Vincent v. Stalder, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 5, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-30539
Summary Calendar
HAROLD J. VINCENT,
Plaintiff-Appellee,
versus
RICHARD L. STALDER; JOHNNY CREED; KELLY WARD, Warden;
RAY HANSON, Colonel,
Defendants-Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:01-CV-665-M1)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Richard Stalder, Johnny Creed, Kelly Ward, and Ray Hanson
(Appellants) appeal the partial denial of their qualified immunity-
based summary judgment motion in response to Plaintiff-Appellee
Vincent’s retaliation and failure to protect claims. Appellants’
motion to reconsider was also denied. The district court did not
explicitly address Appellants’ qualified immunity claim in its
denial of their summary judgment motion, and they did not re-assert
qualified immunity in their motion to reconsider.

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2
Appellants’ notice of appeal designated only the 20 May 2004
denial of their motion to reconsider. When an appellant “notices
the appeal of a specified judgment only or a part thereof, ... this
court has no jurisdiction to review other judgments or issues which
are not expressly referred to and which are not impliedly intended
for appeal”. Warfield v. Fidelity and Deposit Co., 904 F.2d 322,
325 (5th Cir. 1990). Appellants’ notice of appeal also identified
their intention to appeal the underlying denial of the qualified
immunity-based summary judgment. Therefore, Appellants are not
precluded from appealing the denial of summary judgment. See Trust
Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1147-48 (5th
Cir. 1992).
The denial of summary judgment based on qualified immunity is
immediately appealable only when based on an issue of law. E.g.,
Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999). Orders
determining “only a question of ‘evidence sufficiency’” are not
based on an issue of law and are not immediately appealable.
Johnson v. Jones, 515 U.S. 304, 313 (1995).
The district court held disputed material issues of fact
precluded summary judgment on Vincent’s retaliation and failure to
protect claims. Because the district court based its denial of
summary judgment on issues of fact, rather than of law, we lack
jurisdiction to review the district court’s implied rejection of
the qualified immunity defense. See Johnson, 515 U.S. at 319-20.

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3
Appellants’ contentions center on evidence sufficiency issues and
contend generally that Vincent has not shown a genuine issue of
fact for trial. On interlocutory appeal of a qualified immunity
defense, we cannot review “whether the nonmovant presented
sufficient summary judgment evidence to create a dispute of fact”,
or the district court’s assessment of what facts are established
by, or inferable from, the record. Nerren v. Livingston Police
Dep’t, 86 F.3d 469, 472 (5th Cir. 1996). See also Palmer
v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999).
APPEAL DISMISSED; ALL OUTSTANDING MOTIONS DENIED

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