                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-1843


TANIA NAKYA WALTERS,

                 Plaintiff – Appellee,

          v.

PRINCE GEORGE’S COUNTY, MARYLAND; MARISSA S. DAVIS, In her
Official and Individual Capacity; JAMES E. KELLY, In his
Official and Individual Capacity,

                 Defendants – Appellants,

          and

PRINCE GEORGE’S COUNTY, MARYLAND POLICE DEPARTMENT; MELVIN
WHITE, Chief of Police, In his Official and Individual
Capacity; JANE DOE DAVIS, Officer, In her Official and
Individual Capacity; JOHN DOE KELLY, Officer, In his
Official and Individual Capacity; JANE AND JOHN DOES 1-25,
Officers, In their Official and Individual Capacity,

                 Defendants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:08-cv-00711-AW)


Submitted:   June 21, 2011                   Decided:   July 13, 2011


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.
Tonia Y. Belton-Gofreed, Associate County Attorney, Upper
Marlboro, Maryland, for Appellants. Kathleen Anne Behan, BEHAN
LAW, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Appellants      appeal     from    the    district       court’s      order

denying their motion for summary judgment in part, finding that

Appellants     were    not     entitled    to   qualified      immunity        on   Tania

Nakya Walters’ excessive force claims raised in her 42 U.S.C.

§ 1983      (2006)    action,    as     material      issues     of    fact    existed.

Walters asserted that Appellants used excessive force when they

sprayed her with pepper spray and pinned her on the ground while

she   was    handcuffed.        On    appeal,     Appellants      assert      that    the

record conclusively shows that the force used was not excessive.

Walters      claims     that     this     court       lacks    jurisdiction           over

Appellants’     appeal.         We    agree    with    Walters    and    dismiss       the

appeal as interlocutory.

              Government         officials         performing           discretionary

functions are entitled to qualified immunity from liability for

civil damages to the extent that “their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.”                    Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).              A defendant’s assertion of qualified

immunity requires consideration of two questions: (1) whether a

constitutional or statutory right would have been violated on

the facts alleged by the plaintiff; and (2) if so, whether the

right    asserted     was    clearly      established     at     the    time     of   the

alleged violation.          Saucier v. Katz, 533 U.S. 194, 200 (2001).

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             It   is    well-settled        that,    while    interlocutory           orders

generally are not appealable, “a district court’s denial of a

claim of qualified immunity, to the extent that it turns on an

issue   of    law,     is    an     appealable     ‘final    decision’         within   the

meaning of 28 U.S.C. §               1291 [2006] notwithstanding the absence

of a final judgment.”                Mitchell v. Forsyth, 472 U.S. 511, 530

(1985).      However, “a defendant, entitled to invoke a qualified

immunity     defense,        may    not   appeal    a   district    court’s       summary

judgment order insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for

trial.”      Johnson v. Jones, 515 U.S. 304, 319-20 (1995).                           Thus,

we possess “‘no jurisdiction over a claim that a plaintiff has

not   presented      enough        evidence   to    prove    that   the        plaintiff’s

version      of   the        facts     actually     occurred,’”          but     do     have

jurisdiction      over       “‘a    claim   that    there    was    no    violation       of

clearly    established         law    accepting     the     facts   as    the    district

court viewed them.’”               Culosi v. Bullock, 596 F.3d 195, 201 (4th

Cir. 2010) (quoting Winfield v. Bass, 106 F.3d 525, 530 (4th

Cir. 1997) (en banc)).

             Here,      in     denying      Appellants’       motion      for     summary

judgment, the district court concluded that genuine issues of

material fact existed regarding Walters’ treatment.                              Although

the district court did make a legal determination that there was

a clearly established right to be free from excessive force,

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Appellants      do   not   challenge    that     determination,      but   instead

attack the fact-related issues regarding whether certain actions

occurred that could amount to a constitutional violation.                       See

Iko v. Shreve, 535 F.3d 225, 237 (4th Cir. 2008) (“Because the

district     court     denied       [summary     judgment]      by     virtue    of

conflicting factual inferences, . . . there is no legal issue on

appeal on which we could base jurisdiction.”).                 As such, we lack

jurisdiction over the appeal. *

           To avoid this conclusion, Appellants rely on Scott v.

Harris, 550 U.S. 372 (2007), which held that “[w]hen opposing

parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of facts for

purposes   of    ruling    on   a   motion     for   summary   judgment.”       The

Supreme    Court       found    that,       where     a    videotape       “utterly

discredited”     the   plaintiff’s      version      of   events,    the   district

court should have relied on the facts depicted by the videotape.

Id. at 380-81.




     *
       Appellants also challenge the denial of their motion for
summary judgment on Walters’ state law claims and their
assertion that a claim was not properly pled against Defendant
Kelly. These claims are also interlocutory. Appellants provide
no legal basis on which these claims could be reviewed prior to
a final order in the case and, thus, have waived any argument
that this court has jurisdiction over these claims.



                                        5
            We find Scott to be easily distinguishable from the

instant case.        First, the district court in this case did not

credit testimony that contradicted the videotape.                             Appellants

point to Walters’ testimony that she did not remove her feet

from the patrol car, even though the officers can be heard on

the videotape requesting that she put her feet back in the car.

However, Walters’ lower body is not visible on the tape, and it

is at least possible, viewing the evidence in the light most

favorable    to      Walters,     that     Appellants         were    concerned       that

Walters was attempting to remove her feet from the car but had

not succeeded or had put her feet back in the car prior to being

sprayed.      See Culosi, 596 F.3d at 201 (noting that district

court’s     determination         that      a    material        fact      exists       is

unreviewable      even   if     this   court     disagrees      with     the    district

court’s assessment of the evidence).

            Second,      even    assuming       that    the     court    should       have

concluded    that     Walters     removed       her    feet    from     the    car,    the

district court found that other material issues of fact existed

as   to    whether     the    force      applied      was     justified.        Such     a

conclusion would necessarily rest on facts not present on the

videotape, including the officers’ training, the extent of the

danger Walters posed, the seriousness of Walters’ injuries, the

relevant police guidelines, and the intent of the officers.                            See

Iko, 535 F.3d at 239-40 (discussing factual issues arising from

                                           6
undisputed use of pepper spray, including compliance with state

regulations and training, and the relationship between the need

for   force     and     the    amount     of       force     used).        Moreover,      the

videotape      is     simply    not    definitive           as    to   either      what   was

happening     with     Walters’       lower        body    or    exactly     how    she   was

treated after she was removed from the car.                              Accordingly, we

conclude      that     the     district        court       properly      considered       the

recording.

              Based    on     the   foregoing,         we    dismiss     the    appeal     as

interlocutory.          We     dispense    with       oral       argument,     because    the

facts   and    legal     contentions       are       adequately        presented     in   the

materials     before     the     court    and       argument       would     not    aid   the

decisional process.



                                                                                   DISMISSED




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