Waddell v. Montgomery County TX ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20764
Summary Calendar
BRYANT WADDELL,
Plaintiff-Appellee,
versus
MONTGOMERY COUNTY TEXAS;
GUY WILLIAMS,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-2782
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May 30, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Defendants Guy Williams and Montgomery County Texas have
filed and interlocutory appeal of the district court’s denial of
qualified immunity. The district court denied qualified
immunity, granted summary judgment in part on the merits, and
denied summary judgment in part on the merits in this suit
brought by former deputy sheriff Bryant Waddell. Waddell
asserted that he was unconstitutionally demoted, transferred, and
*
Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 99-20764
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ultimately terminated based upon his assertion of rights of free
speech, free association, and political patronage.
This court does not consider the district court’s denial of
qualified immunity on Waddell’s free-speech termination claims
because the district court granted summary judgment to the
defendants on the merits of these claims. To the extent that the
defendants appeal the district court’s denial of qualified
immunity on Waddell’s non-termination free-speech claims --
specifically his claims that he was wrongfully demoted and/or
transferred based upon his exercise of his right to free speech,
the district court’s opinion is affirmed. As stated by the
district court, the defendants did not raise arguments with
respect to Waddell’s non-termination claims in their summary
judgment motion. See FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th
Cir. 1994); see also EEOC v. American Airlines, Inc., 48 F.3d
164, 172-73 (5th Cir. 1995).
The district court did not explicitly rule on the merits of
Waddell’s argument that the defendants’ actions denied him his
constitutional right to patronage and free association, although
it clearly denied defendants’ request for qualified immunity on
these claims. This court assumes that Waddell’s claims for
wrongful termination based upon violations of his constitutional
rights for free association and patronage survive the district
court’s summary judgment rulings. This court lacks jurisdiction
to review the court’s denial of summary judgment on these claims,
however. The district court’s denial of qualified immunity was
based upon a weighing of the evidence; the crux of the
No. 99-20764
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defendants’ argument on appeal is that the court improperly gave
weight to conclusory allegations, did not take “the chronology of
events” into account, and did not give enough credence to
Williams’ affidavit. A summary-judgment determination based upon
whether there is sufficient evidence to create a genuine issue of
material fact is not subject to immediate appeal. See Hare v.
City of Corinth, Miss., 74 F.3d 633, 638 (5th Cir. 1996)(en
banc); see also Southard v. Texas Bd. of Criminal Justice, 114
F.3d 539, 548 (5th Cir. 1997).
AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF
JURISDICTION.