Case: 22-60587 Document: 00516720503 Page: 1 Date Filed: 04/21/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60587
Summary Calendar FILED
____________ April 21, 2023
Lyle W. Cayce
Martha Dee, Clerk
Plaintiff—Appellee,
versus
Donald Gater, in his Individual and Official Capacity,
Defendant—Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CV-752
______________________________
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam: *
Defendant-Appellant, Donald Gater, appeals the district court’s
order denying his motion for judgment on the pleadings, or in the alternative,
motion for summary judgment based on qualified immunity. As set forth
below, our jurisdiction over the denial of qualified immunity on summary
judgment is limited. Because this appeal challenges the genuineness of a fact
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60587
issue, which we are prohibited from reviewing, we must DISMISS it for
lack of jurisdiction.
I.
Plaintiff-Appellee, Martha Dee, and Gater were both employed by the
Jackson Police Department (JPD) in the Investigative Division. Gater was a
Commander in the division, and Dee was a detective. Dee alleges that on
April 2, 2019, she was in the JPD building assisting another detective with a
homicide investigation. She further alleges that when she and the other
detective were leaving to perform investigatory work, Gater approached
them in the hallway. She contends Gater asked the other detective a
question, but when the other detective did not answer, she responded
instead. Gater then told Dee, “I was not talking to you.” Dee explained that
she responded to Gater’s question because she knew the answer. Dee
maintains that Gater then pulled out his loaded service revolver and pointed
it directly at her forehead. Gater then returned the firearm to its holster and
stated, “I’m sorry. I shouldn’t have done that.”
Gater denies he pointed his service revolver at Dee. He agrees that he
approached the detectives, and that he spoke to them. Specifically, he
contends that he talked to them about weapon retention and pulled out his
firearm to demonstrate “firearm retention issues,” but that he never pointed
a firearm at Dee.
Dee thereafter filed suit against Gater, as well as against the City of
Jackson and its police chief. 1 She alleged that Gater and the police chief were
at all relevant times “acting under the color of state law.” She asserted
claims of sex discrimination in the workplace in violation of the Equal
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1
The City and the police chief were granted summary judgment dismissing
Plaintiff’s claims against them. Those claims are not at issue in this appeal.
2
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No. 22-60587
Protection Clause and Title VII, disability discrimination in violation of the
Americans with Disabilities Act, and unlawful seizure and excessive force
under 42 U.S.C. § 1983.
Gater filed a motion under Federal Rule of Civil Procedure 12(c) for
judgment on the pleadings, or in the alternative, for summary judgment based
on qualified immunity as to the § 1983 claims. Gater argued that Dee did not
sufficiently plead any cognizable action against him, but just “threadbare
allegations that Gater seized Dee when he pointed his service weapon at
her.” In the alternative, Gater asserted that he was entitled to qualified
immunity because Dee testified that she was not under arrest at any point
during the incident, and she described no injury from any alleged excessive
use of force.
As the district court explained, because the parties presented evidence
outside the pleadings, and that evidence was not excluded, the court was
required to treat Gater’s motion “as one for summary judgment under Rule
56.” 2 The district court determined that a genuine dispute of material fact
existed as to whether Dee was seized as contemplated by the Fourth
Amendment. Specifically, the court determined that Dee’s version of the
facts supports that a jury could conclude a reasonable person felt seized,
while Gater’s version supports the opposite conclusion. The district court
concluded: “A jury must weigh the evidence and credibility of the witnesses
to determine whether qualified immunity applies.” The district court also
determined that based on the parties’ differing accounts of the incident, a
genuine dispute of material fact also existed as to Dee’s excessive force claim.
Based on these findings, the district court denied Gater’s motion for
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2
See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.”).
3
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No. 22-60587
summary judgment based on qualified immunity. Gater filed a timely notice
of appeal.
II.
“The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine to the
extent that it turns on an issue of law.” 3 “Where the district court
determines that genuine issues of material fact preclude a determination of
qualified immunity, we have jurisdiction only to address the legal question of
whether the genuinely disputed factual issues are material for the purposes
of summary judgment.” 4 “We have no jurisdiction to consider the
correctness of the plaintiff’s version of the facts and cannot review the
district court’s factual determination that a genuine factual dispute exists.” 5
As he did in the district court, Gater argues that he did not seize Dee,
and that both parties testified that no arrest occurred. Gater further argues
that because Dee was not seized, then no excessive force could have been
used. However, as the district court noted, a seizure occurs when “a
reasonable person would have believed that [she] was not free to leave.” 6 We
agree with the district court that in light of the parties’ varying accounts,
there is a genuine dispute whether a reasonable person would have believed
she was free to leave. As noted above, we lack jurisdiction to consider Gater’s
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3
Ducksworth v. Landrum, 62 F.4th 209, 212 (5th Cir. 2023) (internal quotation
marks and citation omitted).
4
Id. (citation omitted).
5
Id. (citations omitted).
6
See United States v. Mendenhall, 446 U.S. 544, 554 (1980).
4
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appeal of the genuineness of the district court’s factual determinations. 7
Therefore, we must dismiss this appeal.
Citing to a case from the Seventh Circuit, Gater argues that “[t]his
was an action between two co-workers. It was not an arrest or use of force
situation.” While our circuit has addressed similar arguments in the context
of whether a law enforcement officer was “acting under color of state law”
for purposes of § 1983, 8 we decline to address this issue for the first time on
appeal. 9
III.
Based on the foregoing, we DISMISS this appeal for lack of
jurisdiction.
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7
Ducksworth, 62 F.4th at 213.
8
See Townsend v. Moya, 291 F.3d 859, 860 (5th Cir. 2002) (holding that a prison
guard did not act under color of law when he stabbed an inmate during a game of horseplay
unrelated to the guard’s official duties).
9
See Frederking v. Cincinnati Ins. Co., 929 F.3d 195, 200 n.2 (5th Cir. 2019) (“The
district court did not reach these issues. We decline to address them for the first time on
appeal.”).
5