UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-20398
ALEX REYES; VIRGINIA MARTINEZ,
Plaintiffs-Appellees,
VERSUS
CITY OF RICHMOND, TEXAS; ET AL,
Defendants,
DAN COX, Sergeant,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
March 28, 2002
Before SMITH, and DeMOSS, Circuit Judges, and DUPLANTIER,1 District
Judge.
DeMOSS, Circuit Judge:
Plaintiff Alex Reyes was shot by Defendant Dan Cox of the
Richmond Police Department. Reyes, who is now confined to a
wheelchair, sued Cox and the City of Richmond alleging violations
of Reyes’ Fourth and Fourteenth Amendment rights to be free from
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District Judge of the Eastern District of Louisiana, sitting
by designation.
the use of excessive force. See 42 U.S.C. § 1983. Plaintiff
Virginia Martinez, Reyes’ wife, also seeks damages for loss of
consortium.
Officer Cox moved for summary judgment based on qualified
immunity. The magistrate judge denied the motion, positing that
“[g]iven the widely different witness accounts of the shooting of
Plaintiff Reyes, the case simply cannot be resolved on summary
judgment.” Officer Cox appealed the magistrate’s decision to this
Court, arguing: (1) that we have jurisdiction over this
interlocutory appeal under the “collateral order doctrine,” and (2)
that, under the theory of qualified immunity, he is entitled to
summary judgment as a matter of law. Because we conclude that
Officer Cox’s “arguments on appeal depend upon portions of his
statement of facts that differ from the facts the district court
assumed,” White v. Balderama, 161 F.3d 913, 914 (5th Cir. 1998), we
dismiss Officer Cox’s appeal for lack of jurisdiction and remand to
the trial court for resolution of the parties’ claims.
I. BACKGROUND
A. The Uncontested Facts
On November 7, 1999, Officers Stephen Polinski, Brian
Culpepper, and the Defendant Officer Cox attempted to execute an
arrest warrant against Plaintiff Reyes for failure to appear on a
possession of controlled substance charge. When Reyes saw the
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officers approaching his apartment, he jumped out the window and
fled.
The same officers returned to Reyes’ apartment complex later
that same day. While there, they saw Reyes climb into the
passenger seat of a car. The officers returned to their respective
police cars to give chase. Officer Polinski and Officer Cox
followed behind Reyes’ car, while Officer Culpepper took a
different route.
A few blocks away, Reyes jumped out of the passenger side of
the car. Officer Polinski, who was closest to Reyes, also jumped
out of his car and chased the unarmed Reyes on foot between two
houses. Officer Cox observed these events, and advised Officer
Culpepper about the chase’s status. Officers Cox and Culpepper
both parked their cars on the next street over. Officer Cox claims
that before he exited his patrol car, he heard someone call out for
help. Then, according to his testimony, he followed the voice to
a backyard catty-cornered to the yard in which Reyes and Officer
Polinski were already struggling. The struggle was taking place
next to a chain-link fence on the opposite side of the other
backyard from Defendant Cox’s position.
Officer Culpepper was across the back fence from, and on the
same side of the yard as, Officers Polinski and Reyes. A civilian
witness, Jimmy Williams, was in the same backyard as Officer
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Culpepper. These are the only facts upon which all the parties’
versions agree.
B. The Disputed Facts
According to Officer Cox, when he arrived on the scene he
called out to Officer Polinski, but received no answer. Officer
Cox described the scene as well lit, but he was unable to see if
Reyes was armed. Officer Cox claims that he twice called out for
Reyes to stop, then fired two warning shots, and then fired a third
shot into Reyes’ abdomen to protect Officer Polinski. Officer Cox
also asserts that, after Reyes was shot, Reyes ran a few steps away
from Officer Polinski and then fell. He further testified that,
had Reyes already broken free of Officer Polinski’s grip and begun
to flee the scene, shooting him would be an unreasonable act.
According to Officer Polinski, he caught Reyes by his shirt
and the two struggled when Reyes tried to escape. After falling to
the ground, Officer Polinski laid on his right side to prevent
Reyes from gaining access to his firearm. He held Reyes by his
legs as Reyes continued to hit, kick, and bite Polinski. Officer
Polinski claims he only heard two shots, and that, after the second
one was fired, Reyes jumped from his grip, stumbled a few steps,
and then fell to the ground. Officer Polinski described the
backyard as dimly lit.
According to Officer Culpepper, he yelled at Reyes to get off
of Officer Polinski. He testified that Officer Polinski was the
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only officer in serious danger from Reyes. He also testified that
he only heard two gunshots, and that Reyes had stepped off Officer
Polinski and run about five steps before he was shot. His
testimony reflected his view that the threat to Officer Polinski
was over as soon as Reyes escaped his grip and attempted to flee.
In Officer Culpepper’s opinion, the backyard was not well lit.
According to Reyes, when Polinski caught up with him, he
fought in order to escape. When he escaped Polinski’s grip, he
ran. After taking about five steps, he felt the bullet hit him.
Although his appellate brief concedes that there were three shots
fired, he testified that he did not hear warning shots. Reyes also
maintains that the officers did not verbally warn him before the
shooting.
Finally, according to the witness Williams, his neighbors’ dog
was biting Officer Polinski during his scuffle with Reyes.
Williams also reported hearing three shots, but testified that the
third was fired after Reyes had broken free from Polinski’s grip
and had run at least ten feet.
The parties further dispute the evidentiary effect of Reyes’
gunshot wound. Officer Cox claims the point of entry indicates
that Reyes was not running away; Reyes argues that the wound is
consistent with his fleeing from the scene.
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C. The Magistrate Order
The parties agreed to have their claims heard by a magistrate
judge pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. PROC. 73. In
denying Officer Cox’s motion for summary judgment, the Magistrate
explained:
[T]he accounts of the five witnesses lend
themselves to at least two significantly different
fact scenarios, either of which is supported by
sufficient evidence to convince a reasonable jury
of that version’s veracity. . . .
According to one possible reading of the testimony,
Plaintiff Reyes was posing a great threat of injury
to Officer Polinski by resisting arrest. The poor
lighting in the backyard where they fought made it
difficult to tell whether Plaintiff Reyes had
access to Officer Polinski’s gun or to tell how
severely Officer Polinski was injured. Although
Plaintiff Reyes’ outstanding warrant was for a
nonviolent offense, his actions against Officer
Polinski were violent and posed an immediate danger
to Officer Polinski’s safety. Defendant Cox could
not run the risk of delaying the capture of
Plaintiff Reyes by first employing nondeadly means,
in part, because Plaintiff Reyes refused to yield
in this attack despite the officers’ warnings.
Defendant Cox shot and hit Plaintiff Reyes while
Plaintiff Reyes was in the midst of assaulting
Officer Polinski.
According to another possible version, perhaps the
closest to an opposite account, an unarmed
Plaintiff Reyes was struggling to escape from
Officer Polinski’s grasp in a well-lighted
backyard. Officer Polinski’s strong hold on
Plaintiff Reyes’ leg caused Plaintiff Reyes to kick
and stomp Officer Polinski in his effort to break
free. The homeowners’ dog joined the scuffle,
possibly biting Officer Polinski as he was lying on
the ground. Finally, Plaintiff Reyes managed to
get away from Officer Polinski and to run ten feet
before he was hit by the bullet and paralyzed.
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As a matter of law, the Magistrate concluded, these different
versions implied different verdicts, and thus summary judgment was
inappropriate.
II. JURISDICTION
This Court has jurisdiction over “all final decisions of the
district courts,” except those immediately appealable to the
Supreme Court. 28 U.S.C. § 1291. The denial of a summary judgment
is generally not a final, appealable order. However, “[u]nder the
collateral order doctrine, a small class of interlocutory orders
that (1) conclusively determine, (2) important issues, which are
separate from the merits of the action, and (3) which would be
effectively unreviewable on appeal from a final judgment, are
deemed ‘final’ for purposes of appeal.” Cantu v. Rocha, 77 F.3d
795, 802 (5th Cir. 1996).
To determine whether a denial of summary judgment based on
qualified immunity is immediately appealable, this Court looks at
the legal argument advanced. When a district court denies summary
judgment on the basis that genuine issues of material fact exist,
it has made two distinct legal conclusions: that there are
“genuine” issues of fact in dispute, and that these issues are
“material.” This Court may not review a conclusion that issues of
fact are genuine, Behrens v. Pelletier, 516 U.S. 299, 313 (1996),
but we can review a district court’s conclusion that an issue of
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law is material. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th
Cir. 2001). An officer challenges materiality when he contends
that “taking all the plaintiff’s factual allegations as true no
violation of a clearly established right was shown.” Cantu, 77
F.3d at 803.
Arguing that materiality is the only thing at issue here,
Officer Cox urges this Court to exercise jurisdiction over this
case. His brief states: “The facts are undisputed. Importantly,
even when all objective facts are viewed in a light most favorable
to the Plaintiffs, qualified immunity is clearly not overcome. The
court thus has jurisdiction. . . .”
The problem with Officer Cox’s argument is that, despite
giving lip service to the correct legal standard, his argument does
not take the facts in a light most favorable to the Plaintiffs. In
fact, significant portions of his argument assume facts different
from those assumed by the Magistrate. For example, his brief
states that two police officers “were yelling for Reyes to stop.”
Yet, the Magistrate specifically listed the presence of “the
officers’ warnings” as a genuine disputed issue of fact, and Reyes
has consistently argued that he was not warned. More
significantly, Cox’s argument assumes Reyes was either assaulting
Polinski when he was shot, or possibly, moving towards another
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officer.2 However, the Magistrate identifies “the most
significant” issue of fact as “whether Plaintiff Reyes was
assaulting Officer Polinski when Defendant Cox shot Plaintiff Reyes
or whether Plaintiff Reyes was simply fleeing capture and posing no
further serious threat.”
In essence, Cox’s appeal amounts to a challenge to the
sufficiency of the evidence cited by the Magistrate. However, this
Court has made clear that, “to the extent that [an officer’s]
arguments on appeal depend upon portions of his statement of facts
that differ from the facts the district court assumed, we would
lack jurisdiction to consider them because they would involve
challenges to the sufficiency of the evidence.” White v.
Balderama, 161 F.3d 913, 914 (5th Cir. 1998); see also Cantu, 77
F.3d at 802 (“Orders that resolve a fact-related dispute of
‘evidence sufficiency’, i.e. which facts a party may, or may not,
be able to prove at trial . . . are not immediately appealable and
must await final judgment.”).
2
Cox’s brief states that “Cox’ third shot hit Reyes, not in the
back, but just below his nipple, which demonstrates that Reyes was
not, as he alleges, running from Cox when he was shot.” He also
states, “Reyes claims that he . . . decided to flee again just as
he was shot.” Only once, in his reply brief, does Cox arguably
acknowledge the Plaintiffs’ assertion that Reyes was fleeing when
shot: ”From an objective standpoint, that Reyes may have taken a
few steps from Polinski does not mean he was no longer a threat to
the public or other officers.” However, this statement is merely
an attack on the Magistrate’s conclusion that sufficient evidence
exists for a fact finder to conclude that Reyes was fleeing and no
longer posed a threat when he was shot. This is not an argument we
can review here. Johnson v. Jones, 515 U.S. 304, 312 (1995).
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III. CONCLUSION
We find no error in the Magistrate’s decision that the fact
issues in this case preclude summary judgment. Cox’s arguments
here challenge the genuineness, rather than the materiality, of the
factual disputes in this case, which is not reviewable by
interlocutory appeal. Accordingly, we dismiss for lack of
jurisdiction and remand to the district court.
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