The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-60999
Summary Calendar
GRANT AYERS
Plaintiff-Appellee,
versus
JOSEPH THOMAS, SR., in his individual capacity,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:05-CV-75
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Joseph Thomas, Sr., a police officer for the City of
Holly Springs, has filed an interlocutory appeal of the district
court’s order denying summary judgment on his qualified immunity
defense in a case involving a dispute between Thomas and the
plaintiff, Grant Ayers, over a traffic stop.
A district court’s decision to deny qualified immunity on a
motion for summary judgment is only immediately appealable if it
turns on an issue of law, and is not immediately appealable if it
is based on a claim regarding the sufficiency of the evidence.
*
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this opinion should not be published and is not precedent except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. 06-60999
-2-
Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). “Therefore,
if the district court concludes that the summary judgment record
raises a genuine issue of material fact with respect to whether ...
qualified immunity is applicable, then that decision is not
immediately appealable....” Id., quoting Palmer v. Johnson, 193
F.3d 346, 351 (5th Cir. 1999). The only authority Thomas cites to
the contrary is Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998),
a case in which the district court denied summary judgment without
any explanation. In this case, the district court explained its
decision in a written opinion, concluding that the evidence
presented “clearly establishes fact issues” as to the First
Amendment claims. The court deferred a decision on the Fourth
Amendment claims, noting that it was disinclined to ultimately
allow them to proceed. Even if this deferral is assumed to
constitute a final order, the court’s decision was also based
solely on whether there were “triable jury issues regarding
plaintiff’s Fourth Amendment claims against Thomas.” We therefore
DISMISS THE APPEAL for lack of jurisdiction.