The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11080
Summary Calendar
JESSE ROY SMITH,
Plaintiff-Appellee,
versus
IRION COUNTY; JIMMY MARTIN, Individually
and in his official capacity as Irion County
Sheriff; JODY EVERETT,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:96-CV-038-C
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April 25, 1997
Before WISDOM, KING, and SMITH, Circuit Judges
PER CURIAM:*
The appellants, Irion County, Jimmy Martin (individually and
in his official capacity), and Jody Everett appeal the denial of
their motion to dismiss and their motion for summary judgment.
The motions sought (1) dismissal of Smith’s civil rights action,
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
1
42 U.S.C § 1983, for failure to state a claim, (2) dismissal of
Smith’s state-law claims, and (3) asserted qualified immunity.
Motion to Dismiss
Everett and Martin moved to dismiss under Rule 12(b)(6),
asserting that Smith’s complaint failed to state a claim. This
part of the motion was denied and is not subject to an
interlocutory appeal. Holloway v. Walker, 765 F.2d 517, 525 (5th
Cir.), cert. denied, 106 S. Ct. 605 (1985). at 305. Everett and
Martin also raised the defense of qualified immunity to the
federal claims. Orders denying substantial claims of qualified
immunity are immediately appealable under the collateral-order
doctrine. Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303,
305 (5th Cir. 1987). As such, this court has jurisdiction over
the appeal from the denial of that portion of the motion. Morin
v. Caire, 77 F.3d 116, 119 (5th Cir. 1996).2
A district court’s ruling on a Rule 12(b)(6) motion is
subject to de novo review. Barrientos v. Reliance Standard Life
Ins. Co., 911 F.2d 1115, 1116 (5th Cir), cert. denied, 498 U.S.
1072 (1991). The motion may be granted “only if it appears that
no relief could be granted under any set of facts that could be
proven consistent with the allegations.” Id. When a plaintiff
2
For the same reasons, we do not have jurisdiction over
the appeal from the denial of the motion to dismiss as to Irion
County or Martin (in his official capacity as sheriff of Irion
County) because neither of these parties raised the qualified
immunity defense.
2
sues a public official under § 1983, the plaintiff must allege
specific conduct and actions giving rise to the constitutional
violation. Schultea v. Wood, 47 F.3d 1427, 1433-1434 (5th Cir.
1995)(en banc). Baker v. Putnal, 75 F.3d 190, 195 (5th Cir.
1995). If the official raises the defense of qualified immunity,
the district court may require a plaintiff to respond to that
defense specifically in a reply. Schultea, 47 F.3d at 1433.
Government officials are entitled to qualified immunity
“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
(1982). It must be clear that “a reasonable official would
understand that what he is doing violates that right”. Anderson
v. Creighton, 483 U.S. 635, 640 (1987).
With regard to the claims of wrongful stop and arrest by
Everett, the complaint sets forth the deprivation of
constitutional rights which were clearly established at the time
of the events in question. Accordingly, denial of the motion to
dismiss as to these claims was proper.3
The claims of retaliation and harassment against Everett and
Martin (individually) do not defeat the claims of qualified
immunity. The complaint and Smith’s response to the defendants’
3
We note that, although the court did not require a
reply from the plaintiff under Fed. R. Civ. P. 7, the practical
effect of a reply was achieved in the plaintiff’s response to the
defendant’s motion.
3
12(b)(6) motion fail to set forth any events or conduct which
constituted the alleged “course of harassment” or retaliation.
Rather, Smith has rested on conclusory allegations alone.
Accordingly, the plaintiff has not pleaded sufficient facts to
defeat the assertion of qualified immunity.
The assertion that Martin (individually) was “grossly
negligent in supervising” Everett also fails to defeat the
defendant’s asserted qualified immunity. The complaint fails to
set forth any facts that would establish that Martin failed to
supervise Everett, that his failure was connected to the
violation of Smith’s rights, and that such failure amounted to
gross negligence. Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th
Cir. 1986).
Motion for Summary Judgment
The denial of summary judgment generally is not an
appealable order. Aldy v. Valmet Paper Mach., 74 F.3d 72, 75
(5th Cir. 1996). Denial of summary judgment in the context of
qualified immunity is appealable to the extent that it turns on
an issue of law. Johnson v. Jones, 115 S. Ct. 2151, 2155 (1995).
This court does not have appellate jurisdiction over the
district court’s denial of Everett’s motion for summary
judgment4, because the denial was based only upon the court’s
4
Irion County also appeals the denial of the motion for
summary judgment. This court does not have jurisdiction over the
denial of that portion of the motion. The same is true for the
claims relating to Martin in his official capacity as sheriff of
4
finding that the facts material to whether these defendants enjoy
qualified immunity were in dispute. See Hale v. Townley, 45 F.3d
914, 918-919 (5th Cir. 1995).
For the reasons outlined above, we AFFIRM the denial of the
motion to dismiss as to the claim against Everett arising out of
the stop and arrest. We VACATE the district court’s order denying
the motion to dismiss as to the claims of harassment and
retaliation against Martin and Everett and denying the motion to
dismiss as to the claim of gross negligence against Martin and
REMAND the case to the district court to require Smith to file a
Rule 7 reply addressing these claims only. We DISMISS the appeal
insofar as it is from the denial of the motion to dismiss
concerning claims that are not subject to the qualified-immunity
defense, and DISMISS the appeal from the denial of summary
judgement for lack of jurisdiction.
SO ORDERED.
Irion County. Therefore, the only remaining claim is against
Everett arising from the stop and arrest.
5