                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2222
                                    ___________

Maurice Moore,                           *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Southern
                                         * District of Iowa.
Dr. John Duffy,                          *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: March 14, 2001

                                   Filed: July 6, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD and HEANEY, Circuit Judges, and
      BATTEY, District Judge.1
                               ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Dr. John Duffy brings this interlocutory appeal from the district court's2 denial
of his motion for summary judgment based on qualified immunity. We dismiss the
appeal for lack of jurisdiction.

      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
       Inmate Maurice Moore filed a complaint under 42 U.S.C. § 1983, alleging that
Dr. Duffy was deliberately indifferent to his serious medical needs in violation of the
eighth amendment's prohibition against cruel and unusual punishment. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976). Dr. Duffy moved for summary judgment based, in
part, on qualified immunity. The district court denied the motion, concluding that there
was a material fact issue regarding deliberate indifference and that qualified immunity
was unavailable because, viewing the evidence favorably to Mr. Moore, Dr. Duffy's
conduct was not objectively reasonable under clearly established law. Dr. Duffy
contends on appeal that he is entitled to qualified immunity.

       Qualified immunity shields government officials "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," Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). To establish his eighth amendment claim, Mr. Moore had to
prove that he had "objectively serious medical needs" and that Dr. Duffy "actually
knew of but deliberately disregarded those needs," Roberson v. Bradshaw, 198 F.3d
645, 647 (8th Cir. 1999). " '[D]eliberate indifference includes something more than
negligence but less than actual intent to harm'; it requires proof of a reckless disregard
of the known risk," Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998), quoting
Newman v. Holmes, 122 F.2d 650, 653 (8th Cir. 1997). Dr. Duffy acknowledges that
he knew of the serious medical needs of Mr. Moore, who suffered from AIDS and
hepatitis C, but argues that he is entitled to qualified immunity because he was not
deliberately indifferent to those needs.

       Mr. Moore contends that we lack jurisdiction over this appeal. Although there
is ordinarily no appeal from the denial of summary judgment, "summary judgment
determinations are appealable when they resolve a dispute concerning an 'abstract
issu[e] of law' relating to qualified immunity ... typically, the issue whether the federal
right allegedly infringed was 'clearly established' " (emphasis in original), Behrens v.
Pelletier, 516 U.S. 299, 313 (1996), quoting Johnson v. Jones, 515 U.S. 304, 317

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(1995). A district court's determination of evidentiary sufficiency is not subject to an
interlocutory appeal, however, simply because the determination occurs in a qualified
immunity case. See Behrens, 516 U.S. at 313; see also Johnson, 515 U.S. at 319-20.

       Although medical negligence does not violate the eighth amendment, see
Roberson, 198 F.3d at 647, Dr. Duffy does not dispute that it was "clearly established"
when he treated Mr. Moore that medical treatment may so deviate from the applicable
standard of care as to evidence a physician's deliberate indifference, see Smith v.
Jenkins, 919 F.2d 90, 93 (8th Cir. 1990). Often whether such a significant departure
from professional standards occurred is a factual question requiring expert opinion to
resolve, see id.; see also Greason v. Kemp, 891 F.2d 829, 835 (11th Cir. 1990). Here
the district court concluded that the parties' conflicting expert opinions regarding the
treatment rendered by Dr. Duffy created a material question of fact with respect to
whether Dr. Duffy acted with deliberate indifference to Mr. Moore's medical needs.
Because Dr. Duffy seeks to challenge only the district court's determination that the
"the pretrial record sets forth a 'genuine' issue of fact for trial," Johnson, 515 U.S. at
320, we lack jurisdiction over the appeal.

      Accordingly, we dismiss the appeal for lack of jurisdiction.

      A true copy.

             Attest:

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




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