                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3673
                                  ___________

John E. Lawrence,                          *
                                           *
       Plaintiff-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 Belkins, Assistant Warden of the *
North Central Unit, individually and       * Appeal from the United States
in his official capacity; Robert Perry,    * District Court for the
Major, individually and in his official * Eastern District of Arkansas
capacity; B. Sparks, Officer, individually*
and in his official capacity,              *
                                           *
              Defendants-Appellants.       *
                                           *
Doe, One, individually and in his          *
official capacity,                         *
                                           *
              Defendant.                   *
                                    ___________

                            Submitted: March 11, 2002

                                 Filed: October 16, 2002
                                  ___________
                                   ____________

Before McMILLIAN, HEANEY and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

McMILLIAN, Circuit Judge.

        Arkansas inmate John Lawrence (hereinafter “plaintiff”) brought this prisoner
civil rights action pursuant to 42 U.S.C. § 1983 in the United States District Court for
the Eastern District of Arkansas. Larry Norris, the Director of the Arkansas
Department of Corrections (“ADC”) and other ADC officials and staff (hereinafter
collectively “defendants”) now appeal from an order of the district court1 partially
denying their motion for summary judgment. Lawrence v. Norris, No. 1:01CV00087
(E.D. Ark. Oct. 25, 2001) (hereinafter “District Court Order”) (adopting in full the
proposed findings and recommendations of the magistrate judge,2 id. (Oct. 4, 2001)
(recommending denial of defendants’ motion for summary judgment on plaintiff’s
Eighth Amendment deliberate indifference claim) (hereinafter “Magistrate Judge’s
Report”)). For reversal, defendants argue that the district court erred in failing to
hold that they are entitled to judgment as a matter of law on their qualified immunity
defense because plaintiff may not, as a matter of law, recover money damages for
injuries resulting from a “surprise attack” by another inmate.

      Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331,
1343. The notice of appeal was timely filed pursuant to Fed R. App. P. 4(a). For
reasons more fully stated in our opinion in Krein v. Norris, No. 01-3087 (8th Cir.
Oct. 16, 2002) , we hold that we have only limited jurisdiction over the present appeal

      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
      2
       The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas.

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based upon 28 U.S.C. § 1291 and the collateral order doctrine. To the limited extent
we have jurisdiction, we affirm the order of the district court.

       According to the allegations in plaintiff’s complaint, on July 15, 1998, while
plaintiff was housed in Barracks #1 of the ADC’s North Central Unit (“NCU”), he
was attacked by another inmate and sustained a broken cheekbone as a result. At the
time of the attack, the only guard on duty in the barracks area was controlling traffic
in the hallway and guarding other inmates in other barracks. Plaintiff alleges that the
injury he sustained was proximately caused by defendants’ failure to provide
adequate security in the NCU.

       Defendants moved to dismiss the complaint on several grounds, including
qualified immunity. The matter was initially submitted to the magistrate judge. On
October 4, 2001, the magistrate judge recommended, among other things, that
defendants’ motion to dismiss plaintiff’s Eighth Amendment deliberate indifference
claim for money damages be denied in light of the similarities between the case at bar
and a case upon which the chief judge in the district had recently ruled. See Krein v.
Norris, No. 1:98CV00124 (E.D. Ark. Aug. 24, 2001). The district court in the present
case agreed with the magistrate judge, and adopted the magistrate judge’s findings
and recommendations in their entirety. Defendants filed the present interlocutory
appeal.

       The issues on interlocutory appeal in the present case are virtually identical to
the issues discussed and decided in Krein v. Norris, No. 01-3087 (8th Cir. Oct. 16,
2002). Consistent with our reasoning and disposition in that case, we now affirm the
district court’s holding that plaintiff has alleged the deprivation of a clearly
established constitutional right. However, we dismiss this appeal for lack of
interlocutory appellate jurisdiction to the extent defendants are challenging the
sufficiency of the evidence to support the conclusion that genuine issues of material
fact remain. See 8th Cir. R. 47B.

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A true copy.

      Attest:

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




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