# Maurice Moore v. Dr. John Duffy

> Court of Appeals for the Eighth Circuit · July 6, 2001 · 255 F.3d 543

URL: https://www.frixlaw.com/law-library/cases/773844

## Case

- **Full name:** Maurice MOORE, Appellee, v. Dr. John DUFFY, Appellant
- **Court:** Court of Appeals for the Eighth Circuit
- **Decided:** July 6, 2001
- **Citations:** 255 F.3d 543; 2001 U.S. App. LEXIS 15077; 2001 WL 754762
- **Precedential status:** Published
- **Opinion:** Opinion by Arnold
- **Judges:** Arnold, Heaney, Battey
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/773844

## How later opinions describe it (automated extraction)

- noting that to establish deliberate indifference based on deviation from standard of care, “[o]ften whether such a significant departure from professional standards occurred is a factual question requiring expert opinion to resolve”
- noting that defendant doctor conceded that hepatitis C is a serious medical condition

## Opinion text

MORRIS SHEPPARD ARNOLD, Circuit Judge.
Dr. John Duffy brings this interlocutory appeal from the district court’s
2
denial of his motion for summary judgment based on qualified immunity. We dismiss the appeal for lack of jurisdiction.
Inmate Maurice Moore filed a complaint under 42 U.S.C. § 1983 , alleging that Dr. Duffy was deliberately indifferent to his serious medical needs in violation of the eighth amendment’s prohibition against cruel and unusual punishment.
See Estelle
*545
v. Gamble,
429 U.S. 97, 104 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976). Dr. Duffy moved for summary judgment based, in part, on qualified immunity. The district court denied the motion, concluding that there was a material fact issue regarding deliberate indifference and that qualified immunity was unavailable because, viewing the evidence favorably to Mr. Moore, Dr. Duffy’s conduct was not objectively reasonable under clearly established law. Dr. Duffy contends on appeal that he is entitled to qualified immunity.
Qualified immunity shields government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,”
Harlow v. Fitzgerald,
457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). To establish his eighth amendment claim, Mr. Moore had to prove that he had “objectively serious medical needs” and that Dr. Duffy “actually knew of but deliberately disregarded those needs,”
Roberson v. Bradshaw,
198 F.3d 645, 647 (8th Cir.1999). “ ‘[Deliberate indifference includes something more than negligence but less than actual intent to harm’; it requires proof of a reckless disregard of the known risk,”
Jackson v. Everett,
140 F.3d 1149, 1152 (8th Cir.1998), quoting
Newman v. Holmes,
122 F.3d 650, 653 (8th Cir.1997). Dr. Duffy acknowledges that he knew of the serious medical needs of Mr. Moore, who suffered from AIDS and hepatitis C, but argues that he is entitled to qualified immunity because he was not deliberately indifferent to those needs.
Mr. Moore contends that we lack jurisdiction over this appeal. Although there is ordinarily no appeal from the denial of summary judgment, “summary judgment determinations
are
appealable when they resolve a dispute concerning an ‘abstract issu[e] of law’ relating to qualified immunity ... typically, the issue whether the federal right allegedly infringed was ‘clearly established’ ” (emphasis in original),
Behrens v. Pelletier,
516 U.S. 299, 313 , 116 S.Ct. 834 , 133 L.Ed.2d 773 (1996), quoting
Johnson v. Jones,
515 U.S. 304, 317 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). A district court’s determination of evidentiary sufficiency is not subject to an interlocutory appeal, however, simply because the determination occurs in a qualified immunity case.
See Behrens,
516 U.S. at 313 , 116 S.Ct. 834 ;
see also Johnson,
515 U.S. at 319-20 , 115 S.Ct. 2151 .
Although medical negligence does not violate the eighth amendment,
see Roberson,
198 F.3d at 647 , Dr. Duffy does not dispute that it was “clearly established” when he treated Mr. Moore that medical treatment may so deviate from the applicable standard of care as to evidence a physician’s deliberate indifference,
see Smith v. Jenkins,
919 F.2d 90, 93 (8th Cir.1990). Often whether such a significant departure from professional standards occurred is a factual question requiring expert opinion to resolve,
see id.; see also Greason v. Kemp,
891 F.2d 829, 835 (11th Cir.1990). Here the district court concluded that the parties’ conflicting expert opinions regarding the treatment rendered by Dr. Duffy created a material question of fact with respect to whether Dr. Duffy acted with deliberate indifference to Mr. Moore’s medical needs. Because Dr. Duffy seeks to challenge only the district court’s determination that the “the pretrial record sets forth a ‘genuine’ issue of fact for trial,”
Johnson,
515 U.S. at 320 , 115 S.Ct. 2151 , we lack jurisdiction over the appeal.
Accordingly, we dismiss the appeal for lack of jurisdiction.
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. The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/773844. Public record. Not legal advice.