     Case: 12-60738       Document: 00512245772         Page: 1     Date Filed: 05/17/2013




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

                                                                            FILED
                                                                           May 17, 2013

                                     No. 12-60738                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WILLIAM SKINNER,

                                                  Plaintiff–Appellee,
v.

MILTON REED, Deputy, in his individual capacity; LURENZA CLINCY,
Deputy, in her individual capacity,

                                                  Defendants–Appellants.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CV-358


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendants–Appellants Milton Reed and Lurenza Clincy (collectively, the
Deputies) filed this interlocutory appeal of the district court’s denial of their
motion for summary judgment with respect to Plaintiff–Appellee William
Skinner’s claim that the Deputies failed to protect him from inmate violence
while Skinner was held in pretrial detention at the Hinds County Detention


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                          No. 12-60738

Facility in Raymond, Mississippi. The Deputies sought summary judgment on
the basis of qualified immunity.
       We must first determine our jurisdiction over this interlocutory appeal.
“Normally, we do not have appellate jurisdiction to review a district court’s
denial of a motion for summary judgment because such [an order] is not a final
one within the meaning of 28 U.S.C. § 1291.”1 There is a narrow exception to
this rule in the context of absolute or qualified immunity.2 “In such a case, we
possess appellate jurisdiction over the interlocutory appeal because the claim in
question is separate from the underlying merits of the case and therefore fits
within the collateral order exception laid out in Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541, 546 (1949).”3 Even then, however, our jurisdiction is
circumscribed.        We may review the district court’s denial of a motion for
summary judgment on immunity grounds only to the extent that the denial
turns on an issue of law.4 Put otherwise, we may evaluate only the district
court’s conclusions regarding the materiality of the facts.5 By contrast, we may
not review a summary judgment order that “determines only a question of
‘evidence sufficiency.’”6



       1
           Lemoine v. New Horizons Ranch & Ctr., 174 F.3d 629, 633 (5th Cir. 1999).
       2
           E.g., Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392 (5th Cir. 2000).
       3
           Lemoine, 174 F.3d at 633.
       4
        E.g., Manis v. Lawson, 585 F.3d 839, 842 (5th Cir. 2009) (citing Flores v. City of
Palacios, 381 F.3d 391, 393 (5th Cir. 2004)).
       5
           E.g., id. (citing Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000)).
       6
         Johnson v. Jones, 515 U.S. 304, 313 (1995); see also id. at 308, 320 (holding that an
argument that a qualified-immunity summary-judgment denial “was wrong because the record
contained not a scintilla of evidence . . . that one or more of [the defendants] had ever struck,
punched or kicked the plaintiff, or ever observed anyone doing so” could not be considered on
interlocutory appeal (first alteration in original) (internal quotation marks omitted)).

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                                   No. 12-60738

      Each of the arguments contained in the Deputies’ initial brief in this court
is directed at the sufficiency of the evidence rather than the materiality of the
facts. We are therefore without jurisdiction to consider them in this appeal.
      The Deputies first allege that “there is no evidence . . . regarding whether
the altercation was the result of something Skinner said or did, or whether the
altercation was merely a random act that could not be foreseen by the[]
[Deputies].”   This argument is apparently directed at the district court’s
conclusion that there was a genuine issue of fact regarding “whether [the
Deputies] recognized a substantial risk to leaving Skinner in a general-
population cell without supervision long enough to suffer harm” given their
knowledge that he was in a combative state and intoxicated. Since the Deputies’
argument goes to the sufficiency of the evidence rather than the materiality of
the facts found by the district court, we have no jurisdiction to evaluate it on
interlocutory appeal.
      The Deputies next argue “there is . . . no evidence . . . that the[] [Deputies]
watched Skinner as he was in an altercation with another inmate or allowed the
altercation to occur.” This contention is apparently aimed at the district court’s
conclusion that there was a genuine issue of fact with respect to whether the
Deputies “acted immediately to protect Skinner” or instead “intentionally left
[Skinner] in a cell long enough to suffer abuse.” We are without jurisdiction to
consider this argument since it is directed at the sufficiency of the evidence.
      The Deputies finally argue that to prove his claim, Skinner must show
that “he suffered an injury caused by a substantial risk of serious harm”; they
assert that “[t]his proof of causation is lacking in the evidence.” We need not
address this contention for two reasons. First, as with the Deputies’ first two
evidence-sufficiency arguments, we have no jurisdiction to consider it on
interlocutory appeal. Second, the Deputies did not present this argument to the



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                                           No. 12-60738

district court in their motion for summary judgment. It is familiar law that
arguments not presented below are waived on appeal.7
       We acknowledge that certain of the arguments contained in the Deputies’
reply brief come closer to raising the sort of legal arguments properly considered
on interlocutory appeal. Like issues not raised below, however, arguments made
for the first time in a reply brief are waived.8
                                       *        *         *
       APPEAL DISMISSED.




       7
         E.g., State Indus. Prods. Corp. v. Beta Tech. Inc., 575 F.3d 450, 456 (5th Cir. 2009)
(citing N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996) (per
curiam)).
       8
           E.g., Linbrugger v. Abercia, 363 F.3d 537, 541 n.1 (5th Cir. 2004).

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