IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Summary Calendar No. 02-60624

STEPHEN MICHAEL COMBS,

Plaintiff-Appellee,

versus

JAMES HOLMAN, Etc.; ET AL., Defendants,

NORRIS W. KENNEDY, Officially and Individually,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi (00-CV-36) -------------------- March 14, 2003

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellee Stephen Michael Combs’ motion to dismiss

Norris W. Kennedy’s appeal for lack of jurisdiction is GRANTED. we

have jurisdiction of “appeals from all final decisions of the

district courts.”

. “[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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

notwithstanding the absence of a final

judgment.” Mitchell v. Forsyth,

(1985). The

rationale of the Supreme Court in extending the collateral order

doctrine of Cohen v. Beneficial Industrial Loan Corp.,

(1949) to appeals from denials of qualified immunity was that the

“entitlement is an immunity from suit rather than a mere defense to

liability” and would be “effectively lost if a case [was]

erroneously permitted to go to trial.” Mitchell,

(italics in original). Mitchell was an appeal from a denial of

qualified immunity raised in a motion for summary judgment. A

district court’s denial of summary judgment on the issue of

qualified immunity “conclusively determines the defendant’s claim

of right not to stand trial” and that is the basis for the court’s

decision to allow an immediate appeal.

(italics in

original).

That rationale does not apply in this case. Kennedy could

have appealed the district court’s denial of summary judgment in

its order of July 18, 2001, but he did not do so. He seeks to

appeal now, after a trial on liability, but before the second stage

of these bifurcated proceedings, in which the district court will

determine, not liability for damages, which has already been

decided against Kennedy, but the amount of damages. “An order that

determines the issue of liability but leaves unresolved the

assessment of damages is not final within the meaning of section 1291.” Southern Travel Club v. Carnival Air Lines, Inc.,

(5th Cir. 1993).

The policy of the final judgment rule against piecemeal and

duplicative litigation, as embodied in

, is

offended by Kennedy’s attempted appeal in this case. Matter of

U.S. Abatement Corp.,

(5th Cir. 1994). Kennedy’s

arguments can be considered and reviewed in an appeal from any

final judgment that follows the district court’s assessment of

damages.

MOTION GRANTED; APPEAL DISMISSED.