IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-11180
Summary Calendar
_____________________
JEFFREY L. ESTEP,
Plaintiff-Appellant,
versus
DALLAS COUNTY, TEXAS, ET AL.,
Defendants,
WILLIAM F. PEACE; CONLEY, Officer; J C QUILLEN,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 3:95-CV-799
_________________________________________________________________
August 26, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Jeffrey L. Estep appeals the district court’s grant of summary
judgment in favor of defendants William F. Peace; Officer Conley,
and J. C. Quillen. In ruling on a summary judgment motion, a court
must review the facts drawing all inferences most favorable to the
party opposing the motion. See Newell v. Oxford Management, Inc.,
912 F.2d 793, 795 (5th Cir. 1990). The district court assumed that
the initial traffic stop was properly made for speeding, although
*
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this opinion should not be published and is not precedent except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.
Estep submitted a verified response to a magistrate judge’s
interrogatory contesting that he had been speeding. Estep,
however, has abandoned this argument on appeal.
The court, however, also assumed (1) that the exchange between
Officer Peace and Estep began when Peace requested Estep’s driver
license; whereas, Estep has submitted competent summary judgment
evidence that Peace began the encounter by demanding to know
whether he had a weapon; (2) that Estep “waved” a canister of mace
in Peace’s face; whereas, Estep has submitted competent summary
judgment evidence that he merely showed Peace that he had a
canister of mace in response to the officer’s question about
whether he had any weapons; (3) that Estep then refused to answer
Peace’s question about whether he had a weapon or to cooperate with
Peace anymore; whereas, Estep has submitted competent summary
judgment evidence that he answered Peace’s questions and cooperated
with him until Officer Quillen began to search his vehicle. The
factual recitation made in the district court’s memorandum opinion
and order thus does not consider facts set forth in Estep’s
affidavit or other summary judgment evidence.
Estep’s motion to correct judgment is DENIED AS MOOT. The
case is REMANDED to the district court for reconsideration of the
summary judgment motion in the light of competent summary judgment
evidence submitted by all parties. This court expresses no opinion
on whether summary judgment would be appropriate when all factual
inferences are made in favor of Estep, and leaves the initial
2
application of the law to these facts to the district court. The
district court should consider, in addition to whether the search
was unlawful, whether such unlawfulness is actionable under § 1983.
See Bigford v. Taylor, 896 F.2d 972, 975 (5th Cir. 1990)(“[t]he
analysis of whether a warrantless search was reasonable is not the
equivalent of whether an officer participating in an unreasonable
search is entitled to qualified immunity”).
Estep also argues that the district court erred in making
various rulings on non-dispositive discovery motions and in
striking his motion for summary judgment. The district court’s
decisions in these matters are AFFIRMED. See Richardson v. Henry,
902 F.2d 414, 417 (5th Cir. 1990); Fed. R. Civ. P. 56(f).
Motion to Correct Judgment DENIED AS MOOT;
AFFIRMED in part; VACATED and REMANDED in part.
3