United States Court of Appeals,

Eleventh Circuit.

No. 95-8107.

Robert D. MASTROIANNI, Plaintiff-Appellee,

v.

Michael J. BOWERS, Patrick D. Deering, Joe B. Jackson, Jr.,

Weyland Yeomans, Defendants-Appellants.

Jan. 5, 1996.

Appeal from the United States District Court for the Southern

District of Georgia.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior

Circuit Judge. (No. CV293-88), Anthony A. Alaimo, Judge.

HATCHETT, Circuit Judge:

We dismiss this appeal based on the teachings of Johnson v.

Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

BACKGROUND

Appellants Michael J. Bowers, Attorney General of Georgia,

Patrick D. Deering, Assistant Attorney General of Georgia, and

Georgia Bureau of Investigation (GBI) Agents Joe B. Jackson Jr.,

Weyland Yeomans, and Lee J. Sweat, Jr. conducted an investigation

into alleged misconduct of Camden County Sheriff William E. Smith

and Deputy Sheriff Robert Mastroianni. Bowers supervised the

investigation that lasted from the spring of 1991 to the summer of

1992. The investigation of Mastroianni stemmed from allegations

that he planted drugs on criminal suspects and then falsely

arrested them. Mastroianni believed, however, that the goal of the

investigation was to damage the reputation of Sheriff Smith's

department.

On July 1, 1992, Deering filed a notice of indictment against
 1

Mastroianni subsequently moved to have Sweat dismissed from

this action. The district court granted Mastroianni's motion on

July 20, 1994. 

Mastroianni, and grand jury proceedings occurred on July 16 and 17.

The grand jury indicted Mastroianni on one count for planting drugs

on and falsely arresting a suspect. Law enforcement officials

arrested Mastroianni on July 17 and took him to the Glenn County

Jail where he was booked and subsequently released on a $5,000 bond

the same day. Mastroianni was on bond with restricted freedom of

movement until April 9, 1993, when Deering and Bowers formally

declared that they would not seek to prosecute Mastroianni.

On June 29, 1993, Mastroianni filed a complaint in the

Southern District of Georgia against Bowers, Deering, Yeomans,

Jackson, and Sweat for allegedly violating the Civil Rights Act of

1871, 42 U.S.C. § 1983. 1

 Mastroianni sought compensatory and

punitive damages. In his complaint, Mastroianni alleged that

appellants conspired to violate his constitutional rights to be

free from malicious prosecution, bad-faith prosecution, abuse of

process, knowing use of false and perjured testimony, deprivation

of a fair trial and false arrest. Mastroianni claimed that the

appellants violated his civil rights because he refused to assist

them with an ongoing investigation of Sheriff Smith.

Appellants filed a motion to dismiss on August 2, 1993, and on

September 20, 1993. The district court granted appellants' motion

to dismiss with respect to Mastroianni's claims for deprivation of

fair trial, use of false and improperly obtained evidence, and use

of perjured testimony. The district court reasoned that

Mastroianni could not maintain a fair trial claim in the absence of
a trial.

The district court dismissed the claims for use of false and

improperly obtained evidence and perjured testimony because it

determined that those claims were indistinguishable from claims of

malicious prosecution, abuse of process, and false arrests. The

district court, however, denied the appellants' motion to dismiss

with respect to Mastroianni's constitutional claims in the nature

of malicious prosecution, abuse of process, false arrest, false

imprisonment and conspiracy to commit the same. The district court

found that Mastroianni had pleaded sufficient facts to state a

claim upon which relief could be granted.

In September 1994, appellants filed a motion for summary

judgment claiming that they were entitled to both qualified and

absolute immunity. The district court denied appellants' motion

for summary judgment on the claims for false arrest and conspiracy

to commit false arrest, but granted their motion on the claims for

false imprisonment, abuse of process, malicious prosecution, and

conspiracy to commit the foregoing. The district court held that

Mastroianni's claims of false imprisonment and malicious

prosecution were part of his broader claim of false arrest. The

district court also found that the tort of "abuse of process" was

not clearly established law in this circuit at the time of the

arrest. The district court found that the appellants violated

clearly established law when they arrested Mastroianni without

probable cause. This appeal is from the denial of the summary

judgment motion based on qualified immunity.

DISCUSSION
 When a lower court denies a motion for summary judgment based

on qualified immunity, this court has interlocutory appellate

jurisdiction. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct.

2806, 2817-18, 86 L.Ed.2d 411 (1985). According to Mitchell, this

court may properly entertain an interlocutory appeal from a

district court's denial of a defendant's motion for summary

judgment when (1) the defendant is a public official claiming

qualified immunity as a defense, and (2) the issue on appeal is

whether the undisputed facts show a violation of clearly

established law. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17.

 Insofar as appeals from denials of summary judgment relate to

"factual disputes" or "sufficiency of evidence" regarding the

plaintiff's claim, this court lacks appellate jurisdiction.

Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2156, 132

L.Ed.2d 238 (1995); Babb v. Lake City Community College, 66 F.3d

270, 272 (11th Cir.1995). Therefore, in light of the recent

Supreme Court decision in Johnson and this court's decision in

Babb, interlocutory appellate review of denial of summary judgment

motions on the grounds of qualified immunity is confined to

determining whether the law supposedly violated was clearly

established. Johnson, --- U.S. at ----, 115 S.Ct. at 2156; Babb,

66 F.3d at 272. When a district court finds that genuine issues of

material fact exist regarding the "conduct" alleged to have

violated clearly established law, this court is without appellate

jurisdiction. Babb, 66 F.3d at 272. The district court in this

case found that genuine issues of material fact exist surrounding

appellants' alleged illegal conduct leading to Mastroianni's
arrest. Moreover, the appellants did not challenge the district

court's determination of the clearly established law allegedly

violated. Therefore, this court may not properly exercise

jurisdiction.

CONCLUSION

This appeal is dismissed for lack of jurisdiction.

DISMISSED.