* Pursuant to 5 T H C I R

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-41361

Summary Calendar

MARIA GUAJARDO, Individually, on behalf of the estate of Juan Jose

Guajardo and as next friend of Thomas Guajardo, III, Cynthia

Guajardo and Caroline Guajardo, minor children,

Plaintiff-Appellee,

VERSUS

CITY OF BROWNSVILLE, et al.,

Defendants,

EDUARDO TREVIÑO, Individually and in his official capacity;

ANA HERNANDEZ, Individually and in her official capacity,

Defendants-Appellants,

Appeal from the United States District Court

For the Southern District of Texas

USDC No. B-97-CV-215

October 16, 2000

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM: *

Eduardo Treviño and Ana Hernandez appeal the district court’s

denial of their summary judgment motion bas ed on qualified

immunity. An order denying qualified immunity is immediatelyNo. 99-41361

-2-

appealable when based on conclusions of law rather than the

presence of a genuine issue of contested material fact. S ee Palmer

v. Johnson

, 193 F.3d 346, 350 (5th Cir. 1999). However, “if the

district court concludes that the summary judgment record raises a

genuine issue of material fact with respect to whether the defense

of qualified immunity is applicable, then that decision is not

immediately appealable.” Id. at 351.

The district court’s denial of summary judgment as to Treviño

was based on starkly differing versions of the facts surrounding

the altercation that preceded the death of Juan José Guajardo, a

pretrial detainee, which wer e offered through competent summary

judgment evidence. The denial of qualified immunity as to Treviño

was based on a genuine issue of material fact as to whether Treviño

exerted force against Guajardo “‘in a good faith effort to maintain

or restore discipline, or maliciously and sadistically to cause

harm.’” Valencia v. Wiggins

, 981 F.2d 1440, 1446-47 (5th Cir.)

(quoting Hudson v. McMillian

, 503 U.S. 1, 6 (1992) (providing a

standard for determining whether forc e used was constitutionally

excessive)), cert. denied

, 509 U.S. 905 (1993). Because the denial

of qualified immunity as to Treviño was based on a genuine issue of

material fact rather than a questio n of law, this court does not

have jurisdiction over Treviño’s interlocutory appeal. His appeal

is DISMISSED. See Palmer , 193 F.3d at 351.

On the other hand, appellate jurisdiction i s not precludedNo. 99-41361

-3-

simply because the denial of a summary judgment based on qualified

immunity contain s a statement that “material issues of fact

remain.” Cantu v. Rocha

, 77 F.3d 795, 803 (5th Cir. 1996) (quoting

Behrens v. Pelletier

, 516 U.S. 299, 312 (1996)). This court

possesses jurisdiction to “‘take as given, the facts that the

district court assumed when it denied summary judgment’ and

determine whether these facts state a claim under clearly

established law.” N erren v. Livingston Police Dep’t

, 86 F.3d 469,

472 (5th Cir. 1996) (quoting Johnson v. Jon es , 515 U.S. 304, 319

(1995)); see also Cantu

, 77 F.3d at 803. Further, “where the

district court does not identify those factual issues as to which

it believes genuine issues remain, an appellate court is permitted

to go behind the district court’s determination and conduct an

analysis of the summary judgment record to determine what issues of

fact the district court probably considered genuine.” Colston v.

Barnhart

, 146 F.3d 282, 285 (5th Cir.), cert. denied

, 525 U.S. 1054

(1998).

T he magistrate judge’s report and recommendation adopted by

the district court states that a bystanding officer such as

Hernandez has the duty to “take reasonable measures to protect a

suspect from another’s use of force.” S nyder v. Trepagnier

, 142

F.3d 791, 801 n.11 (5th Cir. 1998); s ee Hale v. Townley

, 45 F.3d

914, 919 (5th Cir. 1995). However, the report and recommendation

concludes only that:No. 99-41361

-4-

With regard to Officer Hernand e z, Garcia [an inmate

witness] testified that du ring the alleged incident he

heard Officer Hernandez call to Officer Treviño to “stop

it”

. . . . Further, Officer Hernandez testified that

she and Officer Treviño should remove Guajardo’s

handcuffs, call their supervisor and call EMS. . . . A

complete reading of this page reveals that E MS was in

fact summoned almost immediately after Guajardo started

having difficulty breathing.

The report and recommendation concludes that substantial

differences in the stories told by the witnesses pr ecludes a

credibility determination, thus precluding summary judgment, but

does not cite additional evidence nor articulate a clear legal

conclusio n as to how Hernandez’s actions could result in her

liability.

This court has jurisdiction over Hernandez’s appeal because we

may determine whether the facts assumed by the distric t court

indicate a violation of clearly established law. S ee Nerren

, 86

F.3d at 472. The district court erred in not finding any contested

issue o f fact to be material to Hernandez’s entitlement to

qualified immunity. Her appeal involves only the legal question

whether the district court’s factual findings, the plai ntiff’s

allegations, and the summary judgment evidence viewed in the light

most favorable to the plaintiff show that she violated clearly

established law a gainst using excessive force in an objectively

unreasonable manner.

The undisputed facts show that Hernandez first sa w the

altercation after it had begun; that she did not know exactly whatNo. 99-41361

-5-

had happened that she went to the aid of Treviño, who seemed to be

in trouble, by helping him get Guajardo on the floor and

handcuffed; and that she sought medical assistance for Guajardo

when she observed him in distress. These facts undermine any claim

that Hernandez intended to violate Guajardo’s constitutional

rights. B ut see Hale

, 45 F.3d at 919 (denying summary judgment on

qualified immunity for an officer who laughed and encouraged an

officer using excessive force); Harris v. Chanclor , 537 F.2d 203,

205-06 (5th Cir. 1976) (upholding liability of a jail officer who

stood by and watched a vicious beating of a detainee without

objection and intervention, then refused to summon help for the

detainee).

Moreover, even assuming Hernandez violated a clearly

established constitutional right of Guajardo, the findings,

allegations, and undisputed evidence show that Hernandez’s conduct

was objectively r easonable. C f. Anderson v. Creighton

, 483 U.S.

635, 641 (1987). The plaintiff does not explain how Hernandez’s

actions constituted excessive force nor does she suggest that her

actions were objectively unreasonable. In light of the evidence,

a reasonable officer could have believed that Hernandez’s use of

force was lawful.

The district court’s denial of summary judgment as to Ana

Hernandez’s qualified immunity is REVERSED.