                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         December 8, 2006
                                         FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk
                                           ____________

                                           No. 05-20905
                                           ____________


JAMES EDWARD GUZMAN,

                               Plaintiff-Appellee,

versus

HAROLD R STOUDT, JR; ET AL

                               Defendants,

HAROLD R STOUDT, JR, Individual and Official Capacity Assistant Plant Manager Wynne
Computer Recovery; WILLIE R HILL, Individual and Official Capacity Zone 1 Supervisor Wynne
Unit Computer Recovery,

                               Defendants-Appellants.


                            Appeal from the United States District Court
                                for the Southern District of Texas
                                          4:04-CV-1915



Before GARZA, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

         James Edward Guzman (“Guzman”), a prisoner acting pro se, brought a 42 U.S.C. § 1983

suit against prison guards Harold R. Stoudt, Jr. (“Stoudt”), Willie R. Hill (“Hill”), and James C. Davis




         *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
(“Davis”), alleging retaliation for the exercise of his rights under the First Amendment. Stoudt and

Hill (collectively, “Appellants”) file this interlocutory appeal challenging the district court’s denial of

their summary judgment motion, which was premised on qualified immunity.1 Appellants argue that

the district court should have granted summary judgment in their favor because Guzman failed to

meet his burden under the first prong of the qualified immunity analysis.2 Appellants do not dispute

that the right to be free from retaliation is clearly established; instead, they argue that “[t]here is no

legally sufficient evidentiary basis to support Guzman’s claim that [Appellants] retaliated against him

for exercising his First Amendment rights” and that Guzman “has not set forth evidence that satisfies

each of the elements necessary to substantiate a retaliation claim.”

        We must first address our jurisdiction to hear this appeal. Although we ordinarily do not have

jurisdiction to review a denial of a summary judgment, a district court’s order denying qualified

immunity is immediately appealable to the extent it turns on an issue of law. Gobert v. Caldwell, 463

F.3d 339, 344 (5th Cir. 2006); Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999). A district

court’s decision to deny qualified immunity is not appealable, however, if it is “based on a claim

regarding the sufficiency of the evidence.” Palmer, 193 F.3d at 350-51. If, for example, the

defendant argues that, contrary to the district court’s determination, there is insufficient evidence in



        1
         The district court dismissed without prejudice Guzman’s claims against Davis for failure to
exhaust his administrative remedies. Accordingly, Davis is not a party to this appeal.
        2
            To determine whether an official is entitled to qualified immunity, courts engage in a two-
part analysis. McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc). First,
the court asks whether the plaintiff has alleged a violation of a clearly established constitutional right.
Id. at 322-23. If so, the court must then decide whether the defendant’s conduct was objectively
reasonable in light of the clearly established law at the time of the incident. Id. at 323. A government
official is entitled to qualified immunity if the plaintiff failed to state a constitutional claim or if the
defendant’s alleged conduct was objectively reasonable.

                                                     2
the record to support the plaintiff’s version of the facts, we must dismiss the appeal for lack of

jurisdiction. See Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc) (“[I]n an

interlocutory appeal we cannot challenge the district court’s assessments regarding the sufficiency

of the evidence))that is, the question [of] whether there is enough evidence in the record for a jury

to conclude that certain facts are true.”); Palmer, 193 F.3d at 351 (“[O]n this interlocutory appeal,

we do not review . . . the district court’s assessment of what facts are established by or inferable from

the evidence.”). Therefore, we have jurisdiction only to determine whether, viewing all of the facts

in the light most favorable to Guzman, Appellants are entitled to qualified immunity as a matter of

law; we do not have jurisdiction to determine whether the evidence is sufficient to support Guzman’s

version of the facts.

        On appeal, Appellants do not argue that the district court “erred in assessing the legal

significance of the conduct that the district court deemed sufficiently supported for purposes of

summary judgment.” Kinney, 367 F.3d at 348. Nor do they argue that, even accepting Guzman’s

factual allegations as true, their conduct does not constitute retaliation and was objectively

reasonable. See Gobert, 463 F.3d at 345. Nor do they argue that the district court improperly

applied the summary judgment standard of Federal Rule of Civil Procedure 56 in analyzing their

qualified immunity defense. Instead, their arguments are, in essence, that Guzman has not set forth

sufficient evidence on each element of his retaliation claim; that certain of Guzman’s factual

allegations are not supported by and/or are contradicted by the summary judgment record; that the

summary judgment record actually supports Appellants’ version of the facts; and that, under

Appellants’ version of the facts, their conduct was objectively reasonable. In other words, the focus

of Appellants’ brief is on attacking the sufficiency of the evidence, an argument that we lack appellate


                                                   3
jurisdiction to consider. See Kinney, 367 F.3d at 348; Palmer, 193 F.3d at 351; see also Behrens v.

Pelletier, 516 U.S. 299, 313, 116 S. Ct. 834, 842 (1999) (“[D]eterminations of evidentiarysufficiency

at summary judgment are not immediately appealable merely because they happen to arise in a

qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than

whether the evidence could support a finding that particular conduct occurred, the question decided

is not truly ‘separable’ from the plaintiff’s claim, and hence there is no ‘final decision[.]’”)

(interpreting Johnson v. Jones, 515 U.S. 304, 313-18, 115 S. Ct. 2151, 2156-58 (1995)); Mitchell

v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985) (“An appellate court reviewing the

denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff’s version

of the facts, nor even determine whether the plaintiff’s allegations actually state a claim.”). We

therefore conclude that we do not have appellate jurisdiction over this appeal.

       This interlocutory appeal is DISMISSED.




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