### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60357 Summary Calendar

DAVID CHATMAN, Plaintiff-Appellee

v. KEITH MILES, in his individual capacity, Defendant-Appellant

Appeal from the United States District Court f or the Southern District of Mississippi USDC No. 5:09-CV-205

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * David Chatman, Mississippi prisoner # 30344, f iled a 42 U.S.C. § 1983 lawsuit against several defendants, including Keith Miles, 1 f or violations of his constitutional rights while he was a pretrial detainee in 2008. 2 Chatman alleged that Miles, a narcotics officer with t he Adams C o u n ty S heriff’s Office, used U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 M iles ’s las t nam e is correctly s p elled“M yles

. ”

2 M iles is the only rem aining d ef end ant in the s uit. The other d ef end ants were either d is m is s ed p urs uant to a s ettlem ent agreem ent or w ere granted s um m ary jud gm ent. Case: 12-60357 Document: 00512200702 Page: 1 Date Filed: 04/08/2013No. 12-60357

excessive force a gain s t h i m, resulting in injuries to his neck. The parties consented to proceed before a magistrate judge (MJ). Miles moved for summary judgment, asserting, i nter alia, that he w as entitled t o qualified immunity. The MJ observed t h at Miles’s v ersion o f events was “significantly differe n t from Chatman’s s w o r n hearing testimony.” The MJ found that the e vidence in the

r e c ord raised “questions of f act as to whether C hatman p r esented a danger to anyone when he was taken into the room; w hether any threat perceived by Miles

was reasonable; whether force was necessary under the circumstances; and whether t he force u sed was commensurate with the need for force, if any.” Because “[e]xactly what transpired in the room at the jail remains i n dispute,” and because a jury could find that Miles violated Chatman’s right to be free from excessive force if Chatman’s v ersion of the events is credited, the M J concluded that there were genuine issues of m aterial fact regarding whether Miles was entitled t o q u a l i f

ied immunity. Accordingly, the MJ denied Miles’s motion for summary judgment. Miles filed an interlocutory appeal c hallenging the d e nial o f his summary judgment m o t i o n b a s ed o n qualified immunity. The denial of a motion for summary j udgment based upon qualified immunity is a c o llateral order capable of immediate review. Mitchell v. Forsyth , 4 7 2 U

. S

. 511, 530 (1985). H owever, the c ourt’s jurisdiction to review the denial is “significantly limited,” extending to questions of law only. Kinney v. Weaver , 367 F.3d 337, 346 ( 5th Cir. 2004) (en banc). “Whenever t he district court denies an o fficial’s m o t i o n f o r summary judgment predicated u pon qualified immunity, the district court can be thought of as making two distinct determinations, e ven if only implicitly.” Kinney , 367 F.3d at 346. “First, the district court decides that a ce r t a i n c ourse of conduct would, as a matter of law, be o bjectively unreasonable in light of clearly established law. S econd, the cour t d e c ides that a genuine issue o f fact exists

r e g a r ding whether the defendant(s) did, in f act, engage in such c onduct.” I d

. “According to the Supreme Court, a s w e ll as [this court’s] own precedents, [this
2 Case: 12-60357 Document: 00512200702 Page: 2 Date Filed: 04/08/2013No. 12-60357

court] l a ck[s] jurisdictio n to r eview c onclusions of the second type on interlocutory appeal.” Id. “[The court does], however, have j u r i s d i ction to the review the first type of d etermination, t he purely legal question whether a given

course of conduct w ould be objectively unreasonable in light of clearly established law.” Id . at 347. On appeal, Miles argue s that the use of f orce was reasonable and necessary because Chatman lunged at him and Miles perceived Chatman as being d angerous to himself or others in t h e r o o m . H e further a rgues that Chatman s u ffered no more than a de minimis injury a n d that any lingering problems with h is neck w ere related to a subsequent injury. Miles’s arguments

are directed a t the truth o f the fac tual allegations made by Chatman. By arguing t hat the force was justified in this case, Miles i s essentially challenging the MJ’s determination that genuine issues of material fact exist regarding exactly what took p lace in the room o ff of the booking room. This is precisely the type of question that the c ourt lacks jurisdiction t o e n t e rtain in this interlocutory appeal. See Kinney , 367 F.3d at 346. Accordingly, the appeal is dismissed for lack of jurisdiction. APPEAL DISMISSED.

3 Case: 12-60357 Document: 00512200702 Page: 3 Date Filed: 04/08/2013