                  United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 00-2113
                                ___________

Leo Inmon,                            *
                                      *
                   Appellee,          *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * Eastern District of Arkansas.
Arkansas Department of Correction;    *
Larry Norris, Director, ADC; Ronald   *
Dobbs, Warden ADC; Rick Toney,        *
Warden ADC; James Gibson,             *
Internal Affairs ADC,                 *
                                      *
                  Appellants.         *
                                 ___________

                          Submitted: February 16, 2001

                               Filed: April 13, 2001
                                ___________

Before BOWMAN, HEANEY and L0KEN, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.


I. BACKGROUND

      Leo Inmon, an African-American, was employed by the Arkansas Department
of Correction (ADC) beginning in 1978. In 1982, Inmon joined a discrimination
lawsuit against ADC. Pursuant to a 1988 consent decree, Inmon was promoted to an
Assistant Warden position in 1989. After a 1997 investigation by ADC’s internal
affairs division into alleged disciplinary violations, Inmon received a two-week
suspension without pay and eighteen months probation. While the initial investigation
was underway, Inmon was involved in an incident in which he allegedly choked an
inmate who was handcuffed. This incident also became the subject of an internal
affairs investigation, which concluded that Inmon had violated additional ADC
regulations. Inmon was terminated in August 1997.

        Inmon subsequently filed a three-count complaint in the district court against
ADC and a number of ADC employees, claiming his termination violated his
Fourteenth Amendment due process rights, the Arkansas Civil Rights Act, and Title VII
of the Civil Rights Act of 1964. Count Three, Inmon’s Title VII claim, contained an
allegation that the defendants “conspired to deprive [Inmon] of the equal protection of
the laws.” (App. at 10 ¶ 53.) Defendants moved for summary judgment, arguing, inter
alia, they were entitled to qualified immunity. The district court rejected the qualified
immunity claim, determining there remained a material factual dispute as to whether
Inmon had been disciplined more harshly than similarly-situated white employees. In
language invoking the Fourteenth Amendment’s Equal Protection clause, the court
concluded that “[i]f the defendants treated the plaintiff differently than similarly situated
white employees, then they violated clearly established law.” Inmon v. Arkansas
Department of Correction, No. PB-C-98-530, slip op. at 3 (E.D. Ark. April 21, 2000).
ADC and the individual defendants appeal, and we reverse.

II. DISCUSSION

       As an initial matter, we are obliged to address Inmon’s argument that we lack
jurisdiction over this interlocutory appeal. Although the contours of immediate
appellate jurisdiction over denials of qualified immunity are not entirely clear, see
generally 15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.10

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(2d ed. 1992 & Supp. 2000), we have adhered to the view that we have jurisdiction to
the extent such an appeal turns on “abstract issues of law,” Mueller v. Tinkham, 162
F.3d 999, 1002 (8th Cir. 1998).

       In their brief and initially at oral argument, appellants argued that the district
court erred in denying qualified immunity because there was no evidence to support
Inmon’s assertions that he was disciplined more harshly than similarly situated white
employees. This challenge to the sufficiency of plaintiff’s evidence, however, seems
to be precisely the sort of question that we lack jurisdiction to decide. See Lyles v.
City of Barling, 181 F.3d 914, 918 & n.3 (8th Cir. 1999).

       However, it became apparent at argument that there was a more fundamental
problem with the district court’s denial of qualified immunity: Inmon’s complaint failed
to allege the equal protection violation upon which the district court’s qualified
immunity determination was based. Although we have been unable to find precedent
addressing the jurisdictional question in precisely this context, we believe the pleading
defect identified at oral argument presents the sort of abstract legal issue, distinct from
the merits of the case, that we are empowered to decide in an appeal of this nature. Cf.
Johnson v. Jones, 515 U.S. 304, 314-15 (1995) (immediately appealable decision
involves question of law “significantly different from those that underlie the plaintiff’s
basic case”). Put another way, appellant’s evidentiary argument implicates the
genuineness of the factual dispute identified by the district court, a matter that we may
not now consider; a gap in the pleadings, however, concerns the materiality of the
dispute, which is properly considered in this type of appeal. Cf. Colston v. Barnhart,
146 F.3d 282, 284-85 (5th Cir. 1998).

       Having concluded that our exercise of jurisdiction over this appeal is proper, the
merits are relatively simple. We believe the district court erred in denying qualified
immunity based on a factual dispute that did not relate to any claim properly pleaded
by the plaintiff. Barring amendment of Inmon’s complaint, the dispute identified by the

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district court is irrelevant. Inmon’s allegation of difference in discipline along racial
lines is, of course, highly relevant to his Title VII claim against ADC, a claim that
remains viable.

       Accordingly, we reverse the district court’s denial of qualified immunity for the
individual defendants, and remand the matter for further proceedings.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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