                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                   October 27, 2003
                           FOR THE FIFTH CIRCUIT
                           _____________________               Charles R. Fulbruge III
                                                                       Clerk
                                No. 03-20072
                           _____________________

GABRIEL GOFFNEY; JOYCE JONES,
As Next Friend of Gabriel Goffney,

                                                     Plaintiff-Appellees,

                                    versus

THOMAS JAMES CARR; ET AL.,

                                                                Defendants,

THOMAS JAMES CARR; GARY GENE PARKER;
DAVID WAYNE HENNESSY; TOMMY EUGENE
KISER; VICTOR J. ZIGMONT; JOHN LOUIS
MORRISON; DENNIS L. BARKER,

                                                   Defendants-Appellants.

__________________________________________________________________

           Appeal from the United States District Court
      for the Southern District of Texas, Houston Division
                      USDC No. H-00-CV-3083
_________________________________________________________________

Before JOLLY and WIENER, Circuit Judges, and WALTER, District
Judge.*

PER CURIAM:**

     On   February   22,    1998,   in   Harris   County,   Texas,    Gabriel

Goffney, an individual with a history of mental illness, phoned 911

and informed the dispatcher that there was a man standing outside

     *
      District Judge, United States District Court for the Western
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this opinion should not be published and is not precedent except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 for in 5th CIR. R. 47.5.4.
his house with knives.      He then acquired two knives from the house,

went outside, and waited for the police to arrive.                Exactly what

happened next is disputed by the parties, but the incident ended

with Goffney being shot several times by officers at the scene.

Goffney subsequently sued Harris County and various individual

deputies alleging the use of excessive force, abuse of legal

process, and malicious prosecution.

     After a period of discovery, the individual defendants moved

for summary judgment on the grounds of qualified immunity.                  The

district   court   denied    that   motion,    finding     that    there   were

contested issues of material fact regarding whether the deputies’

actions were objectively reasonable in the light of the facts and

circumstances at the time of the incident in question.                      The

defendants sought interlocutory appeal of this denial.

     We find that we lack jurisdiction to hear this interlocutory

appeal.    Although   this    court   “can    review   a   district    court’s

conclusion that an issue of law is material,” we lack jurisdiction

to review whether a factual dispute is “genuine.”           Reyes v. City of

Richmond, Tex., 287 F.3d 346, 350 (5th Cir. 2002).            Thus, “orders

that resolve a fact-related dispute of evidence sufficiency, i.e.

which facts a party may, or may not, be able to prove at trial are

not immediately appealable and must await final judgment.”                 Cantu

v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996).            The defendants give

lip service to this correct legal standard; however, their argument

that they are entitled to qualified immunity clearly rests on a

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portrayal of contested issues of fact in a light that is not most

favorable to the plaintiff.   In this way, they are asking this

court to review the district court’s finding that the factual

dispute between the parties on the issue of qualified immunity is

genuine – something we lack the jurisdiction to do.   Accordingly,

the appeal is DISMISSED.




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