McLin v. Trimble
795 P.2d 1035
Okla.
1990
Check Treatment

*1 McLIN and Michael O. Bart Petitioners,

Vinson, TRIMBLE, Dis-

The Honorable Preston Judge

trict of the 21st Judicial Stewart, Respondents.

District and J.C.

No. 73237.

Supreme Court of Oklahoma. 19, 1990.

June *2 grant appeals

court should also immediate interlocutory from deny orders which a qualified immunity claim of in an action They argue U.S.C. 1983. § merely is not an immu- nity damages, immunity from suit Thus, they and trial as well. conclude that post-trial appeal inadequate protect a immunity. respondent/real party their The responded.1 interest has not original jurisdiction pursuant We assume VII, 4, to Art. of the Oklahoma Constitu § Gen., Henry, Atty. Robert H. Robert A. tion in order to address the issue of first Timothy Gilpin, Attys. Nance and S. Asst. impression concerning interlocutory review Gen., City, petitioners. Oklahoma for rights brought civil actions in state Cate, Norman, respondents. Lee for See, courts. City First National Bank of Smith, (Okla. New York v. SUMMERS, Justice. 1975). I. II.

judgment Their trial court’s action They asserted a The trial court denied the mo- immunity. ate tion and two of the defendants extraordinary il defense insulates them from or to trial. fend a suit for questions in the affirmative. munity” tions fendants The first appeal Oklahoma defendants filed a motion have then filed an amended petition Department employees plaintiff, defense reviewed in this court based on the defense of rejection or question right an inmate’s civil The in error relief alternatively, Department damages. J.C. to an immediate second is whether that by extraordinary Stewart, (prohibition) of their is whether two Correc- requested three We answer both of Corrections. application review of the brought “qualified having named as de- employees rights an immedi- mon law and summary appealed. appeal. relief. to de- again ease civ- pri- im- enactment of “uniquely Qualified immunity tions fied scope Fitzgerald, syth, 472 U.S. tablished would have known.” Mitchell v. For their rights tionary The “government 547, 554-555, brought Although liability [2738] conduct does not violate question of which a reasonable functions federal statutory 457 U.S. 73 L.Ed.2d doctrine in state courts. The for civil (1985), quoting 1983. officials 511, 517, 105 before us involves the immunity in remedy”, was generally Pierson v. damages performing or provided by abolished 1213, 1217-1218, be stated thus: constitutional provides Mitchum v. are shielded Harlow v. § insofar as Ray, 1983 ac- person discre quali- com- es Foster, petitioners correctly state that they (1972), and, thus, have a to an immediate rejects action, court a defense of federal cause of United States v. qualified immunity. They Co., assert Memphis that this Cotton Oil respondent/district judge respond. despite response did the failure to file a we re- party respond applica- writ, The failure of a to an being fused to issue the unable to deter- not, itself, tion for a writ does result in its party mine as matter of law that the was enti- Capitol issuance. ex rel. State Oklahoma tled to relief. we will examine the merits Improvement Authority v. E.A. Cowen Construc- claims. Co., (Okla.1974), tion where- brought L.Ed. in state actions state hear 1983 claims. because law would thwart the courts of this Tulsa, City Willbourn v. Congressional remedy P.2d 803 immuni- provided by ties to 1983 actions were its Id. prior decisions. *3 However, of an immunity the assertion scope immunity of in a defense to not state-law created a federal proceeding state court the same as that the applica- cause of The issue of action. found a federal court. of immunity tion of is one federal law. an California, 444 U.S. Martinez v. 277, 284 III. 8, 553, 8, 100 n. 62 n. 558 L.Ed.2d 481 S.Ct.

(1980) (state sovereign immunity appli- There can not be no doubt defendant court). in state is entitled to immediate cable 1983 action an also, Emerging State interlocutory Steinglass, adjudication of im- Re- Mitchell Court 1983 Action: Procedural v. munity in In federal court. view, Forsyth, 381, (1984). 511, 2806, 472 38 L.Rev. 475 U.S. 105 S.Ct. 86 U.Miami in Felder (1985), point plurality L.Ed.2d 411 emphasized The Court Su- Casey, v. Harlow 131, 2302, preme 108 101 Court2 the earlier 487 U.S. S.Ct. discussed Fitzgerald, v. (1988), 800, 2727, explained L.Ed.2d it 102 S.Ct. 123 wherein 457 U.S. (1982), immunity “preempted” was 73 L.Ed.2d and said: state law 396 885, 278, (1986); Mitchell holding interlocutory 107 2. or S.Ct. Cleveland, 297, Kennedy City denying qualified v. ders are immediate 797 F.2d of nom., ly appealable plurality opinion (6th Cir.1986), was in a cert. denied sub 298-300 White, C.J., Blackmun, Burger, 1103, J. and in which Kennedy, Hanton v. 107 479 S.Ct. J., O’Connor, J., joined. one and case after 1334, (1987); Eugene byD. a circuit court dismissed a wherein Karman, 701, through Olivia D. v. 889 F.2d 705 qualified immunity appeal because it was from Lojuk Cir.1989). (6th v. John Circuit: Seventh interlocutory petition Cir.1985) certiorari son, 619, (7th de ni F.2d 770 621 cert. granted was and the United States ed, 1067, 822, 474 U.S. 88 L.Ed.2d judgment Court vacated the circuit court’s Hart, 692, (1986); LeClair v. F.2d 795 800 694 light of Mitchell v. For remanded the case “in Cir.1986). (7th Wipf, v. Eighth Circuit: Craft 2806, syth, S.Ct. L.Ed.2d 472 U.S. 511 86 [105 170, Wright Cir.1987); (8th v. F.2d 810 171-172 Jasinski, (1985).” Adams v. 411] 901, Center, Inc., Regional Health South Arkansas 3518, 646 87 L.Ed.2d 105 199, Cir.1986). (8th F.2d Ninth 800 202-203 Adams, 843, (11th Jasinski v. F.2d 845 Cir. 781 Pierce, County Kraus v. Circuit: 793 F.2d 1986), procedural history wherein the denied, 1105, Cir.1986), (9th cert. 1107-1108 480 explained. Every circuit court case is federal 932, 1571, (1987); 107 L.Ed.2d 763 94 jurisdiction appeals over 1983 holds that 812, (9th County, White v. Pierce 797 F.2d 814 denying qualified immunity interlocutory orders Brandt, Cir.1986); Chalkboard Inc. v. 879 F.2d appealable pursuant Mitchell. are First Cir 668, Racansky, (9th Cir.1989); Baker v. 669 887 Leonard, 1209, v. cuit: 784 F.2d 1211 Fernandez Van Auken, (9th Cir.1989); v. F.2d 183 887 Ortiz 124, (1st Cir.1986); Campbell, Unwin v. F.2d 863 1366, Cir.1989). (9th Tenth Circuit: F.2d 1367 (1st Cir.1988); Pacheco v. Rivera Cheveras 129 Denver, 1206, City County Jones v. & 854 F.2d Gonzalez, 125, (1st Cir.1987); Za 126 F.2d 809 Vargas v. Mason & (10th Cir.1988); De 1207 Hernandez, 1, (1st yas-Rodriguez v. 830 F.2d 2 Co., 714, (10th Hanger-Silas Mason F.2d 716 844 Boxford, Cir.1987); Kaiter v. Town 836 F.2d Gordon, Cir.1988). Circuit: Minn Eleventh Circuit; 704, (1st Cir.1988). Second Musso 706 denied, 1551, Cir.1985), (11th cert. F.2d 775 1552 736, (2nd Cir.1988); Hourigan, F.2d 740 836 1972, 1116, 90 656 Abrams, 79, (2nd Giacalone v. 850 F.2d 80 Cir. Adams, 843, (1986); Jasinski v. 781 F.2d 845 1988). Third Circuit: Prisco United States Evans, Cir.1988),(11th Cir.1986); Clark v. F.2d 840 Justice, (3rd Dept. F.2d 95-96 851 Dollar, (11th Cir.1988); Rich v. 841 879 F.2d nom., Smith v. Prisco, - rt. denied sub ce (11th Cir.1988); McDaniel v. 1560-1561 -, Woodard, (11th Cir.1989); 886 F.2d Young Lynch, Fourth Circuit: (11th Coley, Tillman v. F.2d Cir. (4th Cir.1988). Hel Fifth F.2d Circuit: Ashburn, GA, 1989); Hudgins City Clements, 890 F.2d (5th ton v. Cir. 787 F.2d (11th Cir.1988). Corbell, (5th District of 1986); Columbia Stevens v. F.2d Malhoyt, University, Martin v. Cir.1986); Circuit: 830 F.2d 246 n. A & M Brown v. Texas Metropolitan (D.C.Cir.1987); Martin v. D.C. Cir.1986). (5th F.2d Sixth Circuit: 331-332 Pontiac, (D.C.Cir. Dept., City Valley Hospital Police 1428 n. 10 Huron cert, grounds, 817 F.2d 144 Cir.1986), 1987), (6th on other F.2d 566-567 modified nom., ValleyHospital, sub Walker v. Huron recognized an entitlement The court thus found a state statute “Harlow thus to be preempted because a 1983 action the other would not to stand trial or face bur- predictably have a different outcome mere- litigation, dens of conditioned on res- ly brought the action because essentially legal question olution court instead of federal court. The Court plain- whether the conduct of which the emphasized this view when it said that: complains tiff violated established apply “States such an outcome-de- The entitlement is an law. entertaining terminative law when substan- rather than a mere defense to suit tive their courts.” Id. 108 liability; immunity, like an absolute at 2308. The also said: effectively it is lost if a case is errone- “Just as federal courts are constitution- go ously permitted to to trial. Accord- *4 ally obligated apply state law state ingly, reasoning that underlies the claims, Tompkins], see Erie [R. appealability deny- of an order immediate 78-79, [64], supra, 304 U.S. at 58 S.Ct. ing immunity absolute indicates to us (1938) [817], ], at 822-823 L.Ed. 1188 [82 qualified immunity the denial of Supremacy imposes so too the Clause similarly appealable; in should be each duty pro- state courts a constitutional ‘to case, the court’s is effec- district decision ceed in such manner that all the substan- tively appeal from a fi- unreviewable parties tial under control- judgment.” Forsyth, nal Mitchell v. ling protected.’ federal law Gar- [are] at at 2815-2816. Moore-McCormack, rett (Emphasis original). 87 L.Ed. 239 opinion recognized (1942).” Casey, 108 Felder v. immunity qualified is an entitlement to not suit, subject to and that entitlement is be Thus, state courts have a constitutional effectively erroneously goes lost if the suit duty pursuant Supremacy to the Clause to to trial. a review of an erroneous rights” recognize arising the “substantial pretrial regarding qualified decision immu- of a federal clause of action when such out nity appeal. was held available brought in is state courts. denying If an order a claim of paramount is law Federal immunity prior was not reviewable to trial state which conflicts with federal law law predictable in a state court then it is with brought 1983 actions in state court. certainty that the outcome would effec- Casey, Felder v. tively losing immunity merely because (1988). brought in the action was state court. The also, Wolcher, Immunity Sovereign recognized federally quali- entitlement Supremacy Damages Against Clause: pre- fied is lost if an erroneous the States in Their Own Courts Con adjudication goes trial of that entitlement Violations, 69 Calif.L.Rev. stitutional to trial. Felder, the court said with regard to a state notice-of-claim statute: Thus, we hold that a defendant’s denying entitlement to review of an order “Because the notice-of-claim statute at qualified immunity by higher him purpose

issue here conflicts both in its prior Supremacy to trial is mandated objectives and effects with the remedial supra. Clause. Felder v. Casey, How and because its enforcement ever, once we establish that a defendant is frequently pre- in such actions will entitled to some review of his asserted dictably produce different outcomes qualified immunity prior ques to trial the litigation solely based on whether tion still remains as to the form that review the claim asserted in or federal is take. will court, we conclude that the state law is pre-empted proceeding when the 1983 action is before court is brought order, appeal state court.” Id. 108 S.Ct. at not an from a final nor an interlocutory 2306-2307. of the nature sane- peal denying and decisional law. for trial court decisions claims tioned state statutes O.S.1981, This court will in state court civil order which overrules a review a trial court rights actions? summary judgment. Rowan v. motion Judge One author noted that Learned

Rowan, Hand viewed the as a Clause absolutely pro- appellate procedure rules of courts, grant jurisdiction to state considering a trial court’s order hibit such argued then the author that this view was interlocutory appeal; on a certified “[n]o inconsistent the Constitution. R. Ber- interlocutory order shall be con- certified Court, ger, 244- Congress v. The overruling if from an order sidered taken recently, More members of summary judgment”. O.S. motion for Appellate App. High expressed 2. Rules of have their views. In Ch. Court Cases, Rule 1.50. Procedure Civil Mississippi, 456 F.E.R.C. v. sepa- adjudicating, a interlocutory An opinion by rate Justice Powell included immunity appealable in

claim of following: or- pursuant to the collateral federal court der doctrine because Katt, “The cites Testa v. “ from, right separable and collat- ‘claim of *5 to, in ”. rights asserted the action’ eral (1947), support proposition in of the 527, 105 Forsyth, 472 U.S. at

Mitchell v. conditions the Federal some adjudicating quali- 2816. An order S.Ct. at govern- may call state Government “ important an is- fied ‘resolve[s] to decide matters of mental institutions merits completely separate sue from policy. recognized But Testa at the action’”. Id. of S.Ct. at 2824. so, that, doing Congress re- must (Brennan, J., concurring in spect institution’s own decision- the state discussing dissenting part, part and method. That making structure and doctrine) (em- scope collateral order of the holding opinion limited its to circum- added). a certified phasis An the state court has stances under which O.S.1981, interlocutory order under adequate appropriate ‘jurisdiction 952(b)(3), must involve an order which adjudi- local law to part of the merits under established “affects a substantial immuni- controversy”. qualified Id., Since action.’ at 394 cate this [67 [federal] separate as ty is defined under federal law added). The (emphasis Tes- S.Ct. at 815] federal cause of from the merits of the meaning by emphasized then its ta Court court would adjudication its state action Pitcairn, citing Herb v. the federal affect the merits of likewise not where the 89 L.Ed. S.Ct. simply the order cause of action. open would not be stated that ‘[i]t a certified inter- appealable as could adjudication in a state to insist on to us’ locutory order under 952. arising beyond a federal claim court of appellate juris- not have This court does court.” jurisdiction of the local Id. pro- express constitutional diction either 4,n. 102 S.Ct. at 2145 n. 456 U.S. at 773 the tri- legislative enactment over vision or J., concurring part (Powell, petitioning us. The al court’s order before dissenting part). this, defendants, recognizing sug- tacitly opinion did not contest this majority The court entertains a gest when a state Supremacy Clause. scope view action, an official defen- federal civil 769-770, 102 at 2142- Id. to utilize all the “should” be able dant expressed A similar view was This of relief available. federal avenues concurring opinion in Harlan’s Gen- Justice examine whether there is requires us to 211, 232, Crain, 209 U.S. eral Oil ap- federally created to a state (1908). Nothing in recognized. Does the peal must be Supremacy other Clause de- Testa nor Clause, interpreted in Feld- Supremacy upsets seen the traditional er, interlocutory ap- cision we have providing an mandate juris- questions state determine the “should be at the earli- notion that a resolved requirements of its own courts.3 dictional possible stage litigation.” est Anderson Creighton, 646 n. not, Process does The Due Clause (1987). 3042 n. itself, any particular form of mandate qualified immunity by Review of a claim of procedure. Mitchell v. Grant Com W.T. original action in this court satis- pany, 416 U.S. “ fies the Due Process Clause. process Due ‘is not a conception with a fixed content technical Our views summarized are these. time, place circum unrelated Supremacy jur ” Clause does not create Eldridge, stances.’ Mathews appellate in a isdiction court where “ Katt, none otherwise exists. su Testa process is flexible and calls for ‘[D]ue Pitcairn, pra, supra. and Herb v. We do particu procedural protections as the such ” appellate jurisdiction not have over the trial particu lar situation demands.’ Id. Rowan, court order before us. Rowan v. protecting a defen lar situation demands supra. does re Clause claim of dant’s quire recognition aof substantive federal decision so that an erroneous trial court right arising out of a federal cause of subjected defendant is not to trial. immune adjudicated action when such a claim of immuni This court has reviewed Casey, supra. state court. Felder v. ty prior discovery and trial an origi present federal entitlement in the case is Seay, nal action in this court. Powell v. review, trial, prior to of an erroneous trial Powell, a suit denying immunity. court decision a claim of attorney prosecutori a district Forsyth, supra. Mitchell v. A trial court immunity, recognized remedy al that a we denying a claim immu order, i.e., by appeal, a final would *6 properly presented nity to a trial court remedy. provide adequate an Id. 553 will be reviewed on the merits the im that no cause P.2d at 164-165. We stated of munity prior by origi claim to trial an of existed the immune defen action dant, properly present nal action in this court recognized and further that the order compelling ing Seay, supra, to submit to dis the claim. the defendant Powell and covery unappealable. Id. 553 P.2d at Casey, supra. was Felder v. We therefore hold prohibition in 165. We issued a writ of petitioners that the herein are not entitled prohibited respondent that the case and interlocutory appeal, to an seek judge proceeding in a 1983 action concerning of a review trial court’s decision wherein the defendant was immune. Id. qualified immunity original via an action.

Likewise, a State trial court decision con immunity cerning qualified may be re IV. original action in this court. viewed an We now address the merits of the immu- petitioner seeking extraordinary A relief nity plaintiff’s petition defense. The al- obtains review of his claim this court leged inadequately that McLin had been ordinary appeal. much sooner than transporting prisoners; trained in that (Okla. Hampton, Thomas v. McLin showed deliberate indifference to 1978). petitioner to establish a able plaintiff the medical needs of the while court, O.S.1981, record in this Ch. transporting plaintiff; “plaintiff the that Court, App. 7 and Rules of the great pain suffered and infections due to any great which would not be burden defendants, pattern the of conduct of the since the relevant material would have al together policy taken form a of ready which delib- been submitted at the trial level. indifference”; and The size the record so erate that “defendant submitted-should Vinson, assistant, very large physicians not be since who is a re- (1987) particularly Casey, 3. Felder is not instructive herein Wis.2d N.W.2d Milwaukee, question Figgs City because the state therein and statute was Wis.2d jurisdiction. not a limit on a court’s Felder N.W.2d n. 6 any plain- without or care the plaintiff” people the while the concern fused care of Lexington. transporting.” he He Essen- was also said that tiff was incarcerated alleged complaining that had tially, the the defen- McLin been to plaintiff another injured transporting him correctional officer in the van that dants him while trans- porting prisoners the hospital prison from a to a that he from Norman Lex- ington p.m. medical care his at 5:00 would “throw us inadequate received late prison. getting off arrival the [work]”. Vinson, The physi- claim was made in inmate also sued

Since the summary judg the context a motion for cian’s assistant at the corrections infirma- ry. the records are attached ment we must examine medical if motion. The notes the facts determine the was defendant’s plaintiff physician’s to the claims of the assistant show that regard shown with Lexington Summary judgment appropri infirmary was admitted to the plaintiff. July only placed no medication. ate there is substantial con physician’s troversy fact. assessment described the as to material Erwin v. One Frazier, plaintiff on physical examination of the following allegations ap day and observed facts and fact admission collar, wearing a neck deposition patient was com- pear plaintiffs attached head, neck, plaining pain and arms motion. surgical and that wound was “in- plaintiff transported was from Cen- flamed, red, palpa- tender to swollen and Hospital tral State to the correctional cen- Another, physician’s assessment de- tion.” Lexington. ter He stated defendant surgical draining scribed the wound transportation driving McLin van was prison infirmary, after admission to sign ap- stop and did as he not notice culture, performance of bacterial proached intersection. correctional plaintiff placing the on medication but “real- officer “slammed on his brakes” physician’s This assessment abcess. same izing already he out into middle of that: healed without stated abcess “[t]he fast, real as a just the road ... accelerated patient was complication dis- ... [t]he fact, throwing us into the matter of back charged infirmary satisfactory from the rein- the seat.” He said that condition.” said jured his He also that three neck.4 *7 doctrine shields in careless manner. turns were handled “government performing not discre- did intend to officials He stated that the driver functions,”5 liability for him, driving tionary intent civil “I think his hurt damages him their conduct violates recklessly was to enable unless and fast statutory or facility possi- “clearly fast as established constitu- get as he back the to> rights.” Forsyth, v. 472 getting him off of work tional Mitchell bly could to benefit varette, 555, 855, injured riding plaintiff his neck while 434 U.S. 98 S.Ct. 55 L.Ed.2d 24 4. had (1978), non-policy making the underwent cervical disc Court held that a horse and then Hospital. governmental employees quali- He fusion Memorial were entitled at Oklahoma Hospital immunity. Central State on fied of one was transferred to In the words author: "In 21, decision, 1987, Navarette, July post-operative care. Procunier v. the Su- 1978 discharged Lexington preme the plaintiff qualified pro- infir- held that mary July prison on that supervisory, transferred tects high at both the officials subordinate, date. discretion level and the minis- terial, Nahmod, S. minimal discretion level." Rights Litigation, Civil and Civil Liberties 476 "discretionary function” has differ- 5. The term (2d 1986) added). Procunier, (emphasis ed. In meanings contexts. re- in different In our ent 155(5) employees the involving O.S.Supp.1989, subordinate included correction- 51 cent case Act), prison (Oklahoma’s al counselors and a member of the Tort staff Claims we Governmental processed discretionary prisoner who the mail. 434 U.S. at function includes ini- held that a 2, planning 556 n. 98 In case policy decisions S.Ct. at 857 n. 2. before tial level or prison perform- employees performing operational made in the us were dis- level decisions Oklahoma, cretionary policy. Nguyen purpose v. State functions for the ance (Okla.1990). Navarette, immunity. supra. P.2d Procunier v. Na- 788 962 Procunier v. 1042 2806, 517, 511, 105 S.Ct. 86 L.Ed.2d Fifth Amendment is a limitation on the analysis quali government, Connecticut, An of a claim Palko v.

411 319, 149, immunity usually requires a court to fied 302 U.S. 58 S.Ct. (1937), applicable except provisions law was “clear

determine if the to the extent such determining incorporated ly instead have been via the 14th established” plaintiffs applicable claim.6 Whether a merits of the Amendment as the States. 784, See, is a different Maryland, defendant violated law Benton v. 395 U.S. clearly 2056, (1969) (double inquiry than whether the law was 23 L.Ed.2d 707 the acts of the jeopardy), Malloy Hogan, established at the time of v. 378 U.S. See, (1964) (self-in Forsyth, defendant. crimination). at 529 n. 105 S.Ct. at 2817 n. 10. No facts have been raised However, explained analysis that in a any party require one court has as would immunity appeal question provisions of the Fifth Amendment. Building Components is at issue whether a constitutional Architectural (Okla. Corp. Comfort, instance should be addressed. the first (8th Scott, 1974); Atchison, Topeka 398-399 & Fe Drake v. Santa Commission, Cir.1987), rehearing Corporation on other Ry. modified denied, grounds, 823 F.2d cert. P.2d 108 S.Ct. plain- Nor did the defendants violate the also, Wipf, 836 F.2d Craft rights granted by Eighth tiffs Amend- Cir.1987); (8th n. 1 Moreno v. punishment. ment as to cruel and unusual Administration, 877 F.2d Small Business Appeals The United States Court of for the (8th Cir.1989). If the facts explained protection af- Seventh Circuit fail in the case before us to show prisoners by Eighth forded to Amend- right as a deprivation of constitutional Franzen, ment in 777 F.2d 1258 Wells then the defendants did not matter of law (7th Cir.1985). right, Drake v. violate a established eighth protects prison- “The amendment Scott, supra, and are immune. we from, alia, (1) ers inter wanton infliction undisputed rele first address whether the pain, Gregg Georgia, cognizable legally claim vant facts show 49 L.Ed.2d 859 for relief. (1976), (2) indifference to seri- deliberate alleged: “That acts of all plaintiff needs, Gamble, ous medical Estelle v. in violation of USC defendants were 97, 104-06, 285, 291-92, Fifth, Eighth, as the Section well (3) shocking Amendments of United and Fourteenth conditions, prison Chapman, Rhodes Constitution, cruel and constituted States 337, 345-47, punishment.” and unusual (1981).” Id. 777 F.2d at 1263-1264. did not “violate” *8 The defendants alleged implicated 1983 “creates no The first two are to be U.S.C. 1983. Section us; merely provides the case before the third is rights; it rem not. substantive deprivations rights established edies for plaintiffs testimony The is clear City City Oklahoma elsewhere.” alleges he the driver to have been 808, 816, 105 Tuttle, 471 U.S. 85 negligent making stop. Negligence the plaintiff The L.Ed.2d 791 was not clearly Eighth is insufficient to show an remedy the 1983 as he filed Gamble, Amendment claim. In Estelle v. such an action. 292, negligence at 97 S.Ct. at they plaintiffs physician did violate the treating prisoner Neither the Fifth Amendment. Eighth held insufficient to an Amend- exception analysis discovery 6. One to this is that a defen- fails to uncover evidence that the de- alleged dant is entitled when the fendant did fact commit the acts. plaintiffs complaint alleges the Forsyth, commission of Mitchell v. 472 U.S. at 105 S.Ct. at clearly acts that violated established law and 2815-2816. Eighth the Amendment.” Id. 429 U.S. at complaint of an plaintiff’s ment claim. 104, 97 at 291. of the driver pain as a result infliction in a careless manner turning three corners The record an of a serious shows absence prison inadequate. of a also Conduct part plaintiff, medical need on the cruel and unusual is not considered official showing plaintiff’s the and without such great discomfort is oc punishment “unless against physician’s claim the assistant punishment or deliberately as casioned clearly insufficient. prison the mindlessly, indifference to with peti Finally, it is manifest that the Cain, F.2d humanity.” Jackson v. er’s plaintiff’s rights tioners did not violate the Cir.1989). (5th plaintiff ad granted by the Amendment. Fourteenth amount to a driving the did not mitted that allegations negligence are insuffi Mere punishment. Nor do we act of deliberate deprivation cient to state a claim for a humanity plaintiff’s find an indifference to provision. the Due Process Clause of that conduct. Duckworth by the driver’s (Okla. Gray, Wilhelm (7th Cir.1985), Franzen, F.2d 645 1988). as to No facts have been raised denied, 479 cert. provisions require analysis of the other (1986), the court con wherein See, Ar of the Fourteenth Amendment. of officials trans cluded that the conduct Components Corp. Building chitectural Eighth prisoners did not violate the porting Atchison, supra, Topeka Comfort, received in although prisoners Amendment Ry. Corporation Com & Santa Fe Co. chained, handcuffed, juries they were mission, supra. to a bus which physically restricted ac find that the driver’s caught fire. We Conclusion. stop sign and going through tions immune from suit petitioners are allegedly in an negotiating three turns clearly violated estab unless their actions transporting prison careless manner while law. Mitchell v. For lished constitutional infliction of ers does not amount to wanton the trial supra. The evidence before syth, unnecessary pain under these facts. peti compels that the court the conclusion tioners did not violate Constitution. against claim regard to the With they did not violate estab assistant, *9 KAUGER, JJ., concur. and pain,’ Gregg v. infliction of and wanton 182-183, U.S.], at supra Georgia, [428 SIMMS, J., concurs in result. 2925], at 49 2909 S.Ct. 96 S.Ct. [96 OPALA, V.C.J., dissents. proscribed by (joint opinion), L.Ed.2d 859 Police, capacities 'persons' 1983." Id. 109 § are Michigan Department State v. 7. In Will — 2304, plaintiff's -, 1983 suit for § at 2312. The L.Ed.2d 45 S.Ct. 109 S.Ct. 105 U.S. damages against petitioners in their official that neither a Court said: hold "[w]e cognizable. legally acting capacities official is not officials in their State nor its 1044 Justice,

OPALA, dissenting. I Vice Chief THE PLURALITY VIEW IN MITCHELL broadly pronounces today The court IS A NOT MANDATE TO STATE For- Mitchell v. plurality’s opinion in COURTS by as it is followed syth1 —inasmuch jurisprudence requires prejudg- a circuit in Mitchell holds opinion plurality’s — review of all nisi prius rejections ment qualified privilege actions is 1983 § by privilege public asserted offi- equivalent immunity- the functional of an In original actions.2 cials 1983 An immunity-from-suit from-suit defense. § nisi prius plea proceeding presents pretrial to review an issue fit for reso- only when the facts prius claims of lution at denying nisi sup- tendered are and will immunity, peti- holds that these the court port single is con- but a which did violate established tioners not inference nonliability,3 sistent with the facts When immune law and are hence from 1983 § dispute, are in or are uncontroverted but no mandate to advance view, my suit. inferences, conflicting qualified- raise here is in the sought the review found privilege plea tenders a fact issue on but plurality’s opinion nor in the case the merits of a 1983 defense. The sub- § today if we law of the circuits. Even stood mission of this defense the trier is com- im- under a command afford federal-law by manded in federal courts the 7th quali- mediate review of a 1983 § Amendment, Const., U.S. and in state fied-privilege evidentiary materi- plea, 19, 2, by Art. courts Okl. Const.4 § are not supplied als in this case consistent (McLin’s) nonliability. petitioner’s one with apply only court must those opinion court’s I hence recede from the procedure norms of federal which are ob- judgment of ligatory from its across-the-board abso- to meet the minimum standards of U.S. law.5 fed- fundamental Just because lution. 2806, 30, 511, DeLeon-Velez, 86 U.S. L.Ed.2d 411 v. 868 F.2d 32- 472 105 S.Ct. Perez-Serrano White, J., Cir.1989], [1985], by plurality opinion 33 holds action [1st that in a 1983 C.J., Burger, damages injunctive Blackmun and O'Con- which liabil- both relief the nor, JJ., joined. ity jury; import is for the issue of similar Castro-Davila, 431, Santiago-Negron v. 2. 42 U.S.C. § 1983. 440-441 Cir.1989]. [1st Const., provide The terms of Art. Okl. 1, Forsyth, supra Mitchell v. note 472 U.S. at pertinent part: 2817; J., 9, (Brennan, also n. 105 see 528 S.Ct. right by jury "The of trial shall be and remain dissenting part), concurring 472 part inviolate ...” 550, U.S. at at 2828. plaintiff's right Since state-court in this case the by jury governed by to trial not the 7th right jury depends by on whether 4. The trial Const., Amendment, 2, 19, U.S. but Art. damages character 1983 be claim for Const., Okl. it is amiss to call attention to “legal” ized as 7th Amendment sense. in the Okl., 1-1, Independent Wetsel v. School Dist. 670 cre There can 1983 actions be no doubt 986, [1983], holding P.2d 990-991 that where the liability, damages ate tort measured duty claimed to have been rests on a breached delicto common law. Mem ex standards of the legally standard that is not Stachura, phis Community v. School Dist. fixed 2537, 2542-2543, as variable 299, characterized because it shifts with case, parameters Loether, the circumstances of the Curtis [1986]. Cf. duty remain undefined a matter of law and 39 L.Ed.2d presence offending or absence [1974], conduct holds that because where the Court tort, jury City tenders an issue for resolution. Ponca damages sounds in it is Title VIII "legal” Robertson, Ice 67 Okl. P. purposes; Co. but the for 7th amendment [1917]; City Cushing Stanley, 68 Okl. by jury VII remains to trial in Title cases [1918]; Springs Ry. Manufacturing 172 P. 628 Sand Lytle unsettled. Household Okl., Cole, [1955]; Inc., U.S. -, -, n. 279 P.2d 942-943 Lee v. Okl., Darden, [1966]; [1990], Federer For other recent 7th Okl., U.S., Davis, P.2d jurisprudence, see Tull v. 198-199 [1967]. Amendment 1831, 1835-1839, 412, 417-425, Clause, 5.By [1987]; Granfinanciera, force of the Art. cl. S.A. Const., -, -, state courts are bound the U.S. Nordberg, *10 2790, Supreme jurisprudential exposition Court’s 106 26 [1989]. L.Ed.2d

1045 appellate prejudgment they pose afford sense that to the eral courts obstacle appealability prosecution pre- under an rubric or defense of a federal claim. review Only by system procedure them for or when deprives that com- state a fed- scribed supervisory authority— litigant their eral-claim of a manded substantive-law Supreme conflicting the will preempt U.S. Court6 —state courts federal law procedure follow suit. state 1983 need not actions. § cannot, today stage if this court to I decides follow at this the U.S. law’s Even jurisprudence voluntarily development, pre- the consider an circuit —i.e. accelerated sans Supreme immunity-from-suit the command— trial review of 1983 U.S. Court’s § only qua non sine (a) pleas it do so where acceler- to be a constitutional should immunity-from-suit Neither I systems. ated decision on the state-court would view rejection absolutely essential question a state the free a accelerated-review impermissibly jurisprudence imper- the circuits defense from some as an 1983 imposed procedural (b) or if missible state burden7 state-law barrier —within guest meaning pretrial Supremacy of a review Clause —to meaningful for a perceived opportunity necessitated 1983 defen- were to be as press effectively meritorious federal constitutional norm. dant some qualified-privilege plea facts Although the U.S. contem- Constitution nonliability. consistent his/her with plates cognizance federal claims’ acting process Federal does mandate Congress, due not courts —unless be afforded appellate remedy powers, exercise of its Clause litigation stage.9 join today’s pro- I could expressly withdraws this inherent authori- pre- ty only unavailability does nouncement if sovereignty dual scheme —our appellate rejected immunity require prosecution in the trial review for federal pleas depriving could as 1983 procedure be iden- viewed claims state federal tical.8 Not all impairing or departures process defendant due federal procedure opportunity effectively raise a must be as fatal his/her viewed qualified-immunity plea appeal was vacat- law. See United States v. Home Federal ment federal 319, Okl., Tulsa, light "in v. P.2d ed and the case remanded of Mitchell S.& L. Ass’n 418 325 961, Okl.Cr., [1966]; Forsyth_" (Emphasis original.) like Crisp, A v. P.2d Dean 536 963 yet [1975]; Maruffi, to be beamed courts. command has at state see also Walker v. 105 N.M. 544, unnecessary. 763, signal The Adams have [App.1987], been 737 P.2d 547 Mitchell, appear At the time of circuits opinion precedential or plurality’s is not bind- developed independent jurispru- already have system. ing even for the federal-court See —not parallel running along dence a track 784, Friedman, F.2d United States 528 788 Farrell, plurality. Floyd v. Woodman, Cir.1976], citing 218 [10th Hertz 1, Cir.1985], 2-3 [1st 621, [1910]; S.Ct. L.Ed. 1001 30 54 Pink, 62 States v. 315 U.S. S.Ct. United Casey, Felder 7. In [1942]; see also in [1988], statutory Wisconsin's connection, Reynolds, Crip- Davis & Juridical impermissible to be an ob- law deemed Court, ples: Plurality Opinions Supreme in the path plaintiff. The of a 1983 stacle 59; Note, Plurality Duke L.J. Decisions held cannot stand Court that state-law barriers Decisionmaking, Judicial 94 Harv.L.Rev. they prosecution impair of a federal Note, [1981]; The Precedential Value of —Rose, opinion claim. A in Howlett v. recent Decisions, Supreme Plurality Court Colum.L. -, S.Ct. 756 [1980]. Rev. [1990], clearly principle. demonstrates same There, pronounced state-law im- Court Supreme supervisory exercises 6. The U.S. prosecu- used to munities not be hinder jurisdiction e.g., over lower courts. tion of a 1983 suit. States, state-court United Sherman v. 819, 825, [1958]; Humphreys 2 L.Ed.2d 848 Okl.Cr., [1973], State, Donnelly, System, Freight Inc. v. 8. Yellow 1566, 1568, U.S. -, -, far, signal” the U.S. Court’s "clear Thus Levitt, U.S. -, -, [1990]; rejected prejudgment qualified- of a Tafflin for review 792, 795, 107 [1990]. L.Ed.2d 887 targeted only immunity plea has the federal Jasinski, judicial system. See Adams v. Normet, [1985], Lindsey prejudg- 36 [1972]. a federal dismissal of a 31 L.Ed.2d where court’s *11 Lexington. qualified-immunity defense. Because fed- return to He drove a reck- Coming less appellate procedure pre- stop sign, eral that affords fashion. brakes, McLin qualified-privilege throwing slammed on his trial review of some nearly prisoners all the “from one seat into claims is without constitutional an- realizing already another”.11 Then he was chor—in either Due Process Clause or in intersection, out into the middle of the today Clause—I would not accelerated, quickly “throwing McLin teachings govern extend its Oklahoma’s ... into the back of the seat.” The [them] system. judicial prisoner, reinjured he who believed had his episode driving, neck in that of erratic II request asked for medical attention. His QUALI- TODAY’S DECISION ON THE unheeded, went and the continued to driver DEFENSE FIED-PRIVILEGE DOES NOT speed facility, taking back a short- REST ON UNDISPUTED FACTS FROM route, making sharp cut several turns and WHICH BUT SINGLE INFERENCE hitting potholes. prisoner When asked MAY BE DRAWN quit hitting McLin to slow down or pronouncement The court rests its brakes, gave response the driver no other petitioners’ nonliability solely on the instru- “laugh pay than to no attention to [his application ments attached to the amended request] go right ... with what he assumption original jurisdiction. for doing.” was brief does not inform us prisoner’s impaired Given the health sta- paperwork constitutes all evi- tus, my this scenario raises view a fact dentiary material that was before the trial i.e., whether the driver’s conduct issue — had occasioned summary it relief. “great discomfort mind- ... Mitchell, if to follow I Even we were could lessly, prisoner’s with indifference to the not conclude that the content of the instru- humanity.”12 conflicting Because infer- supports single ments inference that ences be drawn from these defendant McLin’s nonli- consistent with facts, today uphold I would McLin’s ability qualified- based his qualified-privilege plea granting him privilege defense. summary relief. prisoner-plaintiff in this Ill surgery suit10 underwent neck and back transported days three he was IF THE before U.S. SUPREME COURT WERE prisoners back to several other the Lex- TO MANDATE FOR THE STATE facility. ington correctional While still COURTS THE MITCHELL PRETRIAL recuperating surgery, prisoner REGIME, THE REVIEW STATUS OF RE- picked up hospital. In the VIEWABLE BE DECISIONS SHOULD trip course of the the driver BROUGHT UNDER THE SAME [defendant STATE- alleged hurry to have been in a to LAW FINALITY RUBRIC AS THAT DE- McLin] Cain, prisoner single 10. The based his claim on § 1983 federal circuit. Jackson v. Eighth McLin’s violation of his Amendment 1243 [5th Cir.1989]. punish- to be free from cruel unusual degree of care that should be exercised ment. cruelty” under the "mindless test for 8th Amend legal ment claims is not defined fixed stan Excerpts prisoner’s deposition from the testi- dards; parameters duty are variable in mony petitioners' were attached to the amended they shift with the circumstances. See Wet application original jurisdiction. to assume It is Independent supra sel v. School Dist. note deposition not known whether the file was on explanation of the variable-standard norms depo- the trial court. Abstracts from an unfiled liability. proof Whether defense does in this evidentiary sition not be used as material privileged case demonstrate conduct vis-a-vis stipulation by parties. Hulsey without a recovering prisoner while he was en route to Co., Okl., v. Mid-American Ins. Preferred the destination must be measured the varia P.2d 935-936 [1989]. offending ble standards that define conduct (mindless cruelty) applies today 12. This is the test the court in the 8th Amendment sense. govern Const., grounded 1983 claims on the 8th Under Art. ty” presents Okl. "mindless cruel jury. Amendment. It is a standard followed in a here an issue *12 WYBRANT13 FINED IN opinion, jurisprudence circuit that is binding systems,17 on state-court I If Supreme the U.S. Court were to hold adopt today would not norm manda- that, in the future whenever a tory pretrial rejected qualified review of privilege resting on facts that — immunity pleas in 1983 actions. Neither are nonliability consistent with unsuc- —is Mitchell nor jurispru- extant circuit pressed cessfully in a state-court dence calls for claim, the corrective relief appellate afford- an immediate review is fed- ed mandated, would then the court in this erally I case. Even if the bring remedy pleas properly new under the same were state-law final- before us Town ity review, as pronounced would, record, rubric in I this hold the Wybrant.14 Wybrant Ames v. evidentiary holds that unsupportive a to material be prius nisi prejudgment order must be quest defendant summary McLin’s deemed “final” in the 95315 sense if its judgment qualified-privilege his defense represents rendition prerequi- essential prisoner’s one claim based site assumption adjudica- for the court’s on a 8th right. violation of his Amendment power tive over the case at hand. The (or distort today disturb) should not the symmetry of this appealability state’s

regime by imposing an unwarranted

self-generated 1.50,16 exception to Rule prohibits, board,

which appeals across the summary

from judgment denials. sum, confronted no more than a from the signal”

“faint plurality’s Okl., 13. 203 Okl. 220 P.2d Engineering, See Eason Oil Howard [1950]. 755 P.2d 672-673 [1988]. Supra Although note 13. a trial court’s deter- right of the to mination condemn is not stricto sovereignty system 17. Because under our dual jury sensu a final order—since a trial on the power review the decisions state courts property’s may necessary— condemned value be (on questions) of last resort federal-law resides that, Wybrant right we held because the Court, solely Supreme only in the U.S. prerequisite is an condemn essential for as- binding represent Court’s commands to us feder adjudicative sumption power of the court’s authority. al United States v. Home Federal S. & condemnation, upholding right an order Tulsa, 325; supra L. Ass’n note 5 at Dean v. is to condemn be treated as final under 12 supra Crisp, note 963. A United States §§ O.S.1981 952 and 953. may District Court not entertain an 952(b) pertinent of 12 terms O.S.1981 § judgments highest Only a court of state. are: may Supreme the United States Court exercise "(b) reverse, Court vacate review, only such and then in cases within its modify any following or orders of the jurisdiction. See District Columbia Court court, judge district or a thereof: Feldman, Appeals v. ” * * * order; (1) A final (1983); Rooker v. of 12 terms O.S.1981 953 are: Co., Fidelity Trust affecting a "An order substantial (1923); Litiga In re Asbestos order, effect, action, when such determines tion, (3rd Cir.1987). F.2d Absent Su prevents judgment, and an follow, preme precedent, we as a matter affecting right, substantial made in a comity, opinions the Tenth Circuit on sub of stantive summary special proceeding appli- or federal law that court’s constitu judgment, cation order, an action after is a final jurisprudence applicable tional to the states. vacated, which be modified or Okl., Williams, Phillips v. reversed, (Em- provided in this article.” [1980], voluntary pay deference we our added.) phasis pronouncements prevents circuit’s federal law 1.50, Perfecting 16. The terms of Rule Rules on being dichotomized within State of O.S.1981, App. Appeal, pro- Ch. Civil legal Oklahoma into different bodies of norms— pertinent part: vide in applied in Oklahoma courts and that which " * * * interlocutory No certified order shall governs sitting federal courts within state. if taken from an order considered overrul- ing summary judgment." a motion for notes the medical physician’s immune from suit and lished law and are surgical plaintiff’s wound show cap damages in their individual liability for complications ex medical healed without issue to prohibition will writ acities.7 prohibit successfully cept for the abcess which was proceeding with physician’s as The notes of treated. Powell against immune defendants. action plaintiff was exam sistant show that P.2d 161 We Seay, infirmary prison ined arrival at the prohibition prohibit grant a writ of prescribed medication. assigned judge of respondent or other Gamble, In Estelle v. County of Cleveland the District Court plaintiff’s proceeding said: petitioners herein. that deliberate therefore conclude “We HODGES, HARGRAVE, C.J., and medical needs of to serious indifference LAVENDER, DOOLIN, ALMA WILSON ‘unnecessary prisoners constitutes