* 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should not be published and is not precedent except under the limited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.

 

1 The prison was unable to identify the “M. Curtis” named in the complaint;

he was not served and the district court dismissed him from the suit.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-30515

_______________

LIONELL J. DAVIS,

Plaintiff-Appellee,

VERSUS

C.M. LENSING; M. CURTIS, CSO II,

Defendants;

C.M. LENSING,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(95-CV-1846)

_________________________

March 9, 1998

Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.

PER CURIAM:*

Lionell Davis, a state prisoner, filed suit under 42 U.S.C.

§ 1983 against Warden C. Martin Lensing and “M. Curtis,”1 alleging
2

that he was denied a magazine, The Angolite, to which he

subscribed, and that the prison informed him any copies of the

magazine received while he was in extended lockdown would be

discarded. After unsuccessfully protesting the decision within the

prison system, he filed suit requesting declaratory and injunctive

relief. He claims that Hunt Institutional Policy No. 100-C2, which

prohibits inmates in disciplinary housing from receiving magazines

and newspapers, violates the First Amendment.

Lensing filed a motion for summary judgment, arguing that

Davis fails to allege a constitutional violation and that, even if

he does allege a violation, qualified immunity protects Lensing

from damages. Davis also requested summary judgment.

The magistrate judge denied both motions, suggesting that fact

issues exist regarding both the violation of Davis’s First

Amendment rights and the application of qualified immunity.

Lensing pursued an immediate appeal under the collateral-order

doctrine. See Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528,

531 (5th Cir. 1997). Although orders denying qualified immunity

are immediately reviewable only for errors of law, the existence of

a genuine issue of material fact does not preclude review if the

district court’s order determines a question of law. Id. 

The magistrate judge’s refusal to grant the summary judgment

motion did determine a question of law: It determined the

existence of a clearly established federal or constitutional right
3

of which a reasonable person would have known. If no such right

existed, qualified immunity would protect Lensing from damages as

a matter of law. See Hart v. O’Brien, 127 F.3d 424, 441-42 (5th

Cir. 1997). Because the magistrate judge decided an issue of law

in addition to finding the existence of a genuine issue of material

fact, we may review his decision on Lensing’s claim of qualified

immunity.

Davis has not requested monetary damages, but only injunctive

relief. The doctrine of qualified immunity shields government

officials from money damages, not suits for injunctive or

declaratory relief. Chrissy F. by Medley v. Mississippi Dep’t of

Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991). Qualified

immunity is therefore irrelevant to the suit, which must proceed if

the magistrate judge finds that Davis has a right to his magazines

and that a genuine issue of material fact exists regarding the

prison’s policy or Lensing’s application of it. 

For this reason, we AFFIRM the denial of summary judgment.

This matter is REMANDED for further proceedings.