IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51072 Summary Calendar

ERIC ADAMS,

Plaintiff-Appellee,

versus

BERNEY KESZLER, DR.; ET AL.,

Defendants,

BERNEY KESZLER, DR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CV-86 -------------------- December 19, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Eric Adams, Texas prisoner # 626162, filed this

action against Dr. Berney Keszler, unit physician of the

Connally Unit, alleging that he violated his constitutional

rights under the Eighth and Fourteenth Amendments. Adams alleged

that Dr. Keszler was deliberately indifferent to his serious

medical needs, and that Dr. Keszler subjected him to retaliatory

harassment by removal of medically indicated housing and work

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-51072 -2-

restrictions due to his good faith use of the inmate grievance

procedures and for filing civil rights complaints in federal

court. Dr. Keszler filed a motion for summary judgment based on

qualified immunity. Dr. Keszler argued that the medical records

documenting that he examined, diagnosed, and provided appropriate

treatment to Adams negated a showing of deliberate indifference.

He contends that Adams alleged merely a disagreement with the

treatment rendered.

The district court denied Dr. Keszler’s motion for summary

judgment, finding that Adams’ allegations did raise fact

questions concerning Dr. Keszler’s removal of work restrictions

without first examining Adams. The district court concluded that

Dr. Keszler was not entitled to summary judgment on whether a

constitutional violation occurred or on his entitlement to

qualified immunity. Dr. Keszler appeals the district court’s

order denying his motion for summary judgment.

District court orders denying summary judgment on the basis

of qualified immunity are immediately appealable under the

collateral order doctrine, notwithstanding their interlocutory

nature, when based on a conclusion of law. Mitchell v. Forsyth,

(1985). A defendant invoking a qualified

immunity defense may not appeal a district court’s denial of

summary judgment insofar as the order determined whether or not

the record sets forth a genuine issue of fact for trial. Johnson

v. Jones,

(1996). Orders determining “only

a question of `evidence sufficiency,' i.e., which facts a party No. 00-51072 -3-

may, or may not, be able to prove at trial,” are not based on an

issue of law and are not immediately appealable.

.

The motivation for Dr. Keszler’s actions is a fact question

to be determined at trial. Because the district court correctly

determined that there is a material factual dispute with regard

to Dr. Keszler’s actions, this court does not have jurisdiction

to review the denial of Dr. Keszler’s motion for summary

judgment. Accordingly, the appeal is DISMISSED FOR LACK OF

JURISDICTION.