                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 8, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-60999
                         Summary Calendar


                            GRANT AYERS

                        Plaintiff-Appellee,

                              versus

         JOSEPH THOMAS, SR., in his individual capacity,

                       Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                       USDC No. 3:05-CV-75
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellant Joseph Thomas, Sr., a police officer for the City of

Holly Springs, has filed an interlocutory appeal of the district

court’s order denying summary judgment on his qualified immunity

defense in a case involving a dispute between Thomas and the

plaintiff, Grant Ayers, over a traffic stop.

     A district court’s decision to deny qualified immunity on a

motion for summary judgment is only immediately appealable if it

turns on an issue of law, and is not immediately appealable if it

is based on a claim regarding the sufficiency of the evidence.

     *
       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this opinion should not be published and is not precedent except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. 06-60999
                                           -2-

Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). “Therefore,

if the district court concludes that the summary judgment record

raises a genuine issue of material fact with respect to whether ...

qualified       immunity     is     applicable,     then   that    decision         is   not

immediately appealable....” Id., quoting Palmer v. Johnson, 193

F.3d 346, 351 (5th Cir. 1999). The only authority Thomas cites to

the contrary is Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998),

a case in which the district court denied summary judgment without

any explanation. In this case, the district court explained its

decision       in    a   written    opinion,      concluding      that    the    evidence

presented       “clearly     establishes       fact   issues”      as    to   the    First

Amendment claims. The court deferred a decision on the Fourth

Amendment claims, noting that it was disinclined to ultimately

allow    them       to   proceed.    Even    if   this   deferral        is   assumed     to

constitute a final order, the court’s decision was also based

solely    on    whether      there    were    “triable     jury    issues       regarding

plaintiff’s Fourth Amendment claims against Thomas.” We therefore

DISMISS THE APPEAL for lack of jurisdiction.
