UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLYDE A. ERVIN, JR.,
Plaintiff-Appellee,

v.

R. MICHAEL MANGUM, Sheriff of
Raleigh County, in his individual
capacity; J. R. LILLY, Jail
                                                                        No. 93-7129
Administrator, Raleigh County Jail,
in his individual capacity; THOMAS
SCOTT, Correctional Officer, Raleigh
County Jail, in his individual
capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CA-92-864-5)

Argued: June 9, 1995

Decided: October 27, 1997

Before ERVIN and WILKINS, Circuit Judges, and
JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded for further proceed-
ings by unpublished opinion. Judge Ervin wrote the majority opinion,
in which Judge Jackson joined. Judge Wilkins wrote an opinion con-
curring in the judgment.

_________________________________________________________________
COUNSEL

ARGUED: Jeffrey Kent Phillips, STEPTOE & JOHNSON, Charles-
ton, West Virginia, for Appellants. Ralph C. Young, HAMILTON,
BURGESS, YOUNG, TISSUE & POLLARD, Oak Hill, West Vir-
ginia, for Appellee. ON BRIEF: Stephen P. McGowan, STEPTOE &
JOHNSON, Charleston, West Virginia, for Appellants. D. Clinton
Gallaher, IV, Fayetteville, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Clyde Ervin, a former pretrial detainee at the Raleigh County Jail
in West Virginia, brought this civil rights action under 42 U.S.C.
§ 1983 against Michael Mangum, the former county sheriff, J.R.
Lilly, the jail administrator, and correctional officer Thomas Scott.
While at the Raleigh County jail, Ervin was assaulted by a fellow
inmate and sustained serious injuries to his eyes and face. Ervin
claims that the defendants failed to take sufficient precautions to pro-
tect him from assault and failed to provide adequate medical care
once he had been injured. The defendants moved for summary judg-
ment based on qualified immunity on both the failure to protect and
failure to provide medical assistance claims.

Although the district court failed to distinguish sufficiently
between the two claims, we find that summary judgment should have
been granted in favor of all three defendants on Ervin's failure to pro-
tect claim and in favor of defendants Mangum and Lilly as to Ervin's
claim of failure to provide medical assistance. Defendants are entitled
to immunity from these claims because they committed no violation
of clearly established constitutional law. The district court correctly
held, however, that Scott is not entitled to summary judgment based

                     2
on qualified immunity on the claim of failure to provide medical
assistance. In light of our ruling today, we remand this matter to the
district court for trial on the sole issue of whether Officer Scott was
deliberately indifferent in failing to provide Ervin with adequate med-
ical care.

I.

On September 10, 1990, Clyde Ervin was arrested on marijuana
charges and brought to the Raleigh County Jail to await transfer to
Bluefield, West Virginia for arraignment. Within fifteen minutes of
being placed in the felony cellblock, Ervin went into the inmates'
commons room to place a phone call to his girlfriend. While on the
phone, Ervin was assaulted by a fellow inmate, Ed Jordan. The attack
occurred without any provocation. The men did not know one another
nor had they even exchanged words during the fifteen minutes that
Ervin had been in the cellblock. Jordan was a large man, and the one
punch that he landed resulted in severe facial injuries, including two
fractures to Ervin's face and a fracture to one of his eye sockets. Both
eyes began swelling immediately, and Ervin bled from his nose and
eyes. Ervin's condition worsened over the next twelve hours.

Concerned that Ervin would cause problems, other inmates
dragged him to his individual cell where Jordan told him that he
would be killed if he told anyone who had punched him. Ervin did
not alert jail officials to his condition, apparently out of fear of retalia-
tion. No correctional officers approached Ervin to determine if he
needed medical attention. Ervin's first contact with an officer at the
jail occurred the following morning, September 11, 1990, when Offi-
cer Scott removed Ervin from the cell for transport to Bluefield. The
parties dispute whether Officer Scott inquired about Ervin's injuries
when Scott removed Ervin from the cell. While Ervin claims that
Scott specifically asked him what had happened, Scott asserts that he
did not converse with Ervin that morning.

Ervin was released from the Raleigh jail into the custody of a state
trooper who transported him to Bluefield for arraignment. After he
had been arraigned on the drug charge, Ervin went immediately to
Raleigh General Hospital where he remained for seven days. During

                      3
that time, Ervin underwent reconstructive surgery and incurred nearly
$16,000 in expenses.

Following his release from custody and subsequent medical treat-
ment, Ervin filed this § 1983 claim in United States District Court for
the Southern District of West Virginia against Mangum, Lilly, and
Scott. In light of Ervin's status as a pretrial detainee, the district court
appropriately evaluated the parties' cross-motions for summary judg-
ment under the Due Process Clause of the Fourteenth Amendment.
The district court rejected the defendants' argument that plaintiff
failed to show the violation of any clearly established constitutional
or statutory right and, in a brief order, denied both sides' summary
judgment motions. This timely appeal followed.

II.

Federal courts of appeal are granted jurisdiction to hear "final deci-
sions" of district courts pursuant to 28 U.S.C.§ 1291 (1994). The
Supreme Court has held that "a district court's denial of a claim of
qualified immunity, to the extent that it turns on an issue of law, is
an appealable `final decision' within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment." Mitchell v. Forsyth,
472 U.S. 511, 530 (1985).

Interpreting Mitchell in Johnson v. Jones, 515 U.S. 304 (1995), the
Court appeared to restrict the reach of interlocutory appellate jurisdic-
tion in cases in which qualified immunity has been denied. The
Johnson Court held that defendants could not immediately appeal a
denial of summary judgment based on qualified immunity when that
order "resolved a fact-related dispute about the pretrial record." Id. at
307. The Court limited appellate jurisdiction under the Mitchell deci-
sion to cases that address "the purely legal issue [of] what law was
`clearly established.'" Id. at 313.

We held this appeal in abeyance pending our en banc decision in
Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997) (en banc), which
required us to resolve questions left by the Court's decision in
Johnson. In Winfield, the district court denied defendants' motion for
summary judgment based on qualified immunity. The defendants
immediately appealed, challenging both whether the evidence was

                      4
sufficient to support the factual allegations and whether "the undis-
puted facts disclose[d] that reasonable officers would have understood
that their conduct violated [plaintiff]'s clearly established legal
rights." Winfield, 106 F.3d at 530. This court rejected the first argu-
ment as a proper basis for jurisdiction and relied instead on the sec-
ond. "[W]e possess no jurisdiction over a claim that a plaintiff has not
presented enough evidence to prove that the plaintiff's version of the
events actually occurred, but we have jurisdiction over a claim that
there was no violation of clearly established law accepting the facts
as the district court viewed them." Id.

Like the district court in Winfield, the district court in this case has
found that genuine issues of material fact are at issue -- most impor-
tantly, the interaction between the plaintiff and Officer Scott on the
morning of September 11. The defendants-appellants are correct to
concede that this Court would have no jurisdiction to decide that "the
district court incorrectly interpreted the facts of this case." Appellants'
Supp. Br. at 4. Rather, defendants argue that summary judgment was
appropriate because no clearly established right of the plaintiff was
violated. The district court's denial of defendants' motion for sum-
mary judgment indicates that, in the view of the district court, a rea-
sonable trier of fact could find that the defendants violated a clearly
established right of which a reasonable person would have known.
See Winfield, 106 F.3d at 530. Our consideration of that ruling pro-
vides the jurisdictional basis for this appeal.

In reviewing the evidence as it relates to the motion for summary
judgment, we consider all evidence in the light most favorable to the
non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir.
1991). This is particularly important in this case because the parties
dispute several critical facts. While Ervin claims that one eye was
swollen completely shut, that the other eye was swollen nearly as
badly as the other, and that he continued to bleed from his nose for
over twelve hours, the defendants contend that Ervin's injuries were
barely noticeable. Additionally, Ervin claims that he and Officer Scott
engaged in conversation in close proximity to one another on the
morning of September 11, 1990, and that Scott mentioned previous
instances in which inmates had been attacked by their fellow inmates.
Officer Scott denies any such conversation. For purposes of our
review, we resolve each of these discrepancies in favor of Ervin.

                     5
III.

Qualified immunity protects government officials from suits for
civil damages arising out of the exercise of their discretionary func-
tions. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981). This immunity
is available when the conduct of a government employee "does not
violate clearly established statutory or constitutional rights of which
a reasonable person would have known." Id.

In Siegert v. Gulley, 500 U.S. 226 (1991), the Supreme Court held
that an appellate court may appropriately look to the merits of a case
in which qualified immunity has been denied to determine whether a
plaintiff has stated a cognizable claim at all."A necessary concomi-
tant to the determination of whether a constitutional right . . . is
`clearly established' at the time the defendant acted is the determina-
tion of whether the plaintiff has asserted a violation of a constitutional
right at all." Id. at 232. Using this Siegert framework, we address each
of Ervin's claims in turn.

A.

The defendants contend that the district court erred in denying their
motion for summary judgment on Ervin's claim of failure to protect.
We agree that the defendants are entitled to qualified immunity on the
failure to protect claim and reverse as to all three defendants.

Ervin's § 1983 claim for failure to protect is based on substantive
due process under the Fourteenth Amendment. Because Ervin was a
pretrial detainee and not a convicted prisoner at the time of the inci-
dent, this claim is governed by the Due Process Clause of the Four-
teenth Amendment rather than the Eighth Amendment's prohibition
against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520,
535 n.16 (1979); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).
The due process rights of a pretrial detainee are"at least as great as
the Eighth Amendment protections available to a convicted prisoner."
City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244
(1983). This means that "while the convicted prisoner is entitled to
protection only against punishment that is `cruel and unusual,' the
pretrial detainee . . . may not be subjected to any form of `punish-
ment.'" Martin, 849 F.2d at 870.

                     6
As a practical matter, however, we do not distinguish between the
Eighth and Fourteenth Amendments in the context of a pretrial detain-
ee's § 1983 claim. Hill v. Nicodemus, 979 F.2d 987, 990-92 (4th Cir.
1992); Belcher v. Oliver, 898 F.2d 32, 33 (4th Cir. 1990). Despite the
Supreme Court's suggestion that pretrial detainees may be afforded
greater protection than convicted prisoners, the circuit courts have
generally analyzed both situations under the same"deliberate indiffer-
ence" standard. See Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th
Cir. 1996); Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996)
(en banc); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995); Hill,
979 F.2d at 991 n.* (citing cases); Johnson v. Busby, 953 F.2d 349,
351 (8th Cir. 1992); Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir.
1986).

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court
defined "deliberate indifference" for prisoner litigation under the
Eighth Amendment. The Court began by observing that a prison offi-
cial's "deliberate indifference" to "a substantial risk of serious harm
to an inmate violates the Eighth Amendment." Id. at 828. An Eighth
Amendment claim must articulate both an objective and a subjective
component. Id. at 834. To satisfy the objective component, the plain-
tiff must show that an injury is sufficiently serious. "[A] prison offi-
cial's act or omission must result in the denial of the minimal
civilized measure of life's necessities." Id. (quotation omitted). We
believe that Ervin's injuries are sufficiently serious to satisfy the
objective component.

The second component of an Eighth Amendment claim is subjec-
tive. It requires that the defendant have had a sufficiently culpable
state of mind. Id. "In prison condition cases that state of mind is one
of `deliberate indifference' to inmate health or safety." Id. (citation
omitted). In Farmer, the Court held that a prison official is deliber-
ately indifferent "if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable
measures to abate it." Id. at 847.

The evidence presented by Ervin in this case cannot support a find-
ing that any of the defendants had the required state of mind. Inmate
Jordan had never threatened or assaulted any other inmates; in fact,
he was in prison for having committed a non-violent offense. Addi-

                     7
tionally, Ervin had been in jail for a total of fifteen minutes before
Jordan assaulted him. Neither Officer Scott nor other correctional
officers had any basis for believing that Ervin was in any danger. For
that matter, Ervin had no reason to believe that he would be assaulted
when he went into the commons room to make a phone call. Jordan's
violent actions were absolutely unanticipated, making it impossible
for any of the defendants to have subjective knowledge of a risk of
harm to Ervin.

Ervin focuses heavily on the fact that conditions at the Raleigh jail
on September 10, 1990 were not in strict compliance with West Vir-
ginia regulations. First, Ervin points out that corrections officers were
making rounds once an hour rather than every thirty minutes as is
required by West Virginia regulations. This is of no consequence
since Ervin was assaulted within the first fifteen minutes that he was
incarcerated. Second, Ervin notes that twenty-three inmates were
incarcerated in the felony cellblock--eight more than are allowed
under state guidelines. But Ervin offers no evidence suggesting that
the overcrowding contributed to Jordan's outburst. Based on our read-
ing of the record, the assault was a completely random act that was
just as likely to have occurred had there only been fifteen men in the
cellblock. We find that the connection between the conditions at the
jail and the attack on Ervin are far too attenuated to support the con-
tention that the defendants were deliberately indifferent to Ervin's
health or safety. See Best v. Essex County, 986 F.2d 54, 57 (3d Cir.
1993).

The sudden outburst by Jordan could not have been predicted;
Ervin and Jordan had never interacted with one another prior to the
assault, and the defendants' failure to meet prison regulations was not
causally related to Ervin's injuries. Because the evidence in support
of Ervin's claim for failure to protect cannot constitute the violation
of a constitutional right, Siegert, 500 U.S. at 232, the defendants are
entitled to qualified immunity on that claim.

B.

The "deliberate indifference" standard that governed our analysis
of Ervin's failure to protect claim also operates as the controlling
standard in Ervin's claim that the defendants failed to provide ade-

                     8
quate medical care. "Pretrial detainees . . . are entitled to medical
attention, and prison officials violate detainee's right to due process
when they are deliberately indifferent to serious medical needs." Hill
v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (quoting Gordon v.
Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992)); see also Martin, 849 F.2d
at 871.

First, we address the failure to provide medical care as it relates to
defendants Mangum and Lilly. Deliberate indifference requires the
subjective knowledge of an excessive risk to inmate health. Farmer,
511 U.S. at 837. Mangum and Lilly must have been"aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exists and also [have] draw[n] the inference." Id. But
Mangum, the former sheriff, and Lilly, the jail administrator, had no
personal interaction with Ervin and, given their positions, could not
"realistically be expected to be personally involved in resolving a sit-
uation pertaining to a particular inmate unless it were of the gravest
nature." Antonelli v. Sheahan, 81 F.3d 1422, 1428-29 (7th Cir. 1996).

Without actual knowledge of Ervin's injuries, Mangum and Lilly
cannot be held liable for "deliberate indifference" to his need for med-
ical care. There is absolutely no evidence that either Mangum or Lilly
knew that Ervin had been attacked by a fellow inmate or that he had
sustained any injuries for which he was in need of medical care.
These facts cannot support the finding of a constitutional violation at
all. See Siegert, 500 U.S. at 232. Therefore, the district court erred in
denying Mangum and Lilly's motion for summary judgment based on
qualified immunity.

Ervin's claim against Scott for failure to provide medical care,
however, requires a separate analysis. Ervin alleges that on the morn-
ing of September 11 Officer Scott engaged in conversation with him
at a distance of less than ten feet. A few hours later, Officer Scott pro-
cessed Ervin out of the Raleigh County jail. Assuming these facts,
Officer Scott was in a position to have actual knowledge of the seri-
ousness of Ervin's condition and his need for immediate medical care.
Officer Scott, unlike Mangum and Lilly, may have had the required
state of mind under Farmer v. Brennan to be found deliberately indif-
ferent to Ervin's need for medical care.

                     9
Scott argues, however, that Ervin's injuries were not sufficiently
serious or obvious enough to support a finding of deliberate indiffer-
ence. Were we not required to construe the facts in the light most
favorable to Ervin, we would be more inclined to accept Scott's argu-
ment. The parties offer very different evaluations of Ervin's injuries,
compare Appellee's Br. at 5 (the morning after he was punched in the
face, "Ervin's right eye was swollen completely shut and his left eye
was swollen to the point where he could see only from a small slit . . .
[and] Ervin continued to bleed from the nose as he had through the
night") with Appellant's Br. at 20 ("the visible injury to the appellee,
if there was any objective sign of injury, was not severe enough to
require immediate treatment"), but it is the account offered by Ervin
that must be accepted as true for purposes of our review of defen-
dants' summary judgment motion. Ervin claims that Officer Scott
looked directly at him from only ten feet away on the morning of Sep-
tember 11, but did not acknowledge Ervin's condition. If Ervin's inju-
ries were as bad and as obvious as he claims them to have been, we
believe they should be considered "serious medical needs" to which
jail officials cannot be deliberately indifferent.

As a final matter, we reject Officer Scott's suggestion that Ervin's
failure to request medical attention should bar his ability to recover
on a claim that he had been wrongfully deprived of medical care.
Again, viewing the facts in the light most favorable to the non-
movant, Ervin had a legitimate reason for not bringing his injuries to
the attention of prison officials. According to Ervin, Jordan "told me
he was going to kill me if I told anybody who done it." Because
Ervin's first, brief interaction with Jordan resulted in two swollen
eyes, a broken face, and a bloody nose, it was reasonable for Ervin
to be concerned for his safety and not request immediate medical
attention.

In order to be entitled to qualified immunity from suit for failure
to provide medical care, Officer Scott must show, as a matter of law,
that his actions could not have constituted "deliberate indifference" to
Ervin's serious medical needs. We reject Scott's argument that it was
not a violation of clearly established law to deny a pretrial detainee
immediate medical care whose eyes were swollen shut, whose face
was broken, and whose nose had bled all night and continued bleed-
ing. The district court was therefore correct in denying Officer Scott

                    10
summary judgment on Ervin's claim of failure to provide medical
care.

IV.

Having considered both of Ervin's constitutional claims with
respect to each of the three defendants, we reach the following con-
clusions:

(1) Summary judgment is granted to all three defendants on Ervin's
failure to protect claim.

(2) Summary judgment is also granted in favor of defendants
Mangum and Lilly as to the claim for failure to provide medical care.

(3) Summary judgment is denied, and the case is remanded for
trial, as to defendant Scott with respect to the claim for failure to pro-
vide medical care.

The judgment of the district court is accordingly

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS.

WILKINS, Circuit Judge, concurring in judgment:

I agree with the result reached by the majority. I write separately
to emphasize why this result is consistent with the decision of the
Supreme Court in Johnson v. Jones, 515 U.S. 304 (1995), and our en
banc decision in Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997) (en
banc).

Both Johnson and Winfield stressed that in reviewing an interlocu-
tory appeal by a governmental official whose claim of entitlement to
summary judgment on the basis of qualified immunity has been
rejected, a court of appeals possesses jurisdiction only to the extent
that the official maintains his conduct did not violate clearly estab-
lished law. See Johnson, 515 U.S. at 313; Winfield, 106 F.3d at 528-
30. We do not possess jurisdiction under 28 U.S.C.A.§ 1291 (West

                     11
1993) to the extent that the appealing official seeks to assert the insuf-
ficiency of the evidence to raise a genuine issue of material fact, and
we may not undertake that review absent some independent jurisdic-
tional basis. See Johnson, 515 U.S. at 318-20; Winfield, 106 F.3d at
529-30.

The majority acknowledges these holdings. See supra pp. 4-5. But,
having done so, it immediately states that "[i]n reviewing the evi-
dence as it relates to the motion for summary judgment, we consider
all evidence in the light most favorable to the non-moving party," not-
ing that "several critical facts" are disputed by the parties. Supra p.
5. The majority then undertakes a de novo evaluation of the evidenti-
ary sufficiency of the material presented by Ervin, evaluating whether
it is adequate to create a genuine issue of material fact to support his
claim. The majority ultimately concludes that except for the claim of
Officer Scott's deliberate indifference to a serious medical need, the
evidence Ervin presented is insufficient to support his claims. See
supra p. 7 (reasoning that "[t]he evidence presented by Ervin in this
case cannot support a finding that any of the defendants had the
required state of mind"--i.e., subjective knowledge of a substantial
risk of harm); supra p. 9 (concluding that"[t]here is absolutely no
evidence that either Mangum or Lilly knew that Ervin had been
attacked by a fellow inmate or that he had sustained any injuries for
which he was in need of medical care"). Because the majority fails
to indicate that any independent justification is present for consider-
ing the sufficiency of the evidence, this analysis is in obvious tension
with the holdings of Johnson and Winfield.

Nevertheless, Johnson and Winfield acknowledged that in order to
conduct the legal analysis that is properly considered on interlocutory
appeal from a denial of summary judgment on the basis of qualified
immunity, a reviewing court must know the factual circumstances to
which the legal standards are to be applied. See Johnson, 515 U.S. at
319; Winfield, 106 F.3d at 533. The question arises, then, how a
reviewing court is to determine the factual basis to which it should
look in resolving the legal question over which it possesses jurisdic-
tion. The Johnson Court recognized that it will often be possible for
an appellate court to utilize the facts that were assumed by the district
court in denying the motion for summary judgment. See Johnson, 515
U.S. at 319. But, the Court also accepted that when the district court

                     12
fails to set forth the facts on which its decision was based, "a court
of appeals may have to undertake a cumbersome review of the record
to determine what facts the district court, in the light most favorable
to the nonmoving party, likely assumed." Id. And, we have held:

          [W]hen a district court fails fully to set forth the facts sup-
          porting its legal conclusion that a government official is not
          entitled to qualified immunity, the court of appeals must
          review the materials submitted to the district court to deter-
          mine what the record, viewed in the light most favorable to
          the nonmoving party, discloses in order to have a factual
          basis upon which to base its legal conclusion.

Winfield, 106 F.3d at 533.

Here, in ruling on the motion for summary judgment, the district
court explained only:

          In support of [Ervin's] claim, he has submitted deposition
          testimony indicating that at least one of the prison officials
          was aware that the inmate who assaulted [Ervin] was violent
          and/or dangerous. (Plaintiff's Dep. p. 81). Also,[Ervin]
          alleges he sat in his cell all night long bleeding heavily from
          the injuries he sustained as a result of an assault by another
          inmate. (Plaintiff's Dep. 63).... Therefore, [Ervin] in this
          case has raised a genuine issue as to whether his Fourteenth
          Amendment rights were violated.

J.A. 127-28. Obviously, this ruling falls short of providing an ade-
quate factual basis for us to conduct a review of the officials' entitle-
ment to qualified immunity. The information set forth by the district
court relating to Ervin's claim of deliberate indifference to an actual
risk of harm does not indicate which of the defendants possessed
knowledge of a risk or what risk was posed. Further, the factual infor-
mation relating to Ervin's claim of deliberate indifference to a serious
medical need fails to indicate that any of the defendants possessed
knowledge of Ervin's medical condition. This lack of specificity in
the ruling of the district court dictates that we must conduct a review
of the record to determine what the evidence, viewed in the light most
favorable to Ervin, discloses. See White ex rel. White v. Chambliss,

                     13
112 F.3d 731, 735 n.1 (4th Cir. 1997), petition for cert. filed, 66
U.S.L.W. 3129 (U.S. July 31, 1997) (No. 97-204). Hence, under these
circumstances it is necessary to conduct the type of analysis
undertaken by the majority, and I agree with its ultimate conclusion
that, viewed in the light most favorable to Ervin, the undisputed facts
demonstrate that the prison officials are entitled to qualified immunity
on Ervin's claims of deliberate indifference to a substantial risk of
harm and, except for Officer Scott, to a serious medical condition.

                    14
