The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-11070
Summary Calendar
SCOTT ROMAINE RITTER,
Plaintiff-Appellee,
versus
COOK, Assistant Warden, ET AL.,
Defendants,
WAYNE SCOTT, Director; GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Defendants-Appellants.
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SCOTT ROMAINE RITTER,
Plaintiff-Appellee,
versus
D. B. MCELVANEY, SR., Warden, ET AL.,
Defendants,
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; WAYNE SCOTT, Director, Executive,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:00-CV-290-BG
USDC No. 1:00-CV-144-BG
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No. 02-11070
-2-
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Scott Romaine Ritter, inmate # 731209 in the French M.
Robertson Unit of the Texas Department of Criminal Justice
(TDCJ,) filed a complaint pursuant to 42 U.S.C. § 1983 against
15 defendants including TDCJ Director Gary Johnson and TDCJ
Executive Director Wayne Scott. Scott and Johnson appeal the
denial of summary judgment on their claim that they are entitled
to qualified immunity from Ritter’s § 1983 action.
This court must raise, sua sponte, the issue of its own
jurisdiction, if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). “When [as here] a district court denies summary
judgment on the basis that genuine issues of material fact exist,
it has made two distinct legal conclusions: that there are
‘genuine’ issues of fact in dispute, and that these issues are
‘material.’” Reyes v. City of Richmond, Tex., 287 F.3d 346,
350-51 (5th Cir. 2002). This court lacks jurisdiction to review
the district court’s conclusion that issues are “genuine,” but
has jurisdiction to review the district court’s determination
that issues are “material.” Id. at 351. “An officer challenges
materiality when he contends that ‘taking all the plaintiff’s
*
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that this opinion should not be published and is not precedent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.
No. 02-11070
-3-
factual allegations as true no violation of a clearly established
right was shown.’” Id. (citation omitted).
Ritter sent letters to both Scott and Johnson describing
the risk to his safety. The magistrate judge denied summary
judgment because the evidence showed that Ritter’s letters had
been received and answered by Scott and Johnson and that they
were aware of his claim of the risk to his safety. Scott and
Johnson argue that there is no factual dispute that they were
personally aware of Ritter’s complaints. This is not so. Taking
as true Ritter’s allegations that he was at risk and that Scott
and Johnson knew of the risk, it is not possible to conclude
that their response to the risk was objectively reasonable under
clearly established law.
As Scott and Johnson are challenging the genuineness of the
factual dispute in this case, this court lacks jurisdiction over
this appeal. See Reyes, 287 F.3d at 351-52. Accordingly, the
appeal is DISMISSED for lack of jurisdiction and this matter is
REMANDED to the district court.