                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                   ___________________________

                           No. 98-10451
                   ___________________________

                         DARNELL JOHNSON,

                                                 Plaintiff-Appellant,

                               VERSUS

                       JEFF BRYANT, ET AL,

                                                 Respondent-Appellee.


      Appeal from the United States District Court
           for the Northern District of Texas
                    (3:91-CV-1713-H)


                         OCTOBER 5, 1999

Before POLITZ, DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Jeff Bryant, an Ellis County Sheriff’s officer, challenges the

district court’s denial of his motion for summary judgment on the

basis of qualified immunity.   Bryant argues that he is immune from

appellee’s 42 U.S.C. § 1983 action for unreasonable arrest in
violation of the Fourth Amendment because (1) he was not personally

involved in appellee’s arrest and (2) because the arrest neither

violated appellee’s   constitutional    rights   nor   was   objectively

unreasonable. Because material issues of genuine fact are present,



 *
   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opinion should not be published and is not precedent except under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.

                                -1-
we lack jurisdiction and therefore dismiss the appeal



                                     I.

       In August 1990, a woman reported to the Ellis County Sheriff’s

Office that a man had broken into her home and sexually assaulted

her.    She described the perpetrator as a black, mustached man,

approximately 5' 8" tall and weighing approximately 130 pounds.

Her granddaughter, who also witnessed the break-in, described the

perpetrator as a “skinny” black male, about            5' 10" tall, with a

thick, curly    mustache.     The   woman   told   authorities   that      the

perpetrator mentioned that he had served ten years in prison for

robbery.

       Based on this information, Jeff Bryant, an investigator with

the Ellis County Sheriff’s Office, developed a profile of the

suspect and provided it to other Ellis County Sheriff’s officers.

 The profile stated that the suspect was a 5' 8", 130-pound black

male, with a thick mustache, who had recently served a ten-year

sentence for aggravated robbery.

       The following day, Ellis County Sheriff’s officers, arrested

Darnell Johnson without a warrant.          Johnson alleges that Jeff

Bryant talked to officers on their cellular phones and instructed

them to make the arrest.     Johnson also alleges that, at the police

station,   Bryant   interrogated    him   and   then   placed   him   in   an

identification lineup.      At the lineup, the victim indicated that

Johnson was not the man who had raped her.          Bryant then filed an

“Affidavit of Non-Prosecution” stating that Johnson should not be


                                    -2-
prosecuted for the assault because he “was seen by complaintant

[sic] within moments after the offense took place against her and

description of clothing given, there would not have been time for

actual suspect to have changed or discarded clothing in the time

frame   of   this   offense.”      The     charges   against   Johnson   were

subsequently dropped.

     On   August    21,   1991,   Darnell    Johnson   filed   his   original

complaint pursuant to 42 U.S.C. § 1983, alleging that Bryant and

several other county officials had violated his Fourth Amendment

right to be free from unreasonable seizures.           He asserted that the

officers arrested him without a warrant and without probable cause.

     The magistrate ruled that Johnson’s original complaint was

frivolous.     The district court subsequently adopted this finding

and dismissed the complaint.         On appeal, this court affirmed the

district court’s dismissal of the complaint against a number of

defendants but remanded Johnson’s section 1983 claims against

Bryant and another defendant, in conjunction with a related habeas

action, for a determination of whether Johnson had exhausted his

state remedies.      On remand, the district court again dismissed

Johnson’s claims as frivolous.           This court affirmed in part but

reversed the district court’s order that Johnson’s suit against

Bryant was frivolous.        We then remanded the case for further

proceedings.

     On remand, both parties filed motions for summary judgment.

Bryant argued that he did not participate in Johnson’s arrest and

therefore could not be held liable.         He also argued that because he


                                     -3-
was not personally involved in the arrest, he was entitled to

qualified immunity. Johnson argued that Bryant directed his arrest

and   that   the    police    acted    on     an    incomplete   and    inaccurate

description of the rapist.            In response, Bryant argues that the

description was accurate, relatively complete and matched Johnson’s

physical appearance.

      The magistrate judge recommended that the district court deny

both motions for summary judgement, explaining that there were

genuine issues of material fact as to whether the officers had

probable cause to arrest Johnson and as to whether Bryant had

participated      in   the   arrest.        The    district   court    adopted   the

magistrate’s findings and conclusions of law. Bryant then filed

this appeal.

                                        II.

      In general, this Court lacks jurisdiction to review a district

court’s denial of a motion for summary judgment because summary

judgment motions are not final within the meaning of 28 U.S.C. §

1291.   Lemoine v. New Horizons Ranch and Ctr., Inc., 174 F.3d 629,

633 (5th Cir. 1999).          Appellate courts may, however, review a

district court’s denial of summary judgment where the motion is

based on a claim of absolute or qualified immunity.                   See Mitchell

v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817.                     But this

exception    is    limited.     As     we   recently    explained:       “We     have

appellate jurisdiction to review the district court’s decision

denying summary judgment only to the extent that it turns on an

issue of law. Or said differently, our appellate jurisdiction does


                                        -4-
not allow us to review that district court’s factual findings.”

Lemoine, 174 F.3d at 633.    Thus, we may review a district court’s

determination   that   disputed   facts    are   material   but   may   not

determine whether the factual dispute is genuine.             Johnson v.

Jones, 515 U.S. 304, 319-320, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238

(1995).

     Here, appellant argues that the district court erred in

denying his motion for summary judgment because (1) he neither

arrested nor caused the arrest of Johnson and (2) he had probable

cause to arrest Johnson.     Johnson, in response, alleges that he

“was arrested by Mike Zaidle, a fellow Ellis County Sheriff’s

officer, after the officer ... had communicated with Jeff Bryant

via cellular telephone as to whether he should arrest Mr. Johnson.”

Johnson further alleges that Bryant interrogated him at the police

station and filed formal charges against him. He also alleges that

Bryant lacked probable cause to make the arrest.

     The magistrate judge concluded that genuine issues of material

fact existed as to “whether or not there was probable cause for the

arrest and whether or not defendant was involved in the arrest.”

The district court agreed and denied defendant’s motion.                On

appeal, we have jurisdiction only to determine whether this factual

dispute is indeed material,174 F.3d at 633-634, but not whether a

genuine factual dispute exists as to whether Johnson directed or

participated in Bryant’s arrest.        Id. at 634.

     Based upon the summary judgment record, Johnson has advanced

material facts disputing Bryant’s claim that he was not involved in


                                  -5-
Johnson’s    arrest.      According     to    Johnson’s      affidavit,   Bryant

personally directed Ellis County Sheriff’s officers to make the

arrest. The district court found this dispute to be genuine.                  This

dispute is material because Johnson may be held liable both for his

personal involvement in the arrest as well as for his direct

causation of the arrest.         See Anderson v. Pasadena Independent

School District, 184 F.3d 439, 443 (5th Cir. 1999)(either direct

involvement or causation sufficient to state a § 1983 claim).

Thus,   we   lack    jurisdiction     to     review   the    district     court’s

determination that a genuine factual dispute exists as to Officer

Bryant’s role in Johnson’s arrest.

                                    III.

     Bryant also argues that even if he is considered to have

participated in the arrest, he had probable cause to arrest Johnson

because his physical appearance substantially matched the suspect

profile.     Police were looking for a 5' 8", 130-pound mustached

black man who had recently served a ten-year sentence for robbery.

They found Darnell Johnson, a 5' 10", 150-pound black man who had

recently served time in prison.         Johnson does not dispute that his

physical appearance had some general similarities to the suspect

profile.     He     instead   argues,   however,      that    the   profile   was

generally deficient, particularly because it did not state an

estimated age of the suspect.           Johnson also points out that the

police had no information about his whereabouts when the crime was

committed or any other information tying him to the crime.

     The district court found that Johnson had raised a genuine


                                      -6-
factual dispute regarding whether the officers had probable cause

to make the arrest.        Probable cause determinations involve a

mixture of law of fact.     United States v. Wadley, 59 F.3d 510, 512

(5th Cir. 1995).       When reviewing a district court’s denial of

summary judgement, our limited jurisdiction does not permit us to

review any factual determinations.        Lemoine, 174 F.3d at 633.

     We have noted in the past that suspect profiles and “the

sufficiency   of   a   particular   description”   are   largely   factual

matters.    United States v. Webster, 162 F.3d 308, 332 (5th Cir.

1999).    Whether a particular profile, or a suspect’s similarity to

that profile, gives rise to probable cause is an inherently fact-

intensive inquiry that depending on a number of variables.           Here,

the record does not reflect whether Officer Bryant knew the age of

the perpetrator, whether Johnson was substantially older or younger

than the perpetrator, or whether age was an otherwise significant

factor.     As we explained in United States v. Pollack, “[t]he

sufficiency of a particular description is largely a factual

matter.    What is a distinctive appearance or manner of dressing in

one location may be commonplace in another.”         739 F.2d 187, 190

(5th Cir. 1984).

     We enjoy only limited jurisdiction to review a district

court’s denial of a defendant’s motion for summary judgment based

upon qualified immunity.     This jurisdiction does not permit us to

engage in the type of fact-intensive inquiry needed to review the

sufficiency of a suspect profile.         Accordingly, we hold that we

lack jurisdiction to review the district court’s determination that


                                    -7-
Johnson raised “genuine issues of material fact concerning whether

or not there was probable cause for the arrest.”



                           Conclusion

     Because material issues of fact are presented we dismiss the

appeal for lack of jurisdiction.



Appeal DISMISSED.




                               -8-
