IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40709 Summary Calendar

CARMEN DUGAN, Individually and as next friend of Jane B., a minor,

Plaintiff-Appellee,

versus

HARRISON COUNTY, TEXAS; PATRICK A. JOHNSON,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-187

January 3, 2003

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

Patrick Johnson appeals the district court’s summary judgment

ruling denying him qualified and official immunity from the

plaintiff’s

and state law claims. The denial of

a motion for summary judgment based on qualified immunity is

immediately appealable only when based on an issue of law.

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Rodriguez v. Neeley,

(5th Cir. 1999). Orders

determining “only a question of ‘evidence sufficiency,’ i.e., which

facts a party may, or may not, be able to prove at trial,” are not

based on an issue of law and are not immediately appealable.

Johnson v. Jones,

(1995).

Insofar as Johnson challenges the district court’s legal

determination that federal law clearly established that Jane B.’s

custodial status entitled her the protections of the Fourteenth and

Eighth Amendments during her stay in the S.T.A.R. boot camp, he

does so for the first time on appeal. Because refusing to address

Johnson’s qualified immunity argument on interlocutory appeal will

not result in grave injustice, we decline to address that argument

at this time. See Kelly v. Foti,

(5th Cir. 1996).

Johnson’s remaining appellate arguments challenge the district

court’s determination that Jane B. adduced sufficient evidence to

raise a genuine issue of material fact suggesting that Johnson’s

conduct was objectively unreasonable. Johnson’s remaining

arguments, therefore, do not challenge an appealable final order,

and we accordingly lack jurisdiction to review them. See Reyes v.

City of Richmond,

(5th Cir. 2002); Cantu v.

Rocha,

(5th Cir. 1996) (orders premised on the

denial of qualified immunity under Texas law are appealable in

federal court to the same extent as district court orders premised

on the denial of federal law immunity).

2 APPEAL DISMISSED.

3