IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40664 Summary Calendar

TERRY L. BROWN,

Plaintiff-Appellee,

versus

JOE E. KING, Etc.; ET AL.,

Defendants,

R. A. GARCIA, Warden; WILLIAM STEPHENS, Assistant Warden; DUC VAN TRAN, DR.,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-98-CV-128 -------------------- December 12, 2001 Before DeMOSS, PARKER and DENNIS, Circuit Judges

PER CURIAM:*

R.A. Garcia, William Stephens, and Dr. Duc Van Tran appeal

from the denial of their motion for summary judgment in this

action under

brought by Texas inmate Terry

Brown. They argue that the magistrate judge erred by denying

their summary judgment motion on the merits of their qualified

immunity defense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40664 -2-

We must determine the basis of our jurisdiction, on our own

motion, if necessary. Mosley v. Cozby,

(5th

Cir. 1987). “[O]rders denying qualified immunity are immediately

appealable only if they are predicated on conclusions of law, and

not if a genuine issue of material fact precludes summary

judgment on the question of qualified immunity.” Palmer v.

Johnson,

(5th Cir. 1999). With respect to

Tran, as noted by the magistrate judge, we perceive the existence

of a material issue of fact that precludes summary judgment based

on qualified immunity. Accordingly, we DISMISS the appeal as to

Tran for want of jurisdiction.

Although the magistrate judge also noted the existence of

disputed issues of material fact as to Garcia and Stephens, these

appellants argue on appeal that as a matter of law they are

entitled to qualified immunity because they relied on the reports

and recommendations of trained grievance investigators in denying

Brown’s grievances. We agree with Garcia and Stephens that this

argument, if accepted, would render immaterial any remaining

factual disputes, and thus we have jurisdiction over their

appeal. However, after reviewing both the summary judgment

motion submitted by Garcia and Stephens as well as their reply

brief on summary judgment, we conclude that this argument was not

raised in the court below.

Because Garcia and Stephens raise this issue for the first

time on appeal, it is reviewed only for plain error. See

Highlands Ins. Co. v. National Union Fire Ins. Co.,

(5th Cir. 1994)(applying, in civil case, plain-error No. 01-40664 -3-

analysis of United States v. Olano,

(1993)). Plain

error must be clear or obvious and must affect the appellant's

substantial rights. United States v. Calverley,

(5th Cir. 1994)(en banc). In such a situation, the court

has the discretion to correct errors that seriously affect the

fairness, integrity, or public reputation of judicial

proceedings.

Garcia and Stephens admit in their brief to

this court that it is not clear whether a prison warden may have

liability for accepting the conclusion of a grievance

investigator, and thus we conclude that there has been no plain

error in the court below. We therefore decline to consider the

argument raised for the first time on appeal. Accordingly, we

AFFIRM the denial of qualified immunity as to Garcia and

Stephens.

DISMISSED IN PART AND AFFIRMED IN PART.