                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                              July 2, 2003
                        FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                            No. 02-11070
                          Summary Calendar


SCOTT ROMAINE RITTER,

                           Plaintiff-Appellee,

versus

COOK, Assistant Warden, ET AL.,

                           Defendants,

WAYNE SCOTT, Director; GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                           Defendants-Appellants.

------------------------------------------------------------

SCOTT ROMAINE RITTER,

                           Plaintiff-Appellee,

versus

D. B. MCELVANEY, SR., Warden, ET AL.,

                           Defendants,

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; WAYNE SCOTT, Director, Executive,

                           Defendants-Appellants.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 1:00-CV-290-BG
                     USDC No. 1:00-CV-144-BG
                       --------------------
                           No. 02-11070
                                -2-


Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

     Scott Romaine Ritter, inmate # 731209 in the French M.

Robertson Unit of the Texas Department of Criminal Justice

(TDCJ,) filed a complaint pursuant to 42 U.S.C. § 1983 against

15 defendants including TDCJ Director Gary Johnson and TDCJ

Executive Director Wayne Scott.   Scott and Johnson appeal the

denial of summary judgment on their claim that they are entitled

to qualified immunity from Ritter’s § 1983 action.

     This court must raise, sua sponte, the issue of its own

jurisdiction, if necessary.   Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987).   “When [as here] a district court denies summary

judgment on the basis that genuine issues of material fact exist,

it has made two distinct legal conclusions:   that there are

‘genuine’ issues of fact in dispute, and that these issues are

‘material.’”   Reyes v. City of Richmond, Tex., 287 F.3d 346,

350-51 (5th Cir. 2002).   This court lacks jurisdiction to review

the district court’s conclusion that issues are “genuine,” but

has jurisdiction to review the district court’s determination

that issues are “material.”   Id. at 351.   “An officer challenges

materiality when he contends that ‘taking all the plaintiff’s




     *
        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. 02-11070
                                 -3-

factual allegations as true no violation of a clearly established

right was shown.’”   Id. (citation omitted).

     Ritter sent letters to both Scott and Johnson describing

the risk to his safety.    The magistrate judge denied summary

judgment because the evidence showed that Ritter’s letters had

been received and answered by Scott and Johnson and that they

were aware of his claim of the risk to his safety.    Scott and

Johnson argue that there is no factual dispute that they were

personally aware of Ritter’s complaints.    This is not so.   Taking

as true Ritter’s allegations that he was at risk and that Scott

and Johnson knew of the risk, it is not possible to conclude

that their response to the risk was objectively reasonable under

clearly established law.

     As Scott and Johnson are challenging the genuineness of the

factual dispute in this case, this court lacks jurisdiction over

this appeal.   See Reyes, 287 F.3d at 351-52.   Accordingly, the

appeal is DISMISSED for lack of jurisdiction and this matter is

REMANDED to the district court.
