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

                                                                            FILED
                                                                         December 3, 2007

                                     No. 06-51132                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ANDRE TYRONE SOUTHALL

                                           Plaintiff - Appellee - Cross-Appellant
v.

MATHEW ARIAS, Sheriff Deputy of Travis County

                                           Defendant - Appellant - Cross-Appellee



                   Appeals from the United States District Court
                         for the Western District of Texas
                                   1:05-CV-342


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Matthew Arias (“Arias”), a Travis County Deputy Sheriff, appeals the
district court’s denial of his summary judgment motion.                   Plaintiff, Andre
Southall (“Southall”), alleges that Arias used excessive force against him in
violation of his constitutional rights and seeks damages under 42 U.S.C. § 1983.
Arias moved for summary judgment on three grounds: (1) that Southall did not
allege sufficient facts suggesting Arias’s personal involvement in the incident;


       *
        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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                          No. 06-51132

(2) that Southall’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994);
(3) that Arias is entitled to qualified immunity. The district court denied Arias’s
motion on all grounds. Because we lack jurisdiction to hear the appeal, we
dismiss without reaching the merits. See Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 93-94 (1998) (holding that federal courts should not assume
jurisdiction over a claim and then reject it on the merits, but should decide
jurisdiction first).
       Southall appeals the district court’s initial denial of his requests for
counsel during the discovery phase that occurred prior to Arias’s filing for
summary judgment. We dismiss the cross-appeal as moot.
                                                  I
       Southall was incarcerated in the Travis County Jail as a pretrial detainee
when an altercation took place between Southall and another inmate at the jail.
During the officers’ attempts to restrain Southall, he injured officer James
Cunningham (“Cunningham”) who had to be treated at the hospital for scrapes
and cuts to his face and neck, as well as bruises to his legs. Southall pled guilty
and was convicted of misdemeanor assault based on the incident with
Cunningham. Southall, in his verified complaint, avers that he was thrown to
the ground, handcuffed, and placed in leg restraints by Arias and another
officer.1 Southall states that, after being restrained, Cunningham, with the
assistance of Arias, “maliciously and sadistically stomped” his head and beat him
causing injuries to his back, neck ,and face, requiring stitches to his face. Arias
filed the affidavits of two officers at the scene, the affidavit of another officer not
at the scene, and police reports on the incident by which he claims that no
excessive force was used. Neither the affidavits of the officers nor the reports


       1
          We, as did the district court, treat verified complaints as having the force and effect of an
affidavit pursuant to 28 U.S.C. § 1746, which provides that “in all federal proceedings, written
declarations made under penalty of perjury are permissible in lieu of a sworn affidavit subscribed to
before a notary public.”

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include any indication that the post-restraint violence alleged by Southall
occurred.
                                        II
      First, Arias contends that the facts alleged in Southall’s complaint are
deficient to show Arias’s personal involvement in a constitutional violation. This
cannot be reviewed prior to a final judgment. Our interlocutory review extends
only to denials of summary judgment sought on qualified immunity grounds.
See Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006) (noting that ordinarily
a denial of summary judgment is not final within the meaning of 28 U.S.C. §
1291).
      Second, a district court’s failure to apply Heck v. Humphrey cannot be
reviewed on interlocutory appeal. The Heck doctrine, a facet of issue preclusion
or collateral estoppel, prevents persons, in most situations, from bringing a §
1983 action for damages where recovery would require the invalidation of a prior
conviction or sentence based on the same facts. In Heck, the Supreme Court
held that:
      [I]n order to recover damages for allegedly unconstitutional
      conviction or imprisonment, or for other harm caused by actions
      whose unlawfulness would render a conviction or sentence invalid,
      a § 1983 plaintiff must prove that the conviction or sentence has
      been reversed on direct appeal, expunged by executive order,
      declared invalid by a state tribunal authorized to make such a
      determination, or called into question by a federal court’s issuance
      of a writ of habeas corpus.

Heck, 512 U.S. at 486-87.
      Unlike immunity rights, an appellate court can effectively review the
applicability of Heck after an entry of final judgment making interlocutory
review unnecessary. See Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir.
2000) (finding no appellate jurisdiction to review applicability of Heck on denial
of summary judgment); cf. Digital Equipment Corp. v. Desktop Direct, Inc., 511

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U.S. 863, 872 (1994) (suggesting that the collateral order doctrine does not apply
to a district court’s refusal to dismiss on grounds of res judicata).
        Considering Arias’s third ground, a district court's denial of summary
judgment on qualified immunity grounds can be immediately appealed under the
collateral order doctrine. However, our interlocutory review is limited. “In an
interlocutory appeal we lack the power to review the district court’s decision that
a genuine factual dispute exists.” Kinney v. Weaver, 267 F.3d 337, 348 (5th Cir.
2004) (en banc). We must “accept the plaintiff’s version of the facts as true and
may review de novo only the purely legal question of whether the district court
erred in concluding as a matter of law that officials are not entitled to qualified
immunity on [that] given set of facts.” Gobert, 463 F.3d at 345 (citing Kinney)
(internal quotation marks omitted).
        On appeal, Arias attempts to establish that he is entitled to qualified
immunity by undermining the factual allegations raised in Southall’s verified
complaint. He supplies a single sentence stating that, “even if Plaintiff’s factual
allegations are taken as true, they are not sufficient to constitute deliberate
indifference.”2 However, he offers no argument to establish that he is entitled
to qualified immunity in light of Southall’s factual allegations. Instead, his brief
analyzes the propriety of his actions based on his own version of the facts, a
version that does not include the stomping alleged by Southall. Arias’s entire
argument for qualified immunity depends on disputed factual issues that we
cannot resolve at this stage. As a result, he has waived any opportunity for
interlocutory review that might otherwise have been available. See United
States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir. 1995) (refusing to address an


        2
         Arias immediately follows this statement with: “The issue of whether the evidence is sufficient
to demonstrate deliberate indifference is a legal issue that the Fifth Circuit may review on interlocutory
appeal.” Arias appears to misunderstand the nature of our review on interlocutory appeal. Our
precedent is clear in stating that, “in an interlocutory appeal we cannot challenge the district court’s
assessments regarding the sufficiency of the evidence.” Kinney, 367 F.3d at 347.

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argument for which no legal authority was given); Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (holding that issues not argued are abandoned).
      Southall’s cross-appeal argues that the district court erred in denying him
appointed counsel at an earlier stage in his action, when counsel would have
been more able to aid in discovery. In its order on Arias’s summary judgment
motion, the district court appointed counsel and also determined that an
additional period of discovery would be proper. Because Southall has now been
appointed counsel and further discovery will occur, we dismiss Southall’s cross-
appeal as moot.
                                      III
      For the foregoing reasons we DISMISS the appeal because we lack
appellate jurisdiction to review the district court’s order denying summary
judgment.




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