IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30242 Summary Calendar

OSCAR P. BERTHELOT,

Plaintiff-Appellee,

versus

RICHARD STALDER, Secretary, Department of Corrections; SHERLENE BOLER, Social Work Supervisor; MARY FACIANE, Social Worker; ED DAY, Warden; KATHLEEN MCGINNIS, Director of Nursing/Health Administrator,

Defendants-Appellants.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-2009-D - - - - - - - - - - December 18, 2001 Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The appellants appeal from the district court’s denial of

their motion for summary judgment on the basis of qualified

immunity. Appellant Richard Stalder also appeals from the

district court’ denial of his motion to dismiss the complaint

under Fed. R. Civ. P. 12(b)(6) on the basis of qualified

immunity. The appellants argue that the district court erred

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-30242 -2-

when it concluded that the plaintiff, Oscar Berthelot, had

alleged a violation of a clearly established Eighth Amendment

right, that Berthelot had suffered a serious medical need as it

related to the denial of a prosthetic leg (in the absence of

proof that it was medically necessary), that the delay in

providing the other prosthetic devices constituted deliberate

indifference, that there were genuine issues of material fact

whether their actions or inactions were objectively reasonable,

and that Berthelot had suffered any damage or injury.

“[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).

We are persuaded that there are genuine issues of material

fact as to whether the appellants’ actions or inactions with

regard to Berthelot’s circumstances constituted deliberate

indifference to a serious medical need. Accordingly, we do not

have jurisdiction to review the district court’s orders. The

appeal is therefore DISMISSED FOR LACK OF JURISDICTION.