1 District Judge of the Eastern District of Louisiana, sitting

by designation. 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 from2

the use of excessive force. S ee 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 qua lified

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, a rguing: (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 judgm ent 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 the3

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

f ollowed 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 c hase’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 Officer4

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 Po linski, 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 the5

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 befor e he was shot. His

t estimony reflected his view that the threat to Officer Polin ski

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

f ought 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 w ound is

consistent with his fleeing from the scene.6

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 F ED

. R. C IV

. P ROC . 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 whic h 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 t o 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.

D efendant Cox shot and hit Plaintiff Reyes w hile

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 h is 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.7

As a matter of law, the Magis trate 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,” exc ept 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) impo rtant issues, which are

separate fromthe 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 summar y 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 distric t court’s conclusion that an issue of8

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 al legations as true no

violation of a clearly established right was shown.” C antu

, 77

F.3d at 803.

Arguing that materiality is the only thing at issue here,

Officer Cox urges this Court to exerc ise 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 another2 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, runni ng 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).

9 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 evid ence.” W hite v.

Ba lderama , 161 F.3d 913, 914 (5th Cir. 1998); s ee 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.”).10

III. CONCLUSION

We find no error in the Magistrate’s decision that the fact

issues in this case preclude summary j udgment. Cox’s arguments

here challenge the genuineness, rather than the materiality, of the

factual disputes in this case, which is not reviewable by

interlocutory a ppeal. Accordingly, we dismiss for lack of

jurisdiction and remand to the district court.