IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20245

BENEDICT EMESOWUM, 

 Plaintiff - Appellee

v.

EDUARDO CRUZ; KIET TO, 

 Defendants - Appellants

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:15-CV-2822

Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Benedict Emesowum sued the City of Houston, its police chief Charles 

A. McClelland, and Officers Eduardo Cruz and Kiet To for constitutional 

violations and state law torts allegedly arising out of Emesowum’s 2015 arrest 

in a Houston parking lot. Defendants moved for summary judgment on all 

claims. The district court granted the motion as to Emesowum’s claims against 

the City and Chief McClelland, and as to Emesowum’s state law claims against 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 11, 2018

Lyle W. Cayce

Clerk

 Case: 17-20245 Document: 00514304378 Page: 1 Date Filed: 01/11/2018
No. 17-20245

2

Officers Cruz and To. But the court denied the officers’ motion for summary 

judgment on the basis of qualified immunity as to Emesowum’s 42 U.S.C. § 

1983 claims. The officers appeal.

I.

“The denial of a motion for summary judgment based on qualified 

immunity is immediately appealable under the collateral order doctrine to the 

extent that it turns on an issue of law.” Melton v. Phillips, 875 F.3d 256, 261 

(5th Cir. 2017) (en banc) (quotation marks omitted). Accordingly, although we 

may review whether a fact issue is material to the qualified immunity analysis, 

we lack jurisdiction to consider whether a factual dispute is genuine. Id. In its 

order denying summary judgment, the district court held that “the evidence 

creates a disputed fact issue concerning [the officers’] entitlement to qualified 

immunity.” But the court declined to specify what facts create the issue.

When the district court denies a motion based on qualified immunity 

“simply because ‘fact issues’ remain, this Court has two choices. We can either 

scour the record and determine what facts the plaintiff may be able to prove at 

trial and proceed to resolve the legal issues, or remand so that the trial court 

can clarify the order.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) 

(quoting Thompson v. Upshur Cty., TX, 245 F.3d 447, 456 (5th Cir. 2001)). In 

this case, it is unclear from the record what facts the district court identified 

as disputed. We therefore conclude that a limited remand is the “more efficient 

alternative” here. Castillo v. City of Weslaco, 369 F.3d 504, 507 (5th Cir. 2004) 

(remanding appeal from denial of motion for summary judgment based on 

qualified immunity for additional fact finding); White v. Balderama, 153 F.3d 

237, 242 (5th Cir. 1998) (same).

II.

We REMAND to the district court with instructions that, within ninety

days after the entry of this remand, it provide a supplemental order setting 

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No. 17-20245

3

forth the factual scenario relevant to Officers Cruz and To’s motion for 

summary judgment. We retain jurisdiction over this appeal.

 Case: 17-20245 Document: 00514304378 Page: 3 Date Filed: 01/11/2018