                            _____________

                            No. 95-1766WM
                            _____________


Edward J. Miller,                 *
                                  *
          Appellee,               *
                                  *   On Appeal from the United
                                  *   States District Court
     v.                           *   for the Western District
                                  *   of Missouri.
Dr. Robert Schoenen and           *
Dr. David White,                  *
                                  *
          Appellants.             *


                             ___________

                    Submitted:   November 17, 1995

                        Filed: February 15, 1996
                             ___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit
     Judge, and FAGG, Circuit Judge.
                           ___________

RICHARD S. ARNOLD, Chief Judge.


     Edward Miller is an inmate at the Jefferson City Correctional
Center in Missouri.    In this lawsuit, brought under 42 U.S.C.
§ 1983 (1988), he alleges that the defendants deprived him of the
care he required as a heart-transplant patient. This deprivation,
in turn, it is said, deprived him of his Eighth Amendment right to
be free from cruel and unusual punishment. The District Court,1




     1
      The Hon. Scott O. Wright, United States District Judge for
the Western District of Missouri.
adopting the report and recommendation of a Magistrate Judge,2 held
that Miller's evidence was sufficient to survive a summary-judgment
motion, and that the defendants were not shielded from his claim by
qualified immunity. The defendants now appeal that order. We lack
jurisdiction to hear a portion of the appeal, and dismiss as to
that portion.    To the extent that we do have jurisdiction, we
affirm the order of the District Court.


                                I.


     Edward Miller received a heart transplant in 1985. In 1989,
he began serving a lengthy sentence at the Jefferson City
Correction Center (JCCC), a part of the Missouri Prison System.
The defendants are doctors in charge of caring for the medical
needs of inmates at the JCCC.     Miller asserts that they were
directly in charge of his care for all or part of the period from
his initial incarceration until the present.


     Miller alleges that, as a heart-transplant patient, he
requires specialized care from the time of the transplant operation
onward.    Specifically, Miller identifies, through his expert
medical witness Dr. Alan Forker, six types of specialized care
required by all heart-transplant patients.         They are daily
administration of immunosuppressive drugs, the frequent taking of
cyclosporine blood levels, immediate attention to infections,
frequent monitoring by blood samples of the patient's white count,
repeated myocardial biopsies as often as every three to four
months,   and   annual   cardiac   catheterization   and   coronary
arteriography. Miller alleges that the defendants, while knowing
of his need for this care, did not administer regular
immunosuppresives, myocardial biopsies, and catheterization; repair
broken wires in his sternum or treat the resulting pain; surgically


    2
     The Hon. William A. Knox, United States Magistrate Judge for
the Western District of Missouri.

                               -2-
treat his chronic mastoiditis; or return Miller to the University
of Missouri Hospital for treatment following his March 1993 carotid
endarterectomy surgery, remove sutures from the resulting incision,
or treat an infection in the incision.


     The defendants moved for summary judgment in the District
Court. They argued that they were entitled to summary judgment
because Miller had not produced evidence from which a jury could
conclude that he was deprived of the necessary care, or that, if he
was, the defendants were responsible for that deprivation. They
also argued that Miller was not damaged by any deprivation that
might have occurred because he had not rejected his donor heart
during the nine years since his transplant operation. In addition,
the defendants argued that they were shielded from liability by
qualified immunity. The District Court rejected these arguments,
holding that the adequacy of the treatment Miller received, and
whether any inadequate treatment damaged Miller, depended on "whose
version of the facts is believed."


                               II.


     We must first address the issue of our jurisdiction over this
appeal.    Ordinarily, we have no jurisdiction of an appeal
challenging the denial of a motion for summary judgment. Johnson
v. Jones, 115 S. Ct. 2151, 2154-55 (1995). Such orders are not
final orders in the traditional sense. Ibid.; 28 U.S.C. § 1291
(1993). One exception to this rule occurs when a summary-judgment
order denies a motion based on qualified immunity. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985); Reece v. Groose, 60 F.3d 487,
489 (8th Cir. 1995). Qualified immunity shields state actors from
liability in civil lawsuits when "their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known."      Reece, 60 F.3d at 491
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As we
discussed in Reece, however, the qualified-immunity question

                               -3-
involves more than merely determining whether the law governing a
plaintiff's claim is "clearly established." We must examine the
information possessed by the government official accused of
wrongdoing in order to determine whether, given the facts known to
the official at the time, a reasonable government official would
have known that his actions violated the law. Id. at 489; Anderson
v. Creighton, 483 U.S. 635, 640 (1987).


     That some issues must be reviewed in a qualified-immunity
appeal does not mean that we have jurisdiction to review all of the
points addressed in the summary-judgment motion. Only those issues
that concern what the official knew at the time the alleged
deprivation occurred are properly reviewed in this type of
interlocutory appeal. We have jurisdiction to review those issues
because their review is necessary in order to determine whether a
reasonable state actor would have known that his actions, in light
of those facts, would violate the law.


     By way of example, whether an inmate has alleged sufficient
facts to allow a jury to conclude that the inmate faces a risk of
assault from other inmates, prison officials know of the risk, and
the reasonableness of their actions in light of a known risk are
all reviewable in an appeal of a denial of qualified immunity at
the summary-judgment stage. Reece, 60 F.3d at 490. That much is
so because prison officials must protect inmates from violence at
the hands of other inmates, if they are aware of a substantial risk
that such violence will occur. See Farmer v. Brennan, 114 S. Ct.
1970, 1984 (1994).      That is the "clearly established" law.
Examination of the facts known to the prison officials is necessary
in order to determine whether a reasonable official would have
known that his failure to take some particular action to protect
the inmate would violate that law.


     On the other hand, if police officers who are accused of
violating a plaintiff's rights by using excessive force when they

                               -4-
arrested him move for summary judgment on the ground that they were
not involved in the incident, we may not review that portion of the
appeal as part of an appeal of a denial of qualified immunity. See
Johnson, 115 S. Ct. at 2156. We have no jurisdiction over that
portion of an appeal because whether the officers were actually
involved is a factual question that does nothing to inform us about
whether, given the facts known at the time, reasonable officers
would have known that the level of force they employed was
excessive.   Such orders "determine[] only . . . question[s] of
`evidence sufficiency,' i.e., which facts a party may, or may not,
be able to prove at trial." Ibid.


     We are thus left with the following distinction. The question
of what was known to a person who might be shielded by qualified
immunity is reviewable, to determine if the known facts would
inform a reasonable actor that his actions violate an established
legal standard -- the right to speak freely, the right to be free
from unreasonable searches and seizures, a prisoner's right to
adequate medical care, for example.     Conversely, if the issues
relate to whether the actor actually committed the act of which he
is accused, or damages, or causation, or other similar matters that
the plaintiff must prove, we have no jurisdiction to review them in
an interlocutory appeal of a denial of a summary-judgment motion
based on qualified immunity.


     Applying these principles to the case before us, we hold that
we lack jurisdiction over much of the defendants' appeal.
Initially, the defendants argue that Miller has failed to identify
evidence that these defendants were the doctors who actually
deprived Miller of adequate care. This argument is no different
from the one rejected by the Supreme Court in Johnson v. Jones. In
Johnson the officers said that, even if the plaintiff had been
subjected to excessive force, they did not do it. Id. at 2153.
Here, the defendants are saying that, according to the evidence
Miller has produced, if Miller's right to adequate medical care was

                               -5-
abridged, someone else did it.   The Supreme Court held that no
jurisdiction existed in Johnson, id. at 2156, and we must do the
same here.


     The defendants also argue that Miller has failed to put forth
"verifying medical evidence" of a severe deprivation of medical
care, as required by Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th
Cir. 1995). We held in Reece, however, that the Supreme Court's
opinion in Johnson v. Jones overturned that portion of Beyerbach
that held that we have jurisdiction to hear such an argument.
Reece, 60 F.3d at 492. Whether there is verifying medical evidence
that Miller failed to receive the treatment he desired, and, if he
did not, whether there is verifying medical evidence that the
failure to treat him was sufficiently serious, are questions beyond
our jurisdiction in this interlocutory appeal.


     We do, however, have jurisdiction to hear a portion of the
defendants' appeal. Miller asserts that the defendants violated
his Eighth Amendment rights by failing to provide him with adequate
medical care. In order to succeed, he must show that he had an
objectively serious medical need, Estelle v. Gamble, 429 U.S. 97,
105 (1976), and that the defendants knew of and disregarded that
need, Farmer, 114 S. Ct. at 1979. Facts relating to the subjective
component of the claim, unlike facts relating to the objective
component of the claim, would inform a reasonable prison official
whether his actions violated the Eighth Amendment's mandate that
the State "provide medical care for those whom it is punishing by
incarceration."    Estelle, 429 U.S. at 103.        We thus have
jurisdiction to review whether sufficient evidence exists that the
defendants actually knew of Miller's need for specialized care and
acted reasonably in light of that knowledge, the subjective
component of the claim.




                               -6-
                               III.


     Summary judgment is appropriate when there is no genuine issue
of material fact that would allow a reasonable jury to find in
favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S.
242, 247-48 (1986). In order to survive summary judgment in this
case, Miller must point to evidence, admissible at trial, that
would allow a reasonable jury to conclude that he had a particular
medical need, and the defendants knew of this need. Fed. R. Civ.
P. 56(c).     The defendants may show that they acted without
deliberate indifference in light of their knowledge of Miller's
condition. Farmer, 114 S. Ct. at 1983. Those are the "material
facts" in this appeal because they are the facts relevant to the
defendants' qualified-immunity defense.


     There is ample evidence that Miller needed the care he claims
was denied. Dr. Forker testified that, in his expert opinion, all
heart-transplant patients, including Miller, have the six definite
treatment needs we have described.     Dr. Forker's assessment is
similar to the care prescribed in medical reports from Callaway
County Hospital, where Miller received his initial medical
evaluation after being incarcerated, and the University of Missouri
Medical Center, where Miller received follow-up treatment during
his incarceration. This evidence is certainly enough to allow the
jury to conclude that Miller needed specialized care.


     The defendants place great emphasis on certain statements in
Miller's expert's testimony to attempt to rebut this evidence.
Testimony by Dr. Forker indicates that the benefit of some
treatments, namely myocardial biopsies, can, over time, decrease so
much that they are outweighed by the risk. Because Miller was, at
that time, nine years removed from his surgery, that point has
arguably been reached. They also note that one treatise on which
Dr. Forker relied did not state with specificity how often this
treatment should be given.

                               -7-
     That some of Miller's treatment should decrease or change at
some point is not the dispositive question. Rather, the question
is whether the defendants provided Miller with the care he needed
at the time he needed it. Miller alleges inadequacies in his care
from the beginning of his incarceration on. At that time, he was
not a long-term transplant patient.        Moreover, even if the
frequency of some treatment should change, or varies to some degree
from what Dr. Forker asserts is necessary, the defendants have
introduced no evidence as to how much or when. It would be mere
speculation on our part to conclude that Miller's care needs had
reached a point where the care identified by his records and his
expert was unnecessary. These arguments must be supported by proof
and presented to the jury.


     Likewise, evidence exists that would allow a jury to conclude
that the defendants knew of these needs. The records to which we
just referred were in Miller's file, and a jury could infer that
the defendants, who were allegedly in charge of Miller's care, were
familiar with them. See Reece, 60 F.3d at 491. Miller also points
to an interoffice communication of February 6, 1990, in which
defendant Schoenen admits that Miller "[h]as had a heart transplant
and takes medication which reduces immunity to infection."       He
recommends "extremely light duty." A jury could infer that this
communication is an acknowledgment by one of the defendants of
Miller's special and precarious medical condition. Finally, Miller
notes documents in his file that expressly designate Dr. Schoenen
as the physician in charge of carrying out Miller's follow-up
treatment.


     The defendants do not argue that they performed alternative
treatments that were reasonable under the circumstances. Instead
they assert principally that, because Miller has not rejected his
heart and is still alive, their treatment must have been adequate.
We suppose that a jury could so conclude. It could also conclude,

                               -8-
on the other hand, that Miller has survived in spite of the
defendants' inadequate treatment. That decision is for the jury,
not for this Court in an interlocutory appeal.


     The defendants also stress that Dr. Forker was unable to state
that either Dr. Schoenen or Dr. White had failed to provide
adequate care to Miller. That much is true, but it is not the end
of Dr. Forker's testimony.     While he could not identify these
defendants as being the doctors responsible for the inadequacies in
Miller's care, he did unequivocally state that the care was
inadequate, and that some doctor was responsible.       As we have
pointed out previously, we have no jurisdiction to review whether
these doctors were the culprits. It is enough, at this stage, that
Miller has produced enough evidence to allow a reasonable jury to
conclude that he had particular needs and that these defendants
(assuming for present purposes that they were the responsible
physicians) did nothing about them.


     Miller has pointed out that there is no record of his
receiving the care Dr. Forker and the outside hospitals where he
received treatment say he needs. Records from Miller's outside
physicians express concern over inadequacies in Miller's care.
These records, and the lack of records indicating that any care was
given, are the bases for Dr. Forker's conclusion that Miller's care
was inadequate. A reasonable jury could, even if the defendants
have expert testimony that Miller's survival indicates reasonable
care, conclude that Miller's care was inadequate based on this
evidence.


     Moreover, Miller points to specific incidents, involving
infections that went untreated, where his medical needs were
ignored. What he describes as a chronic ear infection was never




                               -9-
treated.3 Following surgery in 1993, he asserts, the area around
his incision became infected. Several months passed before this
infection was treated. One record actually indicates that this
infection progressed to the point of swelling up and bursting
before any action was taken.


     Miller has produced adequate proof to allow a reasonable jury
to conclude that he had serious medical needs, and that the
defendants knew of those needs. Whether the defendants acted with
deliberate indifference to Miller's needs is a question of fact,
not clear one way or the other on this record. Thus, they are not
entitled to qualified immunity.


                               IV.


     To the extent that we have jurisdiction to hear the
defendants' appeal, the order of the District Court is affirmed.
The remainder of the defendants' appeal is dismissed for want of
jurisdiction. Miller's motion for sanctions and double fees under
Rule 38 of the Federal Rules of Appellate Procedure is denied. We
thank Miller's appointed counsel for her services and commend her
for her diligence.


     It is so ordered.


     A true copy.


          Attest:


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




    3
     The defendants claim that Miller never had an ear infection.
Whether he did or not is a question of fact for the jury.

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