Johnson v. Nwanko

93 F. App'x 611

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 3, 2004
• Docket: 03-10771
• Status: Unpublished

Opinion

PER CURIAM. *

Defendants appeal the denial of summary judgment; they claimed qualified immunity. Denial of qualified immunity is immediately appealable only when based on issues of law, rather than on genuine issues of material fact. See Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir.1999). “[I]f the district court concludes that the summary judgment record raises a genuine issue of material fact with respect to whether the defense of qualified immunity is applicable, then that decision is not immediately appealable.... ” Id. at 351.

The denial of qualified immunity was based on starkly differing versions of the facts surrounding the altercation between plaintiff and defendants, which were offered through competent summary judgment evidence. The denial was based on genuine issues of material fact as to the threat perceived by defendants, the need for the application of force, the relationship between the need and amount of force used, and the extent of plaintiffs injuries. Accordingly, we lack jurisdiction over this interlocutory appeal. See Palmer, 193 F.3d at 351.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.