Eddings v. Harris County

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20433 Conference Calendar

MICHAEL EDDINGS; SHIRLEY EDDINGS,

Plaintiffs-Appellants-Cross-Appellees,

versus

HARRIS COUNTY; ET AL.,

Defendants,

HARRIS COUNTY; JOHNNY KLEVENHAGEN; TOMMY B. THOMAS,

Defendants-Appellees,

ROCKY BARR,

Defendant-Appellee-Cross-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CV-4150 - - - - - - - - - -

ON PETITION FOR REHEARING

July 8, 1999

Before JONES, SMITH, and DUHE’, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed by

appellant Rocky Barr is GRANTED, and the Conference Calendar

opinion is modified in the following respects. No. 98-20433 -2-

The dismissal of the appeal for lack of jurisdiction

pursuant to Fed. R. Civ. P. 54(b) applies only to Shirley

Eddings’ appeal from the denial of her Monell* claim. Shirley

Eddings has not filed a petition for rehearing and that portion

of the original Conference Calendar opinion remains unchanged.

This court is also without jurisdiction to review the denial

of Barr’s motion for summary judgment based on qualified immunity

with regard to Shirley Eddings’ excessive-force claim. District

court orders denying summary judgment on the basis of qualified

immunity are immediately appealable under the collateral order

doctrine, notwithstanding their interlocutory character, when

based on a conclusion of law. See Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). In contrast, such orders are not immediately

appealable if they are based on sufficiency of the evidence. See

Johnson v. Jones, 515 U.S. 304, 313 (1995). Because there is a

significant fact-related dispute with regard to the circumstances

surrounding the detention and arrest of Shirley Eddings, this

court does not have jurisdiction to review the denial of Barr’s

motion for summary judgment based on qualified immunity with

regard to Shirley Eddings’ excessive-force claim. Id.

APPEAL DISMISSED FOR LACK OF JURISDICTION.

* Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978).