                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                          FILED
                            FOR THE NINTH CIRCUIT                          JUL 10 2020
                                                                       MOLLY C. DWYER, CLERK
SALVADOR SHANNON, as an individual              No.    18-16608         U.S. COURT OF APPEALS

and as a successor in interest to Ryan
Shannon,                                        D.C. No.
                                                2:15-cv-00967-KJM-DB
                Plaintiff-Appellee,

 v.                                             MEMORANDUM*

TIMOTHY JONES; JOSEPH REEVE,

                Defendants-Appellants.

                   Appeal from the United States District Court
                       for the Eastern District of California
                Kimberly J. Mueller, Chief District Judge, Presiding

                        Argued and Submitted May 14, 2020
                             San Francisco, California

Before: WALLACE and R. NELSON, Circuit Judges, and BLOCK,** District
Judge.
      Defendants Timothy Jones and Joseph Reeve (the Deputies) appeal from the

denial of their motion for summary judgment on qualified immunity grounds. We

dismiss for lack of appellate jurisdiction.

      “We have jurisdiction to determine our jurisdiction.” United States v.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
Decinces, 808 F.3d 785, 788 (9th Cir. 2015). Although an order denying summary

judgment is not generally immediately appealable as a final decision within the

meaning of 28 U.S.C. § 1291, “the Supreme Court has created an exception to the

final judgment rule for certain interlocutory appeals when the district court has

denied a motion for summary judgment based on qualified immunity.” Pauluk v.

Savage, 836 F.3d 1117, 1120–21 (9th Cir. 2016); see also Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). However, this exception does not extend to a district court’s

determination that “the parties’ evidence presents genuine issues of material fact,”

and thus, such determinations remain “categorically unreviewable on interlocutory

appeal.” George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013) (internal quotation

marks omitted); see also Johnson v. Jones, 515 U.S. 304, 319 (1995) (describing a

district court’s decision that an issue of fact is “genuine” as an “unreviewable

determination”). “Where there are disputed issues of material fact, our review is

limited to whether the defendant would be entitled to qualified immunity as a matter

of law, assuming all factual disputes are resolved, and all reasonable inferences are

drawn, in plaintiff’s favor.” Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068

(9th Cir. 2012).

      Here, the district court denied the Deputies’ motion for summary judgment

because it found genuine disputes of material fact as to whether the officers were

entitled to qualified immunity. On appeal, the Deputies challenge the district court’s

determination that there were genuine disputes of material fact and argue that, under

their version of the facts, the Deputies did not unreasonably use force in violation of

                                          2
“clearly established” law.

          The Deputies’ appeal thus “concerns genuineness—namely the question [of]

whether there is enough evidence in the record for a jury to conclude that certain

facts are true.” George, 736 F.3d at 835 (internal quotation marks omitted).

However, we “may not decide at this interlocutory stage if the district court properly

performed” that analysis. Id.; see also Foster v. City of Indio, 908 F.3d 1204, 1212–

13 (9th Cir. 2018) (observing that we “may not reweigh the evidence to evaluate

whether the district court properly determined there was a genuine issue of material

fact”).

          Accordingly, we dismiss the Deputies’ appeal for lack of jurisdiction, without

deciding at this interlocutory stage whether the Deputies are entitled to qualified

immunity. See, e.g., Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir. 1996) (en

banc) (dismissing appeal for lack of jurisdiction and explaining that “we do not

address issues relating to whether the pretrial record demonstrates genuine issues of

material fact because such fact-based inquiries are not within the scope of an

interlocutory appeal from the denial of qualified immunity”), overruled in part on

other grounds as recognized in Crown Point Dev., Inc. v. City of Sun Valley, 506

F.3d 851, 852 (9th Cir. 2007).

          DISMISSED.1



1
  In reaching this decision, we do not consider the materials that the Deputies seek
to strike, and thus we deny as moot the Deputies’ pending motion to strike (ECF No.
42).

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