In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1272

Kathleen F. Egebergh, individually
and as Special Administrator of the
Estate of Edward J. Fitzgibbons,

Plaintiff-Appellee,

v.

David Nicholson and Joseph Burdi,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 5863--Paul E. Plunkett, Judge.

Argued September 5, 2001--Decided November 27, 2001



  Before Flaum, Chief Judge, and Posner and
Ripple, Circuit Judges.

  Posner, Circuit Judge. This is a suit
under 42 U.S.C. sec. 1983 against two
police officers arising from the death of
Edward Fitzgibbons as a result, the
plaintiff claims, of the defendants’
deliberate indifference to Fitzgibbons’s
diabetic condition. The defendants appeal
from the denial of their motion for
summary judgment on the ground of
qualified immunity.

  We have jurisdiction of such an appeal
only if there are no disputed material
issues of fact. Behrens v. Pelletier, 516
U.S. 299, 312-13 (1996); Johnson v.
Jones, 515 U.S. 304, 313-17 (1995);
Ruffino v. Sheahan, 218 F.3d 697, 701
(7th Cir. 2000); Clash v. Beatty, 77 F.3d
1045, 1048-49 (7th Cir. 1996); Anderson
v. Romero, 72 F.3d 518, 520 (7th Cir.
1995); Price v. Roark, 256 F.3d 364, 368
(5th Cir. 2001); Acevedo-Garcia v. Vera-
Monroig, 204 F.3d 1, 7 (1st Cir. 2000).
One purpose of official immunity is to
spare the official the burden of a trial,
Mitchell v. Forsyth, 472 U.S. 511, 525-26
(1985), and if critical facts are in
dispute the trial can’t be headed off.
The facts found at the trial may show
that the official is entitled to
immunity, but at that point the only
immunity possible to confer is immunity
from having to pay damages, not immunity
from having to bear the expense and
inconveniences of a trial already held.
No purpose would be served by trying to
accelerate the determination of immunity
to the pretrial stage if the existence of
critical factual disputes precludes a
grant of immunity then.

  There are disputed facts here, as we’ll
see; and they may well be material. But
as in LeMarbe v. Wisneski, 266 F.3d 429,
435 (6th Cir. 2001); Rohman v. New York
City Transit Authority, 215 F.3d 208, 214
(2d Cir. 2000), and Salim v. Proulx, 93
F.3d 86, 90 (2d Cir. 1996), the
defendants have stipulated that for
purposes of their appeal we may take all
the facts in the light most favorable to
the plaintiff, thereby eliminating any
factual dispute at this stage. Actually
the stipulation is unnecessary; we have
no choice but to construe the facts as
favorably to the plaintiff as the record
supports.

  Defendants are entitled to immunity
before trial (and therefore entitled to
appeal immediately the denial of their
motion for summary judgment on grounds of
immunity) only if, even if the facts are
construed as favorably to the plaintiff
as the record permits, they still are
entitled to immunity--in which event they
shouldn’t be put to the burden of a trial
that might cast the facts in a light
unnecessarily more favorable to them. As
we said in Anderson v. Romero, supra, 72
F.3d at 520-21, "if there is no possible
resolution of the disagreement that would
save the plaintiff’s case from the
defense of immunity, the appellate court
will not have to resolve any factual
disagreements, or even decide whether
there are material factual disagreements,
in order to determine whether the defense
is good." To the same effect see Tangwall
v. Stuckey, 135 F.3d 510, 515-16 (7th
Cir. 1998); Benefield v. McDowall, 241
F.3d 1267, 1270 (10th Cir. 2001); Johnson
v. Martin, 195 F.3d 1208, 1214-15 (10th
Cir. 1999); cf. Coady v. Steil, 187 F.3d
727, 730-31 (7th Cir. 1999)

  The facts, taken as favorably to the
plaintiff as the record permits, are as
follows. Fitzgibbons, arrested for
shoplifting, was an insulin-dependent
diabetic. Of the defendant officers,
Nicholson and Burdi, the former knew that
an insulin-dependent diabetic needs
regular insulin injections and the latter
that diabetes is potentially fatal. When
booked by Burdi after being arrested,
Fitzgibbons explained that he was an
insulin-dependent diabetic and this was
noted on the lock-up sheet. Someone from
the police department called
Fitzgibbons’s sister and asked her to
bring his insulin to the police station,
which was done. He received an insulin
injection at 8:20 p.m. the day of the
arrest, when he was still at the station.
This was noted in the shift supervisor’s
logbook--and also that Fitzgibbons would
need another shot in the morning.

  Nicholson, the supervisor of the morning
shift, received and read the logbook and
assigned Burdi to take Fitzgibbons to a
bond hearing at a courthouse some 15
minutes away by car. Fitzgibbons told
Burdi he needed another insulin shot.
Burdi relayed the request to Nicholson,
who told Burdi that Fitzgibbons didn’t
need a shot. (Nicholson denies telling
Burdi this, but remember that for
purposes of this appeal he is perforce
conceding the truth of the plaintiff’s
evidence.) Nicholson told Burdi to tell
Fitzgibbons that if he wanted the shot he
might miss his bond hearing and therefore
be detained for another day or two.
Fitzgibbons was not given the shot and
was taken to the courthouse for the
hearing. There he complained to Burdi of
feeling woozy and shaky. Burdi did
nothing. Shortly afterwards he was
informed by a sheriff’s deputy that
Fitzgibbons was "freaking out" in an
adjacent room. Fitzgibbons, feeling
better it seems, was taken before the
judge. Bond was denied and he was shipped
off to the Cook County Jail, arriving
about 2 p.m. He was examined there by a
doctor, who noticed that he was
dehydrated. His condition deteriorated
rapidly, and he was dead by 11 p.m. as a
consequence of having missed the morning
shot.

  From these facts a reasonable jury could
infer that Nicholson and Burdi were
deliberately indifferent to Fitzgibbons’s
welfare. They knew he was an insulin-
dependent diabetic. They knew (Nicholson
certainly, Burdi probably) that diabetics
can be seriously harmed by being deprived
of insulin. They did not intend
Fitzgibbons’s death; nor, we may assume,
did they know that missing one shot of
insulin could kill him. But a jury could
infer that they knew that depriving him
of his morning shot would endanger his
health and that they deprived him of it
for no better reason that to get him out
of the police station. In short, a jury
could infer that the defendants knowingly
exposed Fitzgibbons to a substantial
danger to his health for no good reason;
that is a good definition of deliberate
indifference. See West By and Through
Norris v. Waymire, 114 F.3d 646, 651 (7th
Cir. 1997); Duckworth v. Franzen, 780
F.2d 645, 653 (7th Cir. 1985) ("if a
prisoner tells the prison doctor that he
is allergic to penicillin, but the doctor
injects him with penicillin anyway and
the prisoner has a severe reaction, the
doctor is guilty of having inflicted a
cruel and unusual punishment; . . . the
doctor knows there is a great danger,
could avert it at trivial cost, . . . but
instead ignores it"); White v. Napoleon,
897 F.2d 103, 111 (3d Cir. 1990) ("the
amended complaint, fairly read, suggests
that the doctor deliberately treated Sabb
with an inappropriate drug for no valid
reason. This is sufficient to state a
claim for deliberate indifference to
serious medical needs").

  A trial may of course cast the facts in
a different light. But construed as they
must be for purposes of this appeal, they
defeat the motion for qualified immunity.

Affirmed.
