UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41361
Summary Calendar
MARIA GUAJARDO, Individually, on behalf of the estate of Juan Jose
Guajardo and as next friend of Thomas Guajardo, III, Cynthia
Guajardo and Caroline Guajardo, minor children,
Plaintiff-Appellee,
VERSUS
CITY OF BROWNSVILLE, et al.,
Defendants,
EDUARDO TREVIÑO, Individually and in his official capacity;
ANA HERNANDEZ, Individually and in her official capacity,
Defendants-Appellants,
Appeal from the United States District Court
For the Southern District of Texas
USDC No. B-97-CV-215
October 16, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Eduardo Treviño and Ana Hernandez appeal the district court’s
denial of their summary judgment motion based on qualified
immunity. An order denying qualified immunity is immediately
*
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this opinion should not be published and is not precedent except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.
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appealable when based on conclusions of law rather than the
presence of a genuine issue of contested material fact. See Palmer
v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999). However, “if 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 district court’s denial of summary judgment as to Treviño
was based on starkly differing versions of the facts surrounding
the altercation that preceded the death of Juan José Guajardo, a
pretrial detainee, which were offered through competent summary
judgment evidence. The denial of qualified immunity as to Treviño
was based on a genuine issue of material fact as to whether Treviño
exerted force against Guajardo “‘in a good faith effort to maintain
or restore discipline, or maliciously and sadistically to cause
harm.’” Valencia v. Wiggins, 981 F.2d 1440, 1446-47 (5th Cir.)
(quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992) (providing a
standard for determining whether force used was constitutionally
excessive)), cert. denied, 509 U.S. 905 (1993). Because the denial
of qualified immunity as to Treviño was based on a genuine issue of
material fact rather than a question of law, this court does not
have jurisdiction over Treviño’s interlocutory appeal. His appeal
is DISMISSED. See Palmer, 193 F.3d at 351.
On the other hand, appellate jurisdiction is not precluded
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simply because the denial of a summary judgment based on qualified
immunity contains a statement that “material issues of fact
remain.” Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996) (quoting
Behrens v. Pelletier, 516 U.S. 299, 312 (1996)). This court
possesses jurisdiction to “‘take as given, the facts that the
district court assumed when it denied summary judgment’ and
determine whether these facts state a claim under clearly
established law.” Nerren v. Livingston Police Dep’t, 86 F.3d 469,
472 (5th Cir. 1996) (quoting Johnson v. Jones, 515 U.S. 304, 319
(1995)); see also Cantu, 77 F.3d at 803. Further, “where the
district court does not identify those factual issues as to which
it believes genuine issues remain, an appellate court is permitted
to go behind the district court’s determination and conduct an
analysis of the summary judgment record to determine what issues of
fact the district court probably considered genuine.” Colston v.
Barnhart, 146 F.3d 282, 285 (5th Cir.), cert. denied, 525 U.S. 1054
(1998).
The magistrate judge’s report and recommendation adopted by
the district court states that a bystanding officer such as
Hernandez has the duty to “take reasonable measures to protect a
suspect from another’s use of force.” Snyder v. Trepagnier, 142
F.3d 791, 801 n.11 (5th Cir. 1998); see Hale v. Townley, 45 F.3d
914, 919 (5th Cir. 1995). However, the report and recommendation
concludes only that:
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With regard to Officer Hernandez, Garcia [an inmate
witness] testified that during the alleged incident he
heard Officer Hernandez call to Officer Treviño to “stop
it” . . . . Further, Officer Hernandez testified that
she and Officer Treviño should remove Guajardo’s
handcuffs, call their supervisor and call EMS. . . . A
complete reading of this page reveals that EMS was in
fact summoned almost immediately after Guajardo started
having difficulty breathing.
The report and recommendation concludes that substantial
differences in the stories told by the witnesses precludes a
credibility determination, thus precluding summary judgment, but
does not cite additional evidence nor articulate a clear legal
conclusion as to how Hernandez’s actions could result in her
liability.
This court has jurisdiction over Hernandez’s appeal because we
may determine whether the facts assumed by the district court
indicate a violation of clearly established law. See Nerren, 86
F.3d at 472. The district court erred in not finding any contested
issue of fact to be material to Hernandez’s entitlement to
qualified immunity. Her appeal involves only the legal question
whether the district court’s factual findings, the plaintiff’s
allegations, and the summary judgment evidence viewed in the light
most favorable to the plaintiff show that she violated clearly
established law against using excessive force in an objectively
unreasonable manner.
The undisputed facts show that Hernandez first saw the
altercation after it had begun; that she did not know exactly what
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had happened that she went to the aid of Treviño, who seemed to be
in trouble, by helping him get Guajardo on the floor and
handcuffed; and that she sought medical assistance for Guajardo
when she observed him in distress. These facts undermine any claim
that Hernandez intended to violate Guajardo’s constitutional
rights. But see Hale, 45 F.3d at 919 (denying summary judgment on
qualified immunity for an officer who laughed and encouraged an
officer using excessive force); Harris v. Chanclor, 537 F.2d 203,
205-06 (5th Cir. 1976) (upholding liability of a jail officer who
stood by and watched a vicious beating of a detainee without
objection and intervention, then refused to summon help for the
detainee).
Moreover, even assuming Hernandez violated a clearly
established constitutional right of Guajardo, the findings,
allegations, and undisputed evidence show that Hernandez’s conduct
was objectively reasonable. Cf. Anderson v. Creighton, 483 U.S.
635, 641 (1987). The plaintiff does not explain how Hernandez’s
actions constituted excessive force nor does she suggest that her
actions were objectively unreasonable. In light of the evidence,
a reasonable officer could have believed that Hernandez’s use of
force was lawful.
The district court’s denial of summary judgment as to Ana
Hernandez’s qualified immunity is REVERSED.