                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 17, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 MARK B. FERGUSON,

          Plaintiff - Appellee,
                                                         No. 11-1493
 v.                                         (D.C. No. 1:09-CV-02916-WJM-KMT)
                                                          (D. Colo.)
 BRIAN WEBSTER, P.A., in his
 individual capacity as Physician
 Assistant; BEV DOWIS, in her
 individual capacity as Health Services
 Administrator,

          Defendants - Appellants.


                              ORDER AND JUDGMENT *


Before KELLY, SEYMOUR, and TYMKOVICH, Circuit Judges. **


      Defendants-Appellants Brian Webster and Bev Dowis seek to appeal from

the district court’s order denying summary judgment. They contend that the

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         This matter was set originally on the court’s September 2012 oral
argument calendar. Upon examination of the briefs and the appellate record,
however, this three-judge panel has determined unanimously that oral argument
would not be of material assistance in the determination of the appeal. See Fed.
R. App. P. 34(a); 10th Cir. R. 34.1(G). Consequently, the oral argument set for
September 20, 2012 is vacated and counsel are excused from attendance. The
cause is ordered submitted without oral argument.
district court failed to address qualified immunity, and that they are entitled to it.

Though the parties dispute our jurisdiction to hear this appeal, we conclude that

we have jurisdiction, and we reverse and remand for further proceedings.



                                     Background

      Plaintiff-Appellee Mark Ferguson, while an inmate at Sterling Correctional

Facility (SCF) in Colorado, was diagnosed with MS. In the months leading up to

his diagnosis, Mr. Ferguson alleges that he was denied access to qualified medical

professionals and his pleas were ignored by one physician’s assistant in

particular. He filed suit under 42 U.S.C. § 1983, alleging deliberate medical

indifference against the physician’s assistant (Mr. Webster) and failure to train or

supervise against SCF’s Health Services Administrator (Ms. Dowis). Those

defendants sought summary judgment and qualified immunity; the district court

ruled that disputed issues of material fact precluded summary judgment, but it did

not address qualified immunity. See Ferguson v. Webster, No. 09-cv-02916, 2011

WL 4433848 (D. Colo. Sept. 22, 2011).



                                     Discussion

      In appeals from denials of qualified immunity, “we take, as given, the facts

that the district court assumed when it denied summary judgment.” Morris v.

Noe, 672 F.3d 1185, 1189 (10th Cir. 2012) (internal quotation marks omitted).

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This court may review whether those facts are sufficient to establish a violation of

a clearly established constitutional right, but this court may not evaluate the

district court’s conclusion that the facts as alleged by the plaintiff have sufficient

evidentiary support to warrant a trial. Id. This court has jurisdiction only so long

as a defendant claims that, viewing the facts as alleged by the plaintiff, he or she

was entitled to qualified immunity. Id.

      “That we have jurisdiction, however, does not mean that we must, or

should, resolve the merits of the appeal.” Harris v. Morales, 231 F. App’x 773,

777 (10th Cir. 2007) (unpublished). Specifically, this court has declined to

exercise jurisdiction where a district court failed to address qualified immunity,

instead opting to remand to the district court to address qualified immunity in the

first instance. See, e.g., Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381

(10th Cir. 1998); Workman v. Jordan, 958 F.2d 332, 336-37 (10th Cir. 1992);

Harris, 231 Fed. App’x at 777. But see Laidley v. McClain, 914 F.2d 1386, 1394-

95 (10th Cir. 1990) (superseded by rule and overruled on other grounds).

      Here, the district court implicitly found disputed historical facts that might

establish a constitutional violation, but it never said so, and it certainly never

addressed whether such a violation involves a clearly established right. See

Johnson v. Jones, 515 U.S. 304, 318 (1995). Mindful that we generally do not

consider issues not passed upon below, Lowe, 143 F.3d at 1381, we remand to the

district court to address qualified immunity in the first instance.

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REVERSED and REMANDED.

                         Entered for the Court


                         Paul J. Kelly, Jr.
                         Circuit Judge




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