UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7910
ROBERT L. LANDRUM, a/k/a Robert Levern Landrum,
Plaintiff – Appellee,
v.
DR. DAVID BOWENS, DMD, SCDC; MS. CARLA DAVIS, MAT, Allendale
C.I.; DR. DOUGLAS MCPHERSON, DMD, SCDC,
Defendants – Appellants,
and
GEORGE T. HAGAN, Warden Allendale Correctional Institution;
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Cameron McGowan Currie, District
Judge. (8:08-cv-02993-CMC)
Submitted: March 26, 2010 Decided: April 13, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert L. Landrum, Appellant Pro Se. Michael Charles Tanner,
MICHAEL C. TANNER LAW OFFICE, Bamberg, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Robert L. Landrum, a South Carolina inmate, filed a
civil rights action pursuant to 42 U.S.C. § 1983 (2006),
alleging in part that David Bowens, Carla Davis, and Douglas
McPherson (“Appellants”), all responsible for the dental care of
inmates at the Allendale Correctional Institution, violated
Landrum’s Eighth Amendment right to reasonable medical care by
failing to provide him with proper dental treatment. Appellants
filed a motion for summary judgment and argued that they were
entitled to qualified immunity. The district court found that
Appellants were not entitled to qualified immunity, and denied
the motion. Appellants noted an interlocutory appeal. For the
reasons that follow, we dismiss the appeal for lack of
jurisdiction.
On appeal, Appellants argue in their informal brief
only that the district court erred in denying them qualified
immunity. Appellants assert that they have not violated
Landrum’s constitutional rights, claiming that “[t]o the extent
that [Landrum] is complaining that [South Carolina Department of
Corrections] staff did not comply with his wish to have all of
his teeth extracted, he has not alleged a constitutional
violation because [he] is not entitled to the dental treatment
of his choice, but only to reasonable care.” Appellants further
state that they treated Landrum at eight separate dental
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appointments between July 2006 and June 2008, that they made
pain medication available to him, and that Landrum is
responsible for delays to his treatment by failing to appear for
dental appointments. Appellants conclude that because they did
not violate Landrum’s constitutional rights, “there is no need
to consider whether that right was clearly established,” and
thus they are entitled to qualified immunity.
Although neither Appellants nor Landrum addresses the
matter on appeal, we must first evaluate the threshold issue of
whether we have jurisdiction over this appeal. It is
well-settled that while interlocutory orders generally are not
appealable, “a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, “a
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.” Johnson v. Jones,
515 U.S. 304, 319-20 (1995). Thus, this court possesses “‘no
jurisdiction over a claim that a plaintiff has not presented
enough evidence to prove that the plaintiff's version of the
facts actually occurred,’” but does have jurisdiction over “‘a
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claim that there was no violation of clearly established law
accepting the facts as the district court viewed them.’” Culosi
v. Bullock, ___ F.3d ___, 2010 WL 610625, at *4 (4th Cir. Feb.
22, 2010) (quoting Winfield v. Bass, 106 F.3d 525, 530 (4th Cir.
1997) (en banc)).
Here, in denying Appellants’ motion for summary
judgment, the district court concluded that a genuine issue of
material fact existed regarding Landrum’s treatment, and
resolution of those issues of fact would determine whether
Landrum’s Eighth Amendment right had been violated. Although
the district court did make a legal determination that there was
a clearly established right to reasonable medical care,
Appellants do not challenge that determination, but instead the
fact-related issues regarding whether certain actions occurred
that could amount to a constitutional violation. See Iko v.
Shreve, 535 F.3d 225, 237 (4th Cir. 2008) (“Because the district
court denied [summary judgment] by virtue of conflicting factual
inferences, . . . there is no legal issue on appeal on which we
could base jurisdiction.”). Accordingly, this court lacks
jurisdiction over the appeal, and the appeal must be dismissed.
We deny Landrum’s motion for appointment of counsel. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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