmed down and stopped yelling.                      One of

the plaintiff's experts, Dr. Jagminas, opined that given Galambos's

injuries from the December 8 incident -- including broken ribs --

being strapped into a chair would have been very painful.                      About

ninety minutes later, after he had calmed down, he was released

from the restraint chair, and was released back to his cell in the

medical unit at about 4 PM.

            Walsh      believed    the     use    of   the   restraint     chair   was

appropriate because Galambos "was in a crisis," consisting of "his

various actions of self-harm, but also . . . being completely

undressed, urinating, . . . and yelling."                        By contrast, the

plaintiff's      experts     believe     the     appropriate     response    was   not

overmedication        and   restraint,     but     placement     in   a   psychiatric

hospital.   Dr. Grassian has opined that under the circumstances --

and given how bruised Galambos was from jumping off the table and

landing on his back and shoulders -- putting him in a restraint was

"very,   very    dangerous."         Dr.    Grassian      also    opined    that   the

emergency dose of medication given to Galambos that afternoon

overmedicated him in a dangerous manner.

            By    6   PM    that   evening,       after   his    release    from   the

restraint chair, Galambos was observed pacing and banging his head

off the wall in his cell.              At about 6:10 PM, he was given an


                                         -15-
intramuscular injection of Ativan while officers restrained him.

The needle broke off the syringe as the medication was being

administered, so after the treating nurse obtained a new syringe,

Galambos received the full dose at about 6:20 PM.                      By 6:30 PM, he

was naked on the floor of his cell, had urinated on the floor, and

was largely incoherent.               The treating nurse called Corizon's

medical    director,     Dr.     Todd   Tritch,4       to   evaluate    Galambos.

            Dr. Tritch found contusions on the front of Galambos's

head with fresh blood, along with contusions on his right shoulder.

Dr. Tritch recommended Galambos be sent to the hospital ER at Maine

Medical    Center      (MMC)    for     a    comprehensive      assessment.         The

responding emergency medical technicians that arrived to take

Galambos    to   the    ER     were   told     about    Galambos's      most   recent,

presenting problems, but were not told about Galambos's somersault

from the table in his cell two days earlier.                   Walsh asserts that

there was no need to advise the medical center about that incident.

Galambos was admitted to MMC with fractures of the transverse

process and multiple rib fractures, and was kept overnight at the

hospital for observation.

            On   December       11,     Williams,      working    with     Galambos's

attorney, began the process of having Galambos civilly committed so

that he could be transferred to Riverview upon his release from the



     4
         Plaintiff has stipulated the dismissal of her claims
against Dr. Tritch, and we do not discuss them here.

                                            -16-
emergency room.   However, Riverview required intake to take place

during the facility's regular hours, and so Galambos could not go

directly from MMC to Riverview.   He was discharged back to CCJ at

around 5 PM on December 11.   Upon his return to CCJ, Galambos was

housed in a cell under Suicide Watch Observation.    That cell was

under "one-on-one" watch, which required a CCJ correctional officer

to keep constant visual contact on Galambos at all times.     That

evening, Galambos complained to the correctional officers that he

was in pain, and he was given ibuprofen.   He then shoved the paper

medication cup into his nostril, where it was removed by the nurse

on duty with tweezers.   Galambos was then given a dose of Haldol

"for a psychiatric or behavioral emergency."

          At approximately 7:20 in the morning on December 12, a

correctional officer observed Galambos get up and then fall face

down on the floor, and then get up and fall again, striking his

head against the wall.   When the staff members entered his cell to

assist him, they discovered that Galambos was not responsive and

had no pulse.   He was pronounced dead soon after.

          The cause of death was later determined to be acute

pulmonary thromboemboli, caused by deep leg vein thrombosis, caused

in turn by self-inflicted blunt force trauma.     According to two

physicians testifying as experts on behalf of the plaintiff, the

heavy dose of emergency medication on December 10 (which rendered

Galambos nearly comatose) and the use of the pro-restraint chair


                                -17-
following the injuries Galambos sustained when he jumped off the

table    both     significantly   increased      the   risk    of     developing

thrombosis      and   were   likely     contributing   factors      in    causing

Galambos's death.

C.           Procedural History

             On January 9, 2012, Cady filed a Third Amended Complaint

in the District of Maine raising a claim under 42 U.S.C. § 1983

that defendants Trueworthy, Walsh, and Williams5 were deliberately

indifferent to Galambos's serious medical needs.6              On October 24,

Trueworthy, Walsh, and Williams each filed a motion for summary

judgment, arguing that their performance did not fall so low as to

constitute deliberate indifference and that they were entitled to

qualified immunity.

             On   March   22,   2013,    the   magistrate     judge      issued   a

thorough, 86-page Recommended Decision denying the defendants'

motions for summary judgment.           The recommendation expressed doubt


     5
         Cady also named Cumberland County and several county
employees as defendants. The district judge granted all of the
county defendants' motions for summary judgment, and they are not
involved in this appeal.
     Corizon, Inc. was also a named defendant, and the district
court denied its motion for summary judgment. The company has not
appealed that decision; the only claims before us now are the ones
against defendants Trueworthy, Walsh, and Williams.
     6
        Cady also brought a claim under the analogous Maine Civil
Rights Act, Me. Rev. Stat. tit. 5, § 4682. The parties do not
dispute that the two claims are analyzed co-extensively.        See
Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) ("The disposition
of a 42 U.S.C. § 1983 claim also controls a claim under the [Maine
Civil Rights Act].").

                                      -18-
that these defendants, as employees of a private corporation

performing state functions, would be entitled to qualified immunity

under Richardson v. McKnight, 521 U.S. 299 (1997), but in light of

the relative uncertainty surrounding that question of law, the

magistrate judge included an alternative recommendation, in which

she assumed that qualified immunity would be available to these

defendants.

          Under that alternative recommendation, the magistrate

judge concluded that as to each of the three defendants, there

remained genuine issues of fact in dispute as to whether their acts

and omissions constituted deliberate indifference.   See Coscia v.

Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) ("A state and its

subdivisions are under a substantive obligation imposed by the Due

Process Clause of the Fourteenth Amendment to refrain at least from

treating a pretrial detainee with deliberate indifference to a

substantial risk of serious harm to health.").   On that basis, the

magistrate judge recommended denying the defendants' motions for

summary judgment.

          As to each defendant, the magistrate judge concluded that

even if they were not categorically disqualified from claiming

qualified immunity, the record was sufficient for a "reasonable

finder of fact" to conclude "based on the evidence and permissible

inferences therefrom" that each defendant "knew or should have

known that Galambos's psychotic condition reflected an extremely


                               -19-
serious medical need that, if left untreated, would generate a

substantial risk of serious harm to his health and safety."                 Cady

v. Cumberland Cnty. Jail, No. 2:10-cv-00512, 2013 WL 3967486, at

*26, *28, *30 (D. Me. Aug. 1, 2013); cf. Coscia, 659 F.3d at 39

(noting     that    for    pretrial    detainees,       proof   of   deliberate

indifference       "requires   a   showing    of   greater   culpability     than

negligence but less than a purpose to do harm" and may "consist of

showing a conscious failure to provide medical services where they

would be reasonably appropriate").

            As to Trueworthy, the magistrate judge concluded that a

jury could find that the decision to order a stop to the offering

of prescribed medications on December 1 was an act of deliberate

indifference that may have been a substantial factor in bringing

about Galambos's rapid decompensation in the days that followed.

The magistrate judge also noted that a reasonable juror could

consider the absence of counseling to be further evidence of

deliberately indifferent medical care; Trueworthy contends that

Corizon policies called for counseling at the December 1 juncture,

but also contends "that there is no evidence that counseling did

not occur, even if he did not do it himself."

            The magistrate judge found that based on the record, a

reasonable finder of fact could have concluded the following as to

Walsh: she knew about Galambos's rapid regression in December 2008;

she   was   directly      involved    in   his   care   based   on   her   triage


                                       -20-
responsibilities; the December 8 jump from the table deserved an

emergency response by health practitioners or, at the least,

demonstrated a need to change the permissive approach to Galambos's

refusal to take his medication; the failure to send him out to the

ER on December 8 was likely related to the fact that he had been

sent out on December 2 after the pencil-stab incident; the December

10   incident   was    a     foreseeable   consequence    of   a   deliberately

indifferent approach to medical care; the use of the restraint

chair   followed      from    a   deliberately    indifferent      approach   to

Galambos's   care;     and     that   these   events   involved    "supervisory

acquiescence     and       participation      directly     related     to     the

deprivation."    Cady, 2013 WL 3967486, at *28.

           Finally, as to Williams, the magistrate judge recognized

that though Williams had taken affirmative steps, including an

unsuccessful December 9 effort at having Galambos transferred to

Riverview, the total picture, the decisions she made, and the

timing of her actions could support a finding of deliberate

indifference in light of Galambos's ever-escalating psychosis and

attempts at suicide:

           Although Williams did something or assessed
           something at each new stage of Galambos's
           slide into psychosis, it does not follow that
           she is insulated from liability on that basis.
           Nor is it appropriate at summary judgment for
           Williams to expect the court to view the
           [December   2]   pencil   stab   incident    as
           superficial or a mere gesture, let alone to
           color the entire course of events based on an
           evaluation of the significance of that one

                                       -21-
             incident.    That event, which a reasonable
             finder of fact could regard as a serious
             suicide attempt, occurred more than a week
             before Galambos's death and the change in
             medication recommendation did not change the
             fact that Galambos continued to reject
             medication and continued to slide deeper into
             psychosis. While it is true that Williams is
             not responsible for Galambos's refusal to take
             his medications or for the existence of a
             table in his cell, what is of concern here is
             the nature of her response in light of these
             and other facts known to her at the time. One
             possible finding on this record is that
             Williams's acts and omissions demonstrated
             deliberate indifference to serious medical
             needs and a substantial risk of serious harm.

Id. at *30 (record citations omitted) (emphasis added).

             After making a de novo determination of all matters

addressed by the magistrate judge, the district court adopted the

Recommended Decision in full.      In particular, the district court

agreed with the magistrate judge's "prudent decision to assume for

the sake of argument that the Corizon defendants are entitled to

qualified immunity," and agreed that even if qualified immunity

were available as a defense, it would fail.         Id. at *1.   The court

denied the defendants' motions for summary judgment, leaving the

deliberate indifference claims for trial.      This appeal followed.

                                   II.

             Ordinarily, we hear appeals only from final orders and

decisions.     See 28 U.S.C. § 1291; Whitfield v. Municipality of

Fajardo, 564 F.3d 40, 45 (1st Cir. 2009).             Certain collateral

orders   are    essentially   "final   decisions"    and   are   therefore


                                  -22-
immediately appealable under 28 U.S.C. § 1291.                        See Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).                      To fit

within    this    collateral     order     doctrine,     an    order     must    "[1]

conclusively     determine      the    disputed    question,     [2]    resolve   an

important issue completely separate from the merits of the action

[the     'separability        requirement'],       and   [3]     be     effectively

unreviewable on appeal from a final judgment."                   P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)

(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978))

(internal quotation mark omitted).

            Because the "qualified immunity defense is, in part, an

immunity from trial as well as an immunity from damage awards," a

pre-trial denial of the defense may, in some cases, be immediately

appealable.      Stella v. Kelley, 63 F.3d 71, 73 (1st Cir. 1995); see

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).                        In Johnson v.

Jones,    515    U.S.   304    (1995),    the     Supreme     Court    limited    the

circumstances in which a denial of qualified immunity is reviewable

on an interlocutory basis.            The Johnson Court held that a district

court's conclusion that a summary judgment record in a qualified

immunity case raised a genuine issue of fact as to whether the

defendants were involved in the alleged events was not immediately

appealable under the collateral order doctrine.                 515 U.S. 313-18;

see Plumhoff v. Rickard, ___ S. Ct. ___, 2014 WL 2178335, at *5

(2014).


                                        -23-
              Johnson relied in part on the "separability" requirement

of the collateral order doctrine.             The Court reasoned:

              Where . . . a defendant simply wants to appeal
              a district court's determination that the
              evidence is sufficient to permit a particular
              finding of fact after trial, it will often
              prove difficult to find any such "separate"
              question   --   one  that   is   significantly
              different from the fact-related legal issues
              that likely underlie the plaintiff's claim on
              the merits.

Id. at 314.         Questions of "evidentiary sufficiency" -- i.e.,

whether the record is capable of supporting a particular factual

finding, rather than a particular legal conclusion -- "are not

sufficiently distinct to warrant interlocutory appeal." Mlodzinski

v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011); see also Stella, 63 F.3d

at   75    (holding   that   Johnson    "permits     immediate   review   of   a

qualified immunity claim when the issue appealed concerns not what

facts the litigants might (or might not) be able to prove, but,

rather, whether a given set of facts shows a violation of a

federally protected right").       If appellate courts were to overlook

this separability problem in the context of fact-based qualified

immunity appeals and accept jurisdiction, those courts "may well be

faced with approximately the same factual issue again, after

trial," and interlocutory review would prove an unwise use of

appellate resources. Johnson, 515 U.S. at 316-17; see also Tang v.

State of R.I., Dept. of Elderly Affairs, 120 F.3d 325, 326 (1st

Cir.      1997)   ("Johnson's   limitation      on   immediate   review   rests


                                       -24-
primarily on a prudential desire to avoid bringing evidentiary

disputes    to   the   appeals    court    except      as     part    of    a    final

judgment.").

            In   applying   Johnson,      we   have    said    that    "a       summary

judgment order which determines that the pretrial record sets forth

a genuine issue of fact, as distinguished from an order that

determines whether certain given facts demonstrate, under clearly

established law, a violation of some federally protected right, is

not reviewable on demand," at least so long as that perception is

not infected by an error of law.          Stella, 63 F.3d at 74 (emphasis

added).    It follows that a "district court's pretrial rejection of

a qualified immunity defense is not immediately appealable to the

extent that it turns on either an issue of fact or an issue

perceived by the trial court to be an issue of fact."                  Id. (citing

Johnson, 515 U.S. at 318-20) (emphasis added).

            So too here.    The magistrate judge's opinion -- adopted

in full by the district court -- denied summary judgment on the

basis of the conclusion that there are genuine issues of fact and

inference on the deliberate indifference claims against these three

defendants.      The opinion includes separate determinations as to

each defendant, makes clear what portions of the record support

those   determinations,     and   outlines     at     length    the    permissible

inferences that the magistrate judge believed a reasonable juror

might draw from the evidence.              Cf. Tang, 120 F.3d at 326-27


                                    -25-
(holding that Johnson precluded interlocutory appeal even where the

district court did not identify "specific factual issues or explain

its ruling" and simply denied defendants' motion for summary

judgment because it agreed that "the vast majority of the facts are

in dispute").

          Though the defendants urge us to view this appeal as

presenting a pure issue of law (whether they are entitled to

qualified immunity individually as a matter of law on the facts),

they nowhere develop the argument that, even drawing all the

inferences as the district court concluded a jury permissibly

could, they are entitled to judgment as a matter of law.7      Cf.

Carter v. State of Rhode Island, 68 F.3d 9, 12 (1st Cir. 1995)

(holding that Johnson also applies to bar interlocutory review of

district court's conclusions as to intent because resolving matters

of intent "based on evidentiary proffers at summary judgment

entails a quintessential factual assessment"); Stella, 63 F.3d at

75 ("[W]e lack the power to inquire into, or address, . . . the

fact-based question of what the evidence does (or does not) show


     7
         The "purely legal" question of whether the qualified
immunity defense is even available to Trueworthy, Walsh, and
Williams is not necessarily dispositive here. Even if we were to
consider and decide the question of whether they are entitled to
raise a qualified immunity defense, that decision would not, on its
own, compel reversal of the denial of summary judgment in the
defendants' favor, as the district court held that even if the
defense were available, it fails at the summary judgment stage
here. See Mlodzinski, 648 F.3d at 27-28 (noting that an interest
in avoiding advisory opinions was one factor motivating Johnson's
core holding).

                               -26-
concerning whether the [defendants'] actions violated the asserted

right . . . .").

            The    defendants        are    correct      that    we     have    "assumed

interlocutory appellate jurisdiction where defendants have accepted

as true all facts and inferences proffered by plaintiffs, and

[where] defendants argue that even on plaintiffs' best case, they

are entitled to immunity."               Mlodzinski, 648 F.3d at 28.               And we

may, consistent with Johnson, exercise review even where the

defendants accept the plaintiffs' version only for the sake of

argument.   See 515 U.S. at 318; see also Berthiaume v. Caron, 142

F.3d 12, 16 (1st Cir. 1998) ("[A] defendant who concedes arguendo

the facts found to be disputed is not barred by Johnson from taking

an interlocutory appeal on a legal claim that the defendant is

nevertheless       entitled     to       qualified       immunity       on   facts     not

controverted.").        However,         that     formulation         does   not   confer

jurisdiction in this case.               The defendants' briefing before us

plainly disputes both the facts identified by the magistrate judge

as well as the inferences proffered by the plaintiff and deemed

reasonable by the magistrate judge.

            With     respect        to     each     individual         defendant,      the

defendants'    briefing       objects       to    the    way    the    district      court

construed   the     facts     and    argues       that   the    district       court   and

magistrate judge erred in their conclusions as to what a reasonable

juror could find.        Those fact-based arguments are inextricably


                                           -27-
intertwined with whatever "purely legal" contentions are contained

in the defendants' briefs: were we to attempt to separate the legal

from the factual in order to address only those arguments over

which we might permissibly exercise jurisdiction, we simply would

not know where to begin.      Cf. Johnson, 515 U.S. at 318.         It is not

merely that the Statement of Facts in the defendants' brief, as in

most briefs, shades the district court's determinations in a

favorable manner. Such a tactic would, on its own, be insufficient

to defeat jurisdiction.       Rather, the defendants' brief repeatedly

attacks the district court's factual conclusions, making no effort

to separate fact-based arguments from "purely legal" ones.

             For   example,   in   its   three-page    section   on   Walsh's

liability,     the    brief    characterizes     the     district     court's

determinations as "unsupported in the record" and "conclusory," and

argues that "[c]ontrary to the District Court's conclusion, the

failure to send Galambos for emergency room care was based on the

judgment of the nursing staff at the time that Galambos did not

have any injury requiring hospital treatment."           As the defendants

acknowledge, this assertion runs directly counter to the district

court's determination that

             [t]he record is sufficient to permit a
             reasonable   finder   of   fact  to   conclude
             . . . that the failure to send Galambos out on
             December 8 likely related to the fact that he
             had been sent out on December 2 for the pencil
             wound and Walsh's insistence that loss of a
             nursing license was no good excuse for a send-
             out.

                                    -28-
Cady, 2013 WL 3967486, at *28.    Such a fact-based challenge would,

of course, not defeat jurisdiction if it were advanced in the

alternative.   But nowhere in the defendants' brief does there

appear any developed argument that the defendants are entitled to

summary judgment even if the district court's conclusions about the

record were correct.

           Other such fact-based challenges abound.        Though the

district court plainly determined that a reasonable factfinder

could conclude that Williams knew of the risk to Galambos after the

December 2 pencil-stabbing incident, the defendants' brief asserts

that "[c]ontrary to the District Court's conclusion, an emergency

transfer to a psychiatric facility was not, in . . . Williams'

judgment, required until after the table jump."          There is no

argument that Williams was not liable even if, as the district

court concluded, she perceived such a risk.      Similarly, though the

district court concluded that a reasonable jury could find that

Trueworthy failed to address any issues with Galambos prior to

discontinuing his medications, the defendants' brief characterizes

that   determination   as   "conclusory   and   unsupportable   on   the

undisputed record," but nowhere argues that it is insufficient as

a legal matter to support liability.      That issue, like the others

we mention (and like many others raised in the defendants' brief)

represents "the very type of factual dispute that Johnson holds to

be premature so far as appellate review is concerned."      Tang, 120


                                 -29-
F.3d at 326.     Because the defendants' brief so clearly does not

"accept[] as true all facts and inferences proffered" by the

plaintiff, Mlodzinski, 648 F.3d at 28, we do not credit the

defendants' assertion, in response to an earlier Order to Show

Cause from this court, that they "accept the factual judgments made

below."

           Finally,    the   defendants'   objection     to   the   district

court's analysis of whether the constitutional rights in play were

"clearly established" also does not transform this appeal into one

that turns on a pure issue of law.          See Stella, 63 F.3d at 75

(concluding under Johnson that we can "examine the existence vel

non of a constitutionally protected right" but not the fact-based

question of what the evidence does or does not show).                    The

defendants do not separate their qualified immunity arguments from

their merits-based ones, and neither set of arguments concedes,

even if only for the sake of argument, that the district court was

correct   in   its   determinations   regarding   what   inferences     were

permissible on the summary judgment record. Because the defendants

fail to pose even the qualified immunity question in a manner that

would permit us to conclude that "the answer to it does not depend

upon whose account of the facts is correct," see Stella, 63 F.3d at

75, we lack the authority to provide an answer.

           This case fits squarely within Johnson, and we do not

have jurisdiction to review it at this stage.


                                  -30-
                                 III.

          This    appeal   is   dismissed   for   want   of   appellate

jurisdiction.    So ordered.




                                 -31-
