* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-20764

Summary Calendar

 

BRYANT WADDELL,

Plaintiff-Appellee,

versus

MONTGOMERY COUNTY TEXAS; 

GUY WILLIAMS,

Defendants-Appellants.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-98-CV-2782

--------------------

May 30, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Defendants Guy Williams and Montgomery County Texas have

filed and interlocutory appeal of the district court’s denial of

qualified immunity. The district court denied qualified

immunity, granted summary judgment in part on the merits, and

denied summary judgment in part on the merits in this suit

brought by former deputy sheriff Bryant Waddell. Waddell

asserted that he was unconstitutionally demoted, transferred, and
No. 99-20764 

-2-

ultimately terminated based upon his assertion of rights of free

speech, free association, and political patronage.

This court does not consider the district court’s denial of

qualified immunity on Waddell’s free-speech termination claims

because the district court granted summary judgment to the

defendants on the merits of these claims. To the extent that the

defendants appeal the district court’s denial of qualified

immunity on Waddell’s non-termination free-speech claims --

specifically his claims that he was wrongfully demoted and/or

transferred based upon his exercise of his right to free speech,

the district court’s opinion is affirmed. As stated by the

district court, the defendants did not raise arguments with

respect to Waddell’s non-termination claims in their summary

judgment motion. See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th

Cir. 1994); see also EEOC v. American Airlines, Inc., 48 F.3d

164, 172-73 (5th Cir. 1995). 

The district court did not explicitly rule on the merits of

Waddell’s argument that the defendants’ actions denied him his

constitutional right to patronage and free association, although

it clearly denied defendants’ request for qualified immunity on

these claims. This court assumes that Waddell’s claims for

wrongful termination based upon violations of his constitutional

rights for free association and patronage survive the district

court’s summary judgment rulings. This court lacks jurisdiction

to review the court’s denial of summary judgment on these claims,

however. The district court’s denial of qualified immunity was

based upon a weighing of the evidence; the crux of the
No. 99-20764 

-3-

defendants’ argument on appeal is that the court improperly gave

weight to conclusory allegations, did not take “the chronology of

events” into account, and did not give enough credence to

Williams’ affidavit. A summary-judgment determination based upon

whether there is sufficient evidence to create a genuine issue of

material fact is not subject to immediate appeal. See Hare v.

City of Corinth, Miss., 74 F.3d 633, 638 (5th Cir. 1996)(en

banc); see also Southard v. Texas Bd. of Criminal Justice, 114

F.3d 539, 548 (5th Cir. 1997).

AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF

JURISDICTION.