Gerry Reece, an inmate at the Jefferson City Correctional Center, filed this lawsuit under 42 U.S.C. § 1983 against the defendants, all officers and employees of the Missouri Penal System. Reece alleges that all of the defendants except for Charles Verdugo failed to protect him from a substantial risk of serious harm in violation of the Eighth Amendment. Reece alleges that Charles Verdugo violated the Eighth Amendment by being deliberately indifferent to a serious medical need. In the District Court,
I.
This lawsuit grew out of an assault on Reece while he was in administrative segregation for his own protection. That the assault occurred is not the question before us; the defendants’ responsibility for it is. At this preliminary stage of the proceedings, we view the facts in the light most favorable to Reece, Wright v. South Arkansas Regional Health Center, Inc.,
Before entering prison, Reece had been an informant for the Drug Enforcement Administration and had testified against Nick No-dine in Nodine’s 1989 murder trial. Because of these activities, Reece’s fellow prisoners considered him a “snitch,” thus placing him at substantial risk of injury at their hands. Because of this risk, Reece was placed in administrative segregation for his own protection.
On November 23, 1992, an inmate named Albert Davis assaulted Reece by throwing hot water on him. Davis was, at the time, a “walkman” in the administrative-segregation unit. Walkmen are inmates charged with duties such as sweeping the walk in a unit of the prison. They are the only inmates who have access to inmates in administrative segregation. Walkman Davis’s conduct record prior to this assault listed numerous violations, including threats, destroying property, possessing dangerous contraband, creating a disturbance, and insulting behavior.
Following this assault, Reece could not get anyone’s attention, so he set some paper on fire outside his cell. Officer Charles Verdu-go noticed the smoke, came to Reece’s cell, and extinguished the fire. Reece told Verdu-go that he needed medical attention, but
II.
We first address the issue of our jurisdiction. The denial of a motion for summary judgment based on qualified immunity is immediately appealable. Mitchell v. Forsyth,
It is instructive to define the jurisdictional line drawn by the Supreme Court in two separate cases. In Swint v. Chambers County Commission, — U.S. -,
The Eleventh Circuit relied on “pendent-party” appellate jurisdiction in order to address the policy-maker issue. The Supreme Court held that no such jurisdiction exists. Therefore, the Court of Appeals had no jurisdiction to hear the appeal. Notably, the pendent issue, whether the sheriff was a policy-maker for the county, was separate and distinct from the qualified-immunity issue, whether the law that the individual defendants were alleged to have violated was clearly established.
On the other side of the fine is Anderson v. Creighton,
The Supreme Court reversed, holding that the standard we employed was too narrow. The “relevant question” for qualified-immunity purposes was not whether the right to be free from unreasonable searches was clearly established, but rather “whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.” Id. at 641,
The Supreme Court has thus delineated our jurisdiction in qualified-immunity cases. If, as in Swint, a party asks us, in an interlocutory appeal, to examine a question that is separate and distinct from the qualified-immunity issue, we must dismiss the appeal for want of jurisdiction. If, on the other hand, the party asserting qualified immunity asks us to examine the facts as they were known to the government official in order to determine whether clearly established law would be violated by his actions, Anderson requires that we accept jurisdiction and address their arguments.
We believe this holding is consistent with the Supreme Court’s latest opinion on the subject, Johnson v. Jones, — U.S. -,
To be sure, the issue raised by the present appeal — whether reasonable officers would have done more to protect Reece after placing him in administrative segregation — is fact-intensive. Parts of the Supreme Court’s opinion in Johnson can be read to prohibit the exercise of appellate jurisdiction over such issues on a pretrial appeal. The Court says, for example, that a number of considerations “argue in favor of limiting interlocutory appeals of ‘qualified immunity5 matters to cases presenting more abstract issues of law.” — U.S. at -,
The issue we are asked to decide on this appeal can hardly be categorized as “neat” or “abstract.” It is unquestionably fact-intensive. We believe nevertheless that we have jurisdiction to decide it, because, by analogy to Anderson v. Creighton, supra, the legal question of qualified immunity is itself fact-intensive. As we have explained, Anderson holds that an officer has qualified immunity if he or she reasonably believed, in the light of all facts known at the time, that a warrant-less search would be valid. So here, we think the defendants in this case would have qualified immunity if, in the light of all facts known at the time, they reasonably believed that they had taken proper measures to protect the plaintiff. The Supreme Court’s opinion in Johnson does not cite Anderson v. Creighton, so we cannot know for sure what view of appellate jurisdiction the Court would take in a case like the one before us. We think the safer course is to apply the root principle that denials of qualified immunity are immediately appealable,.and to apply this principle even in cases where the issue of qualified immunity is itself fact-intensive.
If we are wrong about this, and if in fact Johnson requires us to dismiss this appeal, the result, of course, would be that the case would go to trial. Because we are affirming the District Court’s denial of qualified immunity, precisely the same result will be produced by our disposition, at least as to those defendants who are sued on the basis of their alleged failure to protect the plaintiff against assault. Practical considerations such as this, we suppose, may be out of bounds when discussing jurisdictional issues, but the thought that our holding in favor of jurisdiction, even if wrong, will cause no harm to the parties in this particular case does afford us some consolation.
In short, we think this case lies squarely within the Anderson mandate. In order to prevail, Reece must establish that the defendants denied him “humane conditions of confinement” by showing that the defendants knew that Reece “faee[d] a substantial risk of serious harm and disregarded] that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, — U.S. -, -,
Having accepted jurisdiction of the claim relating to the assault on Reece, we now examine whether the defendants are immune from suit. Qualified immunity shields government officials from civil lawsuits when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
“ ‘[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.’” Farmer, — U.S. at -,
As for the fact-based portion of our inquiry, the substantial risk of serious harm that Reece faced appears to be obvious in the circumstances of this case. Reece was a “snitch,” and had testified for the prosecution in a murder trial, facts known to the prison population as well as prison officials. Indeed, Reece was in administrative segregation, a form of protective custody, because of this risk. As Farmer counsels, “a factfinder may conclude that a prison official knew of a substantial risk from the fact that the risk was obvious.” — U.S. at -,
Likewise, Reece has produced enough evidence to question whether the measures taken to abate the risk to him were reasonable. The move to administrative segregation was an apparently reasonable response. However, while in administrative segregation, Reece was exposed to Davis. A factfinder viewing Davis’s record could reasonably conclude that Davis had a propensity for violence, that the defendants knew of this propensity because it was reflected by his prison record, and that exposing Reece to such a prisoner, even in administrative segregation, was unreasonable, in light of the pervasive risk to Reece. That is enough to defeat the qualified-immunity defense.
Finally, we address the allegation that Verdugo deprived Reece of his right to prompt, adequate medical care. Reece must establish that the harm allegedly done is “ ‘objectively, sufficiently serious,’ ” and that “ ‘a prison official [was], as a subjective state of mind, deliberately indifferent to the prisoner’s’ ” condition. Beyerbach v. Sears,
In Beyerbach, an inmate’s hand was broken when it was caught in a cell door. Two to three hours passed before medical assistance was provided, two hours passed before ice that was ordered for the hand arrived, and 17 hours passed between the time x-rays were ordered and the time they were taken. The inmate alleged that each of these delays was an Eighth Amendment violation. We held, however, that, even though a broken hand was a sufficiently serious injury, an inmate who claims that delay in medical treatment rose to the level of a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment. The inmate’s suit failed because he had not presented any “verifying medical evidence ... that defendants ignored an acute or escalating situation or that delays adversely affected his prognosis.” Beyerbach,
In this case, Reece does no more than make the assertion that Verdugo refused to get treatment for him. Just as in Beyerbach, he does not produce any “verifying medical evidence” that the delay had any “detrimental effect” on his condition. This point, however, goes to the objective component of the alleged medical-needs violation of the Eighth
The defendant Verdugo also urges, in support of his appeal, that he did not know that Reece had been seriously burned. If this is true, he could not have been deliberately indifferent to Reece’s serious medical needs, and there would be no Eighth Amendment violation. By a parity of reasoning With Anderson and the portion of this opinion that deals with Reece’s claim based on the assault by Davis, we have jurisdiction to decide this argument. We agree with the District Court that there was an issue of fact as to the seriousness of Reece’s injuries. Reece produced testimony from an acquaintance who saw him after the incident which, if believed, would justify a jury in finding that he was seriously burned. This finding, in turn, could be the basis for a reasonable inference that Verdugo knew the burns were serious. Therefore, we agree that the District Court properly denied Verdugo’s summary-judgment motion based on the defense of qualified immunity, and we affirm the District Court’s order. This does not necessarily mean, however, that the claim against Verdugo will go to trial. On remand, Verdu-go will be free to make another motion for summary judgment, this one based simply on the absence of any genuine issue of material fact. In support of this motion, Verdugo can assert that Reece has produced no verifying medical evidence to establish the detrimental effect of delay in medical treatment — an issue not discussed in the opinion of the District Court we are now considering. If the motion is granted, judgment will be entered in favor of Verdugo. If the motion is denied, the case against Verdugo will go to trial along with the case against the other defendants.
IV.
The order of the District Court denying qualified immunity to those defendants accused of failing to protect Reece from a substantial risk of serious harm is affirmed. The order denying qualified immunity to Charles Verdugo on the medical-needs claim, which order is based on the presence of a genuine issue of material fact as to whether Verdugo knew that Reece’s medical condition was serious, is also affirmed. Insofar as the issue of the effect of the delay in treatment is concerned, our action leaves Verdugo free to assert this defense on remand. The cause is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Notes
. The Hon. Scott 0. Wright, Senior United States District Judge for the Western District of Missouri.