                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  August 9, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-40474




GREGORY MOORE,

                                       Plaintiff-Appellee

versus


JANIE COCKRELL, Etc., ET AL,

                                       Defendants

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION; CHARLES D. LIGHTFOOT, Major of
Correctional Officers - Beto One Unit Classification; CORNELIUS
E. SMITH, Captain of Correctional Officers; SHELY S. BALDWIN,
Correctional Officer

                                       Defendants-Appellants

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                          6:03-CV-82-LED
                       --------------------

Before KING, Chief Judge, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

     This interlocutory appeal requires us to determine whether

the district court erred by ruling that Defendants-Appellants’


     *
          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that this opinion should not be published and is not precedent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
motion for summary judgment was untimely.    Determining that it

did so err and because of the peculiar circumstances under which

the alternative merits determination was made, we vacate and

remand for further proceedings consistent with this opinion.

                           BACKGROUND1

     Plaintiff-Appellee Gregory Moore (“Moore”), an inmate of the

Texas Department of Criminal Justice, Institutional Division

(“TDCJ-ID”), filed this civil rights lawsuit under 42 U.S.C. §

1983 against various prison officials asserting that they were

deliberately indifferent to threats of physical violence towards

Moore made by fellow prisoners.   The threats stemmed from the

discovery by his fellow inmates that Moore was serving a sentence

for child molestation.

     Apparently, in May 2002, an individual using the name

Rudolph Hess posted information on an internet bulletin board

urging reprisals against sex offenders.2    It appears that inmates


     1
      Because the district court opinion does not include a
summary of the facts, the factual background presented here
represents our best understanding of the facts of the case based
on the parties’ submissions to this Court. We do not in any way
intend to resolve any disputed factual matters that may exist.
As we note below, because Defendants-Appellants immediately
appealed the district court’s denial of their motion for summary
judgment on the basis of qualified immunity, Plaintiff-Appellee
has never had a chance to respond to their motion for summary
judgment. When Plaintiff-Appellee does have his chance to
respond, he may present evidence supporting facts that are
different than the facts as we present them here.
     2
      Moore alleges that Hess was a pseudonym for a prison guard,
but he does not specifically allege that one of the named

                                  2
in the Beto Unit, where Moore was housed, became aware of this

posting.   Some inmates also discovered which of their fellow

inmates had been convicted of sex offenses.   Moore alleges that

Defendant-Appellant Officer Shely Baldwin told prison gang

members that Moore had been convicted of child molestation.

     Soon after the Hess posting, an Attorney named Bill Habern

wrote a letter to Janie Cockrell, Director of the TDCJ-ID,

reminding her that the TDCJ has a duty to protect its prisoners.

In response, Larry Todd, spokesperson for the TDCJ, told a

reporter for the Dallas Morning News that if a sex offender

inmate is harassed or threatened, the TDCJ would transfer the

inmate to another unit or place the inmate in protective custody.

     On October 2, 2002, several gang members physically

assaulted inmates on the Beto Unit who had been labeled as

informants, including at least one sex offender.   As a result of

these attacks, the Beto Unit was placed in lockdown.

     Between the October 2, 2002 lockdown and January 8, 2003,

when Moore was ultimately involved in a violent altercation with

an inmate named Clifton Holiday, Moore made four life

endangerment claims.   In each claim, he informed prison officials

that gang members housed within the Beto Unit were threatening

with physical violence inmates who were imprisoned for sexual

offenses, including Moore.   Moore specifically named Holiday as



Defendants-Appellants posted the message.

                                 3
one of the gang members making such threats in two of his life

endangerment claims.

     As described by Defendants-Appellants, the TDCJ-ID procedure

for investigating and evaluating a life endangerment claim is as

follows.    The claim is logged into the unit classification office

in the offender protection log and it is assigned to a ranking

officer to conduct an investigation.    After the investigation is

completed, it is returned to the unit classification office,

which sets the claim for a hearing before the next available Unit

Classification Committee (“UCC”).

     A UCC is made up of three voting members: a chairperson, a

unit security representative, and a person from the unit’s

treatment team.    The UCC reviews and makes recommendations

regarding an inmate’s custodial classification while at the unit.

No single individual at the unit, including the senior warden,

has the authority to change the custodial classification of an

inmate.    The UCC can change an inmate’s classification by

majority vote.    The UCC may recommend a housing change, placement

in safekeeping, placement in protective custody, or a unit

transfer.    However, the State Classification Committee (“SCC”) in

Huntsville has to approve the UCC’s recommendations.3   It also


     3
      While Moore acknowledges the UCC and SCC and their role in
unit transfers, he also appears to contend that a UCC panel has
the ability to override/disregard the SCC and/or that an
individual member of a UCC panel has the ability to dictate the
conclusions of the panel.

                                  4
appears that an individual prison officer at least sometimes has

the ability to place an inmate who is in danger in transient

housing, pending a formal life endangerment investigation.

     Moore’s first life endangerment claim, filed on October 12,

2002, alleged that inmate Richard Tidwell was the instigator of a

plan to rid the Beto Unit of sex offenders.   Moore said that he

overheard inmate Benton Morgan mention Moore’s name to Holiday,

stating that Moore was next on the list to leave the unit.

Defendant-Appellant Captain Cornelius Smith investigated Moore’s

October 12, 2002 claim, and on October 16, 2002, Moore came

before the Beto Unit Classification Committee for a life

endangerment review.   The members of that UCC were Defendant-

Appellant Major Charles Lightfoot and two non-defendants.

     The UCC voted unanimously to place Moore in transient status

when the lockdown was lifted, and recommended a unit transfer.

However, the unit transfer was denied by the SCC on October 24,

2002 because of a lack of corroborating evidence.   A different

UCC, consisting of Major Lightfoot and two other non-defendants,

informed Moore on October 28, 2002 that the SCC had denied his

request for a unit transfer.   On that same date, Moore was

assigned to N-Wing, which is the Beto Unit’s transient status

housing.   Moore remained there from October 28, 2002 to November

5, 2002.

     When prison officials attempted to move Moore from transient

housing to his new housing assignment, he refused to move.    As a

                                 5
result, he was placed in Pre-Hearing Detention on November 5,

2002.

     On November 6, 2002, Moore brought his second life

endangerment claim.   In that claim, Moore alleged new

developments since his October 16, 2002 UCC hearing, including

that inmate Morgan had come to his cell and threatened him.

Moore again requested a unit transfer because he believed his

life was in danger.   Defendant-Appellant Captain Cornelius Smith

investigated Moore’s second claim and a UCC was convened on

November 8, 2002.   The UCC was composed of three non-defendants.

The UCC voted unanimously to table Moore’s life endangerment

review until a prison official, Lt. J.S. Clark, could provide

additional information.

     On November 8, 2002, prison officials moved Moore from Pre-

Hearing Detention to overflow transient status housing in X-Wing.

He remained there until December 23, 2002.

     On November 13, 2002, the UCC reconvened the November 8,

2002 hearing because it had received the additional information

from Lt. Clark.   This UCC was also composed of three non-

defendants.   They voted unanimously to deny Moore’s request for a

transfer because of a lack of corroborating evidence.

     Undeterred, Moore then brought a grievance, which prison

officials treated as another life endangerment claim.    It appears

that Moore never had a UCC hearing for this claim.   Instead, Beto

Unit Classification Chief Sun Berg included Moore in a

                                 6
recommendation that she sent to the SCC after a November 18, 2002

UCC hearing for three other convicted sex offenders.   In this

recommendation to the SCC, Berg recommended transfers for Moore

and the other three sex offenders.

     However, the SCC did not follow Berg’s recommendation.

Instead, it ordered transfers for five inmates who were

threatening the convicted sex offenders rather than transferring

the sex offenders themselves to safekeeping.   The five inmates

transferred were Richard Tidwell, Dustin Dixon, Robert Leifester,

Benton Morgan, and John Wheeler.

     After these five inmates had been transferred, an SCC

member, V. Sineguare, sent a memo to Beto Unit Classification

Chief Berg on December 17, 2002 directing her to transfer Moore

and the three other sex offender inmates from transient housing

back to General Population.

     In the meantime, on December 12, 2002, Moore’s attorney,

John Bennett, notified TDCJ-ID officials including Director

Cockrell and the Beto Unit Warden that Moore was still in danger

from inmate gang members even though he was in transient housing.

Bennett requested, to no avail, that the officials do something

more to protect Moore, such as transferring him to a safekeeping

unit.

     Additionally, Moore alleges that on December 17, 2002, a

Beto Unit classification officer sent Director Cockrell a memo

outlining the history of threats to Moore’s safety between

                                   7
October 12, 2002, and December 17, 2002.    The memo specifically

identified Holiday as a threat.    Moore further alleges that an

individual in Director Cockrell’s office requested a second copy

of this memo on December 18, 2002.

     On December 23, 2002, a UCC composed of Defendant Major

Lightfoot and two non-defendants informed Moore of the SCC’s

decision to release him back to General Population.

     From December 23, 2002 to January 8, 2003, Moore was housed

in M Wing, in the general population.    Moore alleges that once he

returned to the general population he immediately started to

receive death threats and that he relayed them to prison

officials.    Moore further alleges that Holiday directly

threatened him on December 25, 2002, and that he again reported

the threat.

     On January 5, 2003, Moore filed his fourth life endangerment

claim.   In this claim, Moore alleged that Holiday and another

inmate, Frank Williams, had threatened him and that his life was

in danger.    Moore requested a transfer out of the Beto Unit

because the other inmates had become aware of his conviction for

a sex offense.    Prison official Lt. Williams completed the

investigation of Moore’s fourth claim on January 8, 2003.      On

that same day, Moore signed a waiver of his claim and of his

request for a unit transfer.    Moore now asserts that a prison

official named Timmons coerced him into rescinding his claim.

     Later that day, at approximately 6 p.m., Holiday and Moore

                                  8
had a violent encounter in the north-side Dining Hall.   Moore

alleges that he was attacked and that he suffered a “brutal

stabbing.”   Prison officials describe the encounter as a

fistfight and his injuries as minor.   Holiday contended that

Moore struck him first, but he also admitted that he did not like

Moore because of his status as a sex offender.

     After the encounter with Holiday, Moore was again moved to

transient status where he remained until February 13, 2003.

Because of the fight, prison officials initiated another life

endangerment investigation, which was completed on January 10,

2003.   On January 13, 2003, a UCC composed of three non-

defendants voted unanimously to recommend a unit transfer and

they asked the SCC to review Moore for possible placement in

safekeeping status.

     On February 13, 2003, Moore was transferred from the Beto

Unit to the Michael Unit.

                             PROCEEDINGS

     Moore brought this action alleging that the officials named

were all deliberately indifferent to the threats of violence that

he faced.    Pursuant to an amended scheduling order, the trial was

scheduled to commence on April 13, 2004.   The prison officials

involved in this appeal filed a motion to dismiss, which was




                                  9
denied in relevant part on March 5, 2004.4          The prison officials

then filed a motion for summary judgment on April 5, 2004.             The

district court, in an order dated April 8, 2004, determined that

this motion was untimely.       The district court also found that

even assuming arguendo that the motion had been timely filed, the

prison officials had not overcome their summary judgment burden

given that genuine issues of material fact existed as to preclude

the granting of the motion.

     The district court ruled on the summary judgment motion

within three days of its filing and long before the expiration of

the time allotted under the Local Rules and the Federal Rules of

Civil Procedure for Moore to file a response.5

     The very next day, April 9, 2004, the prison officials filed

this interlocutory appeal.       By doing so, the prison officials

invoked the jurisdiction of this Court before Moore’s time to

respond to the summary judgment motion had expired.            As a result,

Moore did not file a response to Defendant’s motion for summary

judgment before the district court lost jurisdiction by virtue of

Appellants’ notice of appeal.

                               JURISDICTION



      4
        On March 19, 2004, the district court ruled upon the last of the
motions to dismiss, which related to defendants who are not part of this
appeal.
     5
      The Local and Federal Rules provided Moore with at least
15 days to respond after he had been served with Defendants’
motion for summary judgment. See n.8 and n.9, infra.

                                     10
     This Court has jurisdiction to review the denial of summary

judgments seeking qualified immunity in an interlocutory appeal

under the “collateral order” doctrine, as explained by the

Supreme Court in Mitchell v. Forsyth.    472 U.S. 511, 530 (1985).

Because qualified immunity implicates the right not to stand

trial, denial of a qualified immunity claim is final in that the

right to avoid trial cannot be vindicated by later appeal.      Id.

at 526-27.   Our jurisdiction in such cases is not unlimited,

however.   As the qualified immunity analysis is “significantly

different from the questions underlying [a] claim on the merits,”

and questions of “evidence sufficiency” are not appealable,

Johnson v. Jones, 515 U.S. 304, 314 (1995), we may only review a

denial of qualified immunity “to the extent that it turns on an

issue of law.”   Mitchell, 472 U.S. at 530.6

                            DISCUSSION

                                I.

     We must first determine whether the district court erred by


     6
      Moore’s contention that this Court does not have
jurisdiction to hear this appeal is without merit. He contends
that this case is like Edwards v. Cass County, Texas, in which we
held that we normally do not have jurisdiction to hear an
interlocutory appeal when the district court declines to consider
a motion for summary judgment asserting qualified immunity
because it is untimely. 919 F.2d 273, 275 (5th Cir. 1990). In
the instant case, however, the district court ruled both that
Defendants-Appellants’ motion for summary judgment was untimely
and held in the alternative that it was without merit. Because
the district court in the instant case has ruled on the merits of
Defendants-Appellants’ assertion of qualified immunity,
Edwards does not apply.

                                11
holding that the prison officials failed to timely submit their

motion for summary judgment.   Because district courts are vested

with broad discretion to determine their own dockets as

warranted, the abuse of discretion standard governs.     Edwards v.

Cass County, Texas, 919 F.2d 273, 275 (5th Cir. 1990).

     The district court cited Edwards for the proposition that

“the refusal to allow filing of a substantive motion on the eve

of trial is normally within the district court’s discretion.”    It

then held that the prison officials’ motion was untimely because

“the moving Defendants waited until one week before the scheduled

trial to file a lengthy motion for summary judgment, together

with over 150 pages of exhibits.”

     However, the facts of the instant case are distinguishable

from Edwards.   In Edwards, the district court had issued a

scheduling order setting a deadline of March 5, 1990 for the

filing of all pre-trial motions, including motions for summary

judgment.   Id. at 274.   With a jury trial set to begin on June 5,

1990, the defendants filed a motion for leave to file an out-of-

time motion for summary judgment asserting qualified immunity on

June 4, 1990.   Id.   The district court denied the motion, and we

affirmed, stating that

     a court's refusal to allow the filing of a substantive
     motion on the eve of trial three months after the
     expiration of a deadline (especially where no extension
     has been sought) should normally be deemed well within
     the court's discretion. In other words, a district court
     seldom would be obliged to interrupt the orderly

                                 12
     proceedings of its docket to rule on so critical an issue
     where the same easily could have been presented at an
     earlier date.

Id. at 275-76 (emphasis added).

     In contrast to Edwards, the district court never issued a

scheduling order in the instant case.   Without such an order, the

prison officials were not sufficiently put on notice that a

motion filed on April 5, 2004 would be considered untimely.      The

motion was filed within three weeks of the district court’s

ruling on the last motion to dismiss, and the district court had

previously moved the trial date back to accommodate pre-trial

proceedings.7

     These facts distinguish the instant case from Edwards.

Unlike the defendants in Edwards, Defendants-Appellants did not

file their motion one day before trial and three months after the

deadline for filing pre-trial motions set in a scheduling order.

     Moore also contends that the district court’s ruling that

the prison officials’ motion was untimely can be supported by the

Eastern District of Texas’s Local Rules of Civil Procedure.      The

Local Rules provide that a party opposing a dispositive motion is



     7
      Between March 2, 2004 and March 9, 2004, with the trial
then scheduled to commence on March 16, 2004, the defendants then
in the case filed various motions to dismiss. The defendants
contemporaneously filed a motion to stay pretrial hearing and
trial setting, which the court granted, resetting the trial date
for April 13, 2004. Defendants-Appellants filed a similar motion
on April 5, 2004, along with their motion for summary judgment,
to no avail.

                                  13
provided a period of twelve days from the date the motion was

served in which to serve and file a response, with an additional

three days added pursuant to Rule 6(e) of the Federal Rules.8

See United States District Court for the Eastern District of

Texas, Local Rule CV-7(e), available at www.txed.uscourts.gov/

(as of July 31, 2005).9    The prison officials filed their motion

on April 5, 2004, and the trial was scheduled to commence on

April 13, 2004, so Moore’s response to the prison officials’

motion would have been due well after the trial had begun.

     Nevertheless, neither the Local Rules nor any order from the

district court provided the prison officials with a fixed

deadline for filing their motion for summary judgment.    Local

Rule CV-7(e) sets forth the amount of time that a party opposing


     8
         Fed. R. Civ. P. 6(e) provides:

     Whenever a party has the right or is required to do some
     act or take some proceedings within a prescribed period
     after the service of a notice or other paper upon the
     party and the notice or paper is served upon the party
     under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added
     to the prescribed period.
     9
         Local Rule CV-7(e) provides:

     A party opposing a motion has 12 days from the date the
     motion was served in which to serve and file a response
     and any supporting documents, after which the court will
     consider the submitted motion for decision. Except for
     motions served under Fed.R.Civ.P. 5(b)(2)(A), three days
     shall be added to the prescribed time period pursuant to
     Fed.R.Civ.P. 6(e). Any party may separately move for an
     order of this court lengthening or shortening the period
     within which a response may be filed.


                                  14
a motion has in which to respond, but it does not definitively

set a deadline for filing a motion for summary judgment asserting

qualified immunity.10   To the contrary, the rule itself contains

flexibility in the form of a clause allowing for the response

time period to be lengthened or shortened.   As a result, it does

not provide parties with a definitive deadline for filing

motions.   Without a definitive deadline, the prison officials

were not given sufficient warning that their motion for summary

judgment would be considered untimely if filed on April 5, 2004.

     Because the district court did not give sufficient notice to

the parties regarding the deadline for filing motions, in the

form of a scheduling order, a local rule, or otherwise, we find

that under the unique circumstances presented here, the district

court abused its discretion by ruling that the prison officials’

motion for summary judgment was untimely.

                                II.

     Ordinarily we would next consider whether the district court

erred in its alternative holding that the prison officials failed

to show that they were entitled to summary judgment on the basis


     10
       In contrast, the Western District of Texas’s Local Rules
of Civil Procedure provide a fixed date by which defendants must
assert qualified immunity. See United States District Court for
the Western District of Texas, Local Rule CV-12, available at
http://www.txwd.uscourts.gov/rules/online/default.asp (as of July
31, 2005) (requiring defendants to assert qualified immunity
within 30 calendar days of their initial pleading or, if asserted
in response to allegations made in an amended complaint, within
20 days of the date the amended complaint was filed).

                                 15
of qualified immunity.   Indeed, Appellants insist that they are

entitled to summary judgment on their qualified immunity claims.

The panel is loathe, however, to make a final determination on

the qualified immunity claims at this time.    This is because, as

explained previously, Moore did not have the opportunity to

respond to Defendants-Appellants’ motion for summary judgment and

was deprived the time to respond as provided in the rules.      This

case thus presents an unusual procedural posture.    Given this, we

will refrain from squarely addressing the merits of the prison

officials’ assertions of qualified immunity at this juncture.

However, some brief additional commentary is necessary.    On

remand, the district court should heed particular attention to

our en banc decision in Kinney v. Weaver, 367 F.3d 337 (5th Cir.

2004), of which all three members of this panel belonged to the

majority.   In Kinney, we commented that “before engaging in the

inquiry into whether the [prison] official unreasonably violated

clearly established law, we should first determine whether the

challenged conduct, viewed in the light most favorable to the

plaintiff, would actually amount to a violation of federal law in

the first place.”   367 F.3d at 550.   While the referenced

language actually was stated in the context of addressing our

standard of review, on remand, the district court must be mindful

of the specific allegations that have been brought against each

prison official, and must ask whether Moore - in light of our


                                16
precedent - has alleged conduct that expressly runs afoul of the

Constitution.   If he has not, then the qualified immunity inquiry

need go no further.   The record as presented is not pellucid as

to whether Moore has alleged conduct that is considered

constitutionally infirm; however, we need go no further, as we

believe the district court should be afforded the opportunity to

make this determination in the first instance after Moore has an

opportunity to respond to the motion for summary judgment with

whatever summary judgment arguments and summary judgment evidence

he might properly present to the District Court.   Accordingly,

the panel is of the view that this case should be remanded and

considered under proper procedures.



     VACATED AND REMANDED.




                                17
