Airoldi v. Hisle

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50605 Summary Calendar

MELISSA AIROLDI,

Plaintiff-Appellee,

VERSUS

LEE HISLE, ET AL.,

Defendants,

LEE HISLE, in his individual capacity only,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas (A-94-CV-655)

May 21, 1996

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:1

Lee Hisle has appealed the district court's order denying his

motion for summary judgment based on a qualified immunity claim.

1 Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

1 Because this court lacks jurisdiction, the appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

Melissa Airoldi, a librarian for Austin Community College

(ACC) filed a complaint in federal district court against ACC and

three of its employees. Airoldi asserted that she was retaliated

against for reporting misuse of public tax dollars to her

supervisor and the head of the ACC library system, Lee Hisle. The

defendants moved to dismiss the suit under FED. R. CIV. P. 12(b)(6).

The district court denied the motion. Airoldi subsequently amended

her complaint. Airoldi claimed retaliation for protected speech,

violation of the right to free speech, violation of due process,

and defamation.

The defendants filed a motion for summary judgment. The court

granted summary judgment with respect to Airoldi's claims of

defamation and violation of the Texas Whistleblower Act. The

district court denied the motion with respect to Airoldi's federal

and state constitutional claims. The district found that Hisle was

not entitled to qualified immunity due to the existence of material

issues of fact. The district court concluded "that if the

plaintiff's allegations relating to Hisle's behavior proved true,

such retaliatory behavior is not of a nature that any reasonable

official could possibly have thought legitimate."

JURISDICTION TO ADDRESS INTERLOCUTORY APPEAL

Summary judgment determinations are appealable when they

resolve a dispute concerning an abstract issue of law relating to

qualified immunity, typically whether the federal right allegedly

2 infringed was clearly established. Behrens v. Pelletier, 1996 WL

71218, at *9 (U.S. Feb. 21, 1996). However, determinations of

evidentiary sufficiency are not immediately appealable merely

because they happen to arise in a qualified immunity case. Id.

The sole complaint raised by Hisle in this appeal is that the

district court erred in denying his motion for summary judgment

because Airoldi failed to adduce adequate proof to support her

claim in response to the motion. Because this Court lacks

jurisdiction over the issue raised by Appellant, the appeal must be

dismissed.

The motions of both parties for leave to supplement the briefs

are GRANTED.

APPEAL DISMISSED.