1 The original complaint named the former director of the Texas Department of

Criminal Justice Parole Division, Brian Collier. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50756

RAUL MEZA Plaintiff - Appellee v. BRAD LIVINGSTON, Executive director of the Texas Department of Criminal Justice, in his official capacity; STUART JENKINS, director of the Texas Department of Criminal Justice Parole Division, in his official capacity Defendants - Appellants

Appeal from the United States District Court for the Western District of Texas

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Raul Meza, an inmate on supervised release at the Texas County Correctional Complex, filed Fourteenth Amendment claims against state
o fficials1 and the Sheriff of Travis County on December 5, 2005. Eleventh Amendment immunity was asserted in several motions, including a motion to dismiss on May 22, 2006, and a motion to dismiss and alternative motion for Rule 7(a) reply filed by Collier, Jenkins’ predecessor, on June 27, 2006. The United States Court of Appeals

Fifth Circuit 

### F I L E D July 23, 2008 Charles R. Fulbruge III ClerkNo. 07-50756

2 This was of course in the context of qualified immunity. 2 district court referred these motions to a magistratejudge for recommendation
or resolution on June 30, 2006. The magistrate judge issued a report and recommendation on August 28, 2006, stating, “Plaintiff’s claims for injunctive relief

. . . should not be dismissed, as they are cognizable under Ex ParteYoung.” On December 6, 2006, thedistrict court accepted the recommendations, granting Defendants’ first motion to dismiss with respect to Meza’s monetary claims against Livingston and Collier in their official capacity and denying Defendants’ motion with respect to prospective injunctive relief. For Collier’s motion to dismiss and motion for a Rule 7(a) reply, the court denied the motion to dismiss but granted Collier’s motion for a Rule 7(a) reply, 2 ordering Meza to reply and describe Collier’s personal involvement in the alleged unconstitutional acts. Meza replied. On June 30, 2006, Meza filed an amended complaint. Livingston and Collier filed a second motion to dismiss on February 7, 2007, again raising Eleventh Amendment immunity claims. Livingston and Collier then submitted
a joint motion for summaryjudgment on March 14, 2007. The court found that the summaryjudgment arguments were “duplicative ofthose contained” in the pending second motions to dismiss and concluded, “The Court will therefore dismiss Livingston and Collier’s motions todismissand will consider Livingston and Collier’s arguments as submitted in their pending motions for summary judgment.” In this same order, the court referred the motions for summary judgment to the magistrate judge on May 1, 2007. Defendants filed two motions to stay the pretrial conference hearing and trial setting with the district court and an emergency motion to stay with this
court, which we denied. On June 26, 2007, the district court held the final pretrial hearing and stated,No. 07-50756

3 The magistrate’s last report was issued on June 5, 2007. This report addressed other Defendants’ claims, including Eleventh Amendment claims of Defendants Owens, Aliseda, Aycock, Davis, DeNoyelles, Garcia, and Gonzales, but not Livingston and Jenkins’ claims of Eleventh Amendment immunity raised in their motion for summary judgment.

4 See Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986) (per curiam). 3 These [immunity] motions, I believe, were filed on March the 14th and referred to [the] Magistrate Judge

. . . who has them under advisement at this time, and, therefore, I will have them under advisement. . . . I want the record to be very clear that I have never refused to rule on any of the immunity motions that are before me . . . . Those motions remain pending in front of me and you are not faced with a refusal to rule.
When the district court held its final pretrial hearing, the magistrate had not yet issued a report on the Eleventh Amendment claims raised in Defendants’ motion for summary judgment. 3 The Eleventh Amendment question with respect to summary judgment remained “under advisement.” On appeal, Defendants argue that by “failing” to rule on the issue, the district court has effectively refused to rule on immunity and that the refusal is
an immediately appealable order under the collateral order doctrine. 4 Meza argues that the appeal is an improper interlocutory appeal and that we do not havejurisdiction to review it, as the court has not denied their immunity claims
on summary judgment, nor has it refused to rule. He urges that Defendants could have appealed the district court’s December 6, 2006, denial oftheir motion to dismiss

– including the court’s denial of their immunity claims – as a collateral order but failed to do so. Meza similarly maintains that Defendants’ summary judgment motion is essentially a motion to reconsider the district court’sdenial ofplaintiffs’ motion todismiss and that an order denying a motion toreconsider is not appealable. Furthermore, Meza maintains, the district courtNo. 07-50756

5 We are not persuaded by Meza’s arguments that Defendants’ failure to appeal the denial of their motion to dismiss resulted in a waiver of their immunity claims or that their motion for summaryjudgment was by necessity a motion to reconsider. We simply note that the court ruled on the Eleventh Amendment immunity issue in denying Defendants’ motion to dismiss with respect to Meza’s claims for prospective injunctive relief.

6 Reyes v. City of Richmond, Tex., 287 F.3d 346, 350 (5th Cir. 2002).

7 Helton, 787 F.2d at 1017 (quoting Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)).

8 Reyes, 287 F.3d at 350 (quoting Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.1996)). 4 has not refused to rule on the issue but was simply awaiting the magistrate’s report on the summary judgment motion when Defendants appealed. We are persuaded that we lack jurisdiction to hear this appeal. Instead ofappealing the district court’s December 6, 2006, denial ofDefendants’ motion todismiss, which included Eleventh Amendment immunity claims, 5 Defendants appeal the district court’s failure to address their Eleventh Amendment claims in a motion for summaryjudgment that was being considered by the magistrate judgewhen Defendantsappealed. This is an unreviewable interlocutory appeal. “The denial of a summary judgment is generally not a final, appealable order.”6 A district court’s failure to rule on a summary judgment motion while awaiting a magistrate judge’s report and recommendation on that motion is
similarly unreviewable. Here, although the initial briefing on the summary judgment motion was completed as of May 11, 2007, the magistrate ordered additional briefing, and Defendants appealed before the district court could receive the magistrate’s report. “‘[U]nder thecollateral order doctrine, a small classofinterlocutory orders that (1) conclusively determine [“the def endant’s claim of right not to stand trial”] 7, (2) important issues, which are separate from the merits of the action, and (3) w

hich would be effectively unreviewable on appeal from a final judgment, are deemed ‘final’ for purposes of appeal.’”8 In at least one case, we have held that a district court’s refusal to rule on a motion todismiss containingNo. 07-50756

9 Helton, 787 F.2d at 1017.

10 Id

. 5 claims of absolute and qualified immunity constituted a final order under the collateral order doctrine. 9 We are not persuaded that this case falls under Hel ton’s narrow holding. Unlike in H elton, the district court ruled on defendants’ motion to dismiss, denying their Eleventh Amendment immunity claims with the exception of immunity from Meza’s claims involving monetary damages, a ruling that Defendants do not appeal here. Although the district court has not yet ruled on Defendants’ motion for summaryjudgment, it has not refused to rule on that motion, stating that it has it “under advisement.” In Helton, in c

ontrast, the district court made it clear that it would not rule on further immunity claims until trial, stating, [A]ll parties and attorneys are here notified that any further motions in this case will not be ruled upon by the court prior to trial but will be carried along with the trial of the case on the merits. This ruling applies to any pending motions . . . . 10
Nor has the district court “f ailed” to rule on the motion. It referred the motion to the magistrate judge for a report and recommendations, and Defendants appealed before the court received the report, thus temporarily depriving that court of jurisdiction to grant or deny the motion. Defendants urge that “[a]lthough this Court has not issued any further published opinions [after Helton] recognizing other instances where the refusal
or failure to rule resulted in an immediately appealable order under the collateral order doctrine,” other circuits have. In those cases, the district court either refused to rule, failed to explain its reasons for delaying a ruling on qualified immunity until trial, or dismissed an immunity claim implicitly or inNo. 07-50756

11 See, e.g., Parton v. Ashcroft, 16 F.3d 226, 227 (8th Cir. 1994) (“On the morning oftrial the magistrate judge refused to rule on the motion for summary judgment on the ground of qualified immunity.”); Workman v. Jordan, 958 F.2d 332, 334 (10th Cir. 1992) (“The district court, without explanation, postponed disposition ofthe qualified immunity issue until trial.”); Id

. at 336 n.5 (“Although the oral ruling may have lacked procedural formality for purposes of appeal, we allow the appeal from this ruling because there is no question as to its finality . . . .”); Craft v. Wipf

, 810 F.2d 170, 172 (8th Cir. 1987) (“In its memorandum opinion, the District Court held only that it would not abstain from hearing the case. It is conceivable that it considered abstention to be the logic al first step in deciding the various issues raised in defendants’ motion for summary judgment, and that it intended to decide other issues, such as immunity, later. This seems somewhat unlikely, however, given the court’s reference to the plaintiffs’ day in court and its direction for discovery to be completed in sixty days.”). 6 an oral ruling. 11 We are not convinced that we should “extend” H elton to the facts of this case, as none of these circumstances apply here. AFFIRMED.