                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2385
                                    ___________

Ben Krein,                                 *
                                           *
                       Appellee,           *
                                           *
       v.                                  *
                                           *
Larry Norris, Director of the Arkansas *
Department of Correction, individually *
and in his official capacity; David        *
Guntharp, Deputy Director of the           *
Arkansas Department of Correction,         *
individually and in his official           *
capacity; John Belken, Assistant           *   Appeal from the United States
Warden of the North Central Unit,          *   District Court for the
individually and in his official capacity *    Eastern District of Arkansas.
(originally sued as John Belkins);         *
Robert Perry, Major, individually and      *
in his official capacity; Bill Killian,    *
Col., individually and in his official     *
capacity; David Beatty, Lieutenant,        *
individually and in his official capacity; *
Jackie Goggins, Sergeant, individually *
and in his official capacity; Larry May, *
Warden of the North Central Unit,          *
Arkansas Department of Correction,         *
individually and in his official capacity; *
                                           *
                     Appellants,           *
                                           *
Susan Jill Miller, Nurse Practitioner,     *
Correctional Medical Services, Inc.,       *
individually and in her official capacity   *
(originally sued as S. Jill Miller);        *
Gerrold Wood, Nurse, Correctional           *
Medical Services, Inc., individually        *
and in his official capacity (originally    *
sued as Glen Woods),                        *
                                            *
                   Defendants.              *

                                     ___________

                              Submitted: February 13, 2001

                                   Filed: May 22, 2001
                                    ___________

Before LOKEN, HEANEY, and, BYE, Circuit Judges.
                            ___________

HEANEY, Circuit Judge.


       Larry Norris, Director of the Arkansas Department of Corrections (ADC); David
Guntharp, acting Deputy Director of the ADC; Larry May, Warden of ADC's North
Central Unit (Unit); John Belkins, Assistant Warden of the Unit; and security officers
Robert Perry; Bill Killian; David Beatty; and Jackie Goggins appeal from the district
court's1 partial denial of summary judgment in their favor in a lawsuit filed by Arkansas
inmate Ben Krein. The sole issue on appeal is whether the district erred in rejecting
defendants' qualified immunity defense to Krein's inadequate security claim. Because




      1
       The Honorable Susan W. Wright, United States District Court Chief Judge for
the Eastern District of Arkansas.


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the district court's order adopting the magistrate's2 report recommending denial of
summary judgment on the merits was not a ruling on appellants' qualified immunity
defense, we lack jurisdiction under 28 U.S.C. § 1291 to consider this appeal and
remand for further proceedings in the district court.

                                 I. BACKGROUND

       This interlocutory appeal stems from a civil suit filed by Krein after he was
injured in an attack by a fellow inmate. Krein brought suit under 42 U.S.C. § 1983 and
the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution against
various officials and staff directly employed by the ADC. In his amended complaint,
Krein claimed that defendants violated his rights by failing to maintain adequate
security within the prison and by failing to provide him with medical treatment.

        While Plaintiff0s motion to extend the discovery deadline was apparently
pending, defendants filed a motion for summary judgment arguing, in relevant part, that
they were entitled to qualified immunity. In their supporting brief, defendants conceded
that Krein had "stated a valid constitutional right for purposed [sic] of determining
whether the defendants are entitled to qualified immunity." (Appellants’ Appendix at
23). They also acknowledged that "[c]learly established law states that plaintiff has a
right to be free from being incarcerated under conditions posing a serious risk of harm."
(Appellant's Appendix at 24).

      The magistrate judge's report recommended, inter alia, that the defendants'
motion be granted with respect to Krein's medical treatment claim against them. With
respect to Krein's inadequate security claim, however, the magistrate recommended that
defendants' motion be denied, concluding that a genuine issue of material fact rendered


      2
       The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas.

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summary judgment on the merits inappropriate as to defendants Norris, Guntharp, May,
Belkins, Perry, Killian, Beatty, and Goggins. Separately, the magistrate specifically
addressed defendants' qualified immunity defense in the context of the inadequate
security claim:

      With respect to defendants' claim that they are protected from liability by
      qualified immunity, the Court disagrees at this point. Defendants claim
      that plaintiff fails to allege a proper constitutional violation, and that since
      defendants were unaware of danger posed by inmate Pruett, that their
      conduct did not violate any clearly established right. However, while the
      Court earlier acknowledged the fact that no one anticipated harm from
      that particular inmate directed toward plaintiff, a material dispute of fact
      exists concerning whether defendants should have been aware based on
      Pruett's violent history and recent disciplinary conviction, and whether
      certain court-mandated staffing numbers were disregarded. Therefore, in
      light of this dispute, the Court is unable to determine, at this juncture that
      defendants' conduct did not violate plaintiff's clearly-established right to
      remain free from harm.


Krein v. Norris, No. 98-CV-00124-HLJ, slip op. at 5 (E.D. Ark. May 9, 2000)
(Proposed Findings and Recommendation) (emphasis added). The district court
adopted the magistrate's report and recommendation and denied defendants' motion
with respect to Krein's inadequate security claim. The defendants now appeal.

                                   II. DISCUSSION

       In this case, the parties assume that the district court denied defendants' claim
of qualified immunity as to Krein's inadequate security claim. A review of the record
reveals, however, that the court did not decide the question of a qualified immunity
defense to that claim. Because the district court did not deny qualified immunity, we
may lack jurisdiction over this interlocutory appeal. Appellee Krein has raised the
issue of our jurisdiction over this appeal, but not for this particular reason. Although

                                            -4-
the parties have not raised this particular issue, "every federal appellate court has a
special obligation to consider its own jurisdiction. In fact, jurisdiction issues will be
raised sua sponte by a federal court when there is an indication that jurisdiction is
lacking, even if the parties concede the issue." Thomas v. Bashim 931 F.2d 521, 522-
523 (8th Cir.1991) (internal citations omitted). We must, therefore, address sua sponte
whether we have jurisdiction over this appeal.

       In resolving this issue we first determine whether the district court's order
contains a specific, final decision that conclusively denies to appellants the defense of
qualified immunity. The general rule is that courts of appeals may hear appeals from
"final decisions" of federal district courts. 28 U.S.C. § 1291. Usually, a denial of
summary judgment is not treated as final and cannot be appealed until the conclusion
of the case on the merits because "[t]he requirement of finality precludes consideration
of decisions that are subject to revision, and even of 'fully consummated decisions [that]
are but steps towards final judgment in which they will merge.'" Behrens v. Pelletier,
516 U.S. 299, 305 (1996) (alteration in original) (quoting Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949)).

        Under the collateral order doctrine, an otherwise non-final order is deemed final
for purposes of appeal only if the order "(1) conclusively determine[s] the disputed
question, (2) resolve[s] an important issue completely separate from the merits of the
action, and (3) [is] effectively unreviewable on appeal from a final judgment." Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)
(citation omitted). Jurisdiction over an interlocutory appeal from this "small class" of
orders is the exception, not the rule. See Cantu v. Rocha, 77 F.3d 795, 802 (5th
Cir.1996). More specifically, in Shannon v. White, 992 F.2d 791, 792-93 (8th
Cir.1993), we acknowledged that

      [a]lthough interlocutory appeals are generally not allowed, a denial of a
      claim of qualified immunity is immediately appealable. Mitchell v.

                                           -5-
       Forsyth, 472 U.S. 511, 530 (1985). However, when the order appealed
       from does not decide the issue of qualified immunity, this court lacks
       jurisdiction over the appeal . . . .

See also Washington v. Wilson, 46 F.3d 39, 41 (8th Cir.1995); Jones v. Coonce, 7 F.3d
1359, 1365 (8th Cir. 1993); Moutray v. Butts, 985 F.2d 426, 427 (8th Cir.1993).

       Defendants' argument presupposes that the magistrate denied their qualified
immunity defense, and that the district court adopted this "recommendation" in its
subsequent order. However, the record does not reveal a decision conclusively
resolving defendants' claim to qualified immunity. The magistrate's repeated use of
qualifying phrases such as "at this point" and "at this juncture" evinces the tentative and
inconclusive disposition of the magistrate concerning the issue of defendants' qualified
immunity. We conclude that here, as in Craft v. Wipf, 810 F.2d 170, 173 (8th
Cir.1987), "[t]he District Court in this case simply did not rule on the qualified
immunity issue."

        Similarly, our review of the record provides no reason to infer that the district
court intended to postpone or otherwise refuse to rule on the issue of defendants'
qualified immunity defense until trial. In Craft, we determined that the district court's
denial of defendants' motion for summary judgment constituted an implied refusal to
rule prior to trial. We observed that a reference to "the plaintiff's day in court" in the
district court's opinion signaled an intention not to decide the immunity issue before
trial. Id. at 173. Here, we find nothing suggesting any such intention on the part of the
district court.

       We are mindful of the fact that the Supreme Court has repeatedly emphasized
that qualified immunity should be determined at the earliest possible stage in litigation.
See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991). However,



                                           -6-
      [t]his does not mean . . . that courts may always decide questions of
      qualified immunity on summary judgment. . . . Where there is a genuine
      issue of material fact surrounding the question of plaintiff's [or
      defendants'] conduct, we cannot determine, as a matter of law, what
      predicate facts exist to decide whether or not the officer's conduct clearly
      violated established law.

Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir.1993). Cf. Brown v. Nix, 33 F.3d 951,
953 (8th Cir.1994) (finding district court erred in not ruling on qualified immunity
defense where no dispute existed as to the material facts).

       Overall, we are satisfied that the record before us evinces neither the need, nor
the opportunity, to read into the proceedings any kind of an implied denial of the
qualified immunity defense as having been incorporated into the order denying
defendants of summary judgment on the merits. As such, we do not find in the district
court's order a final decision -- express or implied -- conclusively deciding the qualified
immunity question. Additionally, to conclude that the proceedings below constituted
a refusal or impermissible postponement in ruling on the issue would be untenable
against the record on its face. Under the present circumstances, remanding the issue
for timely resolution is appropriate. See Robinson v. Mericle, 56 F.3d 946, 947 (8th
Cir.1995) (concluding that remand is appropriate where district court did not rule on
issue of qualified immunity under appeal); Parton v. Ashcroft, 16 F.3d 226, 228 (8th
Cir.1994) (same).

                                 III. CONCLUSION

       Because there has been no decision, conclusive or otherwise, rendered below on
the disputed question of qualified immunity, the defendants’ appeal is premature.
Accordingly, we remand to the district court for further proceedings.




                                           -7-
A true copy.

      Attest:

         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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