                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit                February 11, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40664



                          SHANIKWA JOHNSON
                                                Plaintiff - Appellee

                               VERSUS


                      MARK WATERS, Etc; ET AL
                                                            Defendants


                   MARK WATERS, Deputy Constable

                                                Defendant - Appellant



            Appeal from the United States District Court
                  For the Eastern District of Texas
                             6:03-CV-318



Before JOLLY and DAVIS, Circuit Judges, and ENGELHARDT*, District
Judge.


PER CURIAM:**

       In this appeal from denial of qualified immunity, we agree

with the district court that questions of fact are presented as to

whether the defendant Constable Waters used excessive force in


  *
   District Judge of the Eastern District of Louisiana, sitting by
designation.
  **
    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opinion should not be published and is not precedent except under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.
seizing the plaintiff. Because genuine issues of material fact are

presented we have no jurisdiction to consider this appeal.

     Appeal dismissed.




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