                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 14, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                Clerk

                             No. 05-20807

                       ))))))))))))))))))))))))))

JEANETTE GOODMAN, Individually and as administratrix of the
estate of Michael W. Goodman, Deceased

                Plaintiff - Appellant - Cross-Appellee

     v.

HARRIS COUNTY, ET AL

                Defendants

HARRIS COUNTY; ROBERT ECKELS, Harris County Judge; EL FRANCO
LEE, Harris County Commissioner; STEVE RADACK, Harris County
Commissioner; JERRY EVERSOLE, Harris County Commissioner;
SYLVIA GARCIA, Harris County Commissioner; RON HICKMAN,
Harris County Precinct 4 Constable; TERRY ASHABRANNER,
Deputy Constable; DREW CARTER, also known as Andrew Carter

                Defendants - Appellees

TERRY ASHABRANNER, Deputy Constable

                Defendant - Appellee - Cross-Appellant



           Appeal from the United States District Court
                for the Southern District of Texas
                         No. 4:03-CV-4198



Before DAVIS, DENNIS and PRADO, Circuit Judges.

PER CURIAM:*


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
     This case concerns the fatal shooting of Michael Goodman

(“Goodman”) by Defendant Terry Ashabranner (“Ashabranner”), a

deputy constable in Harris County.    Plaintiff Jeanette Goodman

(“Plaintiff” or “Ms. Goodman”), Goodman’s mother and

administratrix of Goodman’s estate, brought numerous claims

against Ashabranner, Harris County, and other Harris County

officials as a result of the shooting.    The defendants moved for

summary judgment, and the district court granted their motion in

part, leaving only the excessive force claim against Ashabranner.

Plaintiff and Ashabranner appealed.    For the following reasons,

we dismiss both appeals for lack of jurisdiction.

                       I. FACTUAL BACKGROUND

     As an initial matter, we note that this case is unusual in

that there is only one surviving witness to the events at issue--

Ashabranner.   As a result and unless noted otherwise, the

following description of facts comes entirely from the affidavit

of Ashabranner.

     On the night of April 14, 2002, Ashabranner was on duty as a

K-9 unit in the Precinct 4 Patrol Division.    He was driving a

marked patrol vehicle, equipped with overhead blue and red

emergency lights, and was wearing a duty belt and his officer’s

uniform (a polo shirt with a badge embroidered on it).    Around

the 13800 block of Kuykendahl Road, Ashabranner passed Goodman,



RULE 47.5.4.

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who was riding a bicycle on the wrong side of the road.     The

bicycle did not have on it the lights required by Texas

Transportation Code § 551.104 for nighttime operation.    After

swerving to avoid Goodman, Ashabranner decided to stop Goodman

and warn him that his actions were dangerous.

     Ashabranner drove alongside Goodman and tried to get

Goodman’s attention, but Goodman did not respond.   So,

Ashabranner pulled over and got out of his car to talk to

Goodman.   According to Ashabranner, Goodman got off his bike, but

still made no response and would not make eye contact.

Ashabranner states that he observed “a tool or object of some

type” in Goodman’s right rear pants pocket.   Ashabranner believed

the object was metal and that it posed a threat to his safety, so

he decided to frisk Goodman.   Goodman then hit or pushed

Ashabranner to the ground, pushed the bicycle through a nearby

barricade, and rode away.   Ashabranner yelled at Goodman to stop

and threatened to release his K-9 Nero if he did not stop.

Goodman continued to flee, so Ashabranner released Nero to

apprehend Goodman while Ashabranner followed on foot.

     When Ashabranner caught up with them, Goodman was lying in a

puddle of water and was holding Nero’s mouth and nose underwater

while yelling, “I’m gonna kill your dog, I’m gonna kill your

dog!”   Ashabranner responded to Goodman that he would call off

Nero if Goodman would release him, but Goodman did not.

Ashabranner knelt down, grabbed Goodman from behind, and pulled

                                 3
back, lifting Nero’s head out of the water.     Ashabranner noticed

at this time that Goodman was bleeding, likely from dog bites.

Goodman eventually released Nero.     Ashabranner states that

Goodman then pushed him down with his left hand and “reached back

with his right hand and appeared to be drawing or pulling the

weapon or object” that was in his right rear pants pocket.

Believing he was in danger of serious bodily injury or death,

Ashabranner pulled out his own firearm and shot Goodman three

times.

     Ashabranner immediately radioed the Precinct 4 dispatcher to

request backup and medical assistance.     Ashabranner remained with

Goodman, but did not handcuff him or attempt any first aid.

Deputy Constable Steve Cupit (“Cupit”) arrived shortly

thereafter.   He noted that Goodman was attempting to turn on his

left side, at which time Cupit observed a pair of pliers in

Goodman’s right rear pants pocket.     Goodman was taken by Life

Flight to a nearby hospital where he was pronounced dead.

     Plaintiff disputes Ashabranner’s version of events, although

her ability to do so is limited due to the fact that she was not

present at the shooting.   In support of her belief that Goodman

did not pose a serious threat to Ashabranner, she claims that

Goodman had received a gun shot wound to his dominant right arm

less than four months prior to the incident in question and had

almost no use of his right arm.   Ms. Goodman claims that her son

was very clumsy as a result of having to use his left arm and

                                  4
certainly could not have overpowered a deputy.

                      II. PROCEDURAL HISTORY

     Ms. Goodman filed suit in Harris County Probate Court #1 on

September 12, 2003, against Harris County; Harris County Judge

Robert Eckels; Harris County Commissioners El Franco Lee, Steve

Radack, Jerry Eversole, and Sylvia Garcia; Constable Ron Hickman;

and Ashabranner (collectively, “Defendants”).    The causes of

action included claims of excessive force, failure to train,

illegal arrest, and illegal seizure in violation of the Fourth

and Fourteenth Amendments and brought pursuant to 42 U.S.C.

§ 1983; violations of due process and equal protection under both

the Texas and United States Constitutions; wrongful death and

survival actions brought pursuant to sections 71.002 and 71.021

of the Texas Civil Practice and Remedies Code; and common law

negligence.   Defendants removed the case to federal court on

October 7, 2003.

     Plaintiff later filed an amended complaint which added as

defendants Texas Ranger Andrew Carter and the Texas Department of

Criminal Justice (“TDCJ”).   Plaintiff also added causes of action

under the Texas Tort Claims Act (“TTCA”), TEX. CIV. PRAC. & REM.

CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp. 2006), against all

Defendants.   Carter, the TDCJ, and Plaintiff reached an agreed

stipulation of dismissal with prejudice on October 14, 2004.       The

remaining Defendants filed a motion for summary judgment on



                                 5
December 15, 2004, and on August 26, 2005, the district court

granted summary judgment on all claims except for the excessive

force claim against Ashabranner.

     Plaintiff filed an appeal on September 9, 2005.   While her

notice of appeal was not specific to any particular claim, she

has only briefed before this court (1) the TTCA claim against

Harris County; (2) the failure to train claim against Hickman;

and (3) the failure to provide immediate life-saving care claim

against Ashabranner.   Ashabranner cross-appealed the district

court’s decision that he was not entitled to summary judgment on

Plaintiff’s excessive force claim on the basis of qualified

immunity.

                            III. DISCUSSION

A.   Ashabranner’s Appeal

     We turn first to Ashabranner’s appeal, in which he asserts

that the district court erred when it denied him summary judgment

on the basis of qualified immunity for Plaintiff’s excessive

force claim.   Although interlocutory orders are typically not

immediately appealable, the denial of qualified immunity is

immediately appealable under the collateral order doctrine to the

extent the decision turns on an issue of law.   Gobert v.

Caldwell, 463 F.3d 339, 344 (5th Cir. 2006); see also Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985) (classifying the denial of

qualified immunity, to the extent it turns on an issue of law, as



                                   6
a “final judgment” under 28 U.S.C. § 1291).

     Our jurisdiction over and scope of review of such appeals is

limited, however, to issues of law.   See Gobert, 463 F.3d at 344;

see also Kinney v. Weaver, 367 F.3d 337, 346-47 (5th Cir. 2004)

(en banc).   We, therefore, lack jurisdiction to the extent

Ashabranner challenges the district court’s determination that

the fact issues described in the summary judgment order are

genuine.   See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d

481, 490 (5th Cir. 2001); see also Reyes v. City of Richmond, 287

F.3d 346, 351 (5th Cir. 2002).   Ashabranner may challenge the

materiality of the fact issues identified by the district court,

but the presence of a genuine issue of material fact precludes us

from exercising jurisdiction.    See Glenn v. City of Tyler, 242

F.3d 307, 312 (5th Cir. 2001).   Therefore, we must accept

Plaintiff’s version of facts as true and review de novo the

purely legal question of whether the district court erred in

concluding as a matter of law that Ashabranner is not entitled to

qualified immunity on that set of facts.   See Gobert, 463 F.3d at

345; see also Reyes, 287 F.3d at 351 (noting that a defendant

challenges materiality when he contends that “taking all the

plaintiff’s factual allegations as true[,] no violation of a

clearly established right [i]s shown.” (internal citations and

quotation marks omitted)).

     1.    Qualified Immunity


                                 7
     Ashabranner has asserted the defense of qualified immunity

to Plaintiff’s claim that he used excessive force when he shot

Goodman.   The defense of qualified immunity shields government

officials such as Ashabranner from liability when they are acting

within their discretionary authority and their conduct does not

violate clearly established statutory or constitutional law of

which a reasonable person would have known.       Wallace v. County of

Comal, 400 F.3d 284, 289 (5th Cir. 2005).      The qualified immunity

analysis is a two-step inquiry.       Michalik v. Hermann, 422 F.3d

252, 257 (5th Cir. 2005).   First, the court must decide whether

the plaintiff has alleged a violation of a clearly established

constitutional right.   Id.; see also Siegert v. Gilley, 500 U.S.

226, 231-32 (1991).   A right is clearly established when its

contours are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”        Wooley v.

City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (internal

citations and quotation marks omitted).      If there is no

constitutional violation, the inquiry ends.       Saucier v. Katz, 533

U.S. 194, 201 (2001).   If, however, the plaintiff has alleged a

violation of a clearly established right, the court must then

determine whether the defendant’s conduct was objectively

reasonable under the law at the time of the incident.         Michalik,

422 F.3d at 258.

     In the summary judgment context, a government official need

only plead qualified immunity, which shifts the burden to the

                                  8
plaintiff.    Id. at 262.    The plaintiff must then rebut the

defense by establishing that the official’s allegedly wrongful

conduct violated clearly established law and that a genuine issue

of material fact exists regarding the reasonableness of the

official’s conduct.    Id.    We now consider whether the district

court correctly ruled that Plaintiff met this burden.

     2.    Analysis

     Under the first step in the qualified immunity analysis,

Plaintiff must allege that Ashabranner violated a clearly

established constitutional right.       Here, Plaintiff has alleged

that Ashabranner violated Goodman’s rights under the Fourth and

Fourteenth Amendments when Ashabranner used excessive force to

apprehend Goodman.

     An excessive force claim requires the plaintiff to

demonstrate (1) an injury; (2) resulting directly and only from

the use of force that was excessive to the need; and (3) the

force used was objectively unreasonable.       Flores v. City of

Palacios, 381 F.3d 391, 396 (5th Cir. 2004).       It is objectively

unreasonable for an officer to use deadly force unless he has

probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or

others.   Id. at 399 (citing Tennessee v. Garner, 471 U.S. 1, 3

(1985)); see also Ballard v. Burton, 444 F.3d 391, 402 (5th Cir.

2006).    In this case, Plaintiff claims that Ashabranner’s use of



                                    9
deadly force against Goodman was objectively unreasonable because

Goodman, due to his physical limitations, did not pose a

significant threat of death or serious physical injury, as

claimed by Ashabranner.    Plaintiff has, thus, alleged the

violation of a clearly established constitutional right.      See

Bazan, 246 F.3d at 490 (finding similar allegations sufficient to

satisfy first step in qualified immunity analysis).

     We, therefore, move to the second step in the qualified

immunity analysis, which requires us to determine whether

Ashabranner’s conduct was objectively reasonable under the law

existing at the time.     See Michalik, 422 F.3d at 258.

Ashabranner asserts that his conduct was objectively reasonable

because Goodman appeared to pose a significant threat of death or

serious physical injury to Ashabranner when Goodman reached for

the metal object in his back pocket after pushing Ashabranner

down.   On appeal, Ashabranner claims that Plaintiff has not

produced any evidence to contradict Ashabranner’s own statement

of the facts leading to the shooting.

     As previously noted, this case is somewhat unusual in that

the only surviving witness to the incident in question is

Ashabranner, which makes it difficult for Plaintiff to create a

genuine issue of material fact.    This court has, however, dealt

with such a situation before in Bazan ex rel. Bazan v. Hidalgo

County, 246 F.3d 481 (5th Cir. 2001).    In Bazan, state trooper

Raul Vargas confronted a car containing Leonel Bazan and several

                                  10
other individuals.   Id. at 483.    After interacting with Vargas

for several minutes, Bazan fled into a field.     Id. at 483-85.

Vargas pursued him, a scuffle ensued, and Vargas shot and killed

Bazan.   Id. at 485-86.   On appeal, this court affirmed the

district court’s denial of qualified immunity at the summary

judgment stage.   In so doing, we noted the lack of forensic

evidence and expert opinions to back up Vargas’s version of

events, such as the lack of evidence that Vargas’s hand was

injured despite his contention that Bazan bit it so hard Vargas

thought he might lose some fingers; the lack of a head wound to

Vargas or blood on his flashlight despite his contention that

Bazan had beaten him about the head with the flashlight; the lack

of evidence of a scuffle in the field; and the lack of expert

testimony regarding the distance and angle of the gunshot.     Id.

at 492-93.   We also took into account the discrepancies between

Vargas’s description of the events prior to Bazan’s flight and

the descriptions of other witnesses.     Id. at 493.

     Thus, in Bazan, this court looked to all the surrounding

circumstances to see if they supported the officer’s story.

Other circuits have taken this same approach, examining the

surrounding circumstances and forensic evidence to determine

whether material fact issues exist.     See Blossom v. Yarbrough,

429 F.3d 963, 968 (10th Cir. 2005); Hernandez v. Jarman, 340 F.3d

617, 623-24 (8th Cir. 2003); O’Bert ex rel. O’Bert v. Vargo, 331

F.3d 29, 38-40 (2d Cir. 2003); Garvin v. Wheeler, 304 F.3d 628,

                                   11
634 (7th Cir. 2002).   As stated by the Second Circuit, in cases

where the officer is the only surviving witness, “the court must

. . . consider circumstantial evidence that, if believed, would

tend to discredit the police officer’s story, and consider

whether this evidence could convince a rational factfinder that

the officer acted unreasonably.”     O’Bert, 331 F.3d at 37

(internal citation and quotation marks omitted).

     In its opinion below, the district court determined that

there was a genuine issue of material fact as to whether

Ashabranner’s use of deadly force was objectively reasonable.

The district court specifically cited Ms. Goodman’s statements

that Goodman had almost no use of his right arm and was very

clumsy with his left arm.   As a result, the district court found

that a fact issue existed as to whether Goodman could have taken

the threatening actions alleged by Ashabranner.    As noted above,

we cannot consider on interlocutory appeal the district court’s

determination that these fact issues are genuine.     See Bazan, 246

F.3d at 490.

     Accepting these fact issues as genuine, we must also draw

the conclusion that they are material.    Ms. Goodman’s evidence,

if believed, casts doubt on Ashabranner’s claim that Goodman

overpowered a police dog, pushed Ashabranner to the ground on at

least two occasions, and reached for his back pocket.    Because

Goodman’s actions, as alleged by Ashabranner, provide the

justification for Ashabranner’s decision to shoot, whether

                                12
Goodman was, in fact, physically capable of taking and did take

those actions is indeed material.   Consequently, there is a

genuine issue of material fact as to the second prong of the

qualified immunity analysis--whether Ashabranner’s use of force

was objectively reasonable because he believed Goodman posed a

significant threat of death or serious physical injury.

Therefore, because there is a genuine issue of material fact, we

lack jurisdiction over Ashabranner’s interlocutory appeal and

must dismiss it.   See id.

B.   Ms. Goodman’s Appeal

     Ms. Goodman appeals the district court’s decision to grant

Defendants’ motion for summary judgment on some of her claims.

Defendants assert that this court lacks jurisdiction over Ms.

Goodman’s interlocutory appeal because the district court has not

entered a final judgment, as the summary judgment order did not

resolve all of the claims in this case.   Ms. Goodman’s counsel

conceded the lack of jurisdiction at oral argument, and we agree

that we are without jurisdiction to hear Ms. Goodman’s appeal.

See 28 U.S.C. § 1291; Marshall v. Kansas City S. Ry. Co., 378

F.3d 495, 499 (5th Cir. 2004) (per curiam) (“Generally, all

claims and issues in a case must be adjudicated in the district

court, and a final judgment or order must be issued, before our

jurisdiction can be invoked under § 1291.”).   Therefore, we

dismiss Ms. Goodman’s appeal for lack of jurisdiction.



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                         IV. CONCLUSION

     For the foregoing reasons, we conclude that we lack

jurisdiction over both appeals and DISMISS them.

     DISMISSED.




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