IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50612
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DONALD RAY WHITE,
Plaintiff-Appellee,
v.
ARMANDO BALDERAMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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November 30, 1998
Before KING, SMITH, and PARKER, Circuit Judges.
PER CURIAM:
Defendant-appellant Armando Balderama appealed the district
court’s order denying his motion for summary judgment on the
basis of qualified immunity as to plaintiff-appellee Donald Ray
White’s claim under 42 U.S.C. § 1983. We remanded with
instructions that the district court set forth the factual
scenario that it assumed in construing the summary judgment
evidence in the light most favorable to plaintiff-appellee Donald
Ray White. See White v. Balderama, 153 F.3d 237, 238 (5th Cir.
1998). The district court has now done so. See White v.
Balderama, No. A 96-CA-499 SS (No. 97-50612) (W.D. Tex. Sept. 8,
1998) (supplemental order). In light of its new order, we
dismiss Armando Balderama’s appeal for lack of jurisdiction.
In White, we found that to the extent that Balderama’s
arguments on appeal depend upon portions of his statement of
facts that differ from the facts the district court assumed, we
would lack jurisdiction to consider them because they would
involve challenges to the sufficiency of the evidence to
establish the facts assumed by the district court. See 153 F.3d
at 242. To the extent that Balderama’s arguments on appeal do
not hinge upon such differences, however, we would possess
jurisdiction to review them because they would constitute a claim
that all of the conduct which the District Court deemed
sufficiently supported for purposes of summary judgment was
objectively reasonable. See id. The district court’s
supplemental order reveals that it found that genuine factual
issues remained as to which of the three bullets fired by
Balderama actually struck and injured White, what direction
White’s car was heading in when he failed to observe Balderama’s
order to stop, and whether Balderama acted reasonably in
continuing to shoot at White’s vehicle after the first shot.
Balderama asserts, however, that “[i]t is an indisputed
historical fact that the first shot, fired while the vehicle was
approaching Officer Balderama at a sixty (60) degree angle,
entered the driver’s side door and struck plaintiff in the right
thigh.” Based on this statement, Balderama argues on appeal that
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this initial shot was “beyond reproach,” an action for which he
is “demonstrably entitled to immunity,” and that the second and
third shots are irrelevant to the legal issue of objective
reasonableness because they did not injure White. He does not
contend that his actions would have been objectively reasonable
no matter which bullet struck White. His argument thus hinges on
portions of his statement of facts that differ from the facts
assumed by the district court. Balderama’s appeal is therefore
effectively a challenge to the genuineness of the factual issues,
and we lack jurisdiction to consider it. See id. at 240.
Accordingly, we therefore DISMISS Balderama’s appeal for lack of
jurisdiction.
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