United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 05-11485
Summary Calendar
__________________________
JOSEPH DINGLER
Plaintiff-Appellee,
versus
DALLAS COUNTY SHERIFF’S OFFICE, et al;
Defendants,
OFFICER NFN AMIN, Dallas County Sheriff’s Department;
OFFICER NFN GRAY, Dallas County Sheriff’s Department;
OFFICER NFN HATCHER, Dallas County Sheriff’s Department;
OFFICER NFN HIGHTOWER, Dallas County Sheriff’s Department;
OFFICER NFN ENGLISH, Dallas County Sheriff’s Department
Defendants-Appellants.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(No. 3:02-CV-2749)
___________________________________________________
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This 42 U.S.C. § 1983 action arises from a prisoner’s pro se allegations of physical abuse at
the hands of certain prison guards. The defendant prison guards file this interlocutory 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under limited circumstances set forth in 5TH CIR. R. 47.5.4.
challenging the district court’s denial of their summary judgment motion. The guards argue that the
district court should have granted summary judgment in their favor since they were entitled to
qualified immunity; specifically, the guards argue that their alleged behavior was not so unreasonable
as to preclude a qualified immunity defense.
Because the district court’s denial of summary judgment was not a final decision, review of
this interlocutory appeal is limited. Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004). This court
“lack[s] interlocutory jurisdiction to review the district court’s conclusion that the plaintiff has created
a genuine issue of fact as to some matter.” Id. The court may, however, review whether the fact
issues are material, Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001), or whether the
defendants nonetheless are entitled to qualified immunity based upon the facts as alleged by the
plaintiff, Colston v. Barnhart, 130 F.3d 96, 98–99 (5th Cir. 1997).
The district court noted that there were factual issues as to whether each of the guards knew
of or participated in the alleged physical abuse. These issues, according to the district court,
prevented summary judgment and overcame the qualified immunity defense.1 On appeal, the guards
do not argue that the factual issues identified by the district court are immaterial. Instead, the guards
assert that, even accepting Dingler’s version of facts as true, summary judgment should have been
granted in the guards’ favor. Dingler alleges that the guards physically abused him by repeatedly
opening doors with his head while his hands were restrained and by repeatedly kicking and punching
him while he was prone and restrained on the floor, thereby causing him physical injuries. Assuming
1
The district court noted that Dinger’s assertions “complie[d] with the affidavit requirements”
and “provide[d] sufficient detail as to the description of the incident, the parties involved, and the
injuries suffered to create a genuine issue of material fact.” The district court also noted that the
guards’ affidavits “den[ied] knowledge of or participation in the most significant parts of the alleged
incident and create[d] a genuine issue of material fact.”
2
these facts are true, we cannot say that the guards would be entitled to qualified immunity.
Accordingly, we do not have appellate jurisdiction to hear this interlocutory appeal.
The interlocutory appeal is DISMISSED.
3