IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2007
No. 06-61034
Summary Calendar Charles R. Fulbruge III
Clerk
JAMES ALTON GIPSON
Plaintiff-Appellee
v.
ROCKY WILLIAMSON, Officer; DERRICK MINGO; ALANDO SELLERS,
Officer
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:04-CV-00213
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
James Alton Gipson, Mississippi prisoner # 21821, filed a 42 U.S.C. § 1983
complaint in which he asserted, inter alia, an excessive force claim against
Rocky Williamson, Derrick Mingo, and Alando Sellers, correctional officers at the
Marion/Walthall Correctional Facility (MWCF). Williamson, Mingo, and Sellers
now appeal the district court’s rejection of the qualified immunity defense
*
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should not be published and is not precedent except under the limited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.
No. 06-61034
asserted in their motion for summary judgment. See Hampton v. Oktibbeha
County Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).
The district court’s finding that there was insufficient evidence in the
record to analyze the issue of the reasonableness of the appellants’ conduct
determined only a question of “evidence sufficiency.” See Johnson v. Jones, 515
U.S. 304, 313 (1995). As such, it is not a final, appealable order. See id. “Unlike
denials of qualified immunity which are immediately appealable because they
turn on an issue of law,” Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir. 1987)
(citing Mitchell v. Forsyth, 472 U.S. 511 (1985)), the appellants’ immunity
defense turns on the factual issue “whether force was applied in a good faith
effort to maintain or restore discipline, or maliciously and sadistically for the
very purpose of causing harm.” Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th
Cir. 1993) (internal quotation marks and footnote citations omitted). As the
presence of a genuine issue of material fact regarding qualified immunity
precludes this court from exercising jurisdiction, this appeal must be dismissed.
Johnson, 515 U.S. at 313-20.
APPEAL DISMISSED.
2