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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

January 5, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-30539

Summary Calendar

HAROLD J. VINCENT,

Plaintiff-Appellee,

versus

RICHARD L. STALDER; JOHNNY CREED; KELLY WARD, Warden;

RAY HANSON, Colonel,

Defendants-Appellants.

Appeal from the United States District Court 

for the Middle District of Louisiana

(3:01-CV-665-M1) 

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Richard Stalder, Johnny Creed, Kelly Ward, and Ray Hanson

(Appellants) appeal the partial denial of their qualified immunitybased summary judgment motion in response to Plaintiff-Appellee

Vincent’s retaliation and failure to protect claims. Appellants’

motion to reconsider was also denied. The district court did not

explicitly address Appellants’ qualified immunity claim in its

denial of their summary judgment motion, and they did not re-assert

qualified immunity in their motion to reconsider.
2

Appellants’ notice of appeal designated only the 20 May 2004

denial of their motion to reconsider. When an appellant “notices

the appeal of a specified judgment only or a part thereof, ... this

court has no jurisdiction to review other judgments or issues which

are not expressly referred to and which are not impliedly intended

for appeal”. Warfield v. Fidelity and Deposit Co., 904 F.2d 322,

325 (5th Cir. 1990). Appellants’ notice of appeal also identified

their intention to appeal the underlying denial of the qualified

immunity-based summary judgment. Therefore, Appellants are not

precluded from appealing the denial of summary judgment. See Trust

Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1147-48 (5th

Cir. 1992).

The denial of summary judgment based on qualified immunity is

immediately appealable only when based on an issue of law. E.g.,

Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999). Orders

determining “only a question of ‘evidence sufficiency’” are not

based on an issue of law and are not immediately appealable.

Johnson v. Jones, 515 U.S. 304, 313 (1995). 

The district court held disputed material issues of fact

precluded summary judgment on Vincent’s retaliation and failure to

protect claims. Because the district court based its denial of

summary judgment on issues of fact, rather than of law, we lack

jurisdiction to review the district court’s implied rejection of

the qualified immunity defense. See Johnson, 515 U.S. at 319-20.
3

Appellants’ contentions center on evidence sufficiency issues and

contend generally that Vincent has not shown a genuine issue of

fact for trial. On interlocutory appeal of a qualified immunity

defense, we cannot review “whether the nonmovant presented

sufficient summary judgment evidence to create a dispute of fact”,

or the district court’s assessment of what facts are established

by, or inferable from, the record. Nerren v. Livingston Police

Dep’t, 86 F.3d 469, 472 (5th Cir. 1996). See also Palmer

v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). 

APPEAL DISMISSED; ALL OUTSTANDING MOTIONS DENIED