     Case: 15-60665      Document: 00514015005         Page: 1    Date Filed: 06/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 15-60665                               FILED
                                  Summary Calendar                          June 1, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
ROGER JOHNSON,

                                                 Plaintiff-Appellee

v.

CAPTAIN WILLIE E. JOHNSON; OFFICER DELANIO SANDERS;
SERGEANT CARL E. MEDLOCK; SERGEANT WILLIAM H. THORNTON,

                                                 Defendants-Appellants


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:04-CV-393


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Roger Johnson, Mississippi prisoner # 59930, filed a 42 U.S.C. § 1983
complaint alleging that the defendants violated their constitutional duty to
protect him from violence at the hands of fellow inmates while he was a pretrial
detainee at the Hinds County Detention Center located in Raymond,
Mississippi (HCDC-Raymond). This is an interlocutory appeal from an order



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
      Case: 15-60665   Document: 00514015005     Page: 2   Date Filed: 06/01/2017


                                  No. 15-60665

denying the defendants’ motion for summary judgment based on qualified
immunity. The defendants challenge the quality of the summary judgment
evidence presented by Johnson and argue that they are entitled to qualified
immunity as a matter of law. Alternatively, they ask this court to exercise
appellate jurisdiction over the district court’s denial of their motion to dismiss
Johnson’s suit on limitations grounds. They also move to strike those portions
of Johnson’s appellate brief related to the denial of his motion for partial
summary judgment because he did not file a notice of cross-appeal from the
judgment denying same. That motion is granted.
I.     Summary judgment
       We have jurisdiction to review the denial of summary judgment based
on qualified immunity grounds if the denial is “predicated on conclusions of
law, and not if a genuine issue of material fact precludes summary judgment
on the question of qualified immunity.” Naylor v. State of La., Dep’t of Corr.,
123 F.3d 855, 857 (5th Cir. 1997); Hinojosa v. Livingston, 807 F.3d 657, 663
(5th Cir. 2015). We also have jurisdiction to determine whether the disputed
facts found by the district court are material. Manis v. Lawson, 585 F.3d 839,
842-43 (5th Cir. 2009). Defendants who invoke a qualified immunity defense
may not appeal the district court’s denial of summary judgment insofar as the
order determined whether the record sets forth a “genuine” issue of fact for
trial. Johnson v. Jones, 515 U.S. 304, 319-20 (1995); Manis, 585 F.3d at 842-
43.
       The rights of pretrial detainees are protected by the Fourteenth
Amendment’s Due Process Clause. Cupit v. Jones, 835 F.2d 82, 84 (5th Cir.
1987). “It is well established that prison officials have a constitutional duty to
protect prisoners from violence at the hands of their fellow inmates.” Longoria
v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S.



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825, 832-33 (1994)).    In this case, the standard of subjective deliberate
indifference enunciated in Farmer, 511 U.S. at 825, 832-33, is the measure of
culpability. See Hare v. City of Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996)
(en banc). “Deliberate indifference is an extremely high standard to meet.”
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
To establish liability, an official must know of and disregard a substantial risk
of serious harm. Id. at 755. “[T]he official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
      A.    Supervisory defendants
      The district court determined that there were disputed issues of fact
regarding whether the supervisory defendants knew of the threats to Johnson,
whether they investigated Johnson’s grievances, and whether they should
have sent Johnson to the more secure protective custody unit at Hinds County
Detention Center in Jackson, Mississippi, sooner. These disputed facts bear
on whether the supervisory defendants were deliberately indifferent to
Johnson’s safety. See Farmer, 511 U.S. at 837. Because these factual disputes
must be resolved in order to make the qualified immunity determination, they
are material.   Manis, 585 F.3d at 842-43.       Accordingly, this court lacks
jurisdiction to consider the denial of summary judgment as to the supervisory
defendants. Naylor, 123 F.3d at 857.
      B.    Officer Sanders
      In its treatment of Officer Sanders’s claims, the district court found that
there was conflicting information regarding whether Officer Sanders released
the inmate who began the attack on Johnson, whether Officer Sanders knew
Johnson was out of his cell, whether the inmate who began the attack on
Johnson was in the general population or in the protective custody area at the



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                                 No. 15-60665

time of the attack, how other inmates gained entry into the protective custody
area, whether Officer Sanders knew and was deliberately indifferent to a
defect in security, whether Officer Sanders violated procedure for releasing an
inmate from his cell, and why Officer Sanders remained at the control desk for
several minutes while the fight was ongoing. These disputed facts bear on
whether Officer Sanders was deliberately indifferent to Johnson’s safety.
See Farmer, 511 U.S. at 837. Because these factual disputes must be resolved
in order to make the qualified immunity determination, they are material.
Manis, 585 F.3d at 842-43.       Accordingly, this court lacks jurisdiction to
consider the denial of summary judgment as to Officer Sanders. Naylor, 123
F.3d at 857.
II.    Pendent appellate jurisdiction
       The denial of a statute of limitations defense is not an immediately
appealable final order; therefore, we may consider such an order only if we
exercise pendent jurisdiction. See Aldy on Behalf of Aldy v. Valmet Paper
Machinery, 74 F.3d 72, 75 (5th Cir. 1996). “Pendent appellate jurisdiction is
only proper in rare and unique circumstances where a final appealable order
is ‘inextricably intertwined’ with an unappealable order or where review of the
unappealable order is necessary to ensure meaningful review of the appealable
order.” Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998). A
statute of limitations defense is not “inextricably intertwined” with the denial
of qualified immunity, so as to give rise to pendent appellate jurisdiction.
See Hernandez v. Terrones, 397 F. App’x 954, 963-64, 975 (5th Cir. 2010).
       Based on the foregoing, we conclude that we lack jurisdiction over the
district court’s denial of the defendants’ motion to dismiss based on the statute
of limitations defense, and do not reach the merits of that claim.




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                             No. 15-60665

    APPEAL DISMISSED FOR LACK OF JURISDICTION; MOTION TO
STRIKE GRANTED.




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