           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 28, 2008

                                     No. 08-10575                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MATILDE ROSALES

                                                  Plaintiff - Appellee
v.

JOSE PENA, In his individual and official capacity;
WILLIAM PHILLIPS, In his individual and official capacity

                                                  Defendants - Appellants



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:05-CV-588


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
       These police officers appeal from the district court’s judgment denying
their qualified immunity defense to plaintiff’s claim of assault and battery in the
course of an unlawful arrest. Appellants’ briefs present a spirited advocacy of
the record on their behalf. That will not suffice in view of the district court’s
decision that fact issues are raised by the evidence in favor of the plaintiff’s



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                               No. 08-10575
                             Summary Calendar

claim. This court therefore lacks jurisdiction of the appeal. See Kinney v.
Weaver, 367 F.3d 337, 348 (5th Cir. 2004).
      DISMISSED.




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