                United States Court of Appeals
                           For the Eighth Circuit
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                               No. 17-3234
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                              Ismael Paul Martinez

                       lllllllllllllllllllllPlaintiff - Appellee

                                          v.

   Larry Norris, Director, Arkansas Department of Correction; Wendy Kelley,
Director, Arkansas Department of Correction; James Gibson, Warden, ADC, Delta
   Unit; Shamone McPhadden, Classification Officer, ADC, Delta Unit; Larry
                     Manning, Lieutenant, ADC, Delta Unit

                           lllllllllllllllllllllDefendants

 Toni Perry, Sergeant, ADC, Delta Unit (originally named as T. Perry); Ladarius
 Williams, Corporal, ADC, Delta Unit (originally named as Williams); S. Baker,
                        Trainee Officer, ADC, Delta Unit

                    lllllllllllllllllllllDefendants - Appellants
                                     ____________

                   Appeal from United States District Court
                for the Eastern District of Arkansas - Pine Bluff
                                 ____________

                        Submitted: December 13, 2018
                           Filed: February 8, 2019
                                [Unpublished]
                                ____________

Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
                             ____________
PER CURIAM.

       Ismael Paul Martinez brought this 42 U.S.C. § 1983 action against several
Arkansas Department of Correction (ADC) officials, claiming that they had failed to
protect him from an attack by another inmate. The ADC officials appeal the district
court’s1 interlocutory order denying their motion for summary judgment based on
qualified immunity. They argue that the district court erred in relying on inadmissible
evidence, misstating the law, and concluding that disputed material facts precluded
entry of summary judgment based on qualified immunity. For the reasons set forth
below, we dismiss the appeal.

       According to Martinez, he and several other inmates housed on two different
levels in ADC Delta Unit were attacked by a fellow inmate shortly after lights out on
December 8, 2014. The attacks spanned approximately fifteen minutes. Martinez
was attacked after he attempted to assist his fellow inmate, Ronnie Chapman, who
had been injured by the attacker. Martinez, who is disabled, was struck on the head
and side, thrown to the floor, and kicked in the back. He claims that the attacks
occurred in full view of the prison guards, who did nothing.

       Our jurisdiction over an interlocutory order denying qualified immunity is
limited to reviewing abstract issues of law. See, e.g., Jones v. McNeese, 746 F.3d
887, 899 (8th Cir. 2014) (reviewing admissibility of evidence); Shannon v. Koehler,
616 F.3d 855, 860-62 (8th Cir. 2010) (reviewing whether summary judgment facts
established a violation of a clearly established constitutional right). We review de
novo the district court’s qualified immunity determination, viewing the record in the
light most favorable to Martinez, drawing all reasonable inferences in his favor, and
accepting as true those facts that the district court found to be sufficiently supported,
to the extent they are not blatantly contradicted by the record. See Thompson v. City

      1
       The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.

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of Monticello, 894 F.3d 993, 997-98 (8th Cir. 2018); Shannon, 616 F.3d at 861-62.
We conclude that the district court’s denial of qualified immunity based on a finding
of disputed material facts deprives us of jurisdiction to consider the order. See Raines
v. Counseling Assocs., Inc., 883 F.3d 1071, 1074 (8th Cir. 2018).

      The district court permissibly relied on inmate Chapman’s excerpted deposition
testimony submitted by the ADC officials with their summary judgment motion. See
Jones, 746 F.3d at 899 (requiring admissible evidence to defeat summary judgment).
While the ADC officials now contend that Chapman’s statements constituted
inadmissible speculation, they reflected Chapman’s firsthand observations from the
night of the event and were therefore admissible. See Fed. R. Evid. 401 (defining
relevant evidence); 602 (“Evidence to prove personal knowledge may consist of the
witness’s own testimony.”). Further, the district court did not abuse its discretion by
thereafter denying the ADC officials’ motion to amend the judgment by
supplementing the record with the already-possessed evidence they had originally
chosen not to submit. See Fed. R. Civ. P. 56(e) (“If a party fails to properly support
an assertion of fact . . . the court may . . . give an opportunity to properly support or
address the fact.”).

       We agree with the ADC officials that the district court misstated the applicable
legal standard by ruling that Chapman’s deposition constituted “evidence from which
a jury could conclude that Defendants objectively should have known of the
substantial risk of harm to Martinez.” D. Ct. Order of Sept. 11, 2017, at 3; see Jensen
v. Clarke, 94 F.3d 1191, 1195 (8th Cir. 1996) (requiring “actual knowledge on the
part of prison officials”). We conclude that the error was harmless, for the district
court found that Chapman’s deposition testimony alleged facts that, if credited by a
trier of fact, could support a reasonable inference that the ADC officials knew of a
substantial risk of harm to Martinez. See Krein v. Norris, 309 F.3d 487, 491 (8th Cir.
2002) (“[P]laintiff’s evidence at the summary judgment stage supported the
allegations that, at the time he was attacked by Pruett, defendants objectively and

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subjectively knew of . . . an excessive risk of harm.”); Cohrs v. Norris, 210 F.3d 378
(8th Cir. 2000) (unpublished table decision) (“[I]t appears that Johnson, from the
safety of the control booth, witnessed the twenty-five-minute fight and did nothing.”).
Likewise, Chapman’s deposition testimony could support a reasonable inference that
the ADC officials were deliberately indifferent to the risk to Martinez by failing to
intervene in time to prevent his injuries. See Krein, 309 F.3d at 491 (“[Plaintiff’s
claim] arises from plaintiff’s substantiated allegation that defendants were
deliberately indifferent to a known substantial risk that such an attack would occur.
The district court therefore did not err in declining to grant summary judgment under
our ‘surprise attack’ line of cases.”); cf. Tucker v. Evans, 276 F.3d 999, 1002 (8th
Cir. 2002) (“[B]y the time Daniels knew something was wrong, the fight was already
over. Therefore . . . Daniels would not have been able to intervene in time to rescue
Tucker.”).

      Deprived as we are of jurisdiction by the existence of disputed material facts,
we dismiss the appeal.
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