               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-60661



JUAN PAYTON,

                                             Plaintiff - Appellee,

                                v.

HINDS COUNTY, MISSISSIPPI; ET AL,

                                                       Defendants,

HINDS COUNTY, MISSISSIPPI; HINDS COUNTY SHERIFF’S
DEPARTMENT; HINDS COUNTY DETENTION CENTER; MALCOLM MCMILLIN;
TERRY PARKER, Sergeant; S. DANIELS; IVAN SMITH, Captain; ROSIE
WILSON; UNKNOWN MITCHELL, Deputy; TRICIA MAGEE; DOUGLAS JONES,
Captain; SHELBY BARLOW, Commander

                                          Defendants - Appellants.


_________________________________________________________________

          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 3:00-CV-782-LN


________________________________________________________________

                        September 23, 2002


Before DAVIS, JONES and SMITH, Circuit Judges.

PER CURIAM:*


     *
        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that this opinion should not be published and is not precedent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.
            Hinds County, the Hinds County Sheriff’s Department, the

Hinds County Detention Center, Sheriff Malcolm McMillin, Douglas

Jones, Ivan Smith, Terry Parker, Shelby Barlow, Sibyl Daniels,

Tricia    Magee-Crotwell,   Rosie   Wilson,   and   Teri   Mitchell   (“the

defendants”) appeal the denial of their motion to dismiss or

alternatively for summary judgment asserting qualified immunity

from Juan Payton’s 42 U.S.C. § 1983 and Mississippi state-law suit.

            “[A] district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an

appealable ‘final decision’ within the meaning of 28 U.S.C.               §

1291 notwithstanding the absence of a final judgment.” Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985); see Gonzales v. Dallas County,

Texas, 249 F.3d 406, 411 (5th Cir. 2001).             Hinds County, the

Sheriff’s Department, and the Detention Center cannot raise a

qualified-immunity defense.         See Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166

(1993).    The same is true for Payton’s claims against McMillin and

the other Hinds County employees in their official capacities. See

Jacobs v. West Feliciana Sheriff’s Dep’t, 228 F.3d 388, 392 (5th

Cir. 2000). Accordingly, we are without jurisdiction to review the

denial of the defendants’ summary judgment motion regarding these

claims.    Id.

            With regard to the individual defendants who appear in

their     individual    capacities,      a    defendant      invoking     a

qualified-immunity defense may not appeal a district court’s denial

                                     2
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).             The defendants have not

conceded the facts regarding Payton’s claims of use of excessive

force in the light most favorable to Payton, as is required to

obtain appellate review of the district court’s denial of summary

judgment.    See Gonzales, 249 F.3d at 411.          Material fact issues

remain as to Payton’s claims against Smith and Daniels, in their

individual     capacities;     therefore,   this   court    does     not    have

jurisdiction    to    review   the   district   court’s    denial    of    these

defendants’ claim of qualified immunity from Payton’s 42 U.S.C.

§ 1983 suit.     See Johnson, 515 U.S. at 313.

            Payton produced no facts against Nurse-deputies Mitchell

and Wilson, however, suggesting their involvement in any possible

constitutional violation other than the denial of medical care.

The only evidence in the record shows that these defendants each

saw Payton once on the first night he was in the detention center.

Each observed his swollen right hand, but he would not cooperate

with either of them in describing any problems he had.                     This

evidence is insufficient to create a fact issue concerning whether

either of these deputies was deliberately indifferent to Payton’s

serious medical needs.

            The defendants argue that the district court erred in not

granting    summary   judgment    to   McMillin,   Jones,   Barlow,       Magee-

Crotwell, and Parker because they cannot be found liable under 42

                                       3
U.S.C. § 1983 on a respondeat superior theory.            Viewing the facts

in the light most favorable to Payton, there is a fact question

whether Parker, who was present at the Detention Center, had

personal involvement in the alleged constitutional violations.              We

thus lack jurisdiction to review the district court’s denial of

qualified immunity with regard to him.           With regard to Magee-

Crotwell,   however,   Payton   offers    no   evidence    at   all   of   her

involvement in any constitutional violations; alleging her mere

presence as the booking officer is insufficient to create a genuine

issue of material fact.

            With regard to McMillin, there is a fact question as to

whether he failed to train his officers properly precluding this

court from exercising jurisdiction over the district court’s denial

of summary judgment to him on the question of qualified immunity

from 42 U.S.C. § 1983 liability.         See Thompson v. Upshur County,

Tex., 245 F.3d 447, 459 (5th Cir. 2001); Johnson, 515 U.S. at 313.

            With regard to Jones and Barlow, Payton has offered no

evidence to dispute their averment that they were not present and

are not policy makers; Payton’s only theory of Jones’s and Barlow’s

liability is thus one of respondeat superior. Therefore, Jones and

Barlow are entitled to qualified immunity.           Coleman v. Houston

Indep. Sch. Dist., 113 F.3d 528, 534-35 (5th Cir. 1997); Cantu v.

Rocha, 77 F.3d 795, 807 (5th Cir. 1996).

            The defendants also appeal the denial of their motion for

summary judgment with regard to Payton’s state law claims, arguing

                                   4
that they     are    immune    under    Mississippi    law.     Orders   denying

qualified     immunity        under    Mississippi     law     are   immediately

appealable.     Sorey v. Kellett, 849 F.2d 960, 962-63 (5th Cir.

1988).   Under MISS. CODE ANN. § 11-46-9(1)(m), the defendants are

immune because Payton was an inmate of a detention center when his

claims arose and he has alleged no facts suggesting that the

defendants were not acting within the course and scope of their

employment.    See Jones v. City of Jackson, 203 F.3d 875, 881 (5th

Cir. 2000).

            In sum, we lack jurisdiction over the district court’s

order denying summary judgment as to Hinds County, the Sheriff’s

Department,    the    Detention       Center,   the   claims   against   Sheriff

McMillin and the other Hinds County employees in their official

capacities, and the claims against Sheriff McMillin, Smith, Daniels

and Parker, in their individual capacities.               However, we reverse

the district court’s denial of summary judgment as to Wilson,

Mitchell, Magee-Crotwell, Jones and Barlow and as to Payton’s

state-law   claims.       Therefore,      the   summary-judgment      denial   is

DISMISSED IN PART, REVERSED IN PART, and REMANDED for further

proceedings consistent with this opinion.




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