United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 3, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10771
Summary Calendar
KEVIN BERNARD JOHNSON,
Plaintiff-Appellee,
versus
NFN NWANKO, Jailer, 1st Watch, Dallas County Sheriff’s
Department; NFN SHIDERLY, Jailer, 1st Watch, Dallas County
Sheriff’s Department,
Defendant-Appellant.
Appeal from the United States District Court
for the Norther District of Texas
(3:02-CV-01736-BF-R)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
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
*
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this opinion should not be published and is not precedent except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.
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 plaintiff’s injuries.
Accordingly, we lack jurisdiction over this interlocutory appeal.
See Palmer, 193 F.3d at 351.
DISMISSED
2