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

                                                FILED
                                                                August 6, 2009
                               No. 08-10585
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk
CEDRIC MICHAEL WHALEY

                                           Plaintiff-Appellee

v.

LUPE VALDEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:07-CV-1372


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Sheriff Lupe Valdez appeals the district court’s order denying her motion
for summary judgment on qualified immunity grounds in this 42 U.S.C. § 1983
case, brought by Cedric Michael Whaley, Texas prisoner # 1399010, for
constitutional deprivations which allegedly occurred while he was a pretrial
detainee at the Dallas County Jail.     Sheriff Valdez argues that Whaley’s
evidence was insufficient to demonstrate her personal involvement in the alleged




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10585

constitutional deprivations and that the district court erred in failing to conduct
a legal analysis of the objective reasonableness of her conduct.
      The denial of a motion for summary judgment based upon qualified
immunity is a collateral order capable of immediate review. Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). However, this court’s jurisdiction to review the denial
is “significantly limited,” extending to questions of law only. Kinney v. Weaver,
367 F.3d 337, 346 (5th Cir. 2004) (en banc). This court lacks jurisdiction to
review the sufficiency of Whaley’s summary judgment evidence or the district
court’s decision that a genuine factual dispute exists regarding whether Sheriff
Valdez was personally involved in the alleged constitutional violations. See id.;
see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996).
      This court does have jurisdiction to review Sheriff Valdez’s argument that
the district court erred in failing to make the purely legal determination that her
conduct, as alleged, was objectively reasonable in light of clearly established law.
See Kinney, 367 F.3d at 346. Review is limited to whether the district court
erred in assessing the legal significance of the conduct it deemed sufficiently
supported for purposes of summary judgment. See Kinney, 367 F.3d at 346.
      Sheriff Valdez’s assertion that the district court made no inquiry into the
objective reasonableness of her conduct is incorrect. The district court detailed
the parameters of the constitutional deprivations Whaley complained of,
determining that they involved clearly established rights. Implicit in the district
court’s determination that a factual dispute existed regarding Sheriff Valdez’s
personal involvement in forcing Whaley to sleep on a concrete floor, denying him
sufficient quantities of healthy food, denying him prescribed medications, and
denying him treatment for knee and stomach problems during his four months
of confinement which defeated qualified immunity is the legal conclusion that
a reasonable official in the sheriff’s position would understand that her conduct
violated Whaley’s clearly established rights. See Anderson v. Creighton, 483 U.S.
635, 640 (1987); see also Kinney, 367 F.3d at 346.

                                         2
                                 No. 08-10585

      As the district court determined, Sheriff Valdez offered no explanation for
the complained-of conduct, other than to deny her knowledge of any of the
alleged constitutional violations and to conclusionally state that she acted
objectively reasonably at all times. The sheriff did not argue below and does not
now argue that Whaley’s constitutional rights to be free from overcrowding
which forced him to sleep on a concrete floor, to adequate nutrition, and to
medicine or medical treatment were not clearly established. She similarly does
not argue that any reasonable official who was aware of Whaley’s complaints
would have ignored them, and she has therefore waived any such arguments.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Accordingly, Sheriff Valdez has not shown that the district court erred in
determining that she was not entitled to qualified immunity. The district court’s
judgment is AFFIRMED, and the case is REMANDED for further proceedings.




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