                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                   No. 09-2836
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Ecclesiastical Denzel Washington,         *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Western District of Missouri.
Matt Blunt; Larry Crawford; Lisa          *
Jones; Dave Dormire; Steve Long;          *           [UNPUBLISHED]
Wendell Enloe; Jay Cassady; Brad          *
Hall; Baslee; J. Lange; J. Caviness;      *
Lucreta R. Bright; Mike Kemna;            *
Stanley Swicord,                          *
                                          *
             Appellants.                  *

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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,
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.)




      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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        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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