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

                                                                            FILED
                                                                         January 21, 2009

                                     No. 08-40569                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


HANAH FAULKENBERY

                                                  Plaintiff-Appellee
v.

BUBBA LEE

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:07-CV-180


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Bubba Lee, a deputy sheriff, appeals the district
court's denial of his motion for summary judgment based on qualified immunity.
We affirm.
       The § 1983 action filed by Plaintiff-Appellee Hanah Faulkenbery asserts
a violation, by Lee as a public official, of her constitutional right to the care,
custody, control and management of her three-year-old daughter.                           As


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40569

extensively, correctly, and completely analyzed in the district court's Order
Denying Defendant's Motion for Summary Judgment, the version of facts as
alleged by Faulkenbery as non-movant and supported by her summary judgment
evidence — which we must credit at this stage of the proceedings —
demonstrates that the discretionary acts of Lee in his capacity as a deputy
sheriff were not objectively reasonable and violated Faulkenbery's clearly
established constitutional right.
      Even if we were to assume without granting that, under Lee's significantly
divergent version of the facts, he would eventually be deemed to have acted with
objective reasonableness, we still would not have appellate jurisdiction to
entertain this interlocutory appeal of denial of qualified immunity. This case
quite literally presents a quintessential example of the classic "he said, she said"
swearing match, making it obvious that Lee's summary judgment motion turns
entirely on a genuine issue of fact that clearly is material.          Unlike our
jurisdiction to hear interlocutory appeals of denial of qualified immunity motions
that turn on materiality or other issues of law, we have no jurisdiction to hear
appeals of such denials based solely on disputes of fact when, as here, the non-
movant's version, if prevailing, would establish the violation of a clearly
established constitutional right by the discretionary acts of a public official that
were not objectively reasonable. Johnson v. Jones, 515 U.S. 304, 310-13 (1995);
Aucoin v. Haney, 306 F.3d 268, 271-72 (5th Cir. 2002); Cantu v. Rocha, 77 F.3d
795, 802-803 (5th Cir. 1996).
      For lack of appellate jurisdiction, Lee's appeal is dismissed and this case
is remanded to the district court for further consistent proceedings.
DISMISSED and REMANDED.




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