dissenting.
. .1 dissent. This is a close and difficult case. Whether or not Dr. Regier is entitled to be relieved of liability at this summary judgment stage rests in part on inferences to be gleaned from the evidence introduced in the case.
The district court in denying summary judgment to Dr. Regier stated:
Although Dr. Regier actively consulted with Bender and treated his Hepatitis, Dr. Regier has not provided evidence that denying Interferon treatment was a reasonable response to Bender’s Hepatitis. Dr. • Meyer stated that he would have provided Interferon treatment to Bender. (Meyer Depo. at 54-55). Defendants do not present any medical evidence that there were reasons to withhold this treatment.! ] Because Dr. Regier has' not identified in the record any reasons why Bender is not a candidate for Interferon treatment, Dr. Regier has not demonstrated that he made a medical judgment to withhold treatment. The Court acknowledges that mere negligence “does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. In construing the facts in the light most favorable to the Plaintiff, Dr. Regier’s conduct demonstrates he knew of -the seriousness of. Hepatitis. Plaintiff is entitled to a jury trial on the issue of whether Dr. Regier’s failure to treat Bender was a “reckless disregard of the known risks.” Moore v. Duffy, 255 F.3d at 545. Therefore, Dr. Regier is not *1139entitled to summary judgment on the merits of this claim.
Appellant’s Add. at 11 (footnote omitted).
I believe that the district court’s ruling denying summary judgment should be sustained on this appeal. I do not intimate that liability exists against Dr. Regier, but only that Plaintiff Bender can proceed with this litigation.