                                UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                No. 08-1544


YONGXIN LU,

                   Plaintiff - Appellee,

             v.

JAMAL JOHNSON, Prince George’s County Police – District #4;
DERRICK NEUMER, Prince George’s County Police – District #4;
JASON ROURKE,

                   Defendants – Appellants,

             and

PRINCE GEORGE’S COUNTY,

                   Defendant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:06-cv-01105-RWT)


Submitted:    September 29, 2009              Decided:   October 23, 2009


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Stephanie P. Anderson, County Attorney, Mary C. Crawford, Deputy
County Attorney, Brennan C. McCarthy, Associate County Attorney,
Upper Marlboro, Maryland, for Appellants.        Christopher R.
Wampler, WAMPLER, SOUDER & SESSING, L.L.C., Rockville, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In    this    42    U.S.C.    § 1983      (2006)     action,    Appellants

Jamal Johnson, Derrick Neumer, and Jason Rourke seek to appeal

the    district    court’s      order    denying      their     motion     for   summary

judgment based upon qualified immunity.                    This court may exercise

jurisdiction only over final orders, 28 U.S.C. § 1291 (2006),

and    certain    interlocutory         and       collateral     orders,    28   U.S.C.

§ 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.

Loan   Corp.,     337    U.S.   541     (1949).       To   the    extent    Appellants

challenge the order appealed from for refusing to strike the

affidavits submitted in support of Appellee’s complaint, because

this is neither a final order nor otherwise appealable, we lack

jurisdiction to review it here.

            Appellants also seek to challenge the district court’s

denial of summary judgment, asserting that the district court’s

rejection of their claim to qualified immunity is a final and

appealable order.         While the Supreme Court has recognized that

an order rejecting a claim of qualified immunity is appealable

at the summary judgment stage, Mitchell v. Forsyth, 472 U.S.

511, 530 (1985), it has more recently explained that immediate

appealability of an order declining to accept a defense based on

qualified immunity is appropriate only if the denial rests on a

purely legal determination that the facts do not establish a

violation    of    clearly      established         statutory     or   constitutional

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right.     Johnson v. Jones, 515 U.S. 304, 319-20 (1995).                      Thus,

“if the appeal seeks to argue the insufficiency of the evidence

to raise a genuine issue of material fact, this Court does not

possess    jurisdiction    under     § 1291     to    consider    the     claim.”

Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. 2009).                      This

court must accept the facts as set forth by the district court

in assessing the summary judgment ruling.                 Bailey v. Kennedy,

349 F.3d 731, 738 (4th Cir. 2003).

            Thus, the “first task on appeal is to separate the

district    court’s    legal     conclusions    regarding       entitlement       to

qualified immunity, over which we have jurisdiction, from its

determinations     regarding     factual   disputes,      over    which      we   do

not.”     Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008).                    “[W]e

must also examine the parties’ appellate arguments to ensure we

only consider those legal questions formally raised on appeal.”

Id.

            Having reviewed the briefs and record before us, we

conclude    that   the    arguments     raised       by   Appellants      do      not

challenge the district court’s legal conclusion that the facts,

as asserted by Yongxin Lu, properly allege Appellants’ violation

of    Yongxin   Lu’s   clearly    established    right     to    be   free      from

excessive force at the hands of police.               Rather, they focus on

“whether or not the pretrial record sets forth a ‘genuine’ issue

of fact for trial.”       Johnson, 515 U.S. at 319-20.             Accordingly,

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because    the    appeal    is    not   from     a    final    order     determining   a

question of law, but from an interlocutory order that recognizes

a   disputed     issue   of      material   fact,       we    lack     jurisdiction    to

review it.       We dispense with oral argument because the facts and

legal    contentions       are    adequately         presented    in    the    materials

before    the    court   and     argument       would    not     aid   the    decisional

process.

                                                                               DISMISSED




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