           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                         March 26, 2008

                                    No. 07-10833                     Charles R. Fulbruge III
                                  Summary Calendar                           Clerk


KELVIN BAKER

                                                 Plaintiff - Appellee
v.

JIM BOWLES

                                                 Defendant - Appellant



                   Appeal from the United States District Court
                for the Northern District of Texas, Dallas Division
                                 3:05-CV-1118-L


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Kelvin Baker, a prisoner in the Dallas County, Texas, jail, brought suit
under 42 U.S.C. § 1983 for alleged violations of his Eighth Amendment right to
be free from deliberate indifference to his serious medical needs. One of the
defendants, Dallas County Sheriff Jim Bowles, after being denied summary
judgment on the issue of his qualified immunity from these claims, filed an


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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interlocutory appeal. We affirm.
      Inmate Baker alleged that a nine-hour delay occurred between his fall in
the jail, resulting in a blackout and loss of vision, and his initial medical
examination. He further stated that he was denied prescription medications and
access to any medical care upon returning to jail after his first surgery. Baker
also alleged that he was prevented from appearing for a second surgery to
reconnect his retina to restore vision in his left eye.
      Sheriff Bowles raised the affirmative defense of qualified immunity in his
answer. The magistrate judge ordered Baker to reply with sufficient detail, and
ordered Sheriff Bowles to file a dispositive motion with supporting evidence on
the issue of qualified immunity. See Schultea v. Wood, 47 F.3d 1427, 1433-34
(5th Cir. 1995). Baker’s discovery requests to Sheriff Bowles in his individual
capacity were stayed. Sheriff Bowles moved for summary judgment not only on
the issue of qualified immunity but on the merits of all claims. The magistrate
judge entered detailed findings and conclusions, recommending that the Sheriff
be denied summary judgment as to qualified immunity in his individual
capacity. The district court adopted this recommendation.
      In a detailed written analysis, the magistrate judge and district court
concluded that Sheriff Bowles was not entitled to summary judgment on the
basis of qualified immunity in his individual capacity because he did not contest
Baker’s attested statements. Deposition testimony, an affidavit, and medical
records provided evidentiary support to the claim that Baker’s constitutional
rights were violated and that he sent several grievances personally addressed
to Sheriff Bowles regarding Baker’s serious need for medical care. Sheriff
Bowles failed to provide any evidence, not even an affidavit, to contradict
Baker’s allegations of the Sheriff’s deliberate indifference to Baker’s serious
medical needs.

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      Whether Sheriff Bowles actually had the requisite knowledge of Baker’s
alleged deprivation of a constitutional right is a question we lack jurisdiction to
hear on interlocutory appeal. Smith v. Brenoettsy, 158 F.3d 908, 912-13 (5th Cir.
1998). We review only whether the actions of Sheriff Bowles are objectively
reasonable as a matter of law, entitling him to be free from the present suit.
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).
      Baker has alleged and provided some evidence that he was denied needed
medical care for nine hours after his injury, denied access to the prescription
drugs to treat his injury, denied the opportunity to appear for his follow up
surgery to restore vision to his left eye, that he personally sent notice to Sheriff
Bowles regarding this lack of medical care, and that Sheriff Bowles took no
action. Taking these allegations as true, such inaction on the part of the Sheriff
is objectively unreasonable. The denial of summary judgment is AFFIRMED.




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