                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                        F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                         August 21, 2006
                                FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                  __________________________                                Clerk
                                         No. 05-11485
                                       Summary Calendar
                                  __________________________


JOSEPH DINGLER
                                                                                   Plaintiff-Appellee,

versus

DALLAS COUNTY SHERIFF’S OFFICE, et al;


Defendants,

OFFICER NFN AMIN, Dallas County Sheriff’s Department;
OFFICER NFN GRAY, Dallas County Sheriff’s Department;
OFFICER NFN HATCHER, Dallas County Sheriff’s Department;
OFFICER NFN HIGHTOWER, Dallas County Sheriff’s Department;
OFFICER NFN ENGLISH, Dallas County Sheriff’s Department
                                                                              Defendants-Appellants.

                  ___________________________________________________

                          Appeal from the United States District Court
                              for the Northern District of Texas
                                     (No. 3:02-CV-2749)
                  ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

         This 42 U.S.C. § 1983 action arises from a prisoner’s pro se allegations of physical abuse at

the hands of certain prison guards. The defendant prison guards file this interlocutory appeal

         *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under limited circumstances set forth in 5TH CIR. R. 47.5.4.
challenging the district court’s denial of their summary judgment motion. The guards argue that the

district court should have granted summary judgment in their favor since they were entitled to

qualified immunity; specifically, the guards argue that their alleged behavior was not so unreasonable

as to preclude a qualified immunity defense.

        Because the district court’s denial of summary judgment was not a final decision, review of

this interlocutory appeal is limited. Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004). This court

“lack[s] interlocutory jurisdiction to review the district court’s conclusion that the plaintiff has created

a genuine issue of fact as to some matter.” Id. The court may, however, review whether the fact

issues are material, Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001), or whether the

defendants nonetheless are entitled to qualified immunity based upon the facts as alleged by the

plaintiff, Colston v. Barnhart, 130 F.3d 96, 98–99 (5th Cir. 1997).

        The district court noted that there were factual issues as to whether each of the guards knew

of or participated in the alleged physical abuse. These issues, according to the district court,

prevented summary judgment and overcame the qualified immunity defense.1 On appeal, the guards

do not argue that the factual issues identified by the district court are immaterial. Instead, the guards

assert that, even accepting Dingler’s version of facts as true, summary judgment should have been

granted in the guards’ favor. Dingler alleges that the guards physically abused him by repeatedly

opening doors with his head while his hands were restrained and by repeatedly kicking and punching

him while he was prone and restrained on the floor, thereby causing him physical injuries. Assuming


        1
         The district court noted that Dinger’s assertions “complie[d] with the affidavit requirements”
and “provide[d] sufficient detail as to the description of the incident, the parties involved, and the
injuries suffered to create a genuine issue of material fact.” The district court also noted that the
guards’ affidavits “den[ied] knowledge of or participation in the most significant parts of the alleged
incident and create[d] a genuine issue of material fact.”

                                                     2
these facts are true, we cannot say that the guards would be entitled to qualified immunity.

Accordingly, we do not have appellate jurisdiction to hear this interlocutory appeal.

       The interlocutory appeal is DISMISSED.




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