                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 17, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-60712
                         Summary Calendar



JONATHAN P. NEW; ROBERT E. STROUPE, II;
MICHAEL P. TROUARD; SCOTT M. WALLE;
BROCK L. WHITSON,

                                    Plaintiffs-Appellees,

versus

HORACE FLEMING, ET AL,

                                    Defendants,

RANDY JOHNSON, In His Official
and Individual Capacities,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                        USDC No. 00-CV-94
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Randy Johnson appeals the denial of his motion for summary

judgment in this action under 42 U.S.C. § 1983 and Mississippi

state law brought by the plaintiffs Jonathan P. New, Robert E.

Stroupe, Michael P. Trouard, Scott M. Walle, and Brock L.


     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-60712
                                -2-

Whitson.   He argues that the district court erred by denying his

summary judgment motion on the merits of his qualified immunity

defense.

     We must determine the basis of our jurisdiction, on our own

motion, if necessary.   Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987).   “[O]rders denying qualified immunity are immediately

appealable only if they are predicated on conclusions of law, and

not if a genuine issue of material fact precludes summary

judgment on the question of qualified immunity.”    Palmer v.

Johnson, 193 F.3d 346, 351 (5th Cir. 1999).    Because genuine

issues of material fact are disputed, precluding a determination

that the appellant should enjoy qualified immunity, we lack

jurisdiction to consider the instant appeal.    The appeal is

DISMISSED.
