UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 97-30793 Summary Calendar ____________________

LACAL WILSON,

Plaintiff-Appellee,

versus

LOREN McELVEN, PAROLE OFFICER; LOUISIANA PAROLE BOARD MEMBERS,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana UDC No. 95-CV-1749

March 26, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Parole Officer Loren McElven and members of the Louisiana

Parole Board have filed an interlocutory appeal of the magistrate

judge’s denial of their motion to dismiss based on qualified and

absolute immunity. They contend that the magistrate judge’s denial

of their motion as duplicative of other pending motions in the

action, and the magistrate judge’s refusal to rule on their

immunity defenses prior to trial, constitute an effective denial of

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. their immunity defenses and are forcing them to prepare for trial

without the benefit of those defenses.

Of course, we must examine the basis of our jurisdiction on

our own motion if necessary. See, e.g. Mosley v. Cozby,

(5th Cir. 1987). “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

notwithstanding the absence of a final judgment.” Mitchell

v. Forsyth,

(1985). Along this line, the refusal

to rule until trial on a qualified immunity claim is also an

appealable final decision. See Helton v. Clements,

(5th Cir. 1986).

The magistrate judge did not refuse to rule on the qualified

and absolute immunity claims, but instead, delayed ruling on the

pending motions until the defendants had supplemented the record

with additional documents. In fact, the magistrate judge stated

that he anticipated ruling on the motions prior to trial, including

the defendants’ defenses of absolute and qualified immunity, and

that those defenses were preserved. The magistrate judge has

already granted absolute immunity to Loren McElven and the Parole

Board members in their official capacitates.

The magistrate judge has also expressly limited the trial, for

which there is a setting, to the issue of Wilson’s claim that

McElven threatened to have Wilson killed and acted upon those

- 2 - threats by arranging to have an inmate fight Wilson. The

magistrate judge denied McElven qualified immunity on this claim

due to a genuine issue of material fact. In this interlocutory

appeal, the defendants do not expressly challenge this denial of

qualified immunity. Although they contend that Wilson did not

state a viable constitutional injury regarding McElven’s mere

threats against Wilson, the defendants do not challenge the

magistrate judge’s determination that there existed a material fact

issue as to whether McElven arranged to have an inmate assault

Wilson upon his return to prison. The magistrate judge did not set

for trial any of Wilson’s claims against the Parole Board members

or Wilson’s claims against McElven of detainer and arrest.

The magistrate judge has not refused or failed to timely

address the defendants’ absolute and qualified immunity claims.

Accordingly, the appeal of the denial of the motion to dismiss as

duplicative is not an appealable final decision over which we have

jurisdiction. See Edwards v. Cass County, Tex.,

(5th Cir. 1990). Consequently, the appeal is DISMISSED for lack of

jurisdiction.

Wilson’s motions for appointment of counsel and to supplement

his brief on appeal are DENIED.

APPEAL DISMISSED; MOTIONS DENIED

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