* Circuit Judge of the Eleventh Circuit, sitting by

designation.

* * Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-11071

DWAYNE CASTILLE, ET AL.,

Plaintiffs,

ROBERT DOYLE PALMER,

Plaintiff-Appellee,

VERSUS

CITY OF DALLAS and

WILLIAM RATHBURN, Chief,

Defendants-Appellants.

Appeal from the United States District Court for

the Northern District of Texas

(3:94-CV-2010R)

August 9, 1996

Before POLITZ, Chief Judge, HILL, * and DeMOSS, Circuit Judges.

PER CURIAM: **

Appellants, Chief Wil liam Rathburn and the City of Dallas,

Texas, appeal the district court’s denial of th eir motion for2

summary judgment on the basis of qualified immunity. Finding that

we have no appellate jurisdiction over this interlocutory appeal,

we DISMISS.

BACKGROUND

Plaintiff-Appellee, Robert Doyle Palmer (“Palmer”), is an

Anglo m ale who entered service with the Dallas, Texas Police

Department on June 13, 1985. Dwayne Castille (“Castille”) is an

African-American male who entered service with the Dallas, Texas

Police Department on November 18, 1988.

On December 14, 1990, Palmer and Castille , while performing

routine patrol duties, res ponded to a call from the CityPlace

building at 2711 North Haskell Avenue. Upon arriving at the scene,

Palmer and Castille found three CityPlace security guards standing

near a Hispanic male, later identified as Alan Moncado (“Moncado”),

who was lying face down in the foliage on CityPlace property.

Palmer used his baton to strike Moncado on the sole of Moncado’s

shoe, and ordered him to get up. Moncado struggled with the

officers but he was eventually subdued, searched, and handcuffed.

According to Palmer and Castille, Moncado convinced them that

he was not a danger to himself, and that he would lose his job if

he was arrested. Palmer and Castille notified that police

dispatcher that they were on a public service call and they then3

released Moncado in West Dallas, at a location which they allege

Moncado identified as being near his home. In fact, Moncado’s home

address was at another location in East Dallas near the CityPlace

property.

On December 27, 1990, the Dallas Police Department received a

complaint alleging that Palmer and Castille had used excessive and

unnecessary for ce in arresting Moncado. The three CityPlace

security guards who were present when Moncado was arrested, as well

as a fourth security guard who witnessed the arrest while

monitor i ng security video cameras, reported in separate sworn

affidavits that Palmer and Castille had used excessive force in

arresting Moncado.

The Dallas Police Department Internal Affairs Division

investigated the complaint and concluded, inter alia , that Palmer

and Castille had used excessive force and had improperly released

Moncado. Palmer and Castille presented their cases in separate

“pre -disciplinary hearings” which were held before Police Chief

William Rathburn in April 1991 and August 1991. Subsequent to the

hearings, Rathburn discharg ed both Palmer and Castille from the

Dallas Police Department.

On Octobe r 10, 1991, Palmer and Castille appealed their

discharges to the City of Dallas City Manager’s Office. On October

28, 1991, Assistant City Manager Teodoro Benavides upheld the

discharge of both Palmer and Castille. Palmer and Castille then

appealed their terminations to th e City of Dallas Civil Service4

Trial Board (“Trial Board”). Different Trial Boards were convened

for each appeal and no individual served on both Trial Boards. On

January 29, 1992, Castille’s Trial Board reinstated him. On April

15, 1992, Palmer’s Trial Board sustained his termination.

Palmer brought suit in state court alleging primarily that his

“Trial Bo ard hearing was tainted and biased to ensure that

Rathburn’s termination of [him] would be upheld.” He alleged

various state and federal causes of action including, inter alia

,

alleged violations of his due process rights under the Fourteenth

Amendment to the United States Constitution and the Article 1, § 19

of the Texas Constitution; his equa l protection rights under the

Fifth Amendme nt to the United States Constitution; his rights to

f ree speech under the First Amendment to the United Sta tes

Cons t itution; and race discrimination and conspiracy under 42

U.S.C. § 1985.

Defendants removed the case to federal district court on the

basis of federal question jurisdiction, 28 U.S.C. § 1331, and filed

a motion for summary judgment alleging that Rathburn, as a public

official, enjoys qualified immunity. The district court granted

Defendants’ motion for summary judgment on the basis of qualified

immunity as to Palmer’s First Amendment claim, as well as to at

least one of his state-law claims, but denied Def endants’ motion

for summary judgment on the basis of qualified immunity as to

Palmer’s claims for procedural and substantive due process, equal

protection, and conspiracy under § 1985.1 “Under the collateral order doctrine, a small class of

interlocutory orders that (1) conclusively determine, (2) important

issues, which are separate from the merits of the action, and (3)

which would be effectively unreviewable on appeal from a final

judgment are deemed ‘final’ for purposes of appeal.” C antu

, 77

F.3d at 802, citing Puerto Rico Aqueduct & Sewer Authority v.

Metcalf & Eddy, Inc. , 113 S. Ct. 684, 688 (1993).

5 Defendants now file an interlocutory appeal to our Court

arguing that the district court erred in denying Rathburn qualified

immunity as to Palmer’s claims for procedural and substantive due

process, equal protection, and conspiracy under § 1985.

DISCUSSION

As set forth in Harlow v. Fitzgerald

, 102 S. Ct. 2727, 2738

(1982), the qualified immunity defense shields government agents

from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known. S ee Behrens v.

Pelletier

, 116 S. Ct. 834, 838 (1996). “Appeals from district

court orders denying summary judgment on the basis of qualified

immunity are immediately appealable under the collateral order

doctrine, when based on an issue of law.” 1 C antu v. Rocha

, 77 F.3d

795, 801 (1996); M itchell v. Forsyth

, 10 5 S. Ct. 2806, 2816

(1985). However, the Supreme Court held in Johnson v. Jones , 115

S. Ct. 2151 (1995), that summary judgment o rders in qualified

immunity cases which determine only a question of “e vidence

sufficiency,” i.e., which facts a party may, or may not, be able to2 The express holding of the district court in its

“Memorandum Opinion and Order,” as to each of the issues, is as

follows:

Procedural Due Process : “It is for the jury, not

this Court, to evaluate this evidence and to decide

whether the process afforded to Palmer was

6 prove at trial, are not immediately appealable and must await final

judgment. J ohnson

, 115 S. Ct. at 2156; Cantu

, 77 F.3d 802; see

also Nerren v. Livingston Police Dept.

, 86 F.3d 469, 472 (1996)

(holding that we do not have appellate jurisdiction over

interlocutory appeals taken in qualified immunity cases when “what

is at issue in the sufficiency determination is nothing more than

whether the evidence could support a finding that particular

conduct occurred”).

Accordingly, before we can review the merits of the district

court’s denial of Defendants’ motion for summary judgment based

upon qualified immunity, we mus t first determine whether the

district court’s order is immediately appealable. N erren

, 86 F.3d

at 471. We find that it is not.

The parties have not stipulated to any facts and the district

court did not assume any facts in making its determinations. Many

of the relevant facts underlying Palmer’s causes of actions are

disputed and it is evident from the district court’s 16-page order

that the district court denied summary j udgment because the

evidence is not sufficient to establish the facts underlying both

Palmer’s claims, and Rathburn’s qualified immunity defense. 2meaningful at some point. This Court finds that

Palmer has raised an issue of fact as to whether he

was afforded due process by Defendants.”

Substantive Due Process and Equal Protection :

“Th is Court finds that a reasonable jury, drawing

all inf erences in favor of Palmer could find that

Rathburn, and/or the City of Dallas exerted

influence on the tr ial board on the basis of the

fact that Palmer is a white man.

.... The inferences to be drawn from t he evidence

presented by Palmer on this point must be left to a

jury before evaluation.”

Conspiracy : “The Defendants also allege that

Palmer failed on the second prong of the claim by

failing to show that his right to equal protection

was vi olated. This Court has already disposed of

that contention in this Or der. This Court finds

that genuine i ssues of fact remain on each of the

four elements of § 1985(3).”

3 We express no opinion as to whether qualified immunity

should, or should not, be ultimately granted to Rathburn.

7 F or the reasons stated in Johnson v. Jones

, 115 S. Ct. 2151

(1995), Behrens v. Pelletier

, 116 S. Ct. 834, 838 (1996), and their

progeny in our Circuit, we dismiss this appeal for lack appellate

jurisdiction. 3

CONCLUSION

The appeal of the City of Dallas, Texas, and Chief William

Rathburn is dismissed for lack of appellate jurisdiction.

DISMISSED

.