* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51132

Summary Calendar

ANDRE TYRONE SOUTHALL

Plaintiff - Appellee - Cross-Appellant

v.

MATHEW ARIAS, Sheriff Deputy of Travis County

Defendant - Appellant - Cross-Appellee

Appeals from the United States District Court

for the Western District of Texas

1:05-CV-342

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Matthew Arias (“Arias”), a Travis County Deputy Sheriff, appeals the

district court’s denial of his summary judgment motion. Plaintiff, Andre

Southall (“Southall”), alleges that Arias used excessive force against him in

violation of his constitutional rights and seeks damages under 42 U.S.C. § 1983.

Arias moved for summary judgment on three grounds: (1) that Southall did not

allege sufficient facts suggesting Arias’s personal involvement in the incident;

United States Court of Appeals

Fifth Circuit

F I L E D

December 3, 2007

Charles R. Fulbruge III

Clerk
No. 06-51132

1 We, as did the district court, treat verified complaints as having the force and effect of an

affidavit pursuant to 28 U.S.C. § 1746, which provides that “in all federal proceedings, written

declarations made under penalty of perjury are permissible in lieu of a sworn affidavit subscribed to

before a notary public.”

2

(2) that Southall’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994);

(3) that Arias is entitled to qualified immunity. The district court denied Arias’s

motion on all grounds. Because we lack jurisdiction to hear the appeal, we

dismiss without reaching the merits. See Steel Co. v. Citizens for Better Env’t,

523 U.S. 83, 93-94 (1998) (holding that federal courts should not assume

jurisdiction over a claim and then reject it on the merits, but should decide

jurisdiction first).

Southall appeals the district court’s initial denial of his requests for

counsel during the discovery phase that occurred prior to Arias’s filing for

summary judgment. We dismiss the cross-appeal as moot.

I

Southall was incarcerated in the Travis County Jail as a pretrial detainee

when an altercation took place between Southall and another inmate at the jail.

During the officers’ attempts to restrain Southall, he injured officer James

Cunningham (“Cunningham”) who had to be treated at the hospital for scrapes

and cuts to his face and neck, as well as bruises to his legs. Southall pled guilty

and was convicted of misdemeanor assault based on the incident with

Cunningham. Southall, in his verified complaint, avers that he was thrown to

the ground, handcuffed, and placed in leg restraints by Arias and another

officer.1 Southall states that, after being restrained, Cunningham, with the

assistance of Arias, “maliciously and sadistically stomped” his head and beat him

causing injuries to his back, neck ,and face, requiring stitches to his face. Arias

filed the affidavits of two officers at the scene, the affidavit of another officer not

at the scene, and police reports on the incident by which he claims that no

excessive force was used. Neither the affidavits of the officers nor the reports
No. 06-51132

3

include any indication that the post-restraint violence alleged by Southall

occurred.

II

First, Arias contends that the facts alleged in Southall’s complaint are

deficientto show Arias’s personal involvementin a constitutional violation. This

cannot be reviewed prior to a final judgment. Our interlocutory review extends

only to denials of summary judgment sought on qualified immunity grounds.

See Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (noting that ordinarily

a denial of summary judgment is not final within the meaning of 28 U.S.C. §

1291).

Second, a district court’s failure to apply Heck v. Humphrey cannot be

reviewed on interlocutory appeal. The Heck doctrine, a facet of issue preclusion

or collateral estoppel, prevents persons, in most situations, from bringing a §

1983 action for damages where recovery would require the invalidation of a prior

conviction or sentence based on the same facts. In Heck, the Supreme Court

held that:

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,

a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such a

determination, or called into question by a federal court’s issuance

of a writ of habeas corpus.

Heck, 512 U.S. at 486-87.

Unlike immunity rights, an appellate court can effectively review the

applicability of Heck after an entry of final judgment making interlocutory

review unnecessary. See Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir.

2000) (finding no appellate jurisdiction to review applicability of Heck on denial

of summary judgment); cf. Digital Equipment Corp. v. Desktop Direct, Inc., 511
No. 06-51132

2 Arias immediately follows this statement with: “The issue of whether the evidence is sufficient

to demonstrate deliberate indifference is a legal issue thattheFifth Circuit may review on interlocutory

appeal.” Arias appears to misunderstand the nature of our review on interlocutory appeal. Our

precedent is clear in stating that, “in an interlocutory appeal we cannot challenge the district court’s

assessments regarding the sufficiency of the evidence.” Kinney, 367 F.3d at 347.

4

U.S. 863, 872 (1994) (suggesting thatthe collateral order doctrine does not apply

to a district court’s refusal to dismiss on grounds of res judicata).

Considering Arias’s third ground, a district court's denial of summary

judgment on qualified immunity grounds can be immediately appealed under the

collateral order doctrine. However, our interlocutory review is limited. “In an

interlocutory appeal we lack the power to review the district court’s decision that

a genuine factual dispute exists.” Kinney v. Weaver, 267 F.3d 337, 348 (5th Cir.

2004) (en banc). We must “accept the plaintiff’s version of the facts as true and

may review de novo only the purely legal question of whether the district court

erred in concluding as a matter of law that officials are not entitled to qualified

immunity on [that] given set of facts.” Gobert, 463 F.3d at 345 (citing Kinney)

(internal quotation marks omitted).

On appeal, Arias attempts to establish that he is entitled to qualified

immunity by undermining the factual allegations raised in Southall’s verified

complaint. He supplies a single sentence stating that, “even if Plaintiff’s factual

allegations are taken as true, they are not sufficient to constitute deliberate

indifference.”2 However, he offers no argument to establish that he is entitled

to qualified immunity in light of Southall’s factual allegations. Instead, his brief

analyzes the propriety of his actions based on his own version of the facts, a

version that does not include the stomping alleged by Southall. Arias’s entire

argument for qualified immunity depends on disputed factual issues that we

cannot resolve at this stage. As a result, he has waived any opportunity for

interlocutory review that might otherwise have been available. See United

States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir. 1995) (refusing to address an
No. 06-51132

5

argument for which no legal authority was given); Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1993) (holding that issues not argued are abandoned). 

Southall’s cross-appeal argues thatthe district court erred in denying him

appointed counsel at an earlier stage in his action, when counsel would have

been more able to aid in discovery. In its order on Arias’s summary judgment

motion, the district court appointed counsel and also determined that an

additional period of discovery would be proper. Because Southall has now been

appointed counsel and further discovery will occur, we dismiss Southall’s crossappeal as moot.

III

For the foregoing reasons we DISMISS the appeal because we lack

appellate jurisdiction to review the district court’s order denying summary

judgment.