IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41255

JAMES L. HILLYER,

Plaintiff-Appellee,

versus

TDC, TEXAS DEPARTMENT OF CORRECTIONS; ET AL.,

Defendants,

ALEX ANTONIO CABRERA; THELMA GARZA; OMAR GARZA, DR.,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Southern District of Texas (98-CV-60) -------------------- December 18, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Omar Garza, M.D., and Nurses Alex Cabrera and Thelma Garza,

medical providers for the Texas Department of Criminal Justice-

Institutional Division, appeal the district court’s denial of their

motion for summary judgment based on qualified immunity. They

argue that the medical treatment they provided to inmate James

Hillyer for his complaints of abdominal pain was objectively

reasonable in light of clearly established law.

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. We must determine the basis of our jurisdiction on our own

motion if necessary. Mosley v. Cozby,

(5th Cir.

1987). Denials of summary judgment generally are not appealable

final orders.

. Under the collateral order

doctrine, “orders 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). When facts material to the question

of qualified immunity are in dispute, denial of summary judgment is

appropriate, and this court lacks jurisdiction. See Mangieri v.

Clifton,

(5th Cir. 1994).

We do not have jurisdiction to review the district court’s

denial of qualified immunity to Dr. Garza and Nurses Cabrera and

Garza. The parties have presented conflicting affidavits of

experts. The ultimate determination involves credibility, which is

a factual issue for the jury. See Anderson v. Liberty Lobby, Inc.,

(1986); Moore v. Willis Indep. Sch. Dist.,

(5th Cir. 2000); Martin v. Thomas,

(5th Cir. 1992). Because a decision cannot be made without

reference to the experts’ conflicting affidavits, there are facts

material to the question of qualified immunity in dispute. The

district court’s denial of summary judgment was therefore

appropriate, and this court lacks jurisdiction. See Mangieri,

.

2 APPEAL DISMISSED FOR LACK OF JURISDICTION.

3