           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 23, 2009

                                     No. 08-61073                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RODERICK CLARK MILLER

                                                   Plaintiff - Appellee
v.

CAPTAIN RICK GASTON, Booking Supervisor, Officially and In His
Individual Capacity

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-CV-541


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       This is an interlocutory appeal from the district court's denial of Appellant
Rick Gaston's motion for summary judgment and claim of qualified immunity.1
For the reasons set forth below, we REVERSE the district court order and
RENDER judgment in favor of Gaston.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
        Appellee Miller failed to respond to Gaston's motion for summary judgment and has
similarly failed to respond to Gaston's appeal.
                                  No. 08-61073

      As this is an interlocutory appeal of a denial of qualified immunity, our
jurisdiction extends "only 'to the extent that [the denial of summary judgment]
turns on an issue of law." Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)
(en banc) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806 (1985))
(brackets in Kinney). "Stated differently, in an interlocutory appeal we cannot
challenge the district court's assessments regarding the sufficiency of the
evidence-that is, the question whether there is enough evidence in the record for
a jury to conclude that certain facts are true." Id. at 346-47. Instead, we
"consider only whether the district court erred in assessing the legal significance
of the conduct that the district court deemed sufficiently supported for purposes
of summary judgment." Id. at 348 (citing Behrens v. Pelletier, 516 U.S. 299, 313,
116 S.Ct. 834 (1996); Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151 (1995)).
Nevertheless, "[w]here, as here, the admissibility of particular evidence is
critical to a summary judgment founded on qualified immunity, this court has
not hesitated to review the admissibility of the evidence on appeal." Mersch v.
City of Dallas, Tex., 207 F.3d 732, 735 (5th Cir. 2000) (reversing district court's
denial of qualified immunity on summary judgment when it was solely based on
inadmissible evidence) (citing Hayter v. City of Mount Vernon, 154 F.3d 269, 274
(5th Cir. 1998)).
      In the instant case, the district court concluded that Gaston, who was
Supervisor of Booking at the detention center where Miller was held, did not
personally engage in the constitutional deprivations allegedly committed against
Miller, nor did Gaston have any knowledge of them. The district court, however,
concluded that a genuine issue of fact existed over whether Gaston violated 42
U.S.C. § 1983 by failing to properly supervise his deputies who did allegedly
abuse Miller.   The court also found a genuine dispute of fact existed over
whether Gaston conspired with others to deprive Miller of his civil rights under
§ 1985, and whether Gaston was otherwise liable under state law. The district

                                        2
                                  No. 08-61073

court made these determinations based exclusively on Miller's deposition
testimony. In his deposition, Miller stated that he heard other parties testify in
an unrelated proceeding that Gaston allowed prisoner abuse by his deputies and
that Gaston implemented his own policies of "abuse" and "torture." Miller
further stated that Gaston's abusive practices were "common knowledge."
      The evidence in Miller's deposition is hearsay that is not subject to any
qualifying exception. See F ED. R. E VID. 801(c) (defining hearsay as "a statement,
other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted"). As Miller's
testimony regarding Gaston's alleged liability is hearsay, it is inadmissible for
summary judgment purposes. See Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.
1995) ("Evidence on summary judgment may be considered to the extent not
based on hearsay or other information excludable at trial."); Duplantis v. Shell
Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991) ("Material that is inadmissible
will not be considered on a motion for summary judgment because it would not
establish a genuine issue of material fact if offered at trial and continuing the
action would be useless.") (internal quotes and citations omitted).
      Miller's deposition testimony is the only evidence the district court cites
that implicates Gaston in Miller's alleged harm. Such evidence is therefore
critical to the district court's denial of summary judgment. Indeed, "[w]ithout
that testimony, [Miller] has no case." Mersch, 207 F.3d at 737. As this evidence
is clearly inadmissible, the district court committed manifest error in denying
Gaston summary judgment on his claim of qualified immunity. See id.
      Accordingly, we REVERSE the district court order denying judgment for
the defendant Gaston and RENDER judgment in favor of Gaston.
      REVERSED and RENDERED.




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