                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-7337



GARY NEAL SADLER,

                                              Plaintiff - Appellee,

          versus


S. K. YOUNG, Warden; JOHN M. EATON, Wallens
Ridge State Prison; TERRY W. GIVENS, Wallens
Ridge State Prison,

                                           Defendants - Appellants,


          and


M. HUTCHINSON; JOHN DOE; JANE DOE; D. TAYLOR,
Wallens Ridge State Prison; NURSE HARBER;
CORRECTIONAL OFFICER PARLIER; NURSE HOBBS,

                                                         Defendants.


Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CA-00-70581-2-JPJ))


Submitted:   November 15, 2004             Decided:   January 5, 2005


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.
Mark Ralph Davis, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellants. Gary Neal Sadler, Appellee Pro
Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

           Defendants appeal the district court’s order denying them

qualified immunity on Gary Neal Sadler’s due process claim.      We

need not consider Defendants’ argument that they are entitled to

qualified immunity from the due process claim because Sadler never

claimed they violated his right to due process; Sadler alleged only

an Eighth Amendment violation. Thus, the district court erred when

it instructed the jury on the elements of a due process violation.

See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.

1985).   We decline to exercise pendent appellate jurisdiction over

Defendants’ arguments that the district court erred in granting

Sadler judgment as a matter of law on his Eighth Amendment claim

(to which Defendants do not assert qualified immunity), because

that claim is not inextricably intertwined with the due process

claim, (to which Defendants do assert qualified immunity).      See

Taylor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996).     We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.


                                              REVERSED AND REMANDED




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