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United States Court of Appeals,

Fifth Circuit.

No. 96-31067

Summary Calendar.

Michael Allen NAYLOR, Plaintiff-Appellee,

v.

STATE OF LOUISIANA, Dept. of Corrections, et al., Defendants,

Kirt Guerin, Sgt., Defendant-Appellant.

Robert Latroy White, Plaintiff-Appellee,

Hunt Correctional Center, et al., Defendants,

Unknown Guerrin, Di, Defendant-Appellant.

Oct. 3, 1997.

Appeal from the United States District Court for the Middle

District of Louisiana.

Before WISDOM, KING and SMITH, Circuit Judges.

PER CURIAM:

Kirt Guerin, a drill instruct or at Elayn Hunt Correctional

Center, appeals from the magistrate judge's denial of his motions

for summary judgment, in which he asserted his right to qualified

immunity. We dismiss Guerin's appeal for want of jurisdiction.

I.

Plaintiffs/appellees, Michael Naylor and Robert L. White,

inmates at Elayn Hunt Correctio nal Center, each sued

defendant/appellant drill instructor Kirt Guerin under 42 U.S.C. §

1983, alleging cruel and unusual punishment and deliberate1 Both th e district and appellate courts perform a two-step

analysis in evaluating a movant's assertion of qualified immunity.

First, the court determines whether the plaintiff has alleged the

violation of a clearly established constitutional right. If he or

she has, the court then decides whether the defendant's conduct was objectively reasonable. R ankin v. Klevenhagen, 5 F.3d 103, 105

(5th Cir.1993). Because we hold that appellate jurisdiction is not

vested in this Court, we do not reach the substa nce of Guerin's

claim that he is entitled to qualified immunity.

2 Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.1996); 28 U.S.C.

§ 1291.

3 Aldy v. Valmet Paper Mach., 74 F.3d 72, 75 (5th Cir.1996).

2 indifference to their serious medical needs. According to the

plaintiffs' respective complaints, on April 10, 1994, Guerin locked

both of them in a supply closet along with 18 other inmates for a

period of up to th ree hours. Guerin allegedly placed a towel

beneath the door to cut off ventilation, and Naylor and White began

to feel dizzy and nauseated. Their requests for emergency sick

call were denied. Naylor also stated that Guerin denied his

request to use the bathroom, causing him to defecate on himself.

After a nswering the complaints, Guerin filed motions for

summary judgment against Naylor and White. He argued that he was

entitled to qualified immunity from the plaintiffs' Eighth

Amendment claims. 1 The magistrate judge denied both motions, and

this interlocutory appeal followed.

II.

This Court has j urisdiction over appeals from all final

decisions of the district courts. 2 The denial of summary judgment

generally is not an appealable order. 3 According to the collateral

order doctrine, however, district court orders denying summary4 Coleman v. Houston Independent School District, 113 F.3d 528,

531 (5th Cir.1997).

5 Id.

6 John Doe v. Hillsboro Ind ependent School District, 81 F.3d

1395, 1401 (5th Cir.1996).

7 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

8 Id. at 319-20, 115 S.Ct. at 2159-50.

9 Nerren v. Livingston Police Department, 86 F.3d 469 (5th

Cir.1996).

3 judgment on the basis of qualified immunity are immediately

appealable when based on a conclusion of law. 4 Nevertheless, such

orders are not immedi ately appealable if they are based on

sufficiency of the evidence. 5 Thus, orders denying qualified

immunity are immediately appealable only if they are predicated on

conclusions of law, and not if a genuine issue of material fact

precludes summary judgment on the question of qualified immunity.

Stated another way, we have jurisdiction over law-based denials of

qua lified immunity, but do not have jurisdiction over a

genuine-issue-of-fact-based denial of qualified immunity. 6

In Johnson v. Jones, 7 the Supreme Court held that a defendant

who is entitled to invoke a qualified immunity defense may not

brin g an interlocutory appeal of a district court's summary

judgment order insofar as that order determines whether or not the

pretrial record sets forth a genuine issue of fac t for trial. 8

Thus, a district court's order, entered in a qualified immunity

case, is not appealable if it simply determines a question of

evidence sufficiency. 910 --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

11 Id. at ----, 116 S.Ct. at 842.

1 2 Id. ; C oleman v. Houston Independent School District, 113

F.3d at 531.

1 3 In Behrens, the Court noted that the district court's denial

of the petitioner's summary judgment motion necessarily determined

that certain disputed conduct attributed to petitioner constituted

a violation of clearly established law. --- U.S. at ----, 116

S.Ct. at 842. As we have shown, the same cannot be said of the

magistrate judge's ruling in the case at bar.

4 In Behrens v. Pelletier, 10 a case decided shortly after

Johnson, the Supreme Court clarified its earlier ruling, explaining

that the exist ence of a genuine issue of material fact does not

necessarily preclude immediate appeal of an order denying qualified

immunity. 11 Thus, to the extent that a district court order denying

qualified immunity determines an issue of law, such an order is

appealable in spite of the existence of genuine issues of material

fact. 12

With this precedential backdrop in mind, we turn to the case

at bar. As a threshold matter, we note that the magistrate judge

did not base her denial of Guerin's motion for summary judgment on

any conclusion of law. Rather, she reached her decision solely on

the ba sis that genuine issues of material fact rendered summary

judgment inappropriate. Moreover, she was unable to assess

Guerin's assertion of qualified immunity because the record before

her was not sufficiently developed for her to do so. She could not

determine whether Guerin's conduct was objectively reason able in

light of clearl y established law. 1 3 This Court has held that

"orders are ba sed on an issue of law when they concern only14 Cantu v. Rocha, 77 F.3d at 802.

5 app lication of established legal principles, such as whether an

official's conduct was objectively reasonable in light of clearly

established law, to a given set of facts." 14

Accordingly, this cas e fits squarely within that class of

unappealable, fact-based qualified immunity orders contemplated by

Johnson. Indeed, it is difficult to conceive of a qualified

immunity order less suited for immediate interlocutory appeal.

III.

For the foregoing reasons, Guerin's appeal is DISMISSED, and

the case is REMANDED to the district court for further proceedings

not inconsistent with this opinion.