                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 2, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT




    NORMAN JOE LANGFORD,

             Plaintiff-Appellee,

    v.                                                 No. 09-6283
                                                (D.C. No. 5:08-CV-00389-F)
    SHANE WYATT, Warden; BILL                          (W.D. Okla.)
    DAUGHTERY; LARRY G. MCGILL,

             Defendants-Appellants,

    and

    GRADY COUNTY CRIMINAL
    JUSTICE AUTHORITY; KIERAN
    MCMULLEN; JACK D. PORTER;
    CHRIS ANGEL; JOHN MOSLEY,

             Defendants.


                           ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Norman Joe Langford, proceeding pro se, filed a civil rights action under

42 U.S.C. § 1983 against Grady County, Oklahoma, Detention Center

Administrator Shane Wyatt and Lieutenants Bill Daughtery and Larry G. McGill.

Mr. Langford alleged that during his nearly two-year detention, mostly as a

pretrial detainee, they subjected him to unconstitutional incarceration conditions

and denied him mental health care. 1 More specifically, he asserted that (1) he was

denied drinking water, heat, clothing, and bedding for three days in November

2006 when he was housed in maximum security; (2) he was denied recreation for

nearly two years; (3) he was strapped to a restraint chair for twelve hours

following a suicide attempt and for ten of the twelve hours he was required to sit

in his own waste; and (4) he was denied medication and treatment for mental

illness for nearly two years, including the time period before and after his suicide

attempt. 2

       Defendants moved for summary judgment on the basis of qualified

immunity. The district court adopted the magistrate judge’s thorough

supplemental report and recommendation and denied summary judgment based on

qualified immunity to Administrator Wyatt on the second and fourth claims and to

Lieutenants Daughtery and McGill on all four claims. Langford v. Grady Cnty.

1
      Mr. Langford also asserted claims against other defendants. Those
defendants are not parties to this appeal.
2
      Mr. Langford asserted several other claims against the three defendants that
are not at issue in this appeal.

                                         -2-
Det. Ctr., 670 F. Supp. 2d 1213 (W.D. Okla. 2009). The court determined that

Mr. Langford had asserted sufficient facts to establish a constitutional violation

with respect to each claim and that genuine issues of material fact existed with

respect to each claim. Defendants appeal, arguing that Mr. Langford failed to

affirmatively link their actions to any constitutional violation and, even if he had

done so, he failed to show they violated his constitutional rights.

      Although the parties do not address our jurisdiction to consider this appeal,

we sua sponte consider whether we have jurisdiction. See Lowe v. Town of

Fairland, 143 F.3d 1378, 1380 (10th Cir. 1998). The law concerning our

jurisdiction over an appeal from a district court’s denial of summary judgment

based on qualified immunity is well settled.

      “A district court’s denial of a defendant’s summary judgment motion based

on qualified immunity is an immediately appealable ‘collateral order’ when the

issue appealed concerns whether certain facts demonstrate a violation of clearly

established law.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001) (citing

Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985)). But “a defendant, entitled to

invoke a qualified immunity defense, may not appeal a district court’s summary

judgment order insofar as that order determines whether or not the pretrial record

sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304,

319-20 (1995); see also Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010)

(“An appellate court lacks jurisdiction in an interlocutory qualified immunity

                                          -3-
appeal to resolve genuine disputes of fact.”). In other words, “we are not at

liberty to review a district court’s factual conclusions, such as the existence of a

genuine issue of material fact for a jury to decide, or that a plaintiff’s evidence is

sufficient to support a particular factual inference.” Zia Trust Co. ex rel. Causey

v. Montoya, 597 F.3d 1150, 1152 (10th Cir. 2010) (quotation marks omitted).

Indeed, our review must “scrupulously avoid second-guessing the district court’s

determinations regarding whether [a plaintiff] has presented evidence sufficient to

survive summary judgment.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir.

1997).

         The issues raised in this appeal rely on disputed issues of fact. Defendants

have contested only the district court’s determinations regarding the existence of

material facts and the sufficiency of Mr. Langford’s evidence. Cf. Armijo ex rel.

Armijo Sanchez v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010) (“When a

district court denies qualified immunity because of a factual dispute, that finding

is not jurisdictionally dispositive on appeal if the defendants argue that immunity

applies even under the plaintiff’s version of the facts.”) (quotation marks

omitted). Because our review would require us to second guess the district

court’s determinations of evidentiary sufficiency, we lack jurisdiction to consider

this appeal. See Gross, 245 F.3d at 1156-57.




                                           -4-
      We therefore DISMISS this appeal for lack of jurisdiction. 3



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




3
       Defendants have failed to comply with our requirement that all of the
district court docket entries be included as part of their appendix. See 10th Cir.
R. 10.3(c)(8).

                                         -5-
