dissenting.
Because I am unable to agree with the majority’s basic conclusions that the district court’s analysis “made no reference to the evidence in the record” and that the district court “erred in not considering the specific facts of this case,” I respectfully dissent.
Although the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), described the focus of a determination as to qualified immunity as “a purely legal one,” id. at 528 n. 9, 105 S.Ct. at 2816 n. 9, it is clear that a qualified immunity inquiry requires some examination of the facts in the case. See Anderson v. Creighton, - U.S. -, -, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
Until the instant decision, the proper technique for a pretrial ruling on the issue of qualified immunity has been “unsettled.” See Scott v. Lacey, 811 F.2d 1153, 1154 (7th Cir.1987). Assuming that by dint of the majority’s expression in the case at bar, it now becomes the rule of this circuit that factual considerations must be explored, I believe that the district court’s decisions fully meet not only the Mitchell standard but also the newly adopted standard.
In its two written decisions, encompassing 22 pages, the district court amply demonstrated that it had examined the entire record and was basing its summary judgment rulings on the facts.
In its second decision (dated June 2, 1986), rejecting the defendants’ request for summary judgment on the ground of qualified immunity, the district court stated:
While the plaintiff must overcome a high standard of proof to succeed, the defendants cannot escape the fact that Mr. Jones was the fourth prisoner to die at the Terre Haute penitentiary in 1975. It would be premature for this Court to conclude, even with the thousands of pages of material including “new” evidence and case law submitted by counsel in support of the motion, that there is no other interpretation of the facts or that there are no genuine issues as to material facts in this case. On the contrary, there would appear to be serious disputes as to facts and the plaintiff is entitled to her day in court.
Defendants-Appellants App. p. 409.
While it may be argued that the above quotation is somewhat conclusory, it is implied that the trial judge considered “thousands of pages of material.” The following portions of the same written decision demonstrate that the district court had, indeed, examined not only the plaintiffs’ complaint but also many other factual facets of the record:
It is undisputed that from January to August, 1975, four prisoners died while in the care, custody and control of the Terre Haute penitentiary. After the death of inmate, William Lowe, on January 6, 1975, Mr. Carlson and Dr. Brutsche discussed the information they received regarding Loew’s [sic] death. Dr. Brutsche subsequently traveled to the Terre Haute penitentiary to conduct what he terms a “clinical-type analysis” regarding the treatment and care of Mr. Lowe. The plaintiff questions this and terms Dr. Brutsche’s investigation a cover-up which ignored the systematic problems and resource inadequacies which contributed to Mr. Lowe’s death.
Regarding Dr. Brutsche’s investigation into Mr. Lowe’s death, it is undisputed that Dr. Brutsche recommended to Warden Charles Benson that Dr. Silverman, the full-time physician at the penitentiary, be dismissed from his position. Dr. Silverman subsequently resigned on January 17, 1975. Dr. Brutsche also recommended that a “nursing Kardex” be established at all Bureau of Prisons’ institutions to alleviate a deficiency in record keeping. Dr. Brutsche also recommended that progress notes on inpatients be improved. The Court initially feels *654that these facts indicate a good-faith investigation on the part of Dr. Brutsche, not a cover-up. However, it is unclear whether any of Dr. Brutsche’s recommendations other than Dr. Silverman’s dismissal were implemented. Whether the failure to see that his recommendations were in fact implemented was reasonable, negligent, or deliberately indifferent to the needs of the prison population when more inmate deaths occurred is a question of fact for the jury and not one for the Court to resolve on a motion for summary judgment.
The record contains other factual discrepancies. The matters discussed herein are only examples of conflicting issues of material fact and are not to be taken as the only conflicts in the record, (emphasis in the original).
Defendants-Appellants App. pp. 405-407.
In its decision of October 19, 1984, in which the district court first denied the defendants’ application for summary judgment on the ground of qualified immunity, it explicitly itemized the materials that it examined in reaching its conclusions:
The Court has considered the statements of facts and briefs in support of the motions. The Court also has considered the following documents filed with respect to the motion: Certified exhibits “A” through “J” filed by defendants Norman Carlson and Robert L. Brutsche, M.D. (inasmuch as those defendants are represented by the same counsel all other references in this entry are to “Carlson/Brutsche”); the deposition of Norman Carlson and exhibits attached thereto; the deposition of Robert L. Brutsche, M.D. and exhibits attached thereto; the affidavits of Charles L. Benson, Robert L. Brutsche, Larry E. Madigan, John W. Smith, William Garrigan, Edward Griffin, Johnny Copher, John Freed, and Mark O. Thompson, all filed by Carlson/Brutsche; the affidavits of William Walter, David Saxner, Robert L. Cohen, M. D., and Ralph T. Potkin, M.D., all filed by the plaintiff in her response to the motions for summary judgment.
Defendants-Appellants App. pp. 215-216.
The principal thrust of the defendants on this appeal is that their actions did not violate any of the decedent’s “clearly established” constitutional rights; although that is surely the gravamen of the defendants’ appeal, the majority has reversed on the ground that the district court failed to recite the factual basis for its denial of summary judgment. However, the latter ground was not even advanced by the appellants, and, more importantly, it is an erroneous ground as, I believe, the quoted portions of the record establish. This flawed view on the part of the majority is especially troublesome when it means that upon remand, the district court will be obliged to retrace the same ground that it has twice before traveled in this eleven-year-old case.
Judge Brooks’ findings that there are inconsistencies in the evidence and that there are genuine issues as to material facts for trial regarding the defense of qualified immunity should be affirmed.