Bush v. Keith , 129 F. App'x 108 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT April 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-50601
Summary Calendar
ANNIE MAE JONES BUSH; JAMES HOOVER BUSH; SABRENA A. TODD;
LATENZA M. LAWRENCE; CHARLES EARL BUSH,
Plaintiffs-Appellees,
versus
TIMOTHY B. KEITH, Etc.; ET AL,
Defendants,
ATIF RAHI, Individually and in his Official Capacity,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas, San Antonio
(5:03-CV-151)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Dr. Atif Rahi appeals the district court’s interlocutory
order granting plaintiffs leave to file a third amended complaint
and rejecting, in part, the magistrate judge’s report and
recommendation to dismiss the claims against Dr. Rahi, in his
individual capacity, for deliberate indifference to Mark Anthony
Bush’s serious medical condition. Dr. Rahi contends: the third
*
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this opinion should not be published and is not precedent except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.
amended complaint did not allege sufficient facts to establish a
claim under 42 U.S.C. § 1983; and he is entitled to qualified
immunity.
We must, of course, consider the basis for our jurisdiction.
Jackson v. City of Atlanta,TX, 73 F.3d 60, 62 (5th Cir.), cert.
denied, 519 U.S. 818 (1996). In general, we have jurisdiction of
“appeals from all final decisions of the district courts”. 28
U.S.C. § 1291. The denial of a claim of qualified immunity is an
appealable final decision, provided that denial is based on a
purely legal issue. Jackson, 73 F.3d at 62-63.
The interlocutory order granted plaintiffs leave to file a
third amended complaint. It did not discuss Dr. Rahi’s qualified
immunity claims; it declined to adopt the magistrate judge’s
recommendation for dismissal of individual-capacity claims against
Dr. Rahi based only on the grant of leave to amend. Of course, an
order granting leave to amend is not appealable. See Levy v.
Securities & Exchange Comm’n, 405 F.2d 484, 485-86 (5th Cir. 1968);
see also Reed v. National Old Line Ins. Co., 239 F.2d 594, 596 (5th
Cir. 1956). And, as stated, Dr. Rahi contests the allegations in
the third amended complaint, for which qualified immunity has not
been requested from the district court. In sum, we lack
jurisdiction.
DISMISSED
2