Case: 12-31008 Document: 00512338081 Page: 1 Date Filed: 08/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2013
No. 12-31008 Lyle W. Cayce
Clerk
CLIFFORD D. LATHAM,
Plaintiff-Appellee
v.
MATTHEW FAULKNER, individual and in his official capacity; K.
JOHNSON, individual and in his official capacity; OFFICER CROOK,
individual and in his official capacity; CITY OF BOSSIER CITY,
Defendants-Appellants
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CV-597
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
This is an interlocutory appeal in which the Defendant officers and city
challenge the district court’s denial of their motion for summary judgment on the
basis of qualified immunity. For the reasons that follow, we DISMISS this
appeal.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-31008 Document: 00512338081 Page: 2 Date Filed: 08/12/2013
No. 12-31008
This case involves the arrest of Plaintiff-Appellee Clifford Latham at a
Louisiana casino. Latham was ejected from the casino for being disorderly due
to drunkenness. Defendant Officers Faulkner and Johnson were dispatched to
the scene. Latham alleges that Faulkner and Johnson arrested him in response
to his asking them a question. He alleges that in effecting the arrest, the officers
used excessive force resulting in an injury to his knee. Finally, he alleges that
after the arrest, Faulkner, Johnson, and Crook failed to provide adequate
medical care for his injury. Latham filed a § 1983 suit claiming, inter alia,
violations of (1) the Fourth Amendment for excessive force, (2) the First
Amendment for retaliatory false arrest and use of force, and (3) the Fourteenth
Amendment for denial of medical care. On this interlocutory appeal, Defendants
challenge the district court’s denial of summary judgment on these three claims.
In denying summary judgment, the district court stated that “genuine
disputes as to material facts remain.” We held in Kinney v. Weaver that we have
no jurisdiction to hear an interlocutory appeal where the district court denied
summary judgment based on qualified immunity, except to the extent that the
appeal turns on an issue of law. 367 F.3d 337, 346–47 (5th Cir. 2004).1
The bulk of this appeal turns on questions of fact and thus cannot be
considered by us under Kinney. The only noteworthy issue concerns Latham’s
claim that Defendants Faulkner and Johnson infringed on his First Amendment
right to free speech by conducting a retaliatory false arrest. The district court
has dismissed Latham’s false arrest claim “as precluded by the Heck doctrine,”
1
Defendants do not discuss jurisdiction on appeal. It is well established that a federal
court is not only permitted, but in fact required, to consider jurisdictional defects sua sponte.
E.g., United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (“No one has challenged
the ripeness of this case for adjudication. However, we must consider possible objections to our
Article III jurisdiction sua sponte. Every federal appellate court has a special obligation to
satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under
review, even though the parties are prepared to concede it.” (citations and internal quotation
marks omitted)).
2
Case: 12-31008 Document: 00512338081 Page: 3 Date Filed: 08/12/2013
No. 12-31008
citing Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). However, we
have no jurisdiction of that in this interlocutory appeal.
Appeal DISMISSED.
3