UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAURA MANNS,
Plaintiff-Appellee,

v.

CATHY SMITH, in her individual and
official capacity,
Defendant-Appellant,                                                No. 99-1372

and

FRED MARSHALL, in his individual
and official capacity; CITY OF
CHARLESTON, WEST VIRGINIA,
Defendants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-97-878-2)

Argued: October 26, 1999

Decided: January 12, 2000

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John R. Teare, Jr., BOWLES, RICE, MCDAVID,
GRAFF & LOVE, P.L.L.C., Charleston, West Virginia, for Appel-
lant. Jason Eskwith Huber, FORMAN & CRANE, L.C., Charleston,
West Virginia, for Appellee. ON BRIEF: Lisa Michelle Drabik,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, P.L.L.C., Charles-
ton, West Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cathy Smith, a police officer for the city of Charleston, West Vir-
ginia, appeals the district court's denial of her motion for summary
judgment on various federal and state claims filed against her by
Laura Manns in the aftermath of Smith's arrest of Manns. Smith
claims that her motion should have been granted because she was
entitled to the defense of qualified immunity as to Manns's federal
claims and to the defense of state statutory immunity as to Manns's
state claims. The district court's order denying her motion for sum-
mary judgment determined that the pretrial record on the federal and
state claims set forth genuine issues of material fact for trial that must
be resolved before the court could determine whether Smith is pro-
tected by qualified and state statutory immunity. Because Smith asks
us to resolve a dispute over whether or not certain conduct occurred,
we dismiss Smith's interlocutory appeal for lack of jurisdiction.

I.

On the morning of November 12, 1996, Laura Manns, a seventy-
six-year-old diabetic, had an appointment to visit her podiatrist in St.
Albans, West Virginia. She left her home in Charleston and made her
way to the city's Transit Mall to take a bus to St. Albans. In her depo-
sition in this case, Manns testified that she put forty cents in the col-
lection box as she boarded the bus.1 The bus driver, Ronald Jones,
_________________________________________________________________
1 Because this case is only at the summary judgment stage in the dis-
trict court, the facts are drawn not from trial testimony, but from the dis-

                     2
who came aboard to relieve the driver who was on board when Manns
entered the bus, testified in his deposition that the first driver told him
that Manns had paid no fare. Jones asked Manns to pay her fare, but
Manns refused. Jones then told Manns that if she did not pay her fare
or get off the bus that he would have to call the police. When Manns
refused to pay and refused to leave her seat, Jones made good on his
threat and called the police.

Officer Cathy Smith answered the call and met Jones outside the
bus. After discussing the situation with Jones, Smith boarded the bus
and told Manns that she needed to pay her fare or get off the bus.
After some discussion, Manns voluntarily abandoned her seat and left
the bus. After leaving the bus, however, Manns stood directly in front
of the steps leading from the bus to the pavement. Because Manns
was blocking Smith's exit from the bus, Smith asked her to move.
Although Smith alleges that Manns first refused her request, Manns
did voluntarily move in order to allow Smith to exit the bus.

The parties present very different versions of what happened next.
Smith testified that she told Manns to go to the terminal's ticket office
if Manns had a problem. Smith alleged that, as she turned to Jones to
tell him she was leaving at that point, Manns struck her, making a
short scratch on her neck. Jones also testified at his deposition that he
saw Manns strike Smith. In addition, he testified that, while Smith
and Manns were talking before Smith turned to him to say she was
leaving, Manns pointed her finger at Smith's chest. Although his testi-
mony is a bit unclear on this point, Jones appears to have asserted that
Manns's finger touched Smith's clothing. The stories of two other
witnesses dispute this account. Andrew Payne was a passenger on the
bus who offered to pay Manns's fare after Smith asked Manns either
to pay or leave. After Smith ordered him to back off and return to his
seat, Payne continued to watch the incident unfold. Payne testified
that he saw Manns wag her finger at Smith and that Manns's finger
made slight physical contact with Smith. He said, however, that
Manns shook her finger like "an old lady being contrary who had
been taken off the bus . . . not offensive or threatening at all." (J.A.
_________________________________________________________________
trict court's order denying summary judgment, the depositions of the
parties and their witnesses, and the pleadings.

                     3
at 147.) He also testified that, after Manns touched Smith while wag-
ging her finger, he never saw Manns strike Smith on the neck,
although his testimony indicates that he may have turned away at the
instant of the alleged punch. The other witness who disputes the
accounts of Smith and Jones is Timothy Scott, a maintenance
employee who was cleaning the Transit Mall at the time of the inci-
dent. Scott testified that he saw Manns leave the bus with Smith
behind her. He said that he never saw Manns hit, push, or scratch
Smith, but that he saw Smith grab Manns's arms from behind in an
attempt to handcuff her.

Smith testified that after this first stage of the altercation, she
informed Manns that she was under arrest. According to Smith, she
tried to handcuff Manns from behind as Manns was swinging her
arms, twisting away, and crying out. Smith testified that she dropped
her handcuffs because Manns was hitting her, and she claims that she
had to push Manns away in order to protect herself. She said that she
then pulled out her pepper spray as Manns charged her and sprayed
Manns in the face in order to subdue her.

Payne got off the bus in order to watch the incident unfold. He
offers a different version of events, claiming that, after Manns
wagged her finger at Smith, Smith grabbed Manns by the throat,
slammed her against a wall, and picked her up off the ground. He tes-
tified that after Smith released her, Manns swung her arms lethargi-
cally in an attempt to get away. Payne claimed that, after moving a
small distance away from Smith, Manns turned her back to the officer
and was "trying to act as inconspicuous as possible." (J.A. at 155,
367.) Then, according to Payne, Smith grabbed Manns from behind,
turned her around, and sprayed her in the face with pepper spray.

Unlike Payne, Scott did not report seeing Smith grab Manns by the
throat, slam her against the wall, and pick her up off the ground. He
testified that, although Manns was swinging her arms as she moved
away from Smith, she was not swinging them at the officer; instead,
she was making a paddling motion. His account also differs from
Payne's in that he testified that Manns turned voluntarily to face
Smith before Smith sprayed her.

                    4
After Smith sprayed Manns with pepper spray, other officers
arrived on the scene. Manns was handcuffed and taken to the police
station, where she was charged with battery, disorderly conduct,
resisting arrest, and obstructing justice.2

Manns then filed this civil action in the Circuit Court of Kanawha
County, West Virginia, against the City of Charleston, Officer Smith,
and Police Chief Fred Marshall. Manns does not challenge the district
court's characterization of her claims as a "violation of her rights
under the West Virginia Constitution, her federal Fourth Amendment
rights, [and] her civil rights pursuant to 42 U.S.C. §§ 1983 and 1988."
(J.A. at 367.) Manns also asserted the following state tort claims:
intentional and negligent infliction of emotional distress, false impris-
onment, battery, and abuse of legal process. The defendants removed
the case to federal court in the Southern District of West Virginia and
then moved for summary judgment on all of Manns's claims. The
motions by the City of Charleston and Chief Marshall were granted,
leaving Smith as the sole remaining defendant.

Smith's motion for summary judgment was granted in part and
denied in part. The district court granted summary judgment to Smith
on Manns's state law claims of abuse of legal process and intentional
and negligent infliction of emotional distress, finding that Manns had
failed to produce any evidence on these claims. The court denied
Smith's motion on the state law claims of battery and false imprison-
ment, however, finding that there were genuine issues of material fact
regarding both claims and that the defense of state statutory immunity
would not apply if the facts were as Manns alleged. The court also
denied Smith summary judgment on Manns's federal claims that
Smith had violated her Fourth Amendment right to be free from
unlawful seizure and the use of excessive force. The court found that
there were genuine issues of material fact regarding those claims and
that the defense of qualified immunity would not apply if the facts
_________________________________________________________________

2 The Kanawha County Prosecutor's office later declined to prosecute
Manns on these charges. We note that the district court, "[c]ognizant of
prosecutorial discretion and the difference in proof standards in civil and
criminal matters," properly declined to draw any legal conclusions from
this fact. (J.A. at 367.)

                    5
were as Manns alleged. Following this partial denial of her motion for
summary judgment, Smith filed this interlocutory appeal.3

II.

The first issue we must address is whether we have jurisdiction
over this appeal of the district court's denial of summary judgment in
regard to Manns's federal claims. Although collateral orders of dis-
trict courts do not normally constitute appealable final decisions
under 28 U.S.C.A. §1291 (West 1993), the Supreme Court has held
that a district court's order denying a defendant's motion for summary
judgment is an immediately appealable collateral order, i.e., a "final
decision" under § 1291, when the defendant is a public official assert-
ing qualified immunity and "the issue appealed concern[s], not which
facts the parties might be able to prove, but, rather, whether or not
certain given facts showed a violation of `clearly established' law."
Johnson v. Jones, 515 U.S. 304, 311 (1995) (restating the holding of
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). The Johnson court
held, however, that not all denials of summary judgment in the con-
text of a qualified immunity defense are appealable:"[W]e hold that
a defendant, entitled to invoke a qualified immunity defense, may not
appeal a district court's summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a `genuine'
issue of fact for trial." Id. at 319. Later, in Behrens v. Pelletier, 516
U.S. 299 (1996), the Court clarified its holding in Johnson:

           Johnson held, simply, that determinations of evidentiary
           sufficiency at summary judgment are not immediately
           appealable merely because they happen to arise in a
           qualified-immunity case; if what is at issue in the suffi-
           ciency determination is nothing more than whether the evi-
           dence could support a finding that particular conduct
           occurred, the question decided is not truly separable from
_________________________________________________________________
3 Manns does not cross-appeal the district court's grant of summary
judgment in favor of the City of Charleston and Chief Marshall and their
dismissal from the case. She also does not cross-appeal the district
court's grant of summary judgment for Smith on the claims of abuse of
legal process and intentional and negligent infliction of emotional dis-
tress

                     6
          the plaintiff's claim, and hence there is no final decision
          . . . . Johnson reaffirmed that summary judgment determina-
          tions are appealable when they resolve a dispute concerning
          an abstract issue of law relating to qualified immunity --
          typically, the issue whether the federal right allegedly
          infringed was clearly established.

Id. at 313 (internal citations and quotation marks omitted). In the
aftermath of Johnson and Behrens, we have held that a district court's
denial of a defendant's qualified immunity defense at the summary
judgment stage is appealable if the defendant claims that "there was
no violation of clearly established law accepting the facts as the dis-
trict court viewed them"; no jurisdiction exists, however, over an
appeal that involves the issue of whether or not certain conduct
occurred. Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997).

Smith's appeal regarding Manns's federal claims asks us to resolve
a dispute over whether or not certain conduct occurred; it does not ask
us to apply the law of qualified immunity to the facts as the district
court viewed them. She does not argue, for example, that her conduct,
as alleged by Manns, does not constitute the violation of clearly estab-
lished law. Instead, Smith argues that the district court erred when it
decided that the facts surrounding the incident are disputed instead of
undisputed. In other words, Smith asks us to resolve a question of
mere "evidentiary sufficiency" involving "nothing more than whether
the evidence could support a finding that particular conduct
occurred." Behrens, 516 U.S. at 313. She argues that it is undisputed
that Manns struck her -- or at least touched her-- and that this fact
therefore allowed her to formulate the reasonable belief that she had
probable cause to arrest Manns, i.e., to believe that Manns was com-
mitting or had committed a criminal offense. See Coates v.
Daugherty, 973 F.2d 290, 293 (4th Cir. 1992) (stating the qualified
immunity test for a warrantless arrest). Smith also argues that the
facts regarding the amount of force she used in making the arrest are
undisputed and that those facts show that the amount of force used
was objectively reasonable in light of the circumstances. See Rowland
v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (stating the qualified
immunity test for claims of excessive force in making an arrest). She
claims that, if her "undisputed" version of events is accepted, her con-
duct in making the arrest was in line with the City of Charleston's use

                    7
of force policy -- a policy on which she is allowed to rely for pur-
poses of receiving qualified immunity. See Shaw v. Stroud, 13 F.3d
791, 801 (4th Cir. 1994) ("We have held that officers are entitled to
qualified immunity when they rely on standard operating procedures,
if that reliance is reasonable.").

Our review of the district court's order denying Smith summary
judgment as to Manns's federal claims indicates that the district court
determined, after a review of the conflicting deposition testimony we
have described above, that there were genuine issues of material fact
regarding Manns's claims of unlawful seizure and excessive force
that needed to be resolved before a decision on the qualified immu-
nity defense could be made.4 The court determined that the facts
regarding Smith's conduct -- as well as Manns's-- before and after
the arrest are hotly contested.5 At this point, we simply do not have
_________________________________________________________________
4 This interlocutory appeal comes to us in different circumstances than
the interlocutory appeal of the denial of summary judgment over which
we exercised jurisdiction in Elliott v. Leavitt , 99 F.3d 640 (4th Cir.
1996). In that case, even though the district court had denied summary
judgment to the defendant police officers claiming qualified immunity on
the ground that material issues of fact existed, we found that there was
no genuine dispute because the plaintiff had failed to present any facts
that contradicted the version of events offered by the officers. See id. at
644. Here, Manns has presented evidence in the form of deposition testi-
mony that materially contradicts Smith's version of events.
5 As an aside, we note the somewhat disingenuous nature of Smith's
assertion that the district court erred when it determined that there was
a genuine issue of material fact as to whether Manns battered her. Smith
argues that the undisputed facts show that there was unwelcome physical
contact that required the legal inference that she could have reasonably
believed that she had probable cause to arrest Manns for assault or bat-
tery. She claims that the facts are undisputed on this point even though
Scott testified that he never saw Manns make physical contact with
Smith. Of course, this kind of argument -- one that addresses the ques-
tion of whether the evidence is sufficient to raise a genuine issue of
material fact -- is one that we do not have jurisdiction to consider on an
interlocutory appeal after the district court has denied a defendant's sum-
mary judgment motion because of the existence of a genuine issue of
material fact regarding the defendant's conduct. Still, we observe that, in
making her argument on this point, Manns either completely ignores the

                    8
jurisdiction to address Smith's argument that the evidence reviewed
by the district court is insufficient to support a finding that Manns's
version of events is correct. See Winfield, 106 F.3d at 529-30 ("[T]o
the extent the appealing official seeks to argue the insufficiency of the
evidence to raise a genuine issue of material fact-- for example, that
the evidence presented was insufficient to support a conclusion that
the official engaged in the particular conduct alleged -- we do not
possess jurisdiction under § 1291 to consider the claim . . . .").

III.

Having dismissed Smith's interlocutory appeal in regard to
Manns's federal claims, we dismiss it as well in regard to Manns's
state claims.6 Assuming that we can hear interlocutory appeals from
denials of summary judgment in the context of state statutory immu-
nity when the appeal turns on abstract issues of law, see Cantu v.
Rocha, 77 F.3d 795, 804-05 (5th Cir. 1996), we dismiss Smith's
appeal regarding Manns's state claims for the same reason we dismiss
her appeal regarding Manns's federal claims: Just as she did regarding
Manns's federal claims, Smith seeks to argue about whether or not the
conduct underlying Manns's state claims occurred, see Collins v.
Jordan, 110 F.3d 1363, 1376-77 (9th Cir. 1996) (dismissing, for lack
of jurisdiction, appeal from denial of summary judgment on state
_________________________________________________________________
testimony of Scott, claims that he did not observe events unfold when his
testimony clearly indicates that he witnessed the entire incident, or
claims that his testimony should not be given any weight because other
witnesses observed the altercation from a closer distance. This last argu-
ment by Smith seems framed on her erroneous belief that, in Sigman v.
Town of Chapel Hill, 161 F.3d 782 (4th Cir. 1998), we made the radical
announcement that we would make credibility determinations when
reviewing a summary judgment order. In Sigman , we reviewed the dis-
trict court's grant -- not denial -- of summary judgment in favor of
defendant police officers. We discounted the testimony of eyewitnesses
in that case not because of credibility issues, but because their testimony
was not "material to the question of whether[the defendants were] enti-
tled to the protections of qualified immunity in the particular circum-
stances of this case." Id. at 788.
6 Smith argues that, under her version of the facts, Manns's state law
claims are barred by W. Va. Code § 29-12A-5(b)(2) (1999).

                     9
claims in face of defense of state statutory immunity when denial
turned on need to resolve disputed issues of material fact); Tamez v.
City of San Marcos, 62 F.3d 123, 125 (5th Cir. 1995) (same).

IV.

For the foregoing reasons, we dismiss Smith's appeal.

DISMISSED

                    10
