* Pursuant to 5 TH C IR . 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 5 TH

C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40475

ERNESTINE NICHOLS,

Plaintiff-Appellee,

versus

CITY OF LUFKIN, TEXAS, ET AL.,

Defendants,

SHERMAN COLLINS, Police Chief; RALPH BEAN,

City of Lufkin Police Officer; MICKEY HADNOT;

BILL MURPHY; JOHN TULLEY, former Texas

Alcoholic Beverage Commission Agent,

Defendants-Appellants.

Appeals from the United States District Court

For the Eastern District of Texas

(9:95-CV-301)

June 25, 1998

Before POLITZ, Chief Judge, REAVLEY and JONES, Circuit Judges.

POLITZ, Chief Judge: *

Sherman Collins, Ralph Bean, Mickey Hadnot, Bill Murphy, and John Tully

seek this interl o cutory appeal from the denial of their motions for summary

judgment, which moti ons were based on their claims of qualified and official

immunity from suit. Concluding that the summary judgment motions raise a2

serious question of sufficiency of the evidence, as noted by the district court, we

must dismiss for lack of jurisdiction.

BACKGROUND

In August 1994 Lufkin City Police Officers Ralph Bean and Mickey Hadnot

attended a community meeting at the Pinewo od Parks Apartments to discuss the

ongoing problems of dr ugs, trespassing, and persons loitering at the apartments.

According to Bean and Hadnot, after the meeting Mr. Frears, the apartment

complex manager, and Mrs. Hamilton, a resident, told them that Ernestine Nichols

was bootlegging beer from her apartment. Lufkin is in a dry county. Investigating

the allegation, Hadnot gave a confidential informant, Matthew King, two dollars

and instructions to attempt a purchase of beer from Nichols. King returned twenty

minutes later with a 16-ounce can of Budweiser and $.75 change and told Hadnot

that he was successful in making the buy. Hadnot relayed this information to

Officer Bill Murphy and told him to prepare a search and arrest warrant.

Murphy and John Tully, a Texas Alcoholic Beverage Commi ssion Agent,

prepared the affidavit for a warrant to search Nichols’ apartment and for her arrest.

The affidavit included the address of Nichols’ apartment, described her as a black

female with black hair and brown eyes and weighing approximately 190 pounds,

and stated that the affiant had received information from a reliable informant that

he had purchased a 16-ounce beer for $1.25 from Nichols. The affidavit was signed

by Murphy and Tully and presented to a magistrate judge who issued the warrant.

S everal Lufkin officers, including Bean and Murphy, Chief of Po lice1 Nichols claims that she was arrested on “trumped up” charges because she is an

outspoken community activist who has publicly criticized the Lufkin Police

Department’s efforts in the war on drugs.

2 Nichols has black and gray hair and weighs 159 pounds. Nichols also contends

that the search should have stopped when the officers determined that her apartment

was on the right and King had allegedly told Hadnot that he had purchased the beer

from the apartment on the left. Additionally, Nichols makes much of the fact that no

Budweiser beer was were found in the search.

3 Sherman Collins and Tully participated in the search of Nichols’ apartment. The

search revealed a trash bag full of beer cans, seven to ten coolers of cold water, a

five-gallon bucket of homemade wine, and eighteen cans of Miller beer. Nichols

was arrested and charged with possession with intent to sell alcoholic beverages in

a dry area in violation of the Texas Alcoholic Beverage Code § 101.31. The

charges were later dismissed.

Nichols filed a 42 U.S.C. § 1983 action ag ainst Chief of Police Collins,

Officers Bean, Hadnot, and Murphy and TABC agent Tully, alleging false arrest,

violation of her first amendme nt rights, 1 and state law claims of intentional

infliction of emotional distress and malicious prosecution. Nichols contends that

the officers were not reasonable in the procuration and execution of the search and

arrest warrant because the warrant was secu red based on information from an

unreliable informant and there w as a clear and obvious difference between the

information in th e warrant and the evidence discovered during the search. 2 The

officers filed m otions for summary judgment based on qualified and official

immunity. The district court denied these motions finding that the motions raised

a “question of evidence sufficiency.” The officers timely appealed.3 Cantu v. Rocha , 77 F.3d 795 (5th Cir. 1996).

4 Behrens v. Pelletier , 516 U.S. 299 (1996); Nerren v. Livingston Police Dept.

, 86 F.3d 469 (5th Cir. 1996).

5 Wren v. Towe , 130 F.3d 1154, 1157 (5th Cir. 1997)(discussing Behrens v.

Pelletier ).

4 ANALYSIS

At the threshold, we must determine the basis for our jurisdiction. Typically,

appellate jurisdiction does not exist for the interlocutory review of appeals of the

denial of motions for summary judgment because such pretrial orders are not final

decisions for the purposes of 28 U.S.C. § 1291. 3 Because the defense of qualified

immunity is meant to give government officials an opportunity to avoid both trial

and the often considerable demands of pretrial procedures, a district court’s denial

of a motion for summary judgment based on a clai m of qualified immunity is

immediately appealable to the extent review is sought of an issue of law. 4 The

same does not apply to an issue of disputed facts. “To foreclose appeal, [however,]

the disputed facts must be central to and not severable from the matter of qualified

immunity.” 5

To determine whether the officers are entitled to qualified immunity would

require that we definitively determine whether King actually provided information

that he bought a beer from Nichols, whether Murphy and Tully believed King was

a reliable informant and did not doubt the information he allegedly provided, and

whether a clear and obvious difference between the information contained in the

warrant and the evidence discovered during the search existed. Consequently, this6 City of Lancaster v. Chambers , 883 S.W.2d 650, 653 (Tex. 1994).

7 See Naylor v. Louisiana Dep’t of Corrections , 123 F.3d 855 (5th Cir. 1997).

5 appeal does not turn on a purely legal question and we, therefore, lack jurisdiction

over the interlocutory appeal of the district court’s denial of the officers’ motions

for summary judgment.

We similarly lack jurisdiction over the district court’s denial of the officers’

motions for summary judgment on Nichols’ state law claim s based on official

immunity under the Texas Tort Claims Act. Under Texas law, “[g]overnment

employees are entitled to official immunity from suit arising from the performance

of their (1) discretionary duties in (2) good faith as long as they are (3) acting

within the scope of their authority.” 6 To determine whether the officers were acting

in good faith would require deciding the dispute d factual matters noted above.

These disputed and unresolved issues of fact canno t form the basis for an

interlocutory appeal. 7

Appeal DISMISSED.