                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       June 21, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 03-41567
                             Summary Calendar



     DIANE ALPHA, Mother and Next Friend of minor children;
      COLLEEN ANDERSON, Surviving minor child; CLAYTON LYNN
     ANDERSON, Surviving minor child; JERRY LYNN ANDERSON,
Estate Of; TOMMY D. ANDERSON; REBECCA MULL,

                                                    Plaintiffs-Appellees,
                                     v.

                       MATT HOOPER, Etc.; ET AL.,

                                                                Defendants;

           MATT HOOPER, Deputy Sheriff in Hopkins County,

                                                  Defendant - Appellant.



            Appeal from the United States District Court
                  for the Eastern District of Texas
                          USDC No. 5:03-CV-2


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

           Deputy Matt Hooper appeals the district court’s denial of

his motion for summary judgment based on qualified immunity in this

42 U.S.C. § 1983 suit.         He argues that:       the disputed issues

identified by the district court are not material to the qualified


     *
            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opinion should not be published and is not precedent except under the limited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.
immunity determination; the evidence establishes without dispute

that Jerry Lynn Anderson posed an immediate and serious threat to

him; and his actions were reasonable in light of the threat posed

by Anderson.     Hooper further argues that the district court erred

when it denied his motion for summary judgment with respect to the

state-law claim advanced by the plaintiffs because that claim is

barred, as a matter of law, by TEX. CIV. PRAC. & REM. § 101.106.

            Although Hooper asserts that his appeal is a challenge to

the materiality of the disputed factual issues identified by the

district court, his arguments concern the genuineness of those

factual disputes.       See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).        Consequently, this court lacks jurisdiction

to consider Hooper’s appeal from the denial of summary judgment

with respect to whether he is entitled to qualified immunity.

See Reyes v. City of Richmond, Tex., 287 F.3d 346, 350 (5th Cir.

2002).1

            Because the determination whether TEX. CIV. PRAC. & REM.

§ 101.106 bars the state-law claim advanced by the plaintiffs is

neither “inextricably intertwined” nor necessary to resolve the

question of qualified immunity, this court lacks jurisdiction




      1
            Hooper correctly argues, however, that whether he and Officer Muñoz
identified themselves as law enforcement officers raises no material issue in the
immunity calculus, see Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir.
1992), although if the jury believes they did so identify themselves, it would
enhance Hooper’s argument that Anderson intended to run him down.

                                       2
to consider Hooper’s appeal of the denial of summary judgment as to

this issue.   See Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996).

          APPEAL DISMISSED FOR LACK OF JURISDICTION; REMANDED TO

THE DISTRICT COURT.




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