United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 17, 2003
Charles R. Fulbruge III
Clerk
No. 02-60712
Summary Calendar
JONATHAN P. NEW; ROBERT E. STROUPE, II;
MICHAEL P. TROUARD; SCOTT M. WALLE;
BROCK L. WHITSON,
Plaintiffs-Appellees,
versus
HORACE FLEMING, ET AL,
Defendants,
RANDY JOHNSON, In His Official
and Individual Capacities,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 00-CV-94
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Randy Johnson appeals the denial of his motion for summary
judgment in this action under 42 U.S.C. § 1983 and Mississippi
state law brought by the plaintiffs Jonathan P. New, Robert E.
Stroupe, Michael P. Trouard, Scott M. Walle, and Brock L.
*
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that this opinion should not be published and is not precedent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. 02-60712
-2-
Whitson. He argues that the district court erred by denying his
summary judgment motion on the merits of his qualified immunity
defense.
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). Because genuine
issues of material fact are disputed, precluding a determination
that the appellant should enjoy qualified immunity, we lack
jurisdiction to consider the instant appeal. The appeal is
DISMISSED.