                           PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


GLEN RAEFORD MABREY, JR.,                
Administrator of the Estate of Glen
Raeford Mabrey, Sr.,
                   Plaintiff-Appellee,
                  v.
HAL B. FARTHING, III, R.N.,
              Defendant-Appellant,
                 and
JAMES SMITH, M.D.; MOHAMMAD
AKTARUZZAMAN, a/k/a Mohammad
Zaman, M.D.; TERRY REES, M.D.;
                                            No. 99-2149

GORDON LAVIN, M.D.; HAROLD GLEN
TART, R.N.; JAMES MALLARD, R.N.;
PAT RAY, L.P.N.; JOHN JONES, R.N.;
DORIS MILLS, R.N.; SABBATH
LUYANDO, R.N.; JOSEPH CREECH,
R.N.; AMY L. ORTIZ, R.N.; MARIO
A. RODRIQUEZ, R.N.; ROSA SETTLE,
R.N.; LIZZIE T. SIMPSON, L.P.N.;
MARK LUCAS, L.P.N.,
                         Defendants.
                                         
2                        MABREY v. FARTHING



GLEN RAEFORD MABREY, JR.,                
Administrator of the Estate of Glen
Raeford Mabrey, Sr.,
                   Plaintiff-Appellee,
                  v.
TERRY REES, M.D.; MOHAMMAD
AKTARUZZAMAN, a/k/a Mohammad
Zaman, M.D.,
            Defendants-Appellants,
                 and
HAL B. FARTHING, III., R.N.; JAMES           No. 99-2178
SMITH, M.D.; GORDON LAVIN, M.D.;
HAROLD GLEN TART, R.N.; JAMES
MALLARD, R.N.; PAT RAY, L.P.N.;
JOHN JONES, R.N.; DORIS MILLS,
R.N.; SABBATH LUYANDO, R.N.;
JOSEPH CREECH, R.N.; AMY L. ORTIZ,
R.N.; MARIO A. RODRIQUEZ, R.N.;
ROSA SETTLE, R.N.; LIZZIE T.
SIMPSON, L.P.N.; MARK LUCAS,
L.P.N.,
                         Defendants.
                                         
                          MABREY v. FARTHING                       3



GLEN RAEFORD MABREY, JR.,                
Administrator of the Estate of Glen
Raeford Mabrey, Sr.,
                   Plaintiff-Appellee,
                  v.
ROSA SETTLE, R.N.,
              Defendant-Appellant,
                 and
HAL B. FARTHING, III, R.N.; JAMES
SMITH, M.D.; MOHAMMAD
AKTARUZZAMAN, a/k/a Mohammad                      No. 99-2179
Zaman, M.D.; TERRY REES, M.D.;
GORDON LAVIN, M.D.; HAROLD GLEN
TART, R.N.; JAMES MALLARD, R.N.;
PAT RAY, L.P.N.; JOHN JONES, R.N.;
DORIS MILLS, R.N.; SABBATH
LUYANDO, R.N.; JOSEPH CREECH,
R.N.; AMY L. ORTIZ, R.N.; MARIO
A. RODRIQUEZ, R.N.; LIZZIE T.
SIMPSON, L.P.N.; MARK LUCAS,
L.P.N.,
                        Defendants.
                                         
            Appeals from the United States District Court
      for the Eastern District of North Carolina, at Greenville.
                Malcolm J. Howard, District Judge.
                           (CA-98-37-4-H)

                         Argued: May 2, 2000

                       Decided: February 7, 2002
4                         MABREY v. FARTHING
      Before WIDENER, MURNAGHAN,* and NIEMEYER,
                      Circuit Judges.



Dismissed by published opinion. Judge Widener wrote the opinion, in
which Judge Niemeyer concurred.


                              COUNSEL

ARGUED: James Peeler Smith, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina; Elizabeth E. McConnell, NORTHUP & MCCONNELL,
P.L.L.C., Asheville, North Carolina, for Appellants. Bruce William
Berger, PIPKIN, KNOTT, CLARK & BERGER, Raleigh, North Car-
olina, for Appellee. ON BRIEF: Michael F. Easley, North Carolina
Attorney General, Christine Marion Ryan, Assistant Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina; Isaac N. Northup, Anna R. Hamrick, NORTHUP &
MCCONNELL, P.L.L.C., Asheville, North Carolina; Renee B. Craw-
ford, YATES, MCLAMB & WEYHER, L.L.P., Raleigh, North Caro-
lina, for Appellants. Joe Thomas Knott, III, PIPKIN, KNOTT,
CLARK & BERGER, Raleigh, North Carolina, for Appellee.


                              OPINION

WIDENER, Circuit Judge:

   These cases are appeals from an order of the district court declining
to grant qualified immunity to the defendants, all of whom are physi-
cians or registered or licensed practical nurses involved in the care of
Glen Mabrey, Sr. while he was in the custody of the North Carolina
Department of Correction. Mabrey died of severe dehydration on Feb-

  *Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
                         MABREY v. FARTHING                           5
ruary 29, 1996, and at the time the occurrences here commenced, had
been transferred on February 21, 1996 to the mental health section of
the Central Prison Hospital in Raleigh, North Carolina. At that time,
there was evidence that he was disoriented, did not know who he was,
was not in touch with reality, and was unable to follow simple com-
mands and was a risk to himself. While being observed by mental
health personnel, Mabrey began to flood his cell, believing he smelled
smoke. The water to his cell was turned off on February 23, 1996 and
remained off until Mabrey was transferred to the emergency room on
February 27, 1996. During the period February 21-29, 1996, Mabrey
remained in an unstable mental state and was treated, observed and
attended, any or all of the same, by some or all of the original 17
defendants, eight of whom have been voluntarily dismissed from the
case. One thing led to another, whether without fault, by mishap, neg-
ligence or deliberate indifference, leading to Mabrey’s death on the
29th from severe dehydration.

   The defendants filed motions for summary judgment on account of
qualified immunity, and the district court granted one of such
motions, denying the others. Doctors Aktaruzzaman and Rees and
registered nurses Farthing and Settle have appealed.

   The district court correctly identified the issue in the case under
Mabrey’s claim as whether the defendants were deliberately indiffer-
ent to Mabrey’s serious medical needs. It held that to survive a
motion for summary judgment the plaintiff must forecast evidence
from which a reasonable jury could conclude that the defendants were
aware of facts from which the inference could be drawn that substan-
tial risk of serious harm existed and that the defendants actually drew
the inference. A.75.

   The depositions of some 20 witnesses, all physicians or registered
or practical nurses, including six non-parties to the case, were submit-
ted to the district court, which found that the parties did not agree on
numerous issues and correctly found that there were issues of dis-
puted fact. There being issues of disputed fact upon which a qualified
immunity defense might depend, the district court correctly concluded
that the qualified immunity defense was not then available for that
reason, see Celotex Corp. v. Catrett, 477 U.S. 317, 319-324 (1986),
6                        MABREY v. FARTHING
not that it is precluded later, cf. Behrens v. Pelletier, 516 U.S. 299
(1996).

   Again, there being disputed facts with respect to whether or not the
defense of qualified immunity was available, the case is not appeal-
able. ". . . [A] defendant, entitled to invoke a qualified immunity
defense, may not appeal a district court’s summary judgment order
insofar as that order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial." Johnson v. Jones, 515 U.S.
304, 319-320 (1995). There is no contention that the decision of the
district court to deny the summary judgment motion was inextricably
intertwined with its decision to deny the qualified immunity motion.
See Swint v. Chambers County Comm., 514 U.S. 35, 51 (1995).

   The appeals in this case are accordingly dismissed without preju-
dice for want of jurisdiction.

                    APPEALS DISMISSED WITHOUT PREJUDICE
