     Case: 10-20570 Document: 00511458284 Page: 1 Date Filed: 04/27/2011




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

                                                 FILED
                                                                            April 27, 2011

                                       No. 10-20570                         Lyle W. Cayce
                                                                                 Clerk

CENAIDA GRAGERT,
Individually and as Representative
of the Estate of Darrell Ray Gragert,

                                                   Plaintiff–Appellee
v.

AARON WAYBRIGHT,

                                                   Defendant–Appellant




                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                              USDC No. 4:09-cv-02063


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellee Cenaida Gragert, widow of the decedent Darrell Ray
Gragert, filed the instant civil rights suit in Texas state court against
Defendant-Appellant Deputy Aaron Waybright and Defendant Harris County.
The defendants removed the case to federal district court. Subsequently, the
district court denied Waybright’s motion for summary judgment, ruling that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                      No. 10-20570

Waybright was not entitled to qualified immunity because there were material
issues of fact with respect to whether Waybright violated the decedent’s Fourth
Amendment rights. Waybright filed an interlocutory appeal.1 We DISMISS the
appeal because the order denying summary judgment is not a final, appealable
order.
         In the early morning hours of June 2, 2007, Deputy Waybright observed
a vehicle at a car wash with its lights out, and he proceeded to investigate. The
driver initially cooperated and returned to the vehicle purportedly to retrieve his
identification. According to Waybright, instead of retrieving his identification,
the driver immediately started the engine. Waybright ordered the driver to exit
the vehicle, but he did not do so. Waybright observed the driver attempting to
reach for something behind the top of his seat despite repeated warnings to place
his hands on the wheel. Waybright testified that the driver put the vehicle in
reverse and the “tires squeal[ed].” As Waybright was “trying to back away from
the vehicle, the front end of the vehicle [was] approaching” him. Waybright fired
several shots, fatally wounding the driver.
         Gragert, in her individual capacity and as representative of the decedent’s
estate, sued Waybright pursuant to 42 U.S.C. § 1983.                  She claimed that
Waybright used excessive force against the decedent in violation of the Fourth
Amendment. In support of her claim, Gragert submitted the affidavit of an
expert who opined that, based on the evidence from the scene, Waybright used
excessive force against the decedent.            The district court found there were
genuine issues of material fact with respect to the Fourth Amendment claim and
therefore denied Waybright’s motion for summary judgment. Waybright now
appeals.

         1
         Harris County also filed a motion for summary judgment, which the district court
granted in part and denied in part. That ruling, however, is not before this Court. Further,
Gragert does not appeal the district court’s dismissal of her Fourteenth Amendment claim
against Waybright.

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                                   No. 10-20570

      Waybright argues that the district court erred in denying his motion for
summary judgment. This Court reviews a district court’s ruling on summary
judgment de novo, applying the same standards as the district court. E.g.,
Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary
judgment is proper if the record reflects “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
      More specifically, Waybright contends that the district court erred in
denying summary judgment based on his defense of qualified immunity. “To
determine whether a defendant is entitled to qualified immunity, this Court
engages in a two-pronged analysis, inquiring (1) whether the plaintiff has
alleged a violation of a constitutional right and, if so, (2) whether the defendant’s
behavior was objectively reasonable under clearly established law at the time
the conduct occurred.” Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358,
363 (5th Cir. 2007) (citing Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006)).
“If the plaintiff fails to state a constitutional claim or if the defendant’s conduct
was objectively reasonable under clearly established law, then the government
official is entitled to qualified immunity.” Id. (citing Easter, 467 F.3d at 462).
      Although not raised by the parties, we must first determine whether we
have jurisdiction to consider the merits of this interlocutory appeal. Generally,
this Court does not have jurisdiction to review a denial of a summary judgment
motion because such a decision is not final within the meaning of 28 U.S.C.
§ 1291. Under the collateral order doctrine, however, a district court’s denial of
qualified immunity on a motion for summary judgment is immediately
appealable if it is based on a conclusion of law. Mitchell v. Forsyth, 472 U.S. 511,
530 (1985).   Such orders are not appealable if they are based on a claim
regarding the sufficiency of the evidence. See Naylor v. State of La., Dep’t of
Corr., 123 F.3d 855, 857 (5th Cir. 1997) (per curiam). As we have explained:

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                                    No. 10-20570

     [O]rders denying qualified immunity are immediately appealable
     only if they are predicated on conclusions of law, and not if a genuine
     issue of material fact precludes summary judgment on the question
     of qualified immunity. Stated another way, we have jurisdiction over
     law-based denials of qualified immunity, but do not have jurisdiction
     over a genuine-issue-of-fact-based denial of qualified immunity.

Id. Here, we conclude that we do not have jurisdiction because the appeal is not
based on a conclusion of law but instead based upon a genuine issue of material
fact with respect to the issue of qualified immunity.
      The court below astutely recognized that whether Waybright’s actions
were reasonable depends upon whether there was an immediate threat of
serious harm to Waybright. “Where the officer has probable cause to believe
that the suspect poses a threat of serious physical harm, either to the officer or
to others, it is not constitutionally unreasonable to prevent escape by using
deadly force.”   Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Waybright’s
deposition testimony provides that the vehicle was turning toward him at the
time of the shooting. If Waybright’s version of the events is credited, then he did
not use excessive force.2
      On the other hand, Gragert offered competing summary judgment
evidence that paints a substantially different picture of the facts. Gragert
submitted an affidavit executed by Harold W. Warren, an expert witness, in
support of her claim that Waybright used excessive force against the decedent.
In his affidavit, Warren stated that after reviewing, among other things, Harris
County’s Internal Affairs Investigation file (a 555-page file), crime scene
photographs, and a video of the scene, he concluded that Waybright used
“extreme, excessive, unnecessary” force in violation of the decedent’s
constitutional rights.


      2
        Of course, credibility determinations are not to be made at the summary judgment
stage. Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 380 n.25 (5th Cir. 2010).

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                                        No. 10-20570

       Warren set forth in detail the location of the spent shell casings and the
path the bullets took through the vehicle and the decedent according to the
autopsy report. Based on that evidence, Warren opined that:
       The gunshot wound of Mr. Gragert’s left hand is more probable to
       have been from the shot through the hole on the driver’s side of the
       windshield where the steering wheel is dented and his left hand was
       likely to have been positioned in operating the [vehicle]. The
       position of this dent indicates a likelihood of the wheels being
       straight at the time the shot was fired, prior to any turn which
       Deputy Waybright alleges put him in danger.

(emphasis added).
       Warren further opined as follows:
       If a danger to Deputy Waybright had ever existed, it would have
       ceased by the time the fatal shot was fired, as the vehicle was over
       halfway through its turn around the corner and away from Deputy
       Waybright. The shot came from the passenger side of the vehicle,
       the opposite of where Deputy Waybright was located when he
       alleges he was in fear of serious bodily injury.

       Finally, Warren concluded that:
       Deputy Waybright had a clear view of both hands, both empty,
       when Mr. Gragert engaged the gear on his vehicle. Mr. Gragert did
       not turn [his vehicle] into Deputy Waybright with the vehicle
       situated within feet of a wall. Certainly, by the time the fatal shot
       was fired, Deputy Waybright had a duty to cease firing. The
       position of the shell casings at the crime scene indicate that Deputy
       Waybright in fact did back away [from the vehicle]. He continued
       to fire while he remained out of harm’s way. . . .

Warren’s conclusions dispute Waybright’s testimony that he fired the shots when
the vehicle was turning toward him. Warren also concluded that Waybright
continued to fire his weapon after any threat from the vehicle had passed.3

       3
          In response to the expert’s opinion, Waybright argues that this Court’s precedent
instructs that a single expert cannot create a genuine issue of material fact. Waybright is
mistaken, however. The cases he relies upon stand for the proposition that “an expert’s
opinion should not be alone sufficient to establish constitutional ‘fault’ by a municipality in a

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                                       No. 10-20570

       The district court found that the expert’s opinion created a genuine issue
of material fact with respect to whether Waybright’s actions were reasonable.4
“Where, as here, the district court finds that genuinely disputed, material fact
issues preclude a qualified immunity determination, this court can review only
their materiality, not their genuineness.” Manis v. Lawson,585 F.3d 839, 842
(5th Cir. 2009). “An issue is material if its resolution could affect the outcome
of the action.” Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002). We
agree with the district court that the disputed facts are material because the
expert’s opinion, if credited, could affect the outcome of the case. Therefore,
because the district court found these material facts were genuinely disputed,
we lack jurisdiction to consider the denial of summary judgment. Naylor, 123
F.3d at 857.
       The appeal is DISMISSED.




case of alleged omissions, where no facts support the inference that the town’s motives were
contrary to constitutional standards.” Stokes v. Bullins, 844 F.2d 269, 275 (5th Cir. 1988);
accord Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998). Those cases address a
plaintiff's burden of showing a municipality’s fault or malevolent purpose in the context of
deliberate indifference claims. In any event, Gragert’s expert relied upon evidence from the
scene and investigation to form his opinion. Thus, it cannot be said that there are no facts to
support his opinion that Waybright’s actions were not reasonable under the circumstances.
       4
         It is worth noting that this Court has approved a district court’s consideration of the
fact that a law enforcement officer was the sole surviving witness in its determination that
there was a genuine issue of material fact. Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481,
493 (5th Cir. 2001) (excessive use of force claim).

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