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

officials1 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

Clerk
No. 07-50756

2 This was of course in the context of qualified immunity. 

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district court referred these motions to a magistrate judge 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 Parte Young.”

On December 6, 2006,the district court accepted the recommendations, granting

Defendants’ first motion to dismiss with respect to Meza’s monetary claims

againstLivingston 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,2ordering 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 summary judgment on March 14, 2007. The court found that

the summary judgment arguments were “duplicative of those contained” in the

pending second motions to dismiss and concluded, “The Court will therefore

dismiss Livingston and Collier’s motions to dismiss and 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 yetissued 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

have jurisdiction 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 of their 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’s denial of plaintiffs’ motion to dismiss and that an order denying a motion

to reconsider is not appealable. Furthermore, Meza maintains, the district court
No. 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 summary judgment 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)). 

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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

of appealing the district court’s December 6, 2006, denial of Defendants’ motion

to dismiss, which included Eleventh Amendmentimmunity claims,5 Defendants

appeal the district court’s failure to address their Eleventh Amendment claims

in a motion for summary judgment that was being considered by the magistrate

judge when Defendants appealed. 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 the collateral order doctrine, a small class of interlocutory orders

that (1) conclusively determine [“the defendant’s claim of right not to stand

trial”]7, (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.’”8In at least one case, we

have held that a district court’s refusal to rule on a motion to dismiss containing
No. 07-50756

9 Helton, 787 F.2d at 1017. 

10 Id.

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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

Helton’s narrow holding. Unlike in Helton, 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 summary judgment, it has not

refused to rule on that motion, stating that it has it “under advisement.” In

Helton, in contrast, 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 “failed” 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 in
No. 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 untiltrial.”);

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 logical 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.”). 

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an oral ruling.11 We are not convinced that we should “extend” Helton to the

facts of this case, as none of these circumstances apply here. 

AFFIRMED.