* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined th at this opinio n should not be published and is not precedent except under limited circumstances set forth in 5 TH C IR . 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 Pl aint iff- 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 fo r 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 pri soner’s pro se allegations of physical abuse at the hands of certain pri son guards. The defendant pri son g uards f ile t his int erlocutory appeal1 The district court noted th at Dinger’s assertions “complie[d] wit h 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 g e nuine issue of mat erial fact.” The district court also noted th at the guards’ affidavit s “den[ied] knowledge of or participation in the mo st 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 mo tion. The guards argue th at the district cour t should have granted summary judgment in their favor since they were entitled to qualified immunit y; specifically, the guards argue th at their alleged behavior was not so unreasonable as to precl

ude a qualified immunity defense. Because the district court’s denial of summary judgment was not a final decision, review of this int erlocutory appeal is limit ed. Johnson v. Johnson , 385 F.3d 503, 523 (5th Cir. 2004). This court “lack[s] int erlocutory jurisdiction to review the district court’s conclusion th at the plaint iff has created
a genuine issue of fact as to som e mat ter.” Id. The court m ay, however, review whether the fact issues are mat erial, Thompson v. Upshur County , 245 F.3d 447, 456 (5th Cir. 2001), or whether the defendants nonetheless are entitled to qualified immunit y based upon the fact s as alleged by the plaint iff, Colston v. Barnhart , 130 F.3d 96, 98–99 (5th Cir. 1997). The district court noted th at there were factual issues as to whether each of the guards knew of or participated in the alleged physical abus e. These issues, according to the district court, prevented summary judgment and overcame the qualified immunit y defense. 1 On appeal, the guards do not argue th at the factual issues identified by the district court are immat erial. Instead, the guards assert th at, even accepting Dingler’s version of facts as true, summary judgment should have been granted in the guards’ f

avor. Dingler alleges that the guards physically abused him by repeatedly opening doors wit h his head while his hands were restrained and by repeatedly kicking and punching him while he was prone and restrained on the flo or, thereby causing him physical injuries. Assuming3

the se facts are true, we cannot say th at 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.