                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                              F I L E D
                    IN THE UNITED STATES COURT OF APPEALS                      August 3, 2006

                              FOR THE FIFTH CIRCUIT                        Charles R. Fulbruge III
                                                                                   Clerk


                                     No. 05-40363


      JON ALAN ASHCRAFT

                                           Plaintiff - Appellee

                                  versus

      CAL WOOTEN, Warden, et al

                                           Defendants

      CAL WOOTEN, Warden; UPENDRA KATAGADA, Major of Building,
      Security; MORGAN LAIRD

                                           Defendants - Appellants


               Appeal from the United States District Court for
                        the Southern District of Texas
                          (USDC No. 3:02-cv-539)
      _________________________________________________________

Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*1



      *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not be published and is not precedent except under the limited circumstances set forth in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.

                                           Page 1
       Laird, Katragada, and Wooten take this interlocutory appeal from the district

court’s denial of their motion for summary judgment on the basis of qualified immunity.

For the following reasons, we dismiss this interlocutory appeal for lack of jurisdiction as

to Laird and Katragada, but reverse the denial of summary judgment as to Wooten.

1.     The denial of a motion for summary judgment based upon qualified immunity is a

       collateral order capable of immediate review. However, our jurisdiction is limited

       “to the extent that [the denial of summary judgment] turns on an issue of law.”

       Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411,

       427 (1985). “[W]e lack interlocutory jurisdiction to review the district court’s

       conclusion that the plaintiff has created a genuine issue of fact as to some matter.”

       Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004). “Whether a prison official

       had the requisite knowledge of a substantial risk is a question of fact.” Newton v.

       Black, 133 F.3d 301, 308 (5th Cir. 1998).

2.    A fact issue has been raised that Laird had knowledge of the schizophrenic attacker,

      Benton’s, history of mental illness and violent propensity by way of his position as

      the classification officer. Katragada is an assistant warden and has regularly

      served as chairman of the Unit Classification Committee. The Unit Classification

      Committee received a medical health history form describing Benton. There is also

      an issue of Katragada’s confinement of Ashcraft after the injury. We dismiss

      Laird and Katragada’s appeal for lack of jurisdiction.

3.    The record displays no evidence to warrant the claim that the warden had

                                          Page 2
knowledge of any problem with Benton or danger to Ashcraft. Appellant

Wooten is entitled to qualified immunity. We therefore reverse the district court’s

denial and grant summary judgment to Wooten.

DISMISSED IN PART and REVERSED AND RENDERED IN PART.




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