                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2631
                                    ___________

Laura M. Rivera,                      *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of South Dakota.
Tim Reisch, Secretary of the          *
Department of Corrections; Duane      * [UNPUBLISHED]
Russell, Warden of the S.D. Women’s *
Prison,                               *
                                      *
            Appellants.               *
                                 ___________

                              Submitted: October 30, 2009
                                  Filed: November 9, 2009
                                  ___________

Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Defendants appeal the district court’s denial of qualified immunity in this 42
U.S.C. § 1983 action brought by South Dakota inmate Laura Rivera, in which she
alleged that defendants were deliberately indifferent to her serious mental health needs
in violation of the Eighth Amendment by changing her medication and placing her in
segregation for behaviors caused by her mental illness. We will assume, as the district
court implicitly found, that the defendants were properly sued in their individual
capacities; otherwise, we would have no jurisdiction over this interlocutory appeal.
See Krout v. Goemmer, No. 08-2781, 2009 WL 3172180, at *4 (8th Cir. Oct. 6, 2009)
(this court generally has no jurisdiction to hear immediate appeal from denial of
summary judgment, but has limited authority to review denial of qualified immunity);
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (qualified
immunity is defense only to government employees sued in their individual capacity).
We deny Rivera’s motion to supplement the record, as the proffered material would
not affect the appeal’s outcome.

       Putting aside the question whether Rivera alleged a violation of a constitutional
right, see Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (courts are permitted to
exercise their sound discretion in deciding which prong of qualified immunity analysis
should be addressed first in light of circumstances of particular case), we conclude
that any constitutional right she possessed to different treatment was not so clearly
established that a reasonable person in defendants’ position would have known that
his actions violated her constitutional right in this case, see Krout, 2009 WL 3172180,
at *4 (de novo review); Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008) (court
must determine whether facts, construed in light most favorable to plaintiff, establish
violation of constitutional right, and whether right was clearly established). Warden
Russell attested that he and Department of Corrections Secretary Reisch are not
involved in decisions regarding the treatment or referral of inmates and that all
inmates receive screenings by mental health professionals who are free to make
referrals as they deem appropriate. The record indicates that Rivera received
significant mental health care at the prison, and she did not present any evidence that
these defendants failed to follow any recommendations the mental health staff made
regarding medication or segregation. See Keeper v. King, 130 F.3d 1309, 1314 (8th
Cir. 1997) (prison superintendent who is not involved in treatment decisions and lacks
medical expertise is not liable for medical staff’s diagnostic decisions).

      The order denying qualified immunity is reversed, and the case is remanded to
the district court with directions to grant defendants qualified immunity for any
damages claims against them in their individual capacities.
                       ______________________________


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