IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60665

Summary Calendar

ROGER JOHNSON,

Plaintiff-Appellee

v.

CAPTAIN WILLIE E. JOHNSON; OFFICER DELANIO SANDERS; 

SERGEANT CARL E. MEDLOCK; SERGEANT WILLIAM H. THORNTON,

Defendants-Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:04-CV-393

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Roger Johnson, Mississippi prisoner # 59930, filed a 42 U.S.C. § 1983 

complaint alleging that the defendants violated their constitutional duty to 

protect him from violence at the hands of fellow inmates while he was a pretrial 

detainee at the Hinds County Detention Center located in Raymond, 

Mississippi (HCDC-Raymond). This is an interlocutory appeal from an order 

 

* 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

June 1, 2017

Lyle W. Cayce

Clerk

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No. 15-60665

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denying the defendants’ motion for summary judgment based on qualified 

immunity. The defendants challenge the quality of the summary judgment 

evidence presented by Johnson and argue that they are entitled to qualified 

immunity as a matter of law. Alternatively, they ask this court to exercise 

appellate jurisdiction over the district court’s denial of their motion to dismiss 

Johnson’s suit on limitations grounds. They also move to strike those portions 

of Johnson’s appellate brief related to the denial of his motion for partial 

summary judgment because he did not file a notice of cross-appeal from the 

judgment denying same. That motion is granted.

I. Summary judgment

We have jurisdiction to review the denial of summary judgment based 

on qualified immunity grounds if the denial is “predicated on conclusions of 

law, and not if a genuine issue of material fact precludes summary judgment 

on the question of qualified immunity.” Naylor v. State of La., Dep’t of Corr., 

123 F.3d 855, 857 (5th Cir. 1997); Hinojosa v. Livingston, 807 F.3d 657, 663 

(5th Cir. 2015). We also have jurisdiction to determine whether the disputed 

facts found by the district court are material. Manis v. Lawson, 585 F.3d 839, 

842-43 (5th Cir. 2009). Defendants who invoke a qualified immunity defense 

may not appeal the district court’s denial of summary judgment insofar as the 

order determined whether the record sets forth a “genuine” issue of fact for 

trial. Johnson v. Jones, 515 U.S. 304, 319-20 (1995); Manis, 585 F.3d at 842-

43.

The rights of pretrial detainees are protected by the Fourteenth 

Amendment’s Due Process Clause. Cupit v. Jones, 835 F.2d 82, 84 (5th Cir. 

1987). “It is well established that prison officials have a constitutional duty to 

protect prisoners from violence at the hands of their fellow inmates.” Longoria 

v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 

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825, 832-33 (1994)). In this case, the standard of subjective deliberate 

indifference enunciated in Farmer, 511 U.S. at 825, 832-33, is the measure of 

culpability. See Hare v. City of Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996) 

(en banc). “Deliberate indifference is an extremely high standard to meet.” 

Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). 

To establish liability, an official must know of and disregard a substantial risk 

of serious harm. Id. at 755. “[T]he official must both be aware of facts from 

which the inference could be drawn that a substantial risk of serious harm 

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

A. Supervisory defendants

The district court determined that there were disputed issues of fact 

regarding whether the supervisory defendants knew of the threats to Johnson, 

whether they investigated Johnson’s grievances, and whether they should 

have sent Johnson to the more secure protective custody unit at Hinds County 

Detention Center in Jackson, Mississippi, sooner. These disputed facts bear 

on whether the supervisory defendants were deliberately indifferent to 

Johnson’s safety. See Farmer, 511 U.S. at 837. Because these factual disputes 

must be resolved in order to make the qualified immunity determination, they 

are material. Manis, 585 F.3d at 842-43. Accordingly, this court lacks 

jurisdiction to consider the denial of summary judgment as to the supervisory 

defendants. Naylor, 123 F.3d at 857.

B. Officer Sanders

In its treatment of Officer Sanders’s claims, the district court found that 

there was conflicting information regarding whether Officer Sanders released 

the inmate who began the attack on Johnson, whether Officer Sanders knew 

Johnson was out of his cell, whether the inmate who began the attack on 

Johnson was in the general population or in the protective custody area at the 

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time of the attack, how other inmates gained entry into the protective custody 

area, whether Officer Sanders knew and was deliberately indifferent to a 

defect in security, whether Officer Sanders violated procedure for releasing an 

inmate from his cell, and why Officer Sanders remained at the control desk for

several minutes while the fight was ongoing. These disputed facts bear on 

whether Officer Sanders was deliberately indifferent to Johnson’s safety. 

See Farmer, 511 U.S. at 837. Because these factual disputes must be resolved 

in order to make the qualified immunity determination, they are material. 

Manis, 585 F.3d at 842-43. Accordingly, this court lacks jurisdiction to 

consider the denial of summary judgment as to Officer Sanders. Naylor, 123 

F.3d at 857.

II. Pendent appellate jurisdiction

The denial of a statute of limitations defense is not an immediately 

appealable final order; therefore, we may consider such an order only if we 

exercise pendent jurisdiction. See Aldy on Behalf of Aldy v. Valmet Paper 

Machinery, 74 F.3d 72, 75 (5th Cir. 1996). “Pendent appellate jurisdiction is 

only proper in rare and unique circumstances where a final appealable order 

is ‘inextricably intertwined’ with an unappealable order or where review of the 

unappealable order is necessary to ensure meaningful review of the appealable 

order.” Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998). A

statute of limitations defense is not “inextricably intertwined” with the denial 

of qualified immunity, so as to give rise to pendent appellate jurisdiction. 

See Hernandez v. Terrones, 397 F. App’x 954, 963-64, 975 (5th Cir. 2010).

Based on the foregoing, we conclude that we lack jurisdiction over the 

district court’s denial of the defendants’ motion to dismiss based on the statute 

of limitations defense, and do not reach the merits of that claim.

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APPEAL DISMISSED FOR LACK OF JURISDICTION; MOTION TO 

STRIKE GRANTED.

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