UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 96-11371
Summary Calendar
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TIMOTHY E. WHEELER,
Plaintiff-Appellee,
VERSUS
JIM BOWLES, Sheriff, ET AL
Defendants,
JIM BOWLES, Sheriff; STEVE BOWERS, Dr.
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
(3:95-cv-2413-BD)
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August 7, 1997
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Appellants challenge the district court's order denying their
motion to dismiss based on qualified immunity. Wheeler, an inmate
in the Dallas County jail, sued appellants contending that they
provided inadequate medical care. The magistrate judge granted
*
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this opinion should not be published and is not precedent except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.
summary judgment and dismissed a number of Wheeler's claims, but
declined to dismiss Wheeler's dental and medical care claims.
We have reviewed the summary judgment record and conclude that
factual development is needed to determine whether Wheeler's
medical conditions about which he complained were inadequately
treated were sufficiently serious to raise an Eighth Amendment
claim. Because the factual issues exist relating to the
seriousness of Wheeler's medical and dental condition, we conclude
that the district court correctly found that fact issues are
presented. Because fact issues are presented, we do not have
appellate jurisdiction to review the district court's denial of
defendant's qualified immunity motion.1 Johnson v. Jones, 115 S.
Ct. 2151, 2154 (1995); Nerren v. Livingston Police Department, 86
F.3d 469, 471-72 (5th Cir. 1996).
APPEAL DISMISSED.
1
Although we conclude that we have no appellate jurisdiction,
the appeal is not frivolous and we deny Appellee Wheeler’s motion
for Fed. R. App. P. 38 sanctions.
2