Langford v. Norris

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________

No. 09-1862
___________

Mack Langford; John Hardin, *
*
Appellees, *
*
v. *
*
Larry B. Norris, former Director *
of the Arkansas Department of *
Correction; John Byus, Administrator *
for Medical Services for the Arkansas *
Department of Correction; Max * Appeals from the United States
Mobley, former Deputy Director for * District Court for the
Health and Correctional Programs * Eastern District of Arkansas
for the Arkansas Department of *
Correction; Wendy Kelley, Deputy *
Director for Health and Correctional *
Programs for the Arkansas Department *
of Correction; Marvin Evans, *
*
Appellants. *

___________

No. 09-1865
___________

Mack Langford; John Hardin, *
*
Appellees, *
*
v. *
 *
Dr. Nnamdi Ifediora; Correctional *
Medical Services, Inc., *
*
Appellants. *
_______________

Submitted: January 14, 2010
Filed: July 20, 2010
________________

Before GRUENDER and SHEPHERD, Circuit Judges, and LANGE,1 District
Judge.
________________

GRUENDER, Circuit Judge.

Mack Langford and John Hardin, inmates at the Randall L. Williams
Correctional Facility in Arkansas, filed this lawsuit under 42 U.S.C. § 1983 against
various defendants, including several current and former Arkansas Department of
Correction officials, the company that provides medical services in Arkansas prisons,
and a prison doctor. The plaintiffs allege, among other things, that the defendants
violated the Eighth Amendment by acting with deliberate indifference to their serious
medical needs. The defendants moved for summary judgment on most of the
plaintiffs’ claims, and the district court granted the motions in part and denied the
motions in part. Some but not all of the defendants have appealed the denial of
summary judgment on the remaining claims against them. We dismiss in part for lack
of jurisdiction, affirm in part, and reverse in part.

1
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, sitting by designation.

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I. BACKGROUND

The indispensable substantive and procedural facts are as follows. Mack
Langford is in his early eighties and has been incarcerated since 1997. Langford
suffers from a variety of physical maladies and shows signs of mild mental retardation
and dementia. The crux of Langford’s factual allegations is that he has complained
for years of stomach and back pain, among other ailments, yet his infirmities have not
been adequately treated.

Langford points to two incidents in which his condition was allowed to
deteriorate until emergency medical intervention was required. The first happened in
April 2003. Langford alleges that he had complained repeatedly of severe stomach
pain, vomiting blood, and other symptoms, yet medical personnel at the prison
chalked these up to “gas” and gave him antacid tablets. Eventually, Langford passed
out in the prison barracks and was rushed to a local hospital. At the hospital, doctors
discovered a problem with Langford’s gallbladder, which might later have been
removed (the record is not clear), and found cysts in both his kidneys.

After Langford was released from the hospital the first time, he continued to
complain periodically of stomach and back pain. Starting in November 2004,
Langford was examined at least sixteen times by Dr. Nnamdi Ifediora, an employee
or contractor of Correctional Medical Services, Inc. (“CMS”), the company that
provides medical services in Arkansas prisons. Dr. Ifediora at times referred Langford
to specialists, from whom he sought diagnostic recommendations. Imaging tests
performed in August 2005 revealed a possible mass in one of Langford’s kidneys and
cysts in both kidneys.

The second incident requiring emergency intervention happened in November
2005. Langford alleges that on November 28, 2005, he again complained of stomach
pain and again did not receive adequate treatment until he passed out and was rushed

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to the hospital. There, doctors diagnosed Langford with pancreatitis and again found
cysts in both his kidneys. Langford claims that he still has not received adequate
treatment for these cysts or for “possible renal failure.”

The record shows that Langford filed many grievances about his medical needs
and the alleged inadequacy of the corresponding treatment, starting as early as May
2003. In at least one instance, Langford went outside the prison’s official grievance
procedure by sending a letter to John Byus, Administrator for Medical Services for the
Department of Correction. Byus has not produced Langford’s letter, so its contents
are uncertain. The record does, however, contain a series of e-mails that Byus
received on July 26 and July 27, 2005 (apparently sent by Department of Correction
or CMS employees), summarizing Langford’s most recent medical problems and how
those problems had been dealt with. The record also contains a letter from Byus to
Langford, dated August 11, 2005, which refers to a letter from Langford, dated July
20, 2005, on the subject of “competent medical staff.” In his August 11 letter, Byus
instructs Langford to “refer to the informal resolution and grievance process for future
concerns and/or complaints.” Byus concludes the letter by stating that “[a]ll
documentation will be forwarded to the Health Service Administrator and Regional
Health Administrator, advising them to address situation [sic] and inform you of
findings either by written correspondence or interview.” It is not clear whether
Langford received the promised response.

Langford’s co-plaintiff, John Hardin, is sixty-six years old and has been
incarcerated since 1996. Hardin has insulin-dependent diabetes that is not well
controlled. The crux of Hardin’s factual allegations is that a lapse in treatment
following surgery for a broken ankle caused, or perhaps merely exacerbated the
effects of, a condition called “Charcot foot.”2

2
An online reference page about Charcot foot, published by the American
College of Foot and Ankle Surgeons and included in the record, describes the
condition as “a sudden softening of the bones in the foot that can occur in people who

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 Hardin fell and broke his ankle in February 2004. Dr. John Lytle, an orthopedic
surgeon in private practice who occasionally treats prisoners, performed surgery on
the injured ankle. Hardin had several routine follow-up visits with Dr. Lytle, the last
of which was in May 2004. After that visit, Hardin began complaining of severe pain
in his surgically repaired ankle.

Hardin alleges that in July 2004, a doctor in the prison infirmary told him that
“there was something seriously wrong” with his ankle, which had become “misshapen
and deformed.” In September 2004, Hardin saw Dr. Ifediora, who noted the deformity
in Hardin’s ankle as well as Hardin’s pain and difficulty walking. Dr. Ifediora ordered
a wheelchair for Hardin and referred him for an “orthopedic consult” with Dr. Lytle.
Hardin alleges that he was initially prescribed a wheelchair in February 2004 but did
not receive one until Dr. Ifediora made this redundant prescription, seven months
later.

In October 2004, Hardin saw Dr. Lytle, who diagnosed him with Charcot foot.
Dr. Lytle observed that Hardin’s bones showed “significant deterioration” and that
reconstructive surgery might not be an option. Based on these observations, Dr. Lytle
suggested that amputating Hardin’s leg below the knee might give him the best chance
to regain mobility. After receiving this dispiriting news, Hardin continued to
complain periodically about pain and the deformity in his ankle.

In February 2005, Hardin saw Dr. Lytle for the last time. Dr. Lytle noted his
concerns about the “progressive deformity” in Hardin’s ankle and about Hardin’s
inability to bear weight on the injured leg. Dr. Lytle prescribed a padded tennis shoe
and a cane, and suggested that Hardin might need a brace for his foot. Hardin alleges

have significant nerve damage (neuropathy). The bones are weakened enough to
fracture, and with continued walking the foot eventually changes shape. As the
disorder progresses, the arch collapses and the foot takes on a convex shape, giving
it a rocker-bottom appearance, making it very difficult to walk.”

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that he still has not received a brace or a padded shoe that fits properly. Moreover,
Hardin claims that he is now “wheelchair bound” and says that he has not been offered
any other treatment options.

The record shows that Hardin filed many grievances about his medical needs
and the alleged inadequacy of the corresponding treatment, starting as early as August
2004. Like his co-plaintiff, Hardin also went outside the prison’s official grievance
procedure by sending a letter to Byus. And Byus has again produced his reply but not
the letter that prompted him to write it. The letter from Byus to Hardin is dated
October 26, 2004, and refers to a letter from Hardin, dated October 15, 2004, on the
subject of “injury to right ankle and request to see Orthopedic Specialist.” Byus wrote
that “[b]y copy of this letter, I am advising the Health Services Administrator to look
into this matter and communicate findings to you either by interview or written
correspondence.” It is not clear whether Hardin received the promised response.

The plaintiffs brought this action under 42 U.S.C. § 1983 against two principal
sets of defendants. The first set consists of current and former Department of
Correction officials: namely, Larry Norris, the former Director of the Department of
Correction; John Byus, whom we have already introduced; and Max Mobley, the
former Deputy Director for Health and Correctional Programs (hereinafter, “the state
defendants”). The second set of defendants consists of CMS and Dr. Ifediora
(hereinafter, “the medical defendants”).3 The plaintiffs’ amended complaint alleges

3
While there are other defendants with active claims against them, we omit them
from our discussion (as we have omitted some from the caption), either because they
have not appealed, or because addressing their role in the litigation is not necessary
for us to resolve this appeal, or for both of those reasons. We note that Wendy Kelley,
the current Deputy Director for Health and Correctional Programs, and Marvin Evans,
whose title is nowhere to be found in the briefs, appeal only the denial of summary
judgment “on the issue of failure to exhaust,” which, as we explain below, we lack
jurisdiction to review. None of the parties’ arguments focus specifically on Kelley or
Evans, both of whom apparently have been sued only in their official capacities.

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that both the state defendants and the medical defendants acted with deliberate
indifference to their serious medical needs, in violation of the Eighth Amendment’s
prohibition on cruel and unusual punishments. In addition, the complaint alleges that
the defendants deprived them of their rights to due process and equal protection under
the Fourteenth Amendment and violated the Americans with Disabilities Act (ADA)
and the Rehabilitation Act. The complaint also includes state law claims of
negligence and intentional infliction of emotional distress, otherwise known as the
“tort of outrage.”

The state defendants and the medical defendants moved for summary judgment
on most of the plaintiffs’ claims. Three components of these motions deserve special
attention. First, both sets of defendants argued that Langford and Hardin had failed
to exhaust administrative remedies under the Prison Litigation Reform Act, a statute
requiring inmates to exhaust available administrative remedies before filing suit to
challenge the conditions of their confinement. See 42 U.S.C. § 1997e(a). Second,
regarding the plaintiffs’ deliberate indifference claims, the state defendants sought
qualified immunity as a shield against civil damages, asserting that their conduct had
not violated Langford’s or Hardin’s clearly established constitutional rights. See
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). Third, also regarding the
plaintiffs’ deliberate indifference claims, both sets of defendants professed that there
was no genuine issue as to any material fact and that they were entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).

Since the bulk of our opinion deals with claims against Norris, Byus, and Mobley in
their individual capacities, we have omitted Kelley and Evans from our definition of
the “state defendants.” This terminological choice has no substantive effect on our
analysis (and it certainly does not mean that we have ignored Kelley’s and Evans’s
participation in this appeal), but it might help to avoid unnecessary confusion when
we reach the merits of the relevant claims. Hereafter, when we use the term “the
defendants,” we are referring only to “the state defendants” and “the medical
defendants,” as we have defined those groups.

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 The district court, adopting the magistrate judge’s proposed findings and
recommendations, granted the motions in part and denied the motions in part. In
particular, the court rejected the defendants’ arguments that the plaintiffs had failed
to exhaust administrative remedies on their deliberate indifference claims, finding that
Hardin had exhausted available remedies and that there was a genuine issue of
material fact about whether Langford had exhausted available remedies. The court
also rejected the state defendants’ qualified immunity defense, stating in generic terms
that “the plaintiffs’ constitutional rights to adequate medical care and treatment [were]
clearly established.” And the court found that there were genuine issues of material
fact concerning the plaintiffs’ deliberate indifference claims, but only to the extent
those claims were premised on certain allegations: specifically, Langford’s allegation
that Dr. Ifediora acted with deliberate indifference to his serious medical needs;
Hardin’s allegation that CMS acted with deliberate indifference to his serious medical
needs; both plaintiffs’ allegations that Byus knew about their serious medical needs
and acted with deliberate indifference; and both plaintiffs’ allegations that the state
defendants—Norris, Byus, and Mobley—violated their constitutional rights in
designing or overseeing the Department of Correction’s procedure for handling
medical grievances.4 The court denied the defendants’ motions for summary

4
Curiously, the plaintiffs do not specifically identify the constitutional right at
issue in this last set of allegations; on appeal, the plaintiffs merely call the grievance
procedure “unconstitutional.” Leaving a constitutional claim so nebulous is usually
unpardonable. In this instance, however, it is obvious that the relevant allegations
amount to claims of deliberate indifference, so we will treat them as such. We note
in this regard that Hardin defined the claim with greater precision in one of his
handwritten grievances, complaining in March 2005 that the grievance procedure
“causes long delays in resolving . . . medical matter[s]” and that “the [designated]
problem solvers cannot resolve such issues.” Hardin went on to assert that the
resulting “[d]elay of medical treatment . . . causes unnecessary suffering” and evinces
“deliberate indifference to serious medical needs,” in violation of “[his] 8th
Amendment rights.”

Also, we note that this set of allegations seems to focus exclusively on the
version of the grievance procedure promulgated in February 2004. We are told that

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judgment as to the claims premised on those allegations but granted the motions
insofar as the plaintiffs’ deliberate indifference claims were premised on different
allegations (e.g., Langford’s allegation that CMS acted with deliberate indifference
to his serious medical needs; Hardin’s allegation that Dr. Ifediora acted with deliberate
indifference to his serious medical needs; and so on).

Turning to the plaintiffs’ other claims, the district court granted summary
judgment to the state defendants on Langford’s and Hardin’s equal protection claims.
But the court found that genuine issues of material fact precluded summary judgment
on the plaintiffs’ claims under the ADA and the Rehabilitation Act, as well as the state
law negligence and outrage claims. On the last two claims, the district court rejected
the state defendants’ assertion of statutory immunity under section 19-10-305(a) of
the Arkansas Code, which provides that state officials “are immune from liability and
from suit, except to the extent that they may be covered by liability insurance, for
damages for acts or omissions, other than malicious acts or omissions, occurring
within the course and scope of their employment.” The district court found that
whether the state defendants were covered by liability insurance was a disputed issue
of fact that it could not resolve at the summary judgment stage.5

The state defendants moved to amend the district court’s order, seeking
permission “to take an immediate appeal . . . under 28 U.S.C. § 1292(b) on the issue

the procedure was changed in May 2006, but the revised version of the grievance
procedure was apparently omitted from the record. Hereafter, when we refer to “the
grievance procedure,” or use variations of that phrase, we are referring to the version
promulgated in February 2004.
5
Although the magistrate judge did not specifically address the plaintiffs’ due
process claims, the judge’s recommendations included a catch-all dismissal of
“remaining claims.” The briefs on appeal do not contain any meaningful discussion
of an alleged due process violation, so we need not consider the plaintiffs’ due process
claims.

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of exhaustion.”6 The district court denied the motion, reiterating its view that “there
is a genuine issue of material fact in dispute for a jury to decide” and noting that the
state defendants had “failed to identify an issue of law that would warrant an
interlocutory appeal.”

Thereafter, the state defendants filed a notice of appeal, identifying two issues
for review. The notice first declares that the state defendants appeal the district
court’s denial of qualified immunity on the plaintiffs’ deliberate indifference claims.
And, notwithstanding the district court’s denial of certification under § 1292(b), the
notice goes on to state that the defendants appeal the denial of summary judgment
based on the plaintiffs’ alleged failure to exhaust administrative remedies. The
defendants baldly assert that “[t]his decision is . . . appealable pursuant to 28 U.S.C.
§ 1291” because it meets the “requirement[s] of the collateral order doctrine.” The
medical defendants filed a separate notice of appeal, which does not even attempt to
identify a source of appellate jurisdiction to review the denial of summary judgment
on the relevant claims against them.

The plaintiffs moved to dismiss the state defendants’ appeal to the extent it
challenges the denial of summary judgment based on their alleged failure to exhaust
administrative remedies. The plaintiffs also moved to dismiss the state defendants’
appeal to the extent it challenges the denial of summary judgment on the merits of
their deliberate indifference claims (as opposed to the denial of qualified immunity).
The plaintiffs filed a separate motion to dismiss the medical defendants’ appeal in its
entirety.

6
Section 1292(b) authorizes a district court to certify that “an [interlocutory]
order not otherwise appealable . . . involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the litigation.” If
a district court grants certification under § 1292(b), the court of appeals may then
decide whether to exercise its discretion to permit an immediate appeal.

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 So much for our abbreviated introduction of the relevant facts. In the next
section, we take up the issues raised on appeal, providing additional background as
needed.

II. DISCUSSION

A.

The first matter we must address is the scope of our jurisdiction over these
consolidated appeals. See generally Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 93-102 (1998) (discussing “[t]he requirement that jurisdiction be established as
a threshold matter”). Under 28 U.S.C. § 1291, federal courts of appeals have
“jurisdiction to hear appeals only from ‘final decisions’ of district courts.” Johnson
v. Jones, 515 U.S. 304, 309 (1995) (quoting § 1291). Generally speaking, “appeal
must await the terminating order—the decision that ‘ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment.’” Davis v. Streekstra,
227 F.3d 759, 762 (7th Cir. 2000) (quoting Van Cauwenberghe v. Biard, 486 U.S.
517, 521 (1988)). “[I]nterlocutory appeals—appeals before the end of district court
proceedings—are the exception, not the rule.” Johnson, 515 U.S. at 309.

Ordinarily, we lack jurisdiction “to hear an immediate appeal from a district
court’s order denying summary judgment, because such an order is not a final
decision.” Krout v. Goemmer, 583 F.3d 557, 563-64 (8th Cir. 2009) (citing § 1291,
and Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005)). We do, however, have
“limited authority . . . to review the denial of qualified immunity through an
interlocutory appeal under the collateral order doctrine.” Id. at 564 (citing Johnson,
515 U.S. at 311-12). Our jurisdiction to review the denial of qualified immunity
“extends only to ‘abstract issues of law,’ not to ‘determination[s] that the evidence is
sufficient to permit a particular finding of fact after trial.’” Id. (alteration in original)
(internal citation omitted) (quoting Johnson, 515 U.S. at 314, 317). “Thus, ‘a

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defendant entitled to invoke a qualified immunity defense may not appeal a district
court’s summary judgment order insofar as that order determines whether or not the
pretrial record sets forth a “genuine” issue of fact for trial.’” Id. (quoting Johnson,
515 U.S. at 319-20). And we typically may not consider any other grounds for
granting “summary judgment on the merits of the case at this interlocutory stage.”
Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en
banc) (quoting Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir. 1999)).

Here, we have jurisdiction over the state defendants’ appeal insofar as it
challenges the district court’s denial of qualified immunity to Norris, Byus, and
Mobley on the plaintiffs’ deliberate indifference claims. More precisely, we have
jurisdiction to consider the “purely legal” issue of whether the facts, taken in the light
most favorable to the plaintiffs, support a finding that the state defendants violated
Langford’s and Hardin’s clearly established constitutional rights. See Kahle v.
Leonard, 477 F.3d 544, 549 (8th Cir. 2007) (quoting Mitchell v. Forsyth, 472 U.S.
511, 528 n.9 (1985)).

The state defendants assert that we have jurisdiction to consider two other
issues. The first of these is the district court’s denial of statutory immunity to Norris,
Byus, and Mobley on the plaintiffs’ state law claims. Under Arkansas law, the denial
of statutory immunity is immediately appealable, for as the Arkansas Supreme Court
has explained, “the right of immunity from suit is effectively lost if a case is permitted
to go to trial.” See, e.g., City of Fayetteville v. Romine, 284 S.W.3d 10, 13 (Ark.
2008) (citing Ark. River Educ. Servs. v. Modacure, 267 S.W.3d 595 (Ark. 2007));
accord Scott v. Harris, 550 U.S. 372, 376 n.2 (2007) (explaining that “an order
denying qualified immunity is immediately appealable even though it is interlocutory”
because it would “otherwise . . . be ‘effectively unreviewable’” (quoting Mitchell, 472
U.S. at 527)). The plaintiffs have not identified any grounds for carving out an
exception to that rule in this case; indeed, the plaintiffs ignore the statutory immunity
issue altogether. Although the district court premised its denial of statutory immunity

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on the existence of a disputed factual issue, we find that the state defendants raise a
purely legal question which can be resolved at this interlocutory stage. We will take
up that question in our discussion of the merits at the end of this section; for present
purposes, it suffices to say that we have jurisdiction to consider the denial of statutory
immunity on the plaintiffs’ state law claims.7

The state defendants also assert that we have jurisdiction to consider the district
court’s denial of summary judgment based on the plaintiffs’ alleged failure to exhaust
administrative remedies. As we mentioned above, the Prison Litigation Reform Act
requires inmates to exhaust available administrative remedies before filing suit to
challenge the conditions of their confinement. See 42 U.S.C. § 1997e(a) (“No action
shall be brought with respect to prison conditions . . . by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.”). The district court rejected the defendants’ arguments based
on § 1997e(a), finding that Hardin had exhausted available remedies and that there
was a genuine issue of material fact about whether Langford had exhausted available
remedies.

7
We note that the state defendants refer to statutory immunity under section 19-
10-305(a) as “qualified immunity,” thereby adding unnecessary ambiguity to their
presentation on appeal. This might explain why the state defendants’ notice of appeal
does not separately mention the denial of statutory immunity on the plaintiffs’ state
law claims. Cf. Fed. R. App. P. 3(c)(1)(B) (providing that the notice of appeal must
“designate the judgment, order, or part thereof being appealed”). The plaintiffs do not
suggest that they have been prejudiced by the imprecision in the state defendants’
notice of appeal, and we are satisfied that the state defendants provided adequate
notice of their intent to appeal the district court’s decision on both the state and federal
immunity defenses. See Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058
(8th Cir. 2002) (“When determining whether an appeal from a particular district court
action is properly taken, we construe the notice of appeal liberally and permit review
where the intent of the appeal is obvious and the adverse party incurs no prejudice.”
(citing Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 788 (8th Cir. 2001))).

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 Once more, we must start from the principle that appellate jurisdiction under
28 U.S.C. § 1291 extends only to “final decisions.” A district court’s denial of
summary judgment “is a classic interlocutory order” because “[a]ll it does is require
the litigation to continue.” Davis v. Streekstra, 227 F.3d 759, 761 (7th Cir. 2000).
“Such an order might be appropriate for certification under 28 U.S.C. § 1292(b),” id.
(citing Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674 (7th Cir. 2000)), but here
the district court refused to certify the exhaustion issue for immediate appeal. That
setback did not deter the state defendants from including the exhaustion issue in their
notice of appeal. The state defendants’ new position is that the denial of summary
judgment on grounds of failure to exhaust is immediately appealable under the
collateral order doctrine.

“The collateral order doctrine is best understood not as an exception to the
‘final decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’
of it.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (citing
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). In Cohen, the U.S.
Supreme Court identified a “small category of decisions that, although they do not end
the litigation, must nonetheless be considered ‘final.’” Swint v. Chambers County
Comm’n, 514 U.S. 35, 42 (1995) (citing Cohen, 337 U.S. at 546). Cohen defined this
category as including “only decisions that are conclusive, that resolve important
questions separate from the merits, and that are effectively unreviewable on appeal
from the final judgment in the underlying action.” Id. (citing Cohen, 337 U.S. at 546).
The state defendants insist that “the necessary factors . . . are present” in this case.
State Defendants’ Resp. to Mot. to Dismiss at 3. We disagree.

Even assuming that the district court’s interlocutory order is “conclusive,” and
that the exhaustion issue is “important” and “separate from the merits,” we reject the
notion that the court’s decision concerning the exhaustion requirement is “effectively
unreviewable on appeal.” See Davis, 227 F.3d at 762. As the Seventh Circuit held
in Davis, “[a]rguments based on § 1997e(a) may be resolved on appeal from the final

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judgment.” Id. “If the plaintiff was required to exhaust yet failed to do so, the
appellate court will hold that the suit must be dismissed without prejudice,” id., just
as this court did in Lyon v. Vande Krol, 305 F.3d 806 (8th Cir. 2002) (en banc). See
also Davis, 227 F.3d at 761 (collecting cases).

The state defendants seem to assume that the exhaustion requirement set out in
§ 1997e(a) is meant to confer some form of immunity from the costs of litigation.
They are mistaken, since “[e]xhaustion requirements do not create absolute (or even
qualified) rights to be free from litigation.” Id. at 763. The state defendants also
appeal to considerations of “judicial efficiency and economy,” which they say
“militate in favor of addressing the [exhaustion] issue” immediately. State
Defendants’ Reply Br. at 3. But such considerations obviously do not allow courts
to disregard jurisdictional limits. On the contrary, the “possibility that a ruling may
be erroneous and may impose additional litigation expense is not sufficient to set aside
the finality requirement imposed by Congress.” Borntrager v. Cent. States, Se. & Sw.
Areas Pension Fund, 425 F.3d 1087, 1093 (8th Cir. 2005) (quoting Lauro Lines S.R.L.
v. Chasser, 490 U.S. 495, 499 (1989)). We see no other source of jurisdiction to
review the district court’s denial of summary judgment based on the plaintiffs’ alleged
failure to exhaust administrative remedies. Consequently, we dismiss the state
defendants’ appeal to the extent it challenges the district court’s decision on the
exhaustion issue.

That leaves the medical defendants’ appeal from the denial of summary
judgment on the relevant claims against them. The medical defendants cannot claim
qualified immunity, and they do not dispute that the district court’s partial denial of
their motion for summary judgment is an interlocutory order. Instead, the medical
defendants assert that we have pendent jurisdiction over their appeal because one of
the issues it presents is “closely related” or “inextricably intertwined” with the issue
presented in Byus’s qualified immunity appeal. Medical Defendants’ Br. at viii-ix.
Here again, we disagree.

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 The medical defendants seem to believe that pendent appellate jurisdiction is
far more capacious than it really is. To be sure, this court announced in Drake v.
Scott, 812 F.2d 395 (8th Cir. 1987), that “‘when an interlocutory appeal is before
us . . . as to the defense of qualified immunity, we have jurisdiction also to decide
closely related issues of law,’ i.e., pendent appellate claims.” Kincade v. City of Blue
Springs, 64 F.3d 389, 394 (8th Cir. 1995) (quoting Drake, 812 F.2d at 399). But we
clarified our view of pendent appellate jurisdiction after the Supreme Court decided
Swint:

In Swint, a unanimous Court ruled that although the Eleventh Circuit had
jurisdiction to immediately review a district court’s denial of a police
officer’s summary judgment motion on qualified immunity grounds, the
court of appeals did not have jurisdiction to address an unrelated
question of liability presented by the co-defendant County Commission.
The Court emphasized that there was “no ‘pendent party’ appellate
jurisdiction of the kind” that the court of appeals exercised in that case.
Nevertheless, the Court stated that . . . “[w]e need not definitively or
preemptively settle here whether or when it may be proper for a court of
appeals with jurisdiction over one ruling to review, conjunctively, related
rulings that are not themselves immediately appealable.”

Kincade, 64 F.3d at 394 (alteration in original) (internal citations omitted) (quoting
Swint, 514 U.S. at 50-51). In Kincade, we followed the Tenth Circuit in holding that,
after Swint, “pendent appellate jurisdiction might still be appropriate where the
otherwise nonappealable decision is ‘inextricably intertwined’ with the appealable
decision, or where review of the nonappealable decision is ‘necessary to ensure
meaningful review’ of the appealable one.” Id. (quoting Moore v. City of Wynnewood,
57 F.3d 924, 930 (10th Cir. 1995)).

We can certainly review the denial of qualified immunity to the state defendants
without also reviewing the denial of summary judgment to the medical defendants.

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The question, then, is whether the medical defendants’ appeal raises a pendent claim
that is inextricably intertwined with Byus’s qualified immunity appeal.

We have said that an otherwise nonappealable “issue is ‘inextricably
intertwined’ with [a] properly presented issue[] only ‘when the appellate resolution
of the collateral appeal necessarily resolves the pendent claim[] as well.’” Lockridge
v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en banc) (quoting
Kincade, 64 F.3d at 394). In other words, “[a] pendent appellate claim can be
regarded as inextricably intertwined with a properly reviewable claim on collateral
appeal only if the pendent claim is coterminous with, or subsumed in, the claim before
the court on interlocutory appeal.” Kincade, 64 F.3d at 394 (quoting Moore, 57 F.3d
at 930). The medical defendants contend that “[t]he issue of actual injury [presented
in their appeal] is dispositive as to the claims made against . . . Byus.” Medical
Defendants’ Br. at viii. The pendent issue is purportedly “dispositive” in the sense
that if we were to find that Langford and Hardin “did not meet proof with proof as to
the issue of actual injury”—i.e., whether the plaintiffs were actually injured by the
medical defendants—the court “would not need to go forward with a qualified
immunity analysis.” Medical Defendants’ Br. at viii-ix.

The medical defendants get the analysis backward; resolving the collateral
claim (the denial of qualified immunity) must necessarily resolve the pendent claim
(what the medical defendants call the “issue of actual injury”), not the other way
around. The pendent claim that the medical defendants have identified is not
coterminous with, or subsumed in, the qualified immunity claim, for holding that Byus
is entitled to qualified immunity would not necessarily decide whether Langford and
Hardin were actually injured by the medical defendants’ alleged failure to provide
efficacious treatment. Moreover, as we will discuss in greater detail below, we lack
jurisdiction in these circumstances to review the “objective component” of a deliberate
indifference claim, including “[w]hether there is verifying medical evidence that [a
plaintiff] failed to receive the treatment he desired, and, if he did not, whether there

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is verifying medical evidence that the failure to treat him was sufficiently serious.”
Miller v. Schoenen, 75 F.3d 1305, 1309 (8th Cir. 1996). Thus, the “issue of actual
injury” is not inextricably intertwined with the issue presented in Byus’s appeal from
the denial of qualified immunity. And there is no evident basis for finding that any
other issue presented in the medical defendants’ appeal qualifies as inextricably
intertwined with the relevant collateral claim. Consequently, we dismiss the medical
defendants’ appeal in its entirety.

B.

Having decided the scope of our jurisdiction, we may now address the merits
of the state defendants’ challenges to the denial of qualified immunity on the
plaintiffs’ deliberate indifference claims. Recall that two categories of deliberate
indifference claims against the state defendants survived summary judgment: first,
the claims premised on allegations that Byus knew about the plaintiffs’ serious
medical needs and acted with deliberate indifference; and second, the claims premised
on allegations that Norris, Byus, and Mobley acted with deliberate indifference in
designing or overseeing the Department of Correction’s procedure for handling
medical grievances. The state defendants seek qualified immunity on these claims as
a shield against civil damages. See Anderson v. Creighton, 483 U.S. 635, 638-39
(1987) (noting that qualified immunity shields government officials from liability for
civil damages “as long as their actions could reasonably have been thought consistent
with the rights they are alleged to have violated”).

“We review a district court’s qualified immunity determination on summary
judgment de novo, viewing the record in the light most favorable to [the plaintiffs] and
drawing all reasonable inferences in [their] favor.” Krout v. Goemmer, 583 F.3d 557,
564 (8th Cir. 2009) (citing Howard v. Kan. City Police Dep’t, 570 F.3d 984, 987 (8th
Cir. 2009)). For each category of claims, the inquiry comes down to two questions:
“(1) whether the facts alleged or shown, construed in the light most favorable to [the

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plaintiffs], establish a violation of a constitutional . . . right, and (2) whether that
constitutional right was clearly established as of [the time of the relevant conduct],
such that a reasonable official would have known that his actions were unlawful.” Id.
(citing Pearson v. Callahan, 555 U.S. ---, 129 S. Ct. 808, 815-16 (2009), and Saucier
v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson, 129
S. Ct. at 818). “Unless the answer to both of these questions is yes, the defendants are
entitled to qualified immunity.” Id. Typically, when we are “faced with an argument
that the district court mistakenly identified clearly established law, . . . [we] can
simply take, as given, the facts that the district court assumed when it denied summary
judgment for that (purely legal) reason.” Johnson v. Jones, 515 U.S. 304, 319 (1995).
Unfortunately, the district court in this case failed to state all of the relevant facts, so
we have “undertake[n] a cumbersome review of the record to determine what facts the
district court, in the light most favorable to the . . . [plaintiffs], likely assumed.” Id.;
see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996). We begin our analysis with
the plaintiffs’ deliberate indifference claims against Byus and then turn to the
plaintiffs’ claims against Norris, Byus, and Mobley regarding the grievance procedure.

It is well established that “[d]eliberate indifference to a prisoner’s serious
medical needs is cruel and unusual punishment in violation of the Eighth
Amendment.” See Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “To show deliberate indifference,
plaintiffs must prove an objectively serious medical need and that prison officials
knew of the need but deliberately disregarded it.” Id. (citing Crow v. Montgomery,
403 F.3d 598, 602 (8th Cir. 2005)). Prisoners may prove deliberate indifference by
showing that the total deprivation of medical care resulted in “pain and suffering” or
“a lingering death.” Estelle, 429 U.S. at 103. But a total deprivation of care is not a
necessary condition for finding a constitutional violation: “Grossly incompetent or
inadequate care can [also] constitute deliberate indifference, as can a doctor’s decision
to take an easier and less efficacious course of treatment.” Smith v. Jenkins, 919 F.2d

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90, 93 (8th Cir. 1990) (citations omitted). To state a claim based on “inadequate
medical treatment . . . [t]he plaintiff ‘must show more than negligence, more even than
gross negligence, and mere disagreement with treatment decisions does not rise to the
level of a constitutional violation.’” Alberson v. Norris, 458 F.3d 762, 765 (8th Cir.
2006) (quoting Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).

Byus is the Administrator for Medical Services for the Department of
Correction, but he is not a medical doctor and does not personally treat inmates’
medical needs. As the plaintiffs concede, prison supervisors such as Byus cannot be
held liable under § 1983 on a theory of respondeat superior. See, e.g., Choate v.
Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993). Supervisors can, however, “incur
liability . . . for their personal involvement in a constitutional violation, or when their
corrective inaction amounts to deliberate indifference to or tacit authorization of the
violative practices.” Id. (internal quotation marks and citation omitted) (quoting Fruit
v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990), and Howard v. Adkison, 887 F.2d 134,
137 (8th Cir. 1989)). “Where a prisoner needs medical treatment prison officials are
under a constitutional duty to see that it is furnished.” Crooks v. Nix, 872 F.2d 800,
804 (8th Cir. 1989) (citing Estelle, 429 U.S. at 103). It follows that “where the duty
to furnish treatment is unfulfilled, the mere contracting of services with an
independent contractor does not immunize the State from liability for damages in
failing to provide a prisoner with the opportunity for such treatment.” Id. (citing West
v. Atkins, 487 U.S. 42, 55 (1998)); see also Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.
1995).

As to the first category of claims, we are convinced that the facts, construed in
the light most favorable to Langford and Hardin, establish a violation of their rights
under the Eighth Amendment. Specifically, Langford alleges that he has suffered for
years from stomach and back pain, among other ailments, and that these infirmities
have not been adequately treated. We assume for purposes of this appeal that
Langford’s medical needs are objectively serious, see Krout, 583 F.3d at 568—a not

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implausible assumption since Langford was twice rushed to a hospital for emergency
care. See also Logan v. Clarke, 119 F.3d 647, 649 (8th Cir. 1997) (finding that
“substantial back pain” was a serious medical need); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 829 (7th Cir. 2009) (collecting cases holding that
“delays in treating painful medical conditions, even if not life-threatening, may
support an Eighth Amendment claim”). There is no doubt that Byus has a
constitutional duty to see that prisoners in his charge who need medical care receive
it. So if Byus knew that Langford’s serious medical needs were not being adequately
treated yet remained indifferent, he may be held personally liable. See Crooks, 872
F.2d at 804.

Hardin’s claim against Byus is even stronger than Langford’s. Recall that
Hardin alleges that a lapse in treatment following surgery for his broken ankle led to,
or perhaps merely exacerbated the effects of, a condition called “Charcot foot.” We
assume for purposes of this appeal that Hardin’s medical needs were objectively
serious, see Krout, 583 F.3d at 568—which should be uncontroversial given the
pernicious effects of Charcot foot, including severe pain and irreversible deformity.
Again, there is no doubt that Byus has a constitutional duty to see that prisoners in his
charge who need medical care receive it. So if Byus knew that Hardin’s serious
medical needs were not being adequately treated yet remained indifferent, he may be
held personally liable. See Crooks, 872 F.2d at 804. We therefore conclude that each
plaintiff has a sound theory of the constitutional violation. See Newsome v. McCabe,
319 F.3d 301, 304 (7th Cir. 2003).

It remains to decide whether the right Byus allegedly violated was clearly
established. This part of the inquiry demands that reviewing courts “do more than
determine that the law was ‘clearly established’ in the abstract.” Reece v. Groose, 60
F.3d 487, 491 (8th Cir. 1995); see also Kahle v. Leonard, 477 F.3d 544, 553 (8th Cir.
2007) (“At a high enough level of abstraction, every constitutional right is clearly
established.”). We must instead “examine the information possessed by the

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government official accused of wrongdoing in order to determine whether, given the
facts known to the official at the time, a reasonable government official would have
known that his actions violated the law.” Miller v. Schoenen, 75 F.3d 1305, 1308 (8th
Cir. 1996) (citing Anderson, 483 U.S. at 640, and Reece, 60 F.3d at 489). “This is not
to say that an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful; but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (internal
citation omitted).

In this case, it is plain that if Byus knew all the relevant facts about Langford’s
and Hardin’s medical needs, the unlawfulness of failing to ensure that they received
adequate treatment would have been apparent. The more difficult question centers on
how much Byus actually knew about Langford’s and Hardin’s medical needs and the
allegedly inadequate treatment they received. As we have said, we may take as given
the facts that the district court assumed. See Johnson, 515 U.S. at 319. But the only
relevant fact identified in the magistrate judge’s proposed findings and
recommendations is that Byus sent letters to Langford and Hardin in which he
acknowledged receiving letters from them. We are left, then, with the task of
reconstructing “what facts the district court, in the light most favorable to
the . . . [plaintiffs], likely assumed.” See id.; see also Behrens, 516 U.S. at 313.

The district court likely inferred that the letters from Langford and Hardin
contained at least some description of their medical needs—Langford’s stomach and
back pain and Hardin’s Charcot foot—and the perceived inadequacy of the treatment
they had received to that point. Byus’s reply letters support that inference: Byus’s
letter to Langford says that Langford wrote him concerning “competent medical
staff,” and Byus’s letter to Hardin says that Hardin wrote him concerning “injury to
right ankle and request to see Orthopedic Specialist.” Moreover, under the so-called
“adverse inference rule,” Byus’s failure to produce the letters he received from
Langford and Hardin permitted the district court to infer that the evidence contained

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in those letters would undermine his defense. See 2 John Henry Wigmore, Evidence
in Trials at Common Law § 285, at 192 (James H. Chadbourn rev. 1979); 2 Kenneth
S. Broun, et al., McCormick on Evidence § 264, at 220-21 (6th ed. 2006); see also
Int’l Union, UAW v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972) (“Simply stated,”
the adverse inference rule “provides that when a party has relevant evidence within
his control which he fails to produce, that failure gives rise to an inference that the
evidence is unfavorable to him.”).8 And the district court could certainly assume,
based on the e-mails that Byus received on July 26 and July 27, 2005, that Byus had
actual knowledge of at least some of Langford’s medical problems and how those
problems had been dealt with.

Considering these facts together, and drawing all reasonable inferences from
them in favor of the plaintiffs, we are convinced that the constitutional right at issue
was clearly established as of the time of the relevant conduct, such that a reasonable
supervisory official would have known that his actions were unlawful. That is to say,
a reasonable official standing in Byus’s shoes would have understood that ignoring
Langford’s and Hardin’s complaints about receiving deficient medical care
contravened clearly established principles of Eighth Amendment jurisprudence. See
Miller, 75 F.3d at 1308; Boyd, 47 F.3d at 968; Crooks, 872 F.2d at 804.

8
We note that Byus has not attempted to show that Langford’s and Hardin’s
letters were destroyed or misplaced. Cf. Everest Capital Ltd. v. Everest Funds Mgmt.,
L.L.C., 393 F.3d 755, 761 n.3 (8th Cir. 2005) (noting that the adverse inference rule
“applies only ‘when a party has relevant evidence within its control which it fails to
produce’” (quoting Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d 303, 304 (8th
Cir. 1981))). Nor has Byus offered any other explanation for failing to produce the
letters. Cf. 2 Wigmore, supra, § 285, at 192 (stating that an adverse inference against
a party who fails to produce evidence in his control is “open always to explanation by
circumstances which make some other hypothesis a more natural one than the party’s
fear of exposure”).

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 Byus’s contrary arguments are uniformly without merit. For instance, Byus
emphasizes that he “is not a physician” and “is not engaged in day to day medical
care.” State Defendants’ Br. at 24. But those facts do not make him immune from
liability for his personal involvement in an alleged constitutional violation. See
Choate, 7 F.3d at 1376. Byus also suggests that the letters he wrote to Langford and
Hardin prove that he was not deliberately indifferent to their serious medical needs.
In particular, Byus recounts that he “advised Langford to use the grievance procedure”
and that he told both Langford and Hardin that their complaints “would be referred to
the Health Services Administrator.” State Defendants’ Br. at 29. But Byus has failed
to identify any evidence (apart from the letters themselves) showing that the promised
referrals were actually made, much less that a proper investigation was eventually
conducted. And, in any event, Byus did not insulate himself from liability merely by
passing Langford’s and Hardin’s complaints on to someone else in the prison
bureaucracy, or by deferring to his role (if any) in the official grievance procedure.
See generally McKenna v. Wright, 386 F.3d 432, 438 (2d Cir. 2004) (“When
allegations of improperly denied medical treatment come to the attention of a
supervisor of a medical program, his adjudicating role concerning a grievance cannot
insulate him from responsibility for allowing the continuation of allegedly unlawful
policies within his supervisory responsibility.” (citing Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995))).

Byus makes two additional arguments that raise nonappealable issues. Byus
first argues that “Langford has not presented any verifying medical evidence, as
required by law, to establish the detrimental effect of any alleged delay in medical
treatment.” State Defendants’ Br. at 27 (citing Beyerbach v. Sears, 49 F.3d 1324 (8th
Cir. 1995)). Byus relies on our decision in Beyerbach, which held that a similar
argument based on a prisoner’s failure to produce “verifying medical evidence” was
“within our appellate jurisdiction on appeal from denial of a motion for summary
judgment based on qualified immunity,” Reece, 60 F.3d at 491-92. Byus’s reliance
on Beyerbach is misplaced, because our later precedents make clear that “the Supreme

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Court’s opinion in Johnson v. Jones overturned [the] portion of Beyerbach that held
that we have jurisdiction to hear such an argument,” Miller, 75 F.3d at 1309 (citing
Reece, 60 F.3d at 492). After Johnson, “[w]hether there is verifying medical evidence
that [a plaintiff] failed to receive the treatment he desired, and, if he did not, whether
there is verifying medical evidence that the failure to treat him was sufficiently
serious, are questions beyond our jurisdiction in this [species of] interlocutory
appeal.” Id.

The second problematic argument starts and ends with the assertion that “[t]here
is . . . no proof that any action by Byus caused injuries to Langford.” State
Defendants’ Br. at 27 (second emphasis added). Like his argument about verifying
medical evidence, Byus’s argument about causation is contrary to Miller, which made
clear that “we have no jurisdiction . . . in an interlocutory appeal of a denial of a
summary-judgment motion based on qualified immunity” to review “issues relat[ing]
to whether . . . [a government official] actually committed the act of which he is
accused, or damages, or causation, or other similar matters that the plaintiff must
prove,” 75 F.3d at 1309 (emphasis added). For the reasons discussed above, we
affirm the district court’s order insofar as it denied qualified immunity to Byus on the
plaintiffs’ first category of deliberate indifference claims.

The second category of claims relates to the grievance procedure for medical
issues, which, according to the plaintiffs, is both too complicated and too protracted.9

9
By way of background, the grievance procedure has three stages. First, within
fifteen days of a “grievable” incident, an inmate must fill out an “informal resolution
form” and submit the form to a designated “problem solver.” The problem solver then
has three working days to attempt to solve the problem informally. If the problem
cannot be solved informally, the inmate may proceed to the formal grievance stage.
Within three working days of the failed informal resolution attempt, the inmate must
fill out a “formal grievance form,” and place that form (along with the informal
resolution form) in a designated “grievance box.” Once the formal grievance is
processed by the designated “grievance officer,” the warden, or in the case of medical

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The state defendants apparently do not dispute the plaintiffs’ assertion that they each
played a direct role in designing or overseeing the grievance procedure. The plaintiffs
allege that funneling medical grievances through that unwieldy procedure impeded
their ability to obtain efficacious treatment and thereby caused or exacerbated their
alleged injuries. Because Norris, Byus, and Mobley designed or oversaw the
grievance procedure, the argument runs, they may be held liable if it resulted in the
denial of constitutionally adequate treatment. This is a plausible theory of the
constitutional violation, and it fits comfortably under the rubric of deliberate
indifference. See, e.g., Crooks, 872 F.2d at 804 (holding that prison supervisors may
be held liable for “inadequate prison policies or medical supervision . . . just as if they
had refused to deliver [medical] services themselves”); Messimer v. Lockhart, 702
F.2d 729, 732 (8th Cir. 1983) (holding that the Director of the Arkansas Department
of Correction could be held liable for failing to override “policy decisions” that
allegedly led to unconstitutional conditions of confinement); see also Wellman v.
Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (holding that deliberate indifference “can
be demonstrated by ‘proving there are such systemic and gross
deficiencies in . . . procedures that the inmate population is effectively denied access
to adequate medical care’” (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980))). Thus, we are convinced with respect to these claims as well that the facts,

grievances, the “Health Services Administrator,” has twenty working days to issue a
written decision. If the inmate is not satisfied with the outcome at the formal
grievance stage, he may proceed to the appeal stage. Within five working days, the
inmate must fill out the appeal section of the “warden/supervisor’s decision” form,
and submit that form (along with the formal grievance form and other pertinent forms)
to the appropriate deputy director or assistant director. The director responsible for
adjudicating the appeal then has thirty working days to issue a written decision.
Ordinarily, the entire process must be completed within seventy-six working days.
At the last two stages, however, if the warden, administrator, or director files a
“grievance extension form,” the relevant time limits are extended automatically,
unless the inmate disagrees in writing. In the event the inmate refuses to acquiesce
to an extension, the inmate is deemed to have waived his right to an administrative
decision on the merits of the grievance.

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construed in the light most favorable to the plaintiffs, establish a violation of the
plaintiffs’ rights under the Eighth Amendment.

It seems reasonably certain that the relevant legal principles were clearly
established in an abstract sense. Whether the unlawfulness of the state defendants’
conduct would have been apparent to reasonable supervisory officials standing in
Norris’s, Byus’s, and Mobley’s shoes is a much thornier question. We need not enter
that thicket, however, since the question is effectively mooted by the state defendants’
failure to offer any remotely plausible argument for deciding the issue in their favor.
The state defendants’ lone contention on this point is that Langford’s and Hardin’s
clearly established rights have not been violated because “[t]he record reflects that
[they] have utilized the grievance procedure on numerous occasions.” State
Defendants’ Br. at 31. This is a flimsy defense. While proving that the grievance
procedure was accessible might be a necessary condition for avoiding liability on the
relevant claims, accessibility obviously is not a sufficient condition. Suppose the
plaintiffs were allowed to file as many grievances as they wished but every grievance
was automatically denied without review after seventy-six working days. This
procedure would impose no limits on the plaintiffs’ ability to file grievances, but no
one would say for that reason alone that their rights under the Eighth Amendment had
been preserved.

In light of the state defendants’ failure to identify a sound basis for overturning
the district court’s denial of qualified immunity on the second category of claims, we
accept for purposes of this appeal the plaintiffs’ virtually uncontested argument that
the constitutional right at issue was clearly established as of the time of the relevant
conduct, such that reasonable supervisory officials would have recognized that their
actions were unlawful. Cf. Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1265 n.3 (10th
Cir. 2008) (“It is not our role to play the part of counsel by making an argument for
a [well-represented] party . . . that it has not chosen to make for itself.” (citing Am.
Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992))). That is to say, we

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are satisfied that reasonable officials who knew that the grievance procedure hindered
rather than helped inmates with serious medical needs—as the plaintiffs have
alleged—would have understood that failing to take corrective action contravened
clearly established principles of Eighth Amendment jurisprudence. See Miller, 75
F.3d at 1308; Crooks, 872 F.2d at 804; Messimer, 702 F.2d at 732. For the reasons
discussed above, we affirm the district court’s order insofar as it denied qualified
immunity to the state defendants on the plaintiffs’ second category of deliberate
indifference claims.

C.

That brings us at last to the district court’s denial of statutory immunity on the
plaintiffs’ state law claims. The plaintiffs ignore this issue, and the state defendants
treat it as an afterthought, so we will keep our analysis short.

Section 19-10-305(a) of the Arkansas Code provides that “[o]fficers and
employees of the State of Arkansas are immune from liability and from suit, except
to the extent that they may be covered by liability insurance, for damages for acts or
omissions, other than malicious acts or omissions, occurring within the course and
scope of their employment.” The district court found that whether the state defendants
were covered by liability insurance was a disputed issue of fact that it could not
resolve at the summary judgment stage. On appeal, the state defendants contest that
conclusion, asserting that they are entitled to immunity under section 19-10-305(a)
because the record contains an “unrefuted” declaration by the Department of
Correction’s chief fiscal officer showing that they are not covered by liability
insurance. State Defendants’ Br. at 33. In lieu of considering that fact-based
challenge to the district court’s decision, we turn instead to the state defendants’
alternative argument: that they are entitled to immunity under section 19-10-305(a)
because the plaintiffs’ amended complaint fails to allege that Norris, Byus, or Mobley

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“acted with malice or beyond the scope of [his] employment,” State Defendants’ Br.
at 32.

The Arkansas Supreme Court has held that “a bare allegation of willful and
wanton conduct will not suffice to prove malice.” Ark. Dep’t of Envtl. Quality v. Al-
Madhoun, 285 S.W.3d 654, 660 (Ark. 2008) (citing Simons v. Marshall, 255 S.W.3d
838 (Ark. 2007)). As to the plaintiffs’ state law claims, we have not discovered even
bare allegations of willful, wanton, or otherwise malicious conduct on the part of
Norris, Byus, or Mobley, much less sufficient “factual support” to stave off summary
judgment. See id. Accordingly, we reverse the district court’s order insofar as it
denied statutory immunity to Norris, Byus, and Mobley on the plaintiffs’ state law
claims and remand with instructions to grant this part of the state defendants’ motion
for summary judgment.

III. CONCLUSION

For the foregoing reasons, we dismiss in part for lack of jurisdiction, affirm in
part, reverse in part, and remand for further proceedings consistent with this opinion.
_____________________________

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