Wilson v. McElven ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30793
Summary Calendar
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LACAL WILSON,
Plaintiff-Appellee,
versus
LOREN McELVEN, PAROLE OFFICER; LOUISIANA
PAROLE BOARD MEMBERS,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
UDC No. 95-CV-1749
March 26, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Parole Officer Loren McElven and members of the Louisiana
Parole Board have filed an interlocutory appeal of the magistrate
judge’s denial of their motion to dismiss based on qualified and
absolute immunity. They contend that the magistrate judge’s denial
of their motion as duplicative of other pending motions in the
action, and the magistrate judge’s refusal to rule on their
immunity defenses prior to trial, constitute an effective denial of
*
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that this opinion should not be published and is not precedent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.
their immunity defenses and are forcing them to prepare for trial
without the benefit of those defenses.
Of course, we must examine the basis of our jurisdiction on
our own motion if necessary. See, e.g. Mosley v. Cozby, 813 F.2d
659, 660 (5th Cir. 1987). “A district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of law,
is an appealable ‘final decision’ within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment.” Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985). Along this line, the refusal
to rule until trial on a qualified immunity claim is also an
appealable final decision. See Helton v. Clements, 787 F.2d 1016,
1017 (5th Cir. 1986).
The magistrate judge did not refuse to rule on the qualified
and absolute immunity claims, but instead, delayed ruling on the
pending motions until the defendants had supplemented the record
with additional documents. In fact, the magistrate judge stated
that he anticipated ruling on the motions prior to trial, including
the defendants’ defenses of absolute and qualified immunity, and
that those defenses were preserved. The magistrate judge has
already granted absolute immunity to Loren McElven and the Parole
Board members in their official capacitates.
The magistrate judge has also expressly limited the trial, for
which there is a setting, to the issue of Wilson’s claim that
McElven threatened to have Wilson killed and acted upon those
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threats by arranging to have an inmate fight Wilson. The
magistrate judge denied McElven qualified immunity on this claim
due to a genuine issue of material fact. In this interlocutory
appeal, the defendants do not expressly challenge this denial of
qualified immunity. Although they contend that Wilson did not
state a viable constitutional injury regarding McElven’s mere
threats against Wilson, the defendants do not challenge the
magistrate judge’s determination that there existed a material fact
issue as to whether McElven arranged to have an inmate assault
Wilson upon his return to prison. The magistrate judge did not set
for trial any of Wilson’s claims against the Parole Board members
or Wilson’s claims against McElven of detainer and arrest.
The magistrate judge has not refused or failed to timely
address the defendants’ absolute and qualified immunity claims.
Accordingly, the appeal of the denial of the motion to dismiss as
duplicative is not an appealable final decision over which we have
jurisdiction. See Edwards v. Cass County, Tex., 919 F.2d 273, 275
(5th Cir. 1990). Consequently, the appeal is DISMISSED for lack of
jurisdiction.
Wilson’s motions for appointment of counsel and to supplement
his brief on appeal are DENIED.
APPEAL DISMISSED; MOTIONS DENIED
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