IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-50612

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DONALD RAY WHITE,

Plaintiff-Appellee,

v.

ARMANDO BALDERAMA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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November 30, 1998

Before KING, SMITH, and PARKER, Circuit Judges.

PER CURIAM:

Defendant-appellant Armando Balderama appealed the district

court’s order denying his motion for summary judgment on the

basis of qualified immunity as to plaintiff-appellee Donald Ray

White’s claim under 42 U.S.C. § 1983. We remanded with

instructions that the district court set forth the factual

scenario that it assumed in construing the summary judgment

evidence in the light most favorable to plaintiff-appellee Donald

Ray White. See White v. Balderama, 153 F.3d 237, 238 (5th Cir.

1998). The district court has now done so. See White v.

Balderama, No. A 96-CA-499 SS (No. 97-50612) (W.D. Tex. Sept. 8,
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1998) (supplemental order). In light of its new order, we

dismiss Armando Balderama’s appeal for lack of jurisdiction.

In White, we found that to the extent that Balderama’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 to

establish the facts assumed by the district court. See 153 F.3d

at 242. To the extent that Balderama’s arguments on appeal do

not hinge upon such differences, however, we would possess

jurisdiction to review them because they would constitute a claim

that all of the conduct which the District Court deemed

sufficiently supported for purposes of summary judgment was

objectively reasonable. See id. The district court’s

supplemental order reveals that it found that genuine factual

issues remained as to which of the three bullets fired by

Balderama actually struck and injured White, what direction

White’s car was heading in when he failed to observe Balderama’s

order to stop, and whether Balderama acted reasonably in

continuing to shoot at White’s vehicle after the first shot. 

Balderama asserts, however, that “[i]t is an indisputed

historical fact that the first shot, fired while the vehicle was

approaching Officer Balderama at a sixty (60) degree angle,

entered the driver’s side door and struck plaintiff in the right

thigh.” Based on this statement, Balderama argues on appeal that
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this initial shot was “beyond reproach,” an action for which he

is “demonstrably entitled to immunity,” and that the second and

third shots are irrelevant to the legal issue of objective

reasonableness because they did not injure White. He does not

contend that his actions would have been objectively reasonable

no matter which bullet struck White. His argument thus hinges on

portions of his statement of facts that differ from the facts

assumed by the district court. Balderama’s appeal is therefore

effectively a challenge to the genuineness of the factual issues,

and we lack jurisdiction to consider it. See id. at 240.

Accordingly, we therefore DISMISS Balderama’s appeal for lack of

jurisdiction.