                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 05 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LINDA K. CLIFFORD, individually with             No.   15-16144
right of survivorship and in her capacity as
the personal representative of The Estate        D.C. No.
of Robert (Bobby) S. Clifford,                   2:11-cv-02591-MCE-CKD

              Plaintiff-Appellee,
                                                 MEMORANDUM*
 v.

DAVID CLARK, Deputy Sheriff,
individually and in his official capacity,

              Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                        Argued and Submitted May 18, 2017
                             San Francisco, California

Before: BERZON and MURGUIA, Circuit Judges, and MCCALLA,** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
      Placer County Deputy Sheriff David Clark appeals the district court’s orders

denying, in part, his motion for summary judgment on the basis of qualified

immunity and denying his motion for reconsideration. We dismiss the appeal for

lack of appellate jurisdiction.

      1. We construe Clark’s timely notice of appeal from the denial of his motion

for reconsideration as a notice of appeal from the denial of his motion for summary

judgment, as well. The notice demonstrates Clark’s clear intent to appeal the

underlying order, and any failure to state an appeal of the underlying order in the

most recent notice of appeal did not prejudice the appellee. See Lolli v. Cty. of

Orange, 351 F.3d 410, 414 (9th Cir. 2003).

      2. Although an order denying summary judgment is not generally

immediately appealable as a final decision within the meaning of 28 U.S.C. §

1291, “the Supreme Court has created an exception to the final judgment rule for

certain interlocutory appeals when the district court has denied a motion for

summary judgment based on qualified immunity.” Pauluk v. Savage, 836 F.3d

1117, 1120–21 (9th Cir. 2016); see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

If the district court concludes that material disputes of fact remain, however, “our

review is limited to whether the defendant would be entitled to qualified immunity

as a matter of law, assuming all factual disputes are resolved, and all reasonable


                                          2
inferences are drawn, in plaintiff’s favor.” Karl v. City of Mountlake Terrace, 678

F.3d 1062, 1068 (9th Cir. 2012) (citation omitted). Accordingly, a district court’s

determination “that the parties’ evidence presents genuine issues of material fact is

categorically unreviewable on interlocutory appeal.” George v. Morris, 736 F.3d

829, 834 (9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir.

2009)) (internal quotation marks omitted).

      As in George, 736 F.3d at 834–35, the district court here followed Ninth

Circuit precedent for deadly force cases and “carefully examine[d] ‘all the

evidence in the record, . . . to determine whether the officer’s story is internally

consistent and consistent with other known facts.’” Gonzalez v. City of Anaheim,

747 F.3d 789, 795 (9th Cir. 2014) (en banc) (quoting Scott v. Henrich, 39 F.3d

912, 915 (9th Cir. 1994)). Such a careful review of the evidence is required to

“ensure that the officer is not taking advantage of the fact that the witness most

likely to contradict his story—the person shot dead—is unable to testify.” Id.

Clark does not contest that the law outlined in Scott v. Henrich applies to his case.

Rather, his only issue on appeal concerns the outcome of the district court’s

application of that standard, i.e., whether the district court correctly determined

there to be significant inconsistencies in Clark’s testimony or other “circumstantial

evidence that, if believed, would tend to discredit the police officer’s story.” Id.


                                            3
“Because this inquiry, under Scott v. Henrich and its progeny, concerns

genuineness—namely the question whether there is enough evidence in the record

for a jury to conclude that certain facts are true—we may not decide at this

interlocutory stage if the district court properly performed it.” George, 736 F.3d at

835 (citation omitted). We therefore lack jurisdiction to review Clark’s appeal.



DISMISSED.




                                          4
