UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________________
No. 98-10451 ___________________________
DARNELL JOHNSON,
Plaintiff-Appellant,
VERSUS
JEFF BRYANT, ET AL,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas (3:91-CV-1713-H)
OCTOBER 5, 1999
Before POLITZ, DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Jeff Bryant, an Ellis County Sheriff’s officer, challenges the
district court’s denial of his motion for summary judgment on the
basis of qualified immunity. Bryant argues that he is immune from
appellee’s 42 U.S.C. § 1983 action for unreasonable arrest in violation of the Fourth Amendment because (1) he was not personally
involved in appellee’s arrest and (2) because the arrest neither
violated appellee’s constitutional rights nor was objectively
unreasonable. Because material issues of genuine fact are present,
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
-1- we lack jurisdiction and therefore dismiss the appeal
I.
In August 1990, a woman reported to the Ellis County Sheriff’s
Office that a man had broken into her home and sexually assaulted
her. She described the perpetrator as a black, mustached man,
approximately 5' 8" tall and weighing approximately 130 pounds.
Her granddaughter, who also witnessed the break-in, described the
perpetrator as a “skinny” black male, about 5' 10" tall, with a
thick, curly mustache. The woman told authorities that the
perpetrator mentioned that he had served ten years in prison for
robbery.
Based on this information, Jeff Bryant, an investigator with
the Ellis County Sheriff’s Office, developed a profile of the
suspect and provided it to other Ellis County Sheriff’s officers.
The profile stated that the suspect was a 5' 8", 130-pound black
male, with a thick mustache, who had recently served a ten-year
sentence for aggravated robbery.
The following day, Ellis County Sheriff’s officers, arrested
Darnell Johnson without a warrant. Johnson alleges that Jeff
Bryant talked to officers on their cellular phones and instructed
them to make the arrest. Johnson also alleges that, at the police
station, Bryant interrogated him and then placed him in an
identification lineup. At the lineup, the victim indicated that
Johnson was not the man who had raped her. Bryant then filed an
“Affidavit of Non-Prosecution” stating that Johnson should not be
-2- prosecuted for the assault because he “was seen by complaintant
[sic] within moments after the offense took place against her and
description of clothing given, there would not have been time for
actual suspect to have changed or discarded clothing in the time
frame of this offense.” The charges against Johnson were
subsequently dropped.
On August 21, 1991, Darnell Johnson filed his original
complaint pursuant to 42 U.S.C. § 1983, alleging that Bryant and
several other county officials had violated his Fourth Amendment
right to be free from unreasonable seizures. He asserted that the
officers arrested him without a warrant and without probable cause.
The magistrate ruled that Johnson’s original complaint was
frivolous. The district court subsequently adopted this finding
and dismissed the complaint. On appeal, this court affirmed the
district court’s dismissal of the complaint against a number of
defendants but remanded Johnson’s section 1983 claims against
Bryant and another defendant, in conjunction with a related habeas
action, for a determination of whether Johnson had exhausted his
state remedies. On remand, the district court again dismissed
Johnson’s claims as frivolous. This court affirmed in part but
reversed the district court’s order that Johnson’s suit against
Bryant was frivolous. We then remanded the case for further
proceedings.
On remand, both parties filed motions for summary judgment.
Bryant argued that he did not participate in Johnson’s arrest and
therefore could not be held liable. He also argued that because he
-3- was not personally involved in the arrest, he was entitled to
qualified immunity. Johnson argued that Bryant directed his arrest
and that the police acted on an incomplete and inaccurate
description of the rapist. In response, Bryant argues that the
description was accurate, relatively complete and matched Johnson’s
physical appearance.
The magistrate judge recommended that the district court deny
both motions for summary judgement, explaining that there were
genuine issues of material fact as to whether the officers had
probable cause to arrest Johnson and as to whether Bryant had
participated in the arrest. The district court adopted the
magistrate’s findings and conclusions of law. Bryant then filed
this appeal.
II.
In general, this Court lacks jurisdiction to review a district
court’s denial of a motion for summary judgment because summary
judgment motions are not final within the meaning of 28 U.S.C. §
1291. Lemoine v. New Horizons Ranch and Ctr., Inc., 174 F.3d 629,
633 (5th Cir. 1999). Appellate courts may, however, review a
district court’s denial of summary judgment where the motion is
based on a claim of absolute or qualified immunity. See Mitchell
v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817. But this
exception is limited. As we recently explained: “We have
appellate jurisdiction to review the district court’s decision
denying summary judgment only to the extent that it turns on an
issue of law. Or said differently, our appellate jurisdiction does
-4- not allow us to review that district court’s factual findings.”
Lemoine, 174 F.3d at 633. Thus, we may review a district court’s
determination that disputed facts are material but may not
determine whether the factual dispute is genuine. Johnson v.
Jones, 515 U.S. 304, 319-320, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238
(1995).
Here, appellant argues that the district court erred in
denying his motion for summary judgment because (1) he neither
arrested nor caused the arrest of Johnson and (2) he had probable
cause to arrest Johnson. Johnson, in response, alleges that he
“was arrested by Mike Zaidle, a fellow Ellis County Sheriff’s
officer, after the officer ... had communicated with Jeff Bryant
via cellular telephone as to whether he should arrest Mr. Johnson.”
Johnson further alleges that Bryant interrogated him at the police
station and filed formal charges against him. He also alleges that
Bryant lacked probable cause to make the arrest.
The magistrate judge concluded that genuine issues of material
fact existed as to “whether or not there was probable cause for the
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________________
No. 98-10451 ___________________________
DARNELL JOHNSON,
Plaintiff-Appellant,
VERSUS
JEFF BRYANT, ET AL,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas (3:91-CV-1713-H)
OCTOBER 5, 1999
Before POLITZ, DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Jeff Bryant, an Ellis County Sheriff’s officer, challenges the
district court’s denial of his motion for summary judgment on the
basis of qualified immunity. Bryant argues that he is immune from
appellee’s 42 U.S.C. § 1983 action for unreasonable arrest in violation of the Fourth Amendment because (1) he was not personally
involved in appellee’s arrest and (2) because the arrest neither
violated appellee’s constitutional rights nor was objectively
unreasonable. Because material issues of genuine fact are present,
* 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.
-1- we lack jurisdiction and therefore dismiss the appeal
I.
In August 1990, a woman reported to the Ellis County Sheriff’s
Office that a man had broken into her home and sexually assaulted
her. She described the perpetrator as a black, mustached man,
approximately 5' 8" tall and weighing approximately 130 pounds.
Her granddaughter, who also witnessed the break-in, described the
perpetrator as a “skinny” black male, about 5' 10" tall, with a
thick, curly mustache. The woman told authorities that the
perpetrator mentioned that he had served ten years in prison for
robbery.
Based on this information, Jeff Bryant, an investigator with
the Ellis County Sheriff’s Office, developed a profile of the
suspect and provided it to other Ellis County Sheriff’s officers.
The profile stated that the suspect was a 5' 8", 130-pound black
male, with a thick mustache, who had recently served a ten-year
sentence for aggravated robbery.
The following day, Ellis County Sheriff’s officers, arrested
Darnell Johnson without a warrant. Johnson alleges that Jeff
Bryant talked to officers on their cellular phones and instructed
them to make the arrest. Johnson also alleges that, at the police
station, Bryant interrogated him and then placed him in an
identification lineup. At the lineup, the victim indicated that
Johnson was not the man who had raped her. Bryant then filed an
“Affidavit of Non-Prosecution” stating that Johnson should not be
-2- prosecuted for the assault because he “was seen by complaintant
[sic] within moments after the offense took place against her and
description of clothing given, there would not have been time for
actual suspect to have changed or discarded clothing in the time
frame of this offense.” The charges against Johnson were
subsequently dropped.
On August 21, 1991, Darnell Johnson filed his original
complaint pursuant to 42 U.S.C. § 1983, alleging that Bryant and
several other county officials had violated his Fourth Amendment
right to be free from unreasonable seizures. He asserted that the
officers arrested him without a warrant and without probable cause.
The magistrate ruled that Johnson’s original complaint was
frivolous. The district court subsequently adopted this finding
and dismissed the complaint. On appeal, this court affirmed the
district court’s dismissal of the complaint against a number of
defendants but remanded Johnson’s section 1983 claims against
Bryant and another defendant, in conjunction with a related habeas
action, for a determination of whether Johnson had exhausted his
state remedies. On remand, the district court again dismissed
Johnson’s claims as frivolous. This court affirmed in part but
reversed the district court’s order that Johnson’s suit against
Bryant was frivolous. We then remanded the case for further
proceedings.
On remand, both parties filed motions for summary judgment.
Bryant argued that he did not participate in Johnson’s arrest and
therefore could not be held liable. He also argued that because he
-3- was not personally involved in the arrest, he was entitled to
qualified immunity. Johnson argued that Bryant directed his arrest
and that the police acted on an incomplete and inaccurate
description of the rapist. In response, Bryant argues that the
description was accurate, relatively complete and matched Johnson’s
physical appearance.
The magistrate judge recommended that the district court deny
both motions for summary judgement, explaining that there were
genuine issues of material fact as to whether the officers had
probable cause to arrest Johnson and as to whether Bryant had
participated in the arrest. The district court adopted the
magistrate’s findings and conclusions of law. Bryant then filed
this appeal.
II.
In general, this Court lacks jurisdiction to review a district
court’s denial of a motion for summary judgment because summary
judgment motions are not final within the meaning of 28 U.S.C. §
1291. Lemoine v. New Horizons Ranch and Ctr., Inc., 174 F.3d 629,
633 (5th Cir. 1999). Appellate courts may, however, review a
district court’s denial of summary judgment where the motion is
based on a claim of absolute or qualified immunity. See Mitchell
v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817. But this
exception is limited. As we recently explained: “We have
appellate jurisdiction to review the district court’s decision
denying summary judgment only to the extent that it turns on an
issue of law. Or said differently, our appellate jurisdiction does
-4- not allow us to review that district court’s factual findings.”
Lemoine, 174 F.3d at 633. Thus, we may review a district court’s
determination that disputed facts are material but may not
determine whether the factual dispute is genuine. Johnson v.
Jones, 515 U.S. 304, 319-320, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238
(1995).
Here, appellant argues that the district court erred in
denying his motion for summary judgment because (1) he neither
arrested nor caused the arrest of Johnson and (2) he had probable
cause to arrest Johnson. Johnson, in response, alleges that he
“was arrested by Mike Zaidle, a fellow Ellis County Sheriff’s
officer, after the officer ... had communicated with Jeff Bryant
via cellular telephone as to whether he should arrest Mr. Johnson.”
Johnson further alleges that Bryant interrogated him at the police
station and filed formal charges against him. He also alleges that
Bryant lacked probable cause to make the arrest.
The magistrate judge concluded that genuine issues of material
fact existed as to “whether or not there was probable cause for the
arrest and whether or not defendant was involved in the arrest.”
The district court agreed and denied defendant’s motion. On
appeal, we have jurisdiction only to determine whether this factual
dispute is indeed material,174 F.3d at 633-634, but not whether a
genuine factual dispute exists as to whether Johnson directed or
participated in Bryant’s arrest. Id. at 634.
Based upon the summary judgment record, Johnson has advanced
material facts disputing Bryant’s claim that he was not involved in
-5- Johnson’s arrest. According to Johnson’s affidavit, Bryant
personally directed Ellis County Sheriff’s officers to make the
arrest. The district court found this dispute to be genuine. This
dispute is material because Johnson may be held liable both for his
personal involvement in the arrest as well as for his direct
causation of the arrest. See Anderson v. Pasadena Independent
School District, 184 F.3d 439, 443 (5th Cir. 1999)(either direct
involvement or causation sufficient to state a § 1983 claim).
Thus, we lack jurisdiction to review the district court’s
determination that a genuine factual dispute exists as to Officer
Bryant’s role in Johnson’s arrest.
III.
Bryant also argues that even if he is considered to have
participated in the arrest, he had probable cause to arrest Johnson
because his physical appearance substantially matched the suspect
profile. Police were looking for a 5' 8", 130-pound mustached
black man who had recently served a ten-year sentence for robbery.
They found Darnell Johnson, a 5' 10", 150-pound black man who had
recently served time in prison. Johnson does not dispute that his
physical appearance had some general similarities to the suspect
profile. He instead argues, however, that the profile was
generally deficient, particularly because it did not state an
estimated age of the suspect. Johnson also points out that the
police had no information about his whereabouts when the crime was
committed or any other information tying him to the crime.
The district court found that Johnson had raised a genuine
-6- factual dispute regarding whether the officers had probable cause
to make the arrest. Probable cause determinations involve a
mixture of law of fact. United States v. Wadley, 59 F.3d 510, 512
(5th Cir. 1995). When reviewing a district court’s denial of
summary judgement, our limited jurisdiction does not permit us to
review any factual determinations. Lemoine, 174 F.3d at 633.
We have noted in the past that suspect profiles and “the
sufficiency of a particular description” are largely factual
matters. United States v. Webster, 162 F.3d 308, 332 (5th Cir.
1999). Whether a particular profile, or a suspect’s similarity to
that profile, gives rise to probable cause is an inherently fact-
intensive inquiry that depending on a number of variables. Here,
the record does not reflect whether Officer Bryant knew the age of
the perpetrator, whether Johnson was substantially older or younger
than the perpetrator, or whether age was an otherwise significant
factor. As we explained in United States v. Pollack, “[t]he
sufficiency of a particular description is largely a factual
matter. What is a distinctive appearance or manner of dressing in
one location may be commonplace in another.” 739 F.2d 187, 190
(5th Cir. 1984).
We enjoy only limited jurisdiction to review a district
court’s denial of a defendant’s motion for summary judgment based
upon qualified immunity. This jurisdiction does not permit us to
engage in the type of fact-intensive inquiry needed to review the
sufficiency of a suspect profile. Accordingly, we hold that we
lack jurisdiction to review the district court’s determination that
-7- Johnson raised “genuine issues of material fact concerning whether
or not there was probable cause for the arrest.”
Conclusion
Because material issues of fact are presented we dismiss the
appeal for lack of jurisdiction.
Appeal DISMISSED.
-8-