                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   June 5, 2003

                       __________________               Charles R. Fulbruge III
                                                                Clerk
                          No. 02-41356
                        Summary Calendar
                       __________________

                   RAYMOND BERNARD HUTCHISON,

                                                Plaintiff-Appellee,

                             versus

               THE CITY OF DAYTON, TEXAS; ET AL.,

                                                        Defendants,

                      RICHARD CRAIG McCOWN,

                                              Defendant-Appellant.


          Appeal from the United States District Court
                for the Eastern District of Texas
                          (1:01-CV-539)


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     For this civil rights action, pursuant to 42 U.S.C. § 1983,

concerning an altercation arising out of the purchase of gasoline,

Officer McCown appeals the partial denial of his summary-judgment

motion (it was also granted in part), in which McCown contended he




     *
        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that this opinion should not be published and is not precedent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.
was entitled to qualified immunity from Hutchison’s claim of

unreasonable seizure under the Fourth Amendment.

      This court must consider, sua sponte if necessary, the issue

of its own jurisdiction.       Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987).    “To determine whether a denial of summary judgment

based on qualified immunity is immediately appealable, this Court

looks at the legal argument advanced.        When [as here] a district

court denies summary judgment on the basis that genuine issues of

material fact exist, it has made two distinct legal conclusions:

that there are ‘genuine’ issues of fact in dispute, and that these

issues are ‘material.’”    Reyes v. City of Richmond, Tex., 287 F.3d

346, 350-51 (5th Cir. 2002). Although our court lacks jurisdiction

to   review   the   district   court’s   conclusion   that   issues   are

“genuine”, we have jurisdiction to review its determination that

issues are “material”.         Id. at 351.     “An officer challenges

materiality when he contends that ‘taking all the plaintiff’s

factual allegations as true no violation of a clearly established

right was shown.’”     Id. (citation omitted).

      Review of Officer McCown’s numerous contentions reveals that

he does not present the facts in the requisite light most favorable

to Hutchison and his assertions assume facts different from those

assumed by the district court.       Officer McCown does not properly

take into account the whole of Hutchinson’s deposition, upon which

the district court relied in denying qualified immunity for the


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claim at issue.    Contrary to Officer McCown’s assertions, the

district court properly considered the testimony.   See FED R. CIV.

P. 56(c), (e); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,

490 (5th Cir. 2001).

     Because Officer McCown’s contentions amount to a challenge to

the genuineness of the factual disputes in this action, this court

lacks jurisdiction.    See Reyes, 287 F.3d at 351-52.   Accordingly,

McCown’s appeal is DISMISSED for lack of jurisdiction and this

action is REMANDED to the district court.

                                            DISMISSED; REMANDED




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