* Pursuant to 5TH CIR. R. 47.5, this 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10969

Summary Calendar

L. DWAINE LORD,

Plaintiff - Appellee,

v.

DAVID LARSEN; ET AL.,

Defendants,

DAVID LARSEN,

Defendant - Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

3:02-CV-1636

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

David Larsen, the Appellant, is accused of committing several

torts in relation to the search of the residence of L. Dwaine Lord,

the Appellee. Larsen, a former police officer, filed this
1Larsen’s reliance on Lemoine v. New Horizons Ranch &

Center, Inc., 174 F.3d 629, 634 (5th Cir. 1999), fails to

overcome Johnson. In Lemoine, we held that jurisdiction exists

for determining if disputed facts are material. While the

Appellant claims to limit his argument to the materiality of the

facts, the effect of his appeal is a request to weigh the

disputed evidence. That is something this Court cannot do.

2

interlocutory appeal asking for a reversal of the district court’s

decision denying him qualified immunity. We have no jurisdiction

to hear the appeal. Therefore, it is DISMISSED.

The denial of a motion for summary judgment is generally not

a final, appealable order. A district court’s denial of qualified

immunity, however, in some instances falls within the collateral

order doctrine allowing for an interlocutory appeal. Michalik v.

Hermann, 422 F.3d 252, 257 (5th Cir. 2005). Jurisdiction to hear

such an appeal only exists when the question turns on an issue of

law. Johnson v. Jones, 515 U.S. 304, 313–18 (1995). There is no

jurisdiction when a district court’s denial of qualified immunity

is based on a finding that genuine issues of material fact exist.

Id.; Michalik, 422 F.3d at 257.

In this case, the district court denied Larsen’s motion for

summary judgment on the grounds that genuine issues of material

fact prevented the court from granting qualified immunity.

Therefore, under Johnson and its progeny we have no jurisdiction to

hear this appeal.1

The district court opinion focused on Larsen’s actions in

obtaining a warrant to search Lord’s residence and does not address
2The district court relies on United States v. Parker, 722

F.2d 179 (5th Cir. 1983), in deciding that the factual disputes

surrounding the warrant application bar summary judgment on

Lord’s other claims. At this time, we make no endorsement of

such an extension of Parker. 

3

the execution of the warrant. Larsen argues that this was error

and that he is entitled to qualified immunity with regard to Lord’s

claims of excessive force and state law claims of assault, battery,

false arrest, and illegal imprisonment. A qualified immunity

analysis requires a court to determine if the defendant’s conduct

was objectively unreasonable. Palmer v. Johnson, 193 F.3d 346, 351

(5th Cir. 1999). The information Larsen had concerning the warrant

affects the reasonableness of his actions in executing that

warrant. Therefore, the fact dispute concerning the warrant

application also applies to the claims stemming from the warrant’s

execution. The factual dispute is material to all of Lord’s claims

and fatal to this appeal.2 Johnson, 515 U.S. at 313.

Having no jurisdiction, we DISMISS the appeal.

The request for sanctions is DENIED.