                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           MAR 31 2003

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk


 WILLIAM LAWSON ROSS, III,

          Plaintiff - Appellee,

 v.
                                                        No. 02-6147
 BECKHAM COUNTY BOARD OF
                                                  (D.C. No. CIV-01-994-H)
 COUNTY COMMISSIONERS, on
                                                     (W. D. Oklahoma)
 behalf of the Beckham County Jail;
 SCOTT JAY, individually and in his
 official capacity as Sheriff of
 Beckham County,

          Defendants - Appellants.



                          ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK and O’BRIEN, Circuit Judges.


      Scott Jay, Sheriff of Beckham County, appeals the district court’s denial of

qualified immunity to him in this action brought pursuant to 42 U.S.C. § 1983. In

addition, the Beckham County Board of County Commissioners asks us to find

pendant appellate jurisdiction to review the district court’s denial of its motion


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
for summary judgment. Because we determine that we do not have jurisdiction to

consider the issues presented, we dismiss the appeal.

      Plaintiff William Lawson Ross, III was injured while incarcerated in the

Beckham County Jail. He brought an action in district court claiming, inter alia,

that defendants violated the Eighth Amendment by their failure to protect him

while he was in their custody. After substantial discovery had been completed,

defendants filed motions for summary judgments contending that no genuine issue

of material fact exists, entitling them to judgment as a matter of law. The district

court granted defendants’ motions as to two claims, but denied the motions with

respect to Ross’ claim for failure to protect and for punitive damages, and denied

qualified immunity to the sheriff.

      As a general rule, appellate courts have jurisdiction to hear appeals only

from “final decisions” of district courts. 28 U.S.C. § 1291. Nevertheless, the

Supreme Court held in Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985), that a

district court’s order denying a defendant’s motion for summary judgment was an

immediately appealable “collateral order” under Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), where (1) the defendant was a public official

asserting a defense of “qualified immunity,” and (2) the issue appealed concerned

not which facts the parties might be able to prove, but whether certain given facts

showed a violation of “clearly established” law. See also Harlow v. Fitzgerald,


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457 U.S. 800, 818 (1982) (public officials entitled to “qualified immunity” from

“liability for civil damages insofar as their conduct does not violate clearly

established . . . rights of which a reasonable person would have known”).

      Interlocutory appeals are the exception, not the rule. The Supreme Court

determined in Johnson v. Jones, 515 U.S. 304, 313 (1995), that a denial of

qualified immunity is not appealable when it “determines only a question of

‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove

at trial.” The Court stated that “the District Court’s determination that the

summary judgment record in this case raised a genuine issue of fact concerning

petitioners’ involvement in the alleged beating of respondent was not a ‘final

decision’ within the meaning of the relevant statute.” Id. Thus, to the extent the

denial of qualified immunity turns on issues of fact, as opposed to issues of law,

it is not appropriate for interlocutory appeal.

      “The doctrine of qualified immunity shields individual government officials

performing discretionary functions ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Butler v. City of Prairie Vill.,

Kansas, 172 F.3d 736, 745 (10th Cir. 1999) (citing Tonkovich v. Kansas Bd. of

Regents, 159 F.3d 504, 516 (10th Cir. 1998) (citations omitted); Gehl Group v.

Koby, 63 F.3d 1528, 1533 (10th Cir. 1995)). While a governmental entity cannot


                                          -3-
absolutely guarantee the safety of all inmates, such entities have a constitutional

duty under the Eighth Amendment to take reasonable steps to protect a prisoner’s

safety and bodily integrity. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489,

1499 (10th Cir. 1990). See also Farmer v. Brennan, 511 U.S. 825, 832-34 (1994).

In order to succeed on his claim here, Mr. Ross was required to present evidence

that he was incarcerated under conditions which posed a substantial risk of

serious harm. Grimsley v. MacKay, 93 F.3d 676, 681 (10th Cir. 1996) (citing

Farmer, 511 U.S. 834). He was also required to present evidence regarding the

sheriff’s state of mind, otherwise referred to as a deliberate indifference. Id.

      The district court held that

      [a]lthough a close question, . . . the plaintiff produced sufficient
      evidence both that the conditions of the Beckham County Jail,
      including its failure to adhere to the jail standards of the Oklahoma
      State Department of Health resulted in a substantial risk of harm to
      the prisoners and that the Sheriff was aware of the danger resulting
      from inadequate supervision, but failed to take reasonable steps to
      insure the prisoners’ safety.

Dist. Ct. Order at 6 (footnote omitted). As noted by the Supreme Court in

Johnson, questions of sufficiency of the evidence to raise a genuine issue of fact

regarding a defendant’s liability are inappropriate for interlocutory appeal.

Having heard oral argument and reviewed the record, we are persuaded that

material fact issues remain regarding whether plaintiff’s incarceration posed a

substantial risk of harm, as well as to whether the sheriff was deliberately


                                          -4-
indifferent to that harm. Thus, we do not have jurisdiction to review the appeal

of the denial of qualified immunity. 1 Accordingly, we DISMISS the appeal.


                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




      1
       Because we have determined that we lack jurisdiction over the qualified
immunity issue, we do not decide whether pendent appellate jurisdiction would
have been appropriate for consideration of defendants’ remaining claims.

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