                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS          August 10, 2005
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 04-11517
                           Summary Calendar


ALTON JAMES NICKLEBERRY,

                                     Plaintiff-Appellee,

versus

DANNEIL JOHNSON, ET AL.,

                                     Defendants,

NANCY PHELPS-SANDERS,

                                     Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:01-CV-1497-G
                     USDC No. 3:01-CV-2104-G
                       - - - - - - - - - -

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Nancy Phelps-Sanders, a nurse who was

assigned to the Dallas County Jail (“Jail”) at the time pertinent

to this action, has filed this interlocutory appeal from the

denial of her summary-judgment motion, on grounds of qualified

immunity, in the pro se 42 U.S.C. § 1983 civil rights action

filed by Alton James Nickleberry, who was at the pertinent time a

pretrial detainee at the Jail and who is now a Texas prisoner

(# 1105513).

     *
       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this opinion should not be published and is not precedent except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. 04-11517
                                  -2-

     In his complaint against Phelps-Sanders, Nickleberry made

the following allegations:    At the time of his arrest in

approximately July 2001, Nickleberry’s wrist was fractured, and

an ace bandage or “brace” was prescribed for him.      During a

shakedown at the Jail on or about October 7, 2001, two

correctional officers, Bilinsky and Teel, confiscated the bandage

from his cell while he was showering.       They took the bandage to

Nurse Phelps-Sanders, who told them to discard it because its

owner was not using it.   Nickleberry had removed the bandage for

his shower because the Jail had provided him nothing to protect

it from water.   He allegedly sent a “kite” to the Jail’s medical

department complaining about this incident, but Phelps-Sanders

did not respond until several weeks later, when an X-ray was

scheduled in early November 2001.    Nickleberry asserted that

these actions by Phelps-Sanders resulted in his wrist being

refractured and amounted to deliberate indifference to his

serious medical needs.

     The district court denied Phelps-Sanders’s summary judgment

motion that was based on qualified immunity, concluding that

“there are . . . many disputed facts” and that “disputes over

material fact exist.”

     Although an appellate court ordinarily does not have

jurisdiction to review a denial of summary judgment, see Palmer

v. Johnson, 196 F.3d 346, 350-51 (5th Cir. 1999), we retain

jurisdiction to determine as a matter of law whether a defendant

is entitled to qualified immunity, after accepting all of the

plaintiff’s factual allegations as true, by determining whether
                            No. 04-11517
                                 -3-

these facts show that the defendant’s conduct was objectively

reasonable under clearly established law.     Behrens v. Pelletier,

516 U.S. 299, 313 (1996); Colston v. Barnhart, 130 F.3d 96, 98-99

(5th Cir. 1997), reh’g denied, 146 F.3d 282 (5th Cir. 1998).

Although the district court concluded that “material” factual

issues remained and denied Johnson’s qualified-immunity assertion

on this basis, we may review the record in order “‘to determine

what facts the district court, in the light most favorable to the

nonmoving party, likely assumed.’”     Kinney v. Weaver, 367 F.3d

337, 346 (5th Cir.), cert. denied, 125 S. Ct. 102 (2004) (citing

Johnson v. Jones, 515 U.S. 304, 319 (1995)); see Behrens, 516

U.S. at 313.

     This court reviews de novo the grant of a motion for summary

judgment predicated on qualified immunity.     Cousin v. Small,

325 F.3d 627, 637 (5th Cir.), cert. denied, 540 U.S. 826 (2003).

Summary judgment is proper if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with any

affidavits filed in support of the motion, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.    FED. R. CIV. P.

56(c).   Government officials performing discretionary functions

are protected from civil liability under the doctrine of

qualified immunity if their conduct violates no “clearly

established statutory or constitutional rights of which a

reasonable person would have known.”     Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).
                            No. 04-11517
                                 -4-

      Federal courts review claims of qualified immunity under

a two-step analysis.    See Saucier v. Katz, 533 U.S. 194, 201

(2001).    First, a court asks whether, “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officers’ conduct violated a constitutional right?”

Id.   “If the allegations do not establish the violation of a

constitutional right, the officer is entitled to qualified

immunity. . . .   If the allegations make out a constitutional

violation, we must ask whether the right was clearly established

--that is, whether ‘it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.’”**

Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (quoting

Saucier, 533 U.S. at 201); Wilson v. Layne, 526 U.S. 603, 614

(1999) (“whether an official protected by qualified immunity may

be held personally liable for an allegedly unlawful official

action generally turns on the ‘objective legal reasonableness’

of the action, assessed in light of the legal rules that were

‘clearly established’ at the time it was taken” (internal

quotation marks and citations omitted)).

      Nickleberry’s deliberate-indifference claim against Nurse

Phelps-Sanders essentially consisted of two components:   (1) her

allegedly having directed correctional officials Bilinsky and

Teel to discard his bandage; and (2) her alleged failure to

      **
       Officials “can still be on notice that their conduct
violates clearly established law even in novel circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). “Although earlier
cases involving ‘fundamentally similar’ facts can provide
especially strong support for a conclusion that the law is
clearly established, they are not necessary to such a finding.”
Id.
                             No. 04-11517
                                  -5-

rectify this matter and respond to his subsequent request for

treatment.   With respect to the first component, Nickleberry’s

allegations, even if accepted as true, were insufficient to show

that it was “clear” to Phelps-Sanders that her “conduct was

unlawful in the situation [s]he confronted.”    Price, 256 F.3d at

369 (citation and internal quotation marks omitted).    Nickleberry

has not made specific allegations or submitted specific summary-

judgment evidence to support a showing that Phelps-Sanders was

even aware of Nickleberry’s specific medical condition or that

she should have been aware of a “substantial risk of serious

harm” relating to the discarding of the bandage.     See Wagner v.

Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000).     As Phelps-

Sanders has argued, nothing in the record suggests that

Nickleberry was prevented from immediately asking the medical

staff for another bandage.

     With respect to the alleged delay in medical care,

Nickleberry has insisted that the confiscation incident occurred

on October 7, 2001, and that he received no medical relief until

early November 2001.   Nickleberry’s own evidentiary submissions,

however, including a copy of his own grievance regarding the

alleged confiscation, firmly establish that the incident occurred

on October 24, 2001.   Nickleberry’s evidentiary submissions

reflect that he filed the grievance one day after the incident

and that an X-ray was scheduled within two days after the medical

staff learned of the incident.    Moreover, those evidentiary

submissions do not support Nickleberry’s insistence that he sent

a “kite” to the medical department regarding this matter on
                            No. 04-11517
                                 -6-

October 7, 2001.    In summary, Nickleberry’s factual allegations

are not supported by the documents he submitted in support of his

own summary-judgment response.   That evidence offers no support

for the notion that Phelps-Sanders had “subjective knowledge of

the risk of harm” faced by Nickleberry when Bilinsky and Teel

took the bandage or that Nickleberry suffered injuries relating

to this incident.    See Mace v. City of Palestine, 333 F.3d 621,

625-26 (5th Cir. 2003); Wagner, 227 F.3d at 324.

     Because Nickleberry’s speculative and conclusory factual

assertions and his own summary-judgment evidence do not show that

Phelps-Sanders violated “clearly established statutory or

constitutional rights of which a reasonable person would have

known,” Harlow, 457 U.S. at 818, we conclude that the district

court erred in rejecting Phelps-Sanders’s qualified-immunity

claim.   The judgment is REVERSED, and we REMAND with instructions

that judgment be entered in favor of Phelps-Sanders.

     Nickleberry’s motion for appointment of counsel is DENIED.

     REVERSED AND REMANDED; MOTION DENIED.
