                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2721
                                   ___________

James L. Spann,                        *
                                       *
           Appellant,                  *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * Eastern District of Missouri.
Sharon Roper; Lorna Bell, assistant    *
nurse,                                 *   [PUBLISHED]
                                       *
           Appellees.                  *
                                  ___________

                             Submitted: July 6, 2006
                                Filed: July 13, 2006
                                 ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

        Missouri inmate James Spann appeals the district court’s adverse grant of
summary judgment in his 42 U.S.C. § 1983 suit alleging deliberate indifference and
violation of the Due Process Clause. The following is a summary of the relevant facts
in a light most favorable to Spann. See Anderson v. Larson, 327 F.3d 762, 767 (8th
Cir. 2003) (standard of review). On January 26, 2004, at 7:30 p.m., Nurse Assistant
Lorna Bell mistakenly required Spann to take certain psychotropic medication--about
seven to ten pills--that had been prescribed for another inmate, even though Spann
protested that the pills were not his. Upon realizing her mistake moments later, Bell
rushed back to Spann and ordered him to return the pills, which he could not do since
he had already swallowed them. Bell did not immediately take Spann for medical
attention, however, or tell her supervisors of the incident. Some minutes after taking
the medication, Spann felt his legs collapse and the room spin. He pushed the
emergency button in his cell, hit his head on the toilet, and fainted. He awoke in pain
in another room with a sore throat and dried blood on the back of his head. A doctor
told him that he had been lying unconscious in his cell for three hours. Spann
complained that he could barely talk or see, and that there was a knot on the back of
his head; the doctor told Spann to sleep. The next day, Spann was returned to his cell,
even though he was still in pain. Following the incident he suffered from cold sweats,
severe headaches, vision problems, and shaking. Sharon Roper headed the prison’s
medical unit, and her duties included supervising Bell and preparing medication to be
dispensed to the inmates.

      Spann’s medical records show that on January 26, 2004, Spann arrived at the
Transitional Care Unit at 10:30 p.m. for observation following ingestion of the wrong
medication; the on-call physician ordered overnight observation. On January 27, the
doctor saw Spann at 7:30 a.m., diagnosed Spann as having overdosed on mental health
medication, and instructed that Spann should be discharged when alert. Later that
day, Spann was returned to his housing unit. Over the following months, Spann was
seen by medical staff numerous times for reasons related and unrelated to his
complaint allegations.

      The district court granted defendants’ motion for summary judgment. Upon de
novo review, see Anderson, 327 F.3d at 767, we affirm in part and reverse in part. We
agree with the district court that Nurse Bell did not exhibit deliberate indifference by
forcing Spann to take another inmate’s medication because it is undisputed that this
was a mistake. See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (to succeed
on deliberate-indifference claim, plaintiff must show more than negligence or gross
negligence); cf. Givens v. Jones, 900 F.2d 1229, 1232 (8th Cir. 1990) (physicians need



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not accept as true medical judgments offered by their patients but must make
treatment decisions on basis of many factors, only one of which is patient’s input).

       However, we believe a jury could conclude that Bell was deliberately
indifferent to Spann’s serious medical needs when she left him in his cell for three
hours after she was aware that he had taken a large dose of mental-health medications
prescribed for another inmate. See Roberson v. Bradshaw, 198 F.3d 645, 647 (8th
Cir. 1999) (to prevail on deliberate-indifference claim plaintiff must show he suffered
from serious medical need that defendants knew of but ignored). First, a jury could
find that the medical condition Bell created was a serious one that Bell knew of but
ignored: Spann lay unconscious in his cell for three hours, and a prison doctor
diagnosed Spann as having overdosed on mental-health medication; and further, even
a lay person would know that taking a large dose of mental-health medication
prescribed for another person is potentially dangerous. See Farmer v. Brennan, 511
U.S. 825, 842 (1994) (Eighth Amendment claimant need not show prison official
acted or failed to act believing harm actually would befall inmate; it is enough that
official acted or failed to act despite knowledge of substantial risk of serious harm);
Coleman v. Rahija, 114 F.3d 778, 786 (8th Cir. 1997) (factual determination that
prison official had requisite knowledge of substantial risk may be inferred from
circumstantial evidence or from obviousness of risk); Camberos v. Branstad, 73 F.3d
174, 176 (8th Cir. 1995) (serious medical need is one diagnosed as requiring
treatment, or one so obvious that even lay person would recognize necessity for
doctor’s attention).

       Second, a jury could find that the three-hour delay allowed the medication to
fully enter Spann’s system, whereas immediate medical attention would have enabled
medical staff to pump Spann’s stomach or take other action to remove the medication
from Spann’s system before it was totally absorbed. See Roberson , 198 F.3d at 648
(no verifying medical evidence necessary to establish detrimental effects of alleged
delay in treatment where need or deprivation alleged would be obvious to lay person);

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Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (objective seriousness of
alleged unconstitutional delay in receiving treatment is measured by reference to
effect of delay). We also find it incongruous that the district court denied Spann’s
motion for an expert witness and then granted summary judgment in part based on
Spann’s failure to provide verifying medical evidence that the delay had detrimental
effects.

       The court properly rejected the remaining claims. Spann’s claim based on the
treatment he received in the months following the incident fails, see Phillips v. Jasper
County Jail, 437 F.3d 791, 795 (8th Cir. 2006) (mere disagreement with treatment
decisions does not rise to level of constitutional violation); and summary judgment
was also proper as to Roper for the reasons explained by the district court, see Frey
v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir. 1995) (civil rights plaintiff cannot
pursue § 1983 claim against officials under respondeat superior); Ottman v. City of
Independence, 341 F.3d 751, 761 (8th Cir. 2003) (supervisory liability for violation
of federally protected right occurs when supervisor is personally involved or when
corrective inaction constitutes deliberate indifference; supervisor must know about
conduct and in some way acquiesce). Spann’s due process claim fails as well, because
this case involves the inadvertent administration of psychiatric medication, not a
decision to treat an unwilling patient with psychiatric medication. Finally, we
disagree with Spann that the district court abused its discretion in denying his motions
to appoint counsel. See Phillips, 437 F.3d at 794 (standard of review; criteria for
determining whether counsel should be appointed).

       Accordingly, we remand for further proceedings as to Nurse Bell on the claim
that she failed to obtain immediate medical care for Spann after the medication mix-
up. We affirm in all other respects, and we deny Spann’s motions on appeal.
                         ______________________________




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