     Case: 17-20245      Document: 00514304378         Page: 1    Date Filed: 01/11/2018




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

                                      No. 17-20245                              FILED
                                                                         January 11, 2018
                                                                           Lyle W. Cayce
BENEDICT EMESOWUM,                                                              Clerk

              Plaintiff - Appellee

v.

EDUARDO CRUZ; KIET TO,

              Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-2822


Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Benedict Emesowum sued the City of Houston, its police chief Charles
A. McClelland, and Officers Eduardo Cruz and Kiet To for constitutional
violations and state law torts allegedly arising out of Emesowum’s 2015 arrest
in a Houston parking lot. Defendants moved for summary judgment on all
claims. The district court granted the motion as to Emesowum’s claims against
the City and Chief McClelland, and as to Emesowum’s state law claims against


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 17-20245
Officers Cruz and To. But the court denied the officers’ motion for summary
judgment on the basis of qualified immunity as to Emesowum’s 42 U.S.C. §
1983 claims. The officers appeal.
                                        I.
      “The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine to the
extent that it turns on an issue of law.” Melton v. Phillips, 875 F.3d 256, 261
(5th Cir. 2017) (en banc) (quotation marks omitted). Accordingly, although we
may review whether a fact issue is material to the qualified immunity analysis,
we lack jurisdiction to consider whether a factual dispute is genuine. Id. In its
order denying summary judgment, the district court held that “the evidence
creates a disputed fact issue concerning [the officers’] entitlement to qualified
immunity.” But the court declined to specify what facts create the issue.
      When the district court denies a motion based on qualified immunity
“simply because ‘fact issues’ remain, this Court has two choices. We can either
scour the record and determine what facts the plaintiff may be able to prove at
trial and proceed to resolve the legal issues, or remand so that the trial court
can clarify the order.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)
(quoting Thompson v. Upshur Cty., TX, 245 F.3d 447, 456 (5th Cir. 2001)). In
this case, it is unclear from the record what facts the district court identified
as disputed. We therefore conclude that a limited remand is the “more efficient
alternative” here. Castillo v. City of Weslaco, 369 F.3d 504, 507 (5th Cir. 2004)
(remanding appeal from denial of motion for summary judgment based on
qualified immunity for additional fact finding); White v. Balderama, 153 F.3d
237, 242 (5th Cir. 1998) (same).
                                       II.
      We REMAND to the district court with instructions that, within ninety
days after the entry of this remand, it provide a supplemental order setting
                                        2
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                               No. 17-20245
forth the factual scenario relevant to Officers Cruz and To’s motion for
summary judgment. We retain jurisdiction over this appeal.




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