     Case: 16-30199      Document: 00513817699         Page: 1    Date Filed: 12/30/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-30199
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 30, 2016

SEANTREY MORRIS,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

BRANDON LEBLANC; ARTHUR S. LAWSON, in his official capacity as
Chief of Police, City of Gretna Police Department; CITY OF GRETNA,

              Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1741


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this suit under 42 U.S.C. § 1983, Defendant–Appellant Brandon
Leblanc appeals the district court’s denial of his motion for summary judgment
on the basis of qualified immunity.            Appellate jurisdiction over such an
interlocutory appeal is limited to issues of law and does not extend to factual
disputes.    However, Leblanc’s only arguments on appeal are limited to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-30199     Document: 00513817699        Page: 2   Date Filed: 12/30/2016



                                  No. 16-30199
challenging the factual disputes that the district court found to be genuine.
Accordingly, we DISMISS this interlocutory appeal for lack of appellate
jurisdiction.
                I.    Factual and Procedural Background
      On the evening of July 31, 2013, Joseph Mekdessie, a police officer for
the City of Gretna, Louisiana, conducted a traffic stop of a vehicle driven by
Plaintiff–Appellee   Seantrey    Morris     after   observing    Morris   speeding.
Mekdessie issued Morris a ticket for speeding and for having an expired brake
tag sticker. The parties dispute much of what happened after the ticket was
issued. Morris claims that he was unable to read the ticket because it was
dark outside so he repeatedly asked Mekdessie why he was receiving the ticket,
but rather than responding, Mekdessie simply advised him that signing was
not an admission of guilt and ordered him to sign the ticket or go to jail. Morris
persisted in his questioning without signing the ticket, so Mekdessie
ultimately instructed him to put his hands behind his back because he was
being arrested. Morris admits that he did not immediately comply with this
instruction.
      A physical confrontation ensued, the exact details of which are contested.
Morris’s complaint alleges that Mekdessie “threw his ticket book on the ground
and lunged at [Morris]” and then “tackled . . . Morris, slammed [his] face into
the ground, placed [him] [in] a headlock and struck [his] head, jaw, neck, and
upper body several times with [a] closed fist.” However, Morris later stated
during a deposition that he did not remember what happened after Mekdessie
threw the ticket book on the ground and specifically did not recall whether he
was punched. Both men agree that they ultimately ended up in a physical
struggle on the ground, during which Mekdessie pressed the emergency button
on his radio, which transmitted audio of the struggle to other officers and
alerted them that he needed back-up. Mekdessie estimates that he and Morris
                                        2
     Case: 16-30199      Document: 00513817699        Page: 3    Date Filed: 12/30/2016



                                     No. 16-30199
struggled on the ground for 30–45 seconds before other officers, including
Officer Brandon Leblanc, arrived on the scene. 1 Morris’s memory is hazy for
the remainder of the confrontation.             He recalls being tased an unknown
number of times, handcuffed, and placed in the back of a police car, though not
necessarily in that order. After he was taken into custody, Morris tasted blood
in his mouth and felt as though he had lost a tooth.
      Leblanc’s memory of the altercation is clearer. He testified that upon
arriving at the scene, he saw both men on the ground, with Morris on top of
Mekdessie. He then “tackled Morris” and was able to successfully clear him
off of Mekdessie. Leblanc claims that Morris then attempted to stand up, at
which point Leblanc tased him in his left shoulder. 2 Leblanc maintains that
Morris’s hands were not handcuffed at the time of the tasing. Records from
the taser indicate that Leblanc’s taser trigger was pulled four times that night,
three of which occurred within a 13-second period. The taser contained a video
recording mechanism that automatically recorded the tasing after the trigger
was pulled.
      An independent witness, Virana Naidoo, happened to be walking by as
the altercation between Morris and Mekdessie was unfolding. Naidoo worked
at a nearby restaurant and was on his way home when he saw Morris and
Mekdessie yelling at each other and paused to watch. In an affidavit, Naidoo
stated that he watched Mekdessie and Morris “wrestling with each other and
rolling around on the ground” and then saw Mekdessie “flat on the ground”
with Morris “on top” and “over” him. He noted that Morris was “much bigger”
than Mekdessie and was not in handcuffs during his struggle with Mekdessie.


      1 Officers Megan Stacy and Daniel Swear were also present at the scene, but they are
not party to this appeal.
       2 According to Leblanc, the taser did not have its intended effect of completely

immobilizing Morris’s muscles because one of the probes did not completely penetrate
Morris’s skin, but the taser was sufficiently effective to allow Morris to be handcuffed.
                                            3
     Case: 16-30199      Document: 00513817699         Page: 4    Date Filed: 12/30/2016



                                      No. 16-30199
According to Naidoo, after about 30 seconds, more police officers arrived, one
of whom ordered Naidoo to get on the ground, after which he apparently ceased
witnessing the altercation.
       Morris was transported to jail, where it was first noticed that he was
injured, and he was then transported to a hospital, where he underwent
surgery for a broken jaw. Neither Mekdessie nor Leblanc noticed the injury at
the scene and could not offer an explanation for how Morris’s jaw could have
been broken during the course of the altercation. Morris was later charged
with speeding, having an expired brake tag, resisting an officer, and battery of
a police officer. Morris voluntarily completed a diversion program and the
charges were subsequently dismissed.
       Morris later filed suit against Leblanc 3 in his individual capacity under
42 U.S.C. § 1983 and Louisiana state law, alleging, in relevant part, that
Leblanc used excessive force and committed battery in effectuating the arrest. 4
Leblanc moved for summary judgment on the basis of qualified immunity, but
the district court denied his motion with respect to Morris’s excessive force and
battery claims. This interlocutory appeal by Leblanc followed. 5
                           II.    Appellate Jurisdiction
       This is an interlocutory appeal from the district court’s denial of a motion
for summary judgment based upon qualified immunity. Neither party contests
our jurisdiction over this appeal.         Nevertheless, we may first “verify, sua
sponte, that our jurisdiction over this appeal is proper.” Hernandez ex rel.



       3 Morris also named as defendants Mekdessie, Swear (one of the other officers on the
scene), Arthur Lawson (the chief of police), and the City of Gretna. However, those
defendants are not parties to this appeal.
       4 Morris also brought claims of unlawful arrest and false imprisonment against

Leblanc, but the district court granted summary judgment on those claims and neither is at
issue on this appeal.
       5 Lawson and the City of Gretna are also party to this appeal, but their liability is

derivative of Leblanc’s.
                                             4
    Case: 16-30199     Document: 00513817699     Page: 5    Date Filed: 12/30/2016



                                  No. 16-30199
Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 878
(5th Cir. 2004) (citing Mowbray v. Cameron Cty., 274 F.3d 269, 279 (5th Cir.
2001)).   “[This] court reviews its own jurisdiction de novo.”       Castellanos–
Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010) (en banc)
(citing Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001)).
      We have limited jurisdiction over an interlocutory appeal of a denial of
summary judgment based upon qualified immunity. Kinney v. Weaver, 367
F.3d 337, 346 (5th Cir. 2004) (en banc). We may exercise jurisdiction over such
an appeal only “to the extent that the denial of summary judgment turns on
an issue of law.” Hogan v. Cunningham, 722 F.3d 725, 730 (5th Cir. 2013)
(alteration omitted) (quoting Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir.
2011)). Our jurisdiction does not extend to review of the district court’s factual
findings. Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 633 (5th
Cir. 1999).   In explaining this jurisdictional limitation, we have stated:
“Whenever the district court denies an official’s motion for summary judgment
predicated upon qualified immunity, the district court can be thought of as
making two distinct determinations, even if only implicitly.” Kinney, 367 F.3d
at 346. The first determination is “that a certain course of conduct would, as
a matter of law, be objectively unreasonable in light of clearly established law.”
Id. The second is “that a genuine issue of fact exists regarding whether the
defendant(s) did, in fact, engage in such conduct.” Id. “According to the
Supreme Court, as well as our own precedents, we lack jurisdiction to review
conclusions of the second type on interlocutory appeal.” Id. In other words, on
interlocutory appeal, we cannot review “the district court’s assessments
regarding the sufficiency of the evidence—that is, the question whether there
is enough evidence in the record for a jury to conclude that certain facts are
true.” Id. at 347; see also Johnson v. Jones, 515 U.S. 304, 313 (1995) (“We now
consider the appealability of a portion of a district court’s summary judgment
                                        5
    Case: 16-30199     Document: 00513817699      Page: 6    Date Filed: 12/30/2016



                                  No. 16-30199
order that, though entered in a ‘qualified immunity’ case, determines only a
question of ‘evidence sufficiency,’ i.e., which facts a party may, or may not, be
able to prove at trial. This kind of order, we conclude, is not appealable.”).
      This limitation means that we can review the district court’s
determination that a fact issue is material to the legal question of qualified
immunity, but lack jurisdiction to review the district court’s decision that a fact
issue is genuine. Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012); see
also Kinney, 367 F.3d at 348 (“[I]n an interlocutory appeal we lack the power
to review the district court’s decision that a genuine factual dispute exists.”);
Duke v. Duckworth, 236 F. App’x 86, 89 (5th Cir. 2007) (per curiam) (“[W]e
cannot disturb the district court’s finding that this is a genuine issue of fact.”).
Put differently, we lack jurisdiction “over a claim that a plaintiff has not
presented enough evidence to prove that the plaintiff’s version of the events
actually occurred, but we have jurisdiction over a claim that there was no
violation of clearly established law accepting the facts as the district court
viewed them.” Burge v. Par. of St. Tammany, 187 F.3d 452, 479 (5th Cir. 1999).
When presented with an interlocutory appeal of the denial of qualified
immunity that challenges only issues of fact, we must dismiss it for lack of
jurisdiction. Michalik v. Hermann, 422 F.3d 252, 257, 263 (5th Cir. 2005); see
also Newman, 703 F.3d at 764 (dismissing for lack of jurisdiction interlocutory
appeal of denial of qualified immunity).
      Here, the district court denied summary judgment because it found a
“genuine factual dispute as to whether the tasing of Morris was unlawful.”
Largely relying on the taser video in finding a genuine factual dispute, the
district court explained that, “while Morris’[s] recollection of the circumstances
of the arrest is questionable,” the taser video “shows that Morris was possibly
handcuffed and submissive at the time of tasing.” The district court therefore
considered the taser video “as possible corroboration of the claim that the
                                         6
     Case: 16-30199       Document: 00513817699          Page: 7     Date Filed: 12/30/2016



                                       No. 16-30199
officers exerted excessive force after the arrest.” The district court further
noted that it was undisputed that Morris suffered a broken jaw as a result of
the altercation and that the taser video “suggested that [this injury] occurred
as a result of the tasing.” The district court concluded that there was a genuine
factual dispute as to whether Leblanc, “the undisputed operator of the taser,”
used excessive force against Morris in tasing him. Therefore the district court
seemed to implicitly conclude that, under a certain set of disputed facts,
Leblanc’s tasing of Morris was objectively unreasonable under clearly
established law, i.e., if the tasing was performed when Morris was handcuffed
and/or not resisting arrest and the tasing caused Morris’s broken jaw.
       Leblanc’s brief raises two arguments, both aimed at challenging the
district court’s conclusion that there was a genuine dispute of material fact.
First, Leblanc argues that the district court erred by failing to consider
Naidoo’s affidavit, which stated that Morris was not handcuffed during the
altercation and was gaining an advantage over Mekdessie in their altercation.
Leblanc urges that Naidoo’s account shows that “Morris was fighting and
resisting Mekdessie” and “provide[s] full and complete support for [Leblanc’s]
statements of events,” yet the district court failed to mention Naidoo’s affidavit
in its order.     Second, Leblanc argues that the taser video contradicts the
district court’s finding that Morris’s injury could have resulted from the tasing.
He argues that the district court’s finding that the video creates a factual
dispute as to whether the tasing was lawful “is completely belied by . . . the
taser video and audio.” 6 Leblanc claims the taser video and audio “clearly



       6 We have reviewed the taser video and have determined that the video does not
present the situation the Supreme Court addressed in Scott v. Harris, 550 U.S. 372 (2007).
In Scott, the Court concluded that because the video capturing the events in question “so
utterly discredited” and “blatantly contradicted” the non-movant’s version of events, the facts
on summary judgment must be viewed as depicted by the video rather than in the light most
favorable to the non-movant. Id. at 379–81. Without addressing the merits of Morris’s claim,
                                              7
     Case: 16-30199      Document: 00513817699         Page: 8    Date Filed: 12/30/2016



                                      No. 16-30199
establish[]” that Morris was not handcuffed at the time of the tasing and was
instead attempting to get up from the ground. 7
       We lack jurisdiction over Leblanc’s appeal because both of these
arguments relate only to factual issues. They both challenge the genuineness
of the factual dispute, i.e., the sufficiency of the evidence supporting the district
court’s finding of factual dispute, not the materiality of this factual dispute to
the district court’s legal conclusions.          Put succinctly, neither of Leblanc’s
arguments suggests that the factual dispute is immaterial—instead, they
suggest that there is no factual dispute at all.            The entirety of Leblanc’s
argument on appeal is that Naidoo’s affidavit and the taser video show that
Morris was not handcuffed and was resisting arrest at the time of the tasing,
contrary to the district court’s finding of factual dispute on these issues.
Therefore Leblanc does not “accept [Morris’s] version of the facts as true” and
does not challenge “the legal significance of the conduct that the district court
deemed sufficiently supported for purposes of summary judgment.” Kinney,
367 F.3d at 348. For instance, Leblanc does not argue that, even if Morris was
handcuffed and was not resisting at the time Leblanc tased him, Leblanc’s
actions did not constitute excessive force. Rather, Leblanc argues that the
district court did not properly consider all the facts and that, under Leblanc’s
version of the facts, his conduct was reasonable. Because Leblanc’s arguments
all challenge the district court’s conclusion that there was a genuine dispute of
material fact, we lack jurisdiction over such arguments on interlocutory appeal
and must dismiss them for lack of jurisdiction. See Fuentes v. Riggle, 611 F.
App’x 183, 189–90 (5th Cir. 2015) (per curiam) (concluding that the appeal



we note that the video here is at least ambiguous regarding what transpired, and therefore
the district court did not err in crediting Morris’s version of events on summary judgment.
       7 Leblanc also argues that “the undisputed evidence of the testimony of the officers”

also demonstrates the absence of any factual dispute.
                                             8
    Case: 16-30199     Document: 00513817699    Page: 9   Date Filed: 12/30/2016



                                 No. 16-30199
must be dismissed for lack of jurisdiction when appellant argued only that “the
district court erred in concluding that sufficient facts were in the record to
permit [a certain] factual finding”); Duke, 236 F. App’x at 89 (concluding appeal
must be dismissed for lack of jurisdiction when appellant argued only that
“district court did not properly consider all the facts”); Burge, 187 F.3d at 480
(concluding appeal must be dismissed for lack of jurisdiction when appellant
argued only that appellee’s “countervailing evidence [wa]s not sufficient to
prove [a disputed fact]”).
                                III.   Conclusion
      We therefore DISMISS this appeal for lack of jurisdiction.




                                       9
