* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-11080

Summary Calendar

 

JESSE ROY SMITH,

Plaintiff-Appellee,

versus

IRION COUNTY; JIMMY MARTIN, Individually

and in his official capacity as Irion County

Sheriff; JODY EVERETT,

Defendants-Appellants.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:96-CV-038-C

- - - - - - - - - -

April 25, 1997

Before WISDOM, KING, and SMITH, Circuit Judges

PER CURIAM:*

The appellants, Irion County, Jimmy Martin (individually and

in his official capacity), and Jody Everett appeal the denial of

their motion to dismiss and their motion for summary judgment.

The motions sought (1) dismissal of Smith’s civil rights action,
2 For the same reasons, we do not have jurisdiction over

the appeal from the denial of the motion to dismiss as to Irion

County or Martin (in his official capacity as sheriff of Irion

County) because neither of these parties raised the qualified

immunity defense.

2

42 U.S.C § 1983, for failure to state a claim, (2) dismissal of

Smith’s state-law claims, and (3) asserted qualified immunity. 

Motion to Dismiss

Everett and Martin moved to dismiss under Rule 12(b)(6),

asserting that Smith’s complaint failed to state a claim. This

part of the motion was denied and is not subject to an

interlocutory appeal. Holloway v. Walker, 765 F.2d 517, 525 (5th

Cir.), cert. denied, 106 S. Ct. 605 (1985). at 305. Everett and

Martin also raised the defense of qualified immunity to the

federal claims. Orders denying substantial claims of qualified

immunity are immediately appealable under the collateral-order

doctrine. Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303,

305 (5th Cir. 1987). As such, this court has jurisdiction over

the appeal from the denial of that portion of the motion. Morin

v. Caire, 77 F.3d 116, 119 (5th Cir. 1996).2

A district court’s ruling on a Rule 12(b)(6) motion is

subject to de novo review. Barrientos v. Reliance Standard Life

Ins. Co., 911 F.2d 1115, 1116 (5th Cir), cert. denied, 498 U.S.

1072 (1991). The motion may be granted “only if it appears that

no relief could be granted under any set of facts that could be

proven consistent with the allegations.” Id. When a plaintiff
3 We note that, although the court did not require a

reply from the plaintiff under Fed. R. Civ. P. 7, the practical

effect of a reply was achieved in the plaintiff’s response to the

defendant’s motion.

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sues a public official under § 1983, the plaintiff must allege

specific conduct and actions giving rise to the constitutional

violation. Schultea v. Wood, 47 F.3d 1427, 1433-1434 (5th Cir.

1995)(en banc). Baker v. Putnal, 75 F.3d 190, 195 (5th Cir.

1995). If the official raises the defense of qualified immunity,

the district court may require a plaintiff to respond to that

defense specifically in a reply. Schultea, 47 F.3d at 1433.

Government officials are entitled to qualified immunity

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). It must be clear that “a reasonable official would

understand that what he is doing violates that right”. Anderson

v. Creighton, 483 U.S. 635, 640 (1987).

With regard to the claims of wrongful stop and arrest by

Everett, the complaint sets forth the deprivation of

constitutional rights which were clearly established at the time

of the events in question. Accordingly, denial of the motion to

dismiss as to these claims was proper.3

The claims of retaliation and harassment against Everett and

Martin (individually) do not defeat the claims of qualified

immunity. The complaint and Smith’s response to the defendants’
 

4 Irion County also appeals the denial of the motion for

summary judgment. This court does not have jurisdiction over the

denial of that portion of the motion. The same is true for the

claims relating to Martin in his official capacity as sheriff of

4

12(b)(6) motion fail to set forth any events or conduct which

constituted the alleged “course of harassment” or retaliation. 

Rather, Smith has rested on conclusory allegations alone. 

Accordingly, the plaintiff has not pleaded sufficient facts to

defeat the assertion of qualified immunity.

The assertion that Martin (individually) was “grossly

negligent in supervising” Everett also fails to defeat the

defendant’s asserted qualified immunity. The complaint fails to

set forth any facts that would establish that Martin failed to

supervise Everett, that his failure was connected to the

violation of Smith’s rights, and that such failure amounted to

gross negligence. Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th

Cir. 1986).

Motion for Summary Judgment

The denial of summary judgment generally is not an

appealable order. Aldy v. Valmet Paper Mach., 74 F.3d 72, 75

(5th Cir. 1996). Denial of summary judgment in the context of

qualified immunity is appealable to the extent that it turns on

an issue of law. Johnson v. Jones, 115 S. Ct. 2151, 2155 (1995).

This court does not have appellate jurisdiction over the

district court’s denial of Everett’s motion for summary

judgment4, because the denial was based only upon the court’s
Irion County. Therefore, the only remaining claim is against

Everett arising from the stop and arrest.

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finding that the facts material to whether these defendants enjoy

qualified immunity were in dispute. See Hale v. Townley, 45 F.3d

914, 918-919 (5th Cir. 1995).

For the reasons outlined above, we AFFIRM the denial of the

motion to dismiss as to the claim against Everett arising out of

the stop and arrest. We VACATE the district court’s order denying

the motion to dismiss as to the claims of harassment and

retaliation against Martin and Everett and denying the motion to

dismiss as to the claim of gross negligence against Martin and

REMAND the case to the district court to require Smith to file a

Rule 7 reply addressing these claims only. We DISMISS the appeal

insofar as it is from the denial of the motion to dismiss

concerning claims that are not subject to the qualified-immunity

defense, and DISMISS the appeal from the denial of summary

judgement for lack of jurisdiction.

SO ORDERED.