dissenting:
This case illustrates the unwisdom of our decision in Winfield v. Bass, 106 F.3d 526 (4th Cir.1997) (en banc ), to the extent that it allows a circuit court, reviewing a denial of summary judgment on qualified immunity grounds, to conclude that the evidence was insufficient to present a genuine issue of material fact for trial. A circuit court is qualified to decide pure issues of law, and the majority opinion ably explains the applicable law regarding qualified immunity and the Eighth Amendment in Section II A & B above. A district court, however, is much better suited than a circuit court is in determining whether there are disputed issues of material fact sufficient for trial.
The majority in this case goes astray when it second-guesses that factual judgment. Since I do not agree with its weighing of the evidence, I respectfully dissent.
I.
A circuit court has no jurisdiction to review a district court’s denial of summary judgment on the grounds that the evidence was insufficient to support the claim, even in a qualified immunity case. So held the Supreme Court in Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995). When the district court has not set out sufficient facts to explain its denial of summary judgment on qualified immunity grounds, however, we may review the record in order to determine what facts the district court likely assumed as a basis for denying summary judgment. See id. at 319, 115 S.Ct. at 2159. After that review we can decide the purely legal question of whether those facts make out a violation of clearly established law. See id.
This Circuit’s decision in Winfield v. Bass, 106 F.3d 525 (4th Cir.1997) (en banc), almost totally emasculated the Supreme Court’s Johnson holding. In Winfield, we held that “in determining what facts the district court ‘likely assumed,’ we must determine what the evidence actually shows when viewed in the light most favorable to the nonmoving party.” Id. at 534. Today’s majority uses the Win-field holding to return to the precise practice that the Supreme Court overruled in Johnson — reversing a denial of summary judgment on the grounds of qualified immunity because the circuit court believes that “the evidence presented was insufficient to create a triable issue of fact.” Id. at 529 (explaining that we had previously allowed a court of appeals to “review a district court order rejecting a defense of qualified immunity” on the basis of insufficiency of the evidence, but “the Johnson Court, however, rejected our prior practice”).
And so today the majority can both explain that “we do not possess jurisdiction under 28 U.S.C.A. § 1291 (West 1993) to the extent that the appealing official seeks to assert the insufficiency of the evidence to raise a genuine issue of material fact, and we may not undertake that review absent some independent jurisdictional basis,” majority opinion at 1098 n.7, and then a few pages later conclude “[i]n sum, the evidence supporting a conclusion that the prison officials possessed actual knowledge of a substantial risk of harm to the inmates is insufficient to raise a genuine issue of material fact,” majority opinion at 1101. The majority’s conclusion, albeit appropriate after Winfield, is unsustainable here.
II.
The instant case illustrates the unwisdom of the en banc majority decision in Winfield. An appellate court is not well-suited to poring through a cold record and determining “the existence, or nonexistence, of a triable issue of fact,” whereas it “is the kind of issue that trial judges, not appellate judges, confront almost daily.” Johnson, 515 U.S. at *1102316, 115 S.Ct. at 2157 (emphasis added). Perhaps this disadvantage explains the instant disagreement whether there was sufficient evidence to conclude that the prison officials actually knew of a risk of harm from exposure to the bodily fluids of other prisoners (a finding necessary for the subjective, deliberate indifference prong of the Eighth Amendment cruel and unusual punishment standard).
The majority reverses the denial of summary judgment because it finds insufficient evidence that the defendants actually knew of the risk of harm from cleaning up infectious bodily fluids and feces without gloves or other protective equipment.
There was no direct evidence supporting a conclusion that the prison officials actually knew that exposure to the bodily fluids of other prisoners posed a substantial risk of harm to the inmates. There is no deposition testimony or affidavit indicating that the prison officials actually knew of a risk of harm.
Majority opinion at 1099.
It is true that no defendant stated in so many words’T actually knew that exposure to inmates’ blood and feces without gloves or other protective equipment posed a substantial risk of serious bodily harm.” Of course such an explicit admission is not likely to be made; but we can infer such knowledge from circumstantial evidence. See Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994) (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.... ”).
The majority purports to realize that circumstantial evidence can demonstrate knowledge of risk, in fact citing this very quotation from Farmer. See majority opinion at 1099. Nevertheless, in evaluating the circumstantial evidence the majority focuses on the affidavit of one expert witness and ignores the affidavits of the defendants themselves. The majority may be correct in asserting that “[njothing contained in [Doctor] Hicks’ affidavit is adequate to demonstrate that the failure to follow universal precautions created such an obvious and substantial risk that the prison officials must have been aware of it.” Majority opinion at 1100. But the evidence from the defendants’ own declarations is sufficient to demonstrate their knowledge that universal precautions were required to prevent disease. The practices of the officials at the time belie their current claim that they were unaware of the substantial risk of serious harm. One example comes from Dr. Johnson’s own description of the practices at the clinic, and the precautions that she believed were “required”:
I, Sally Johnson, M.D., hereby declare and state as follows:
1. I am the Associate Warden for Health Services (AWHS) at the Federal Correctional Institution, Butner, North Carolina, a position I have held since August, 1990. I am also a commissioned officer of the Public Health Service having been commissioned on July 1, 1979. I have general supervisory responsibility for the Mental Health Division and the Health Services Division.
3. We have several inmates and patients at this facility known to have the HIV virus. Since we do not test all inmates and because the tests available may not detect very recent HIV infection, there may be others unknown to us who are infected as well, even though they may have originally tested negative. For this reason, sound medical and safety practices require that “Universal Precautions” be taken — i.e., that a person take certain precautions whenever it is possible that bodily contact with another person’s bodily fluids may occur. Although saliva, mine and feces are not known to transmit the virus, the Bureau of Prisons’ practice is to utilize Universal Precautions in all situations that involve bodily fluids.
4. At all times, relevant to this action, the Bureau of Prisons, including FCI-But- . ner, has trained staff and inmates in the use of Universal Precautions. Those staff and inmates who perform jobs most likely to involve exposure to *1103another person’s blood receive specific training and protective supplies/equipment consistent with the possible exposure level.
In the vast majority of instances, the only protection needed is the use of gloves to prevent direct contact and disinfectant such as any common household disinfectant, bleach, or laundry detergent. These supplies are and have been at all times, relevant to this action readily available to all staff and inmates at FCIButner.
8. Cleaning tasks in both the clinic and Seclusion Unit are performed in much the same manner by both staff and inmates. Again Universal Precautions are taken which usually require that the staff member/inmate orderly wear gloves and use a disinfectant when body fluids could be present. When medical examination gloves are not sufficiently durable, rubber work . gloves are available for use. If there is a chance that footwear could be exposed to body fluids, rubber boots are used and if there is a chance that eyes or the mouth could be exposed to splashes, then goggles and a medical face mask are available for use. Jumpsuits are available to protect clothing from exposure as necessary. Because the jumpsuit is made of cloth, disposable coverups were obtained. Accordingly, I directed the purchase of biological-chemical suits which consist of a light helmet with full face shield, a disposable nonabsorbent body suit that also covers the foot afea, gloves and a mask.
9. I am frequently in the clinic and in the Seclusion Unit. I have never seen an inmate orderly fail to use appropriate Universal Precautions when such was required. Precautions are often taken in excess of those necessary and this is encouraged. To my knowledge, we have never been out of gloves or disinfectant or other supplies or equipment appropriate to the proper exercise of Universal Precautions.
I have never observed infectious waste improperly handled by staff or inmates, nor have I ever observed infectious waste in regular office trash receptacles. No such violations or conditions have been reported to me by staff or inmates.
12. At one point, inmate Rish did ask to know the HIV status of secluded patients. I advised him that such information was available only if there was a need to know and that the job did not require this information. All workers — staff and inmates — are required to use Universal Precautions and treat all patient areas “as if’ they were infectious.
J.A. at 316-19 (declaration of Sally Johnson, M.D.) (emphasis added). The plaintiffs have alleged that Dr. Johnson knew that the inmate orderlies were required to clean up other inmates’ blood, without gloves. See J.A. 175-76 (deposition of plaintiff Dolph) (affirming that Dr. Johnson saw him at times cleaning up feces or blood without gloves); J.A. 226-29 (deposition of plaintiff Roberts) (affirming that he asked Dr. Johnson for gloves to clean up the blood of an inmate who he later learned was infected with HIV). And Dr. Johnson admitted in her deposition that blood was potentially infectious material warranting the use of universal precautions:
Q. It is correct, is it not, that among other measures universal precautions requires the use of personal protective equipment to avoid coming in contact with potentially infectious material?
A. If that’s what the situation warrants, we would do that.
Q. Well, if there is potentially infectious material, let’s say blood, the situation would warrant universal precautions?
A. Yes, that’s right.
J.A. at 285 (deposition of Dr. Johnson).
The other defendants also indicated their belief in the importance of inmate orderlies’ observing universal precautions. Defendant Wilbur Lemay affirmed that an orderly’s ob*1104serving universal precautions when cleaning up blood was important:
Q. If there were, say, an accident of some sort in which there were blood—
A. Uh-huh (Yes).
Q. —And it needed to be cleaned— and — it would be normal for an orderly to clean that up; is that correct?
A. That would be normal, yes.
Q. Okay. And it would be important for that orderly to observe universal precautions; correct?
A. Yes.
Q. So, how is it you would make sure that the orderly had the gloves necessary for universal precautions?
A. They’re issued them-
J.A. at 313 (deposition of defendant Lemay) (emphasis added). Lemay knew that orderlies should use gloves to protect themselves from disease when cleaning up bodily fluids.
Q. Are you familiar with the term “universal precautions”?
A. Yes.
Q. It’s correct, is it not, that those are measures used to prevent infection of HIV and hepatitis B?
A. You’re to protect yourself from it.
Q. Okay. Explain to me your understanding of universal precautions.
A. Anytime that you think that your involvement or cleaning up any fluids that could pass on these diseases to you, that you protect yourself from it the best way that you could.
Q. Okay. And what would be the ways of protecting yourself?
A. Using gloves. The way they would be disposed of after it’s cleaned.
Id. at 309-310 (emphasis added). It is elementary that the reason Lemay believed that these precautions were important was to prevent the transmission of disease. When he suggested that an orderly use gloves to protect himself, he clearly meant to protect himself from disease.
Defendant Cathy Hicks was more explicit in her explanation that inmate orderlies should use protective devices when they might come in contact with blood, urine, feces, or saliva:
Q. Okay. Moving on to another topic, are you familiar with the term “universal precautions”?
A. Yes.
Q. And what’s your understanding of that term?
A. Well, my understanding is that anytime that a person come in contact or exposed or have to handle any type of infectious — the—anything that might be considered as infectious material — which would be like blood spills or human waste, saliva, whatever — they should use some type of protective coating on their skin to prevent any type of direct contact.
Q. What kind of substances do you include in the substances that require universal precautions? You mentioned blood. What other kinds of substances would apply?
A. Well, for being in — involved in a medical type setting, that could be syringes or alcohol pads that has had direct contact with a, you know, exposed area of blood; soiled ur — laundry, whether it’s urine, feces or whatever. Some of them with bloodstains, you know.
Q. Okay, so, the bodily substances or the bodily fluids that you would include, would at least include blood and urine and feces; and I think you may have mentioned saliva as well?
A. Right.
Q. And what kind of safety precautions are called for under universal precautions for handling those bodily fluids?
A. Your surgical gloves, that’s what we, you know, use out at the institution, gloves. If there’s any kind of way that you think that there is going to be stuff thrown on you or whatever, you know, we have plastic suits or shields or whatever that we use to protect the person.
Q. Are there any other protective devices that you know of that universal precautions can require sometimes?
A. Such as certain bags — of putting items in that have — you know, might have these types of fluids on them.
*1105Q. Do you mean bags to put them in for disposal?
A. Right. Disposal bags.
Q. Do you know of a prison policy requiring universal precautions be followed?
A. Is there a prison policy?
Q. Yes. I’m asking do you know of one?
A. I’m sure that there is, yes.
J.A. at 296-98 (deposition of defendant Hicks) (emphasis added). Ms. Hicks further testified that she had been aware of the prison system’s policy that universal precautions be followed throughout her tenure at Butner, from 1988 forward. See J.A. at 299-301.
III.
The foregoing evidence suffices to establish a genuine issue of material fact regarding whether the defendants had actual knowledge of a substantial risk of serious harm when inmate orderlies were exposed to other inmates blood, and perhaps when they were exposed to feces, urine and saliva, without gloves or other protective equipment.* In light of the above illustrated evidence and other similar evidence throughout the record, I cannot concur in the majority’s conclusion. I believe that the motion for summary judgment on the basis of qualified immunity was properly denied.
The majority notes that the above-recounted evidence "simply does not support a finding that the failure to follow[universal precautions] necessarily exposed the prisoner to a substantial risk of serious harm.” But of course that is not the standard on a summary judgment motion: the evidence need only raise a genuine issue of material fact regarding whether the defendants understood that their failure would produce such a risk, and every reasonable inference is to be drawn in favor of the nonmoving party.