Gipson v. Williamson

253 F. App'x 461

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 8, 2007
• Docket: 06-61034
• Status: Unpublished

Opinion

PER CURIAM: *

James Alton Gipson, Mississippi prisoner # 21821, filed a 42 U.S.C. § 1983 complaint in which he asserted, inter alia, an excessive force claim against Rocky Williamson, Derrick Mingo, and Alando Sellers, correctional officers at the Marion/Walthall Correctional Facility (MWCF). Williamson, Mingo, and Sellers now appeal the district court’s rejection of the qualified immunity defense asserted in their motion for summary judgment. See Hampton v. Oktibbeha County Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir.2007).

The district court’s finding that there was insufficient evidence in the record to analyze the issue of the reasonableness of the appellants’ conduct determined only a question of “evidence sufficiency.” See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). As such, it is not a final, appealable order. See id. “Unlike denials of qualified immunity which are immediately appealable because they turn on an issue of law,” Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir.1987) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), the appellants’ immunity defense turns on the factual issue “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.” Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir.1993) (internal quotation marks and footnote citations omitted). As the presence of a genuine issue of material fact regarding qualified immunity precludes this court from exercising jurisdiction, this appeal must be dismissed. Johnson, 515 U.S. at 313-20, 115 S.Ct. 2151.

APPEAL DISMISSED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.