*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under limited circumstances set forth in 5TH CIR. R. 47.5.4. 

United States Court of Appeals

Fifth Circuit

FILED

August 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 05-11485

Summary Calendar

__________________________

JOSEPH DINGLER

Plaintiff-Appellee,

versus

DALLAS COUNTY SHERIFF’S OFFICE, et al;

Defendants, 

OFFICER NFN AMIN, Dallas County Sheriff’s Department; 

OFFICER NFN GRAY, Dallas County Sheriff’s Department; 

OFFICER NFN HATCHER, Dallas County Sheriff’s Department; 

OFFICER NFN HIGHTOWER, Dallas County Sheriff’s Department; 

OFFICER NFN ENGLISH, Dallas County Sheriff’s Department

Defendants-Appellants.

___________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(No. 3:02-CV-2749)

___________________________________________________

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

This 42 U.S.C. § 1983 action arises from a prisoner’s pro se allegations of physical abuse at

the hands of certain prison guards. The defendant prison guards file this interlocutory appeal
1The district court noted that Dinger’s assertions “complie[d] with the affidavit requirements”

and “provide[d] sufficient detail as to the description of the incident, the parties involved, and the

injuries suffered to create a genuine issue of material fact.” The district court also noted that the

guards’ affidavits “den[ied] knowledge of or participation in the most significant parts of the alleged

incident and create[d] a genuine issue of material fact.”

2

challenging the district court’s denial of their summary judgment motion. The guards argue that the

district court should have granted summary judgment in their favor since they were entitled to

qualified immunity;specifically, the guards argue that their alleged behavior was not so unreasonable

as to preclude a qualified immunity defense.

Because the district court’s denial of summary judgment was not a final decision, review of

thisinterlocutory appeal islimited. Johnson v. Johnson, 385 F.3d 503, 523 (5thCir. 2004). This court

“lack[s]interlocutoryjurisdiction to reviewthe district court’s conclusionthat the plaintiffhas created

a genuine issue of fact as to some matter.” Id. The court may, however, review whether the fact

issues are material, Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001), or whether the

defendants nonetheless are entitled to qualified immunity based upon the facts as alleged by the

plaintiff, Colston v. Barnhart, 130 F.3d 96, 98–99 (5th Cir. 1997).

The district court noted that there were factual issues asto whether each of the guards knew

of or participated in the alleged physical abuse. These issues, according to the district court,

prevented summary judgment and overcame the qualified immunity defense.1 On appeal, the guards

do not argue that the factual issues identified by the district court are immaterial. Instead, the guards

assert that, even accepting Dingler’s version of facts as true, summary judgment should have been

granted in the guards’ favor. Dingler alleges that the guards physically abused him by repeatedly

opening doors with his head while his hands were restrained and by repeatedly kicking and punching

him while he was prone and restrained on the floor, thereby causing him physical injuries. Assuming
3

these facts are true, we cannot say that the guards would be entitled to qualified immunity.

Accordingly, we do not have appellate jurisdiction to hear this interlocutory appeal.

The interlocutory appeal is DISMISSED.