IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40664
Summary Calendar
TERRY L. BROWN,
Plaintiff-Appellee,
versus
JOE E. KING, Etc.; ET AL.,
Defendants,
R. A. GARCIA, Warden;
WILLIAM STEPHENS, Assistant Warden;
DUC VAN TRAN, DR.,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-98-CV-128
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December 12, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges
PER CURIAM:*
R.A. Garcia, William Stephens, and Dr. Duc Van Tran appeal
from the denial of their motion for summary judgment in this
action under 42 U.S.C. § 1983 brought by Texas inmate Terry
Brown. They argue that the magistrate judge erred by denying
their summary judgment motion on the merits of their qualified
immunity defense.
*
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that this opinion should not be published and is not precedent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. 01-40664
-2-
We must determine the basis of our jurisdiction, on our own
motion, if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). “[O]rders denying qualified immunity are immediately
appealable only if they are predicated on conclusions of law, and
not if a genuine issue of material fact precludes summary
judgment on the question of qualified immunity.” Palmer v.
Johnson, 193 F.3d 346, 351 (5th Cir. 1999). With respect to
Tran, as noted by the magistrate judge, we perceive the existence
of a material issue of fact that precludes summary judgment based
on qualified immunity. Accordingly, we DISMISS the appeal as to
Tran for want of jurisdiction.
Although the magistrate judge also noted the existence of
disputed issues of material fact as to Garcia and Stephens, these
appellants argue on appeal that as a matter of law they are
entitled to qualified immunity because they relied on the reports
and recommendations of trained grievance investigators in denying
Brown’s grievances. We agree with Garcia and Stephens that this
argument, if accepted, would render immaterial any remaining
factual disputes, and thus we have jurisdiction over their
appeal. However, after reviewing both the summary judgment
motion submitted by Garcia and Stephens as well as their reply
brief on summary judgment, we conclude that this argument was not
raised in the court below.
Because Garcia and Stephens raise this issue for the first
time on appeal, it is reviewed only for plain error. See
Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027,
1031-32 (5th Cir. 1994)(applying, in civil case, plain-error
No. 01-40664
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analysis of United States v. Olano, 507 U.S. 725 (1993)). Plain
error must be clear or obvious and must affect the appellant's
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994)(en banc). In such a situation, the court
has the discretion to correct errors that seriously affect the
fairness, integrity, or public reputation of judicial
proceedings. Id. Garcia and Stephens admit in their brief to
this court that it is not clear whether a prison warden may have
liability for accepting the conclusion of a grievance
investigator, and thus we conclude that there has been no plain
error in the court below. We therefore decline to consider the
argument raised for the first time on appeal. Accordingly, we
AFFIRM the denial of qualified immunity as to Garcia and
Stephens.
DISMISSED IN PART AND AFFIRMED IN PART.