                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                        F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                          May 30, 2003
                              FOR THE FIFTH CIRCUIT
                                                                     Charles R. Fulbruge III
                                                                             Clerk

                                  No. 02-51042
                                Summary Calendar


                                  LARRY KEELE,

                                                         Plaintiff-Appellee,

                                     versus

                               M. LEYVA, Bailiff,

                                                        Defendant-Appellant.

                            --------------------
               Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. SA-01-CV-1004
                            --------------------

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

       Merced Leyva appeals from the court’s denial of his summary

judgment motion on the grounds of qualified immunity.                This appeal

arises from a civil rights complaint filed by prison detainee Larry

Keele.

       In his complaint alleging excessive use of force, Keele argued

that       after   he   had   informed   Leyva,   a   bailiff   in    charge     of

transporting Keele from the courthouse to the detention center,

that he had a sore shoulder, Leyva proceeded to exert excessive


       *
      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this opinion should not be published and is not precedent except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.
force in securing his handcuffs behind his back.                    In response

to Keele’s cursing that Leyva would break his arm, Leyva berated

Keele that if he did not like being handcuffed then he should not

come to jail.   Keele sought medical treatment after the incident

and was treated for an over-rotated shoulder.

     Leyva argues that the court erred in denying him summary

judgment   because       he   is   entitled    to    qualified   immunity,   and

alternatively, that Keele’s injury was de minimis.                     The court

determined   that    a    fact     issue   existed    over   whether   excessive

force was used and denied summary judgment.                   Leyva filed this

interlocutory appeal.

   As an initial matter, this court must determine jurisdiction to

hear this appeal.        Keele argues that this court lacks jurisdiction

over this interlocutory appeal of the denial of qualified immunity

because the court deemed the issue to be a factual determination.

Although Leyva does not contest our jurisdiction, we have a duty to

satisfy ourselves of our own jurisdiction.                   See United Transp.

Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000).

     This court has jurisdiction on interlocutory appeal to review

the denial of a summary judgment based on qualified immunity only

to the extent that the denial raises a question of law.                      See

Gonzales v. Dallas County, Tex., 249 F.3d 406, 411 (5th Cir.

2001)(citation omitted).           The existence of some factual disputes

will not defeat this court’s jurisdiction; if the disputed facts

are immaterial to the question of qualified immunity, this court

                                           2
has jurisdiction to review the summary judgment. See Mendenhall v.

Riser, 213 F.3d 226, 230 (5th Cir. 2000).                 Here, the issue of

qualified immunity involves undisputed material facts, therefore,

the court has jurisdiction to hear the appeal.

     To establish a cognizable claim of excessive force, the

plaintiff must demonstrate a violation of a clearly established

constitutional   right   and   must   establish         that   the   defendant’s

conduct was objectively unreasonable under clearly established law.

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

omitted).   Factors integral to this analysis include:                  (1) the

extent of the injury suffered; (2) the need for the application of

force; (3) the relationship between the need and the amount of

force used; (4) the threat reasonably perceived by the responsible

officials; and (5) any efforts made to temper the severity of a

forceful response.   Hudson v. McMillian, 503 U.S. 1, 6-7 (5th Cir.

1992).   The injury must be more than a de minimis physical injury,

but need not be significant or serious.                Gomez v. Chandler, 163

F.3d 921, 924 (5th Cir. 1999).

     As the magistrate judge in this case correctly recognized, the

mere handcuffing of Keele did not raise a constitutional claim.

See Williams v. Bramer, 180 F.3d 699, 704, clarified, 186 F.3d 633,

634 (5th Cir. 1999).      However, once Keele alerted Leyva to his

shoulder condition, the continued exertion of force in securing the

restraint rose to the level of malice.            See id. at 704.        Because

Keele has   stated   a   cognizable       claim   of    excessive    force,   the

                                      3
district court did not err in denying Leyva’s motion for summary

judgment.

          AFFIRMED.




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