     Case: 14-41003      Document: 00513036337         Page: 1    Date Filed: 05/08/2015




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

                                                                                  FILED
                                                                                May 8, 2015
                                      No. 14-41003                             Lyle W. Cayce
                                                                                    Clerk

YANETH FUENTES; HECTOR ALFONSO FUENTES; VICTOR JAVIER
FUENTES; KIMBERLY YURI FUENTES; JUAN FUENTES; ANGELICA
FUENTES,

                Plaintiffs - Appellees

v.

MATTHEW RIGGLE,

                Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:14-CV-179


Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Matthew Riggle appeals the district court’s denial
of his motion for summary judgment, which was premised on qualified
immunity. For the following reasons, we DISMISS this appeal for lack of
jurisdiction.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41003
                                        I.
      At 12:03 a.m. on January 1, 2013, dispatch called for officers to respond
to reports of gunshots being fired in the area of 600 East Queen Street, in Tyler,
Texas. Officer Matthew Riggle responded to the call with Probationary Officer
Collin Hale. They were joined at the scene by Officer Brandon Lott. As the
officers approached the intersection of Carlisle and Queen Streets, they heard
gunshots being fired close by. The officers then exited their vehicles and moved
in the direction of the gunshots. The officers then heard additional gunshots
and saw muzzle flash coming from the backyard of 603 East Queen Street.
They then moved along a driveway on the western side of the house towards
the backyard. When they entered the backyard, they saw Victor Fuentes
holding a revolver. Riggle identified himself as a police officer and ordered
Fuentes to drop the gun. Lott turned on his weapon’s light, pointed it at
Fuentes, and also identified himself as a police officer and ordered Fuentes to
drop the gun. Fuentes said nothing, did not drop the gun, and returned into
the house.
      Riggle’s account of what happened next is as follows. Riggle claims that
he followed Victor Fuentes into the house, purportedly to maintain his line of
sight on Fuentes. As Riggle entered the doorway, Riggle claims that he again
instructed Fuentes to drop the weapon. Riggle stated in his affidavit that he
saw Fuentes standing ten to twenty feet from him, facing towards him,
pointing the revolver directly at him. Riggle then fired his rifle several times
and shot Victor Fuentes.
      Officer Lott entered the house and placed hand restraints on Fuentes.
Lott stated that as he entered, he saw that Fuentes had been holding a revolver
and that there was live ammunition around Fuentes. Lott heard that others
were in an adjoining room in the house and kept them back from the scene.


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                                  No. 14-41003
      At the same time, Juan Fuentes, Victor Fuentes’s father, came out of a
storage room to the left of the back door of the house—the storage room is a
separate room but it has no door. The back door to the house to some degree
obstructs the entrance to the storage room, though to what extent is unclear
from the photographs in the record. Juan Fuentes was directed to sit on a
retaining wall in the backyard.
      At 12:10:56 a.m., Riggle radioed dispatch that shots had been fired and
requested EMS to respond “code” to the officers’ location. The ambulance
arrived at 12:15 a.m. The EMT report states that there was “a [sic] unknown
calabar [sic] revolver partially exposed from underneath pt buttock” and that
“[t]here was also several bullets [sic] laying around pt body.” The paramedics
determined that Victor Fuentes was dead at the scene.
      That night, Juan Fuentes was taken to the police station for an
interview.   Juan Fuentes was provided with an interpreter and had an
attorney present.      During the interview, the interviewing officer, Officer
Roberts, asked Juan Fuentes whether Victor Fuentes had a gun that night:
      Roberts:            Did Victor fire a gun today?
      Fuentes:            I don’t know.
      Roberts:            Did you see him with a gun today?
      Fuentes:            No.
                                        ...

      Roberts:            Has he ever seen him with a gun?
      [Interpreter]:      (Speaking Spanish) Have you seen your son with
                          a gun?
      Fuentes:            No.
      Roberts:            Has he seen him with a gun tonight?
      [Interpreter]:      (Speaking Spanish) Did you see your son with a
                          gun tonight?
      Fuentes:            No.

The officer returned to the subject later in the interview:



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                                 No. 14-41003
      Roberts:          Did Victor have anything in his hands that could
                        be perceived as a weapon?
      Fuentes:          I don’t know. I don’t know. I don’t know.
      Roberts:          Did he point … [indicating interruption]
      Fuentes:          No. He no do nothing to him.
      Roberts:          Did Victor have a gun?
      Fuentes:          He no do nothing to him, I say … [indicating
                        interruption]
      Roberts:          I know. Did Victor have a gun?
      Fuentes:          … [cont’d] to get killed. He no do nothing to the
                        police man to get killed.
      Roberts:          I understand. I’m asking you: did Victor had
                        [sic] a gun in his hand.
      Fuentes:          I don’t know. I don’t know.
      Roberts:          Could he have had a gun in his hand?
      Fuentes:          Me?
      Roberts:          No. Victor.
      Fuentes:          I don’t know.
      Roberts:          Could he have had a gun in his hand?
      Fuentes:          I mean, you’re going to find out. I don’t know.
      Roberts:          Well, I’m asking you if you saw one.
      Fuentes:          No.

      Juan Fuentes also gave a deposition in this case in which he recounted
the shooting:

             Q.    Tell me what happened next then.
             A.    As I told you before, my son, Victor, came to me and
      told me, “It’s time to go give my mother a -- her hug,” which as I
      told you before he didn’t get to do.
                   He turned around about three steps, and then we
      heard that someone had opened the door. At the same time when
      the door was open, he walked in about maybe one or two steps, and
      he said, “Hands up,” and shoot.
             Q.    Is that all you remember about what happened before
      the officer shot Victor?
             A.    That’s all that happened. He walked in and shot him.
      No reason or anything.
             Q.    Did Victor have a gun in his hand when the officer shot
      him?
             A.    I didn’t see him with a firearm at all.
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                                No. 14-41003
He continued:

           Q.     Where were the guns that you had been shooting?
           A.     (Indicating) As I told you, there is an opening right
     there, and there is a dresser where my wife puts clothes, so it’s
     where I put them. On top of it.
           Q.     And Victor was walking away from you towards the
     front of the house at the double doors?
           A.     Correct.

                                         ...

           Q.    Did you see Victor at the moment he was shot?
           A.    Yes. As I told you, he was walking.
           Q.    Right. You saw him before the officer shot his gun, you
     saw Victor walking away?
           A.    Correct.
           Q.    Then the officer you say opened the door and the door
     hit you on the right shoulder?
           A.    Correct.
           Q.    And then the officer shot Victor?
           A.    Right at the time when he -- when he entered, he shot
     him.
           Q.    So, when the door hit you, did it stop you from seeing
     Victor at the moment he was shot by the officer?
           A.    No. No, because it does not close all the way. There
     was an opening and it’s where I was seeing. The door could not go
     the way because I was in between, so there was an opening.
           Q.    And the officer came in, he said something to Victor,
     correct?
           A.    Yes. He did. He said, “Hands up,” at the same time
     he shot him.
           Q.    Did Victor -- was Victor looking at the officer or was he
     looking at the double doors going into the front of the house?
           A.    He was not looking at him. He was facing the front --
     the double doors. I think when he was shot, he tried to turn to see.

                                         ...

         Q.    Was Victor facing the double doors to the front at the
     moment the officer shot him?
         A.    That’s correct.
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                            No. 14-41003


                                      ...

        Q.    Did Victor have anything in his hand when the officer
 fired his shots?
        A.    No, I don’t think so.
        Q.    Prior to the moment when the officer fired his shots,
 had you ever seen Victor touch one of your guns that evening?
        A.    I didn’t see him.
        Q.    Has anyone ever said to you that they saw Victor
 holding one of your guns on December 31, 2013 (sic)?
        A.    No.
        Q.    Was Victor holding any bullets in either of his hands
 when the officer fired his shots?
        A.    No, I didn’t see him.
        Q.    Could you see Victor’s hands when the officer came in
 to the room?
        A.    I saw him -- I saw him, I saw his body and his hands,
 and he was walking. What do you mean by that? But I didn’t see
 him carrying anything in his hands.
        Q.    But could you see -- actually see his hands?
        A.    Yes. Yes. As he was walking.
        Q.    When the officer fired his shots, where were Victor’s
 hands?
        A.    He was – he was walking.
        Q.    Were his hands down by his sides, or were they up
 higher?
        A.    His hands were not up. I cannot actually explain to
 you where his hands were because he was walking, but they were
 not up.
        Q.    So, were they in normal as you walk with your hands
 towards your hips?
        A.    Yes. When he shot him, I don’t know what went
 through his mind, but he kind of jerked.
              Now, he used to do that when he played. He liked to
 play, kind of like making, like, a jerk, kind of like (demonstrating)
 “What’s up?” But he would do that just to play, and that’s what he
 did when he was shot. But he didn’t raise his hands up. He kind
 of, like, made a sudden movement.



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                                      No. 14-41003
       An autopsy was conducted on Victor Fuentes on January 1, 2013. The
autopsy showed that Victor Fuentes had been shot three times. Two of the
bullets struck Victor Fuentes’s chest and abdomen. The medical examiner
states in her affidavit that “[t]wo of the bullet wounds are consistent with
Victor Fuentes standing, facing toward the officer, with his right arm
outstretched and right hand pointed toward the officer, when the officer shot
Victor Fuentes.” The third bullet struck Fuentes in the back of the neck, then
“[a]fter perforating the skin and subcutaneous tissue, the bullet perforates the
musculature of the posterior neck and posterior left side of the back before
perforating the posterior left fourth rib.” “The bullet then penetrates the lower
lobe of the left lung where a small-caliber, moderately deformed, copper-jacket
with its base is recovered.” According to the autopsy report, “[t]he directions
of the bullet are back to front, downward, and right to left.” In her affidavit,
the medical examiner states that “[n]one of the bullet wounds are consistent
with Victor Fuentes being upright, walking away from the officer, with his
back to the officer, and with his arms and hands down at his sides, when the
officer shot Victor Fuentes.”
       Victor Fuentes’s family brought suit against Riggle, the chief of police,
and the City of Tyler. 1 The plaintiffs allege that Riggle violated Fuentes’s
Fourth Amendment rights by affecting an unreasonable search of the house
and by using excessive force in shooting and killing Fuentes. They also allege
that Riggle violated Fuentes’s constitutional rights by demonstrating
deliberate indifference to Fuentes’s medical needs in the immediate aftermath
of the shooting. Riggle moved for summary judgment on the basis of qualified



       1 The plaintiffs advised the district court at the hearing on the defendants’ motions
for summary judgment that they no longer opposed summary judgment on their claims
against the city and the chief of police. As such, those claims were dismissed and are not
part of this appeal.
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                                      No. 14-41003
immunity. The magistrate judge recommended denying Riggle’s motion for
summary judgment.          Noting the conflict between Riggle’s account of the
shooting and Juan Fuentes’s, the magistrate stated “[c]onsistent with the
Seventh Amendment, assigning comparative weight to Mr. Riggle’s and Juan
Fuentes’s contradicting testimony, and weighing that testimony in light of
other circumstantial evidence, is precisely the function of the jury.”                 The
magistrate judge also rejected Riggle’s argument that, based on the other
physical and testimonial evidence in the case, no reasonable jury could return
a verdict for the plaintiffs. The magistrate judge continued, “Juan Fuentes is
no doubt subject to impeachment at trial, both for his potential bias and
allegedly inconsistent statements, but Defendant’s request that this Court
weigh his testimony against Mr. Riggle’s” conflicts with the summary
judgment standard. The magistrate judge found “that there is a material
question of fact here: whether the decedent was holding a gun, pointed at Mr.
Riggle, at the time he was shot.” The district court adopted the magistrate
judge’s recommendation and denied the motion for summary judgment. Riggle
filed a timely interlocutory appeal. 2
                                            II.
       Our first consideration is our jurisdiction to hear this appeal. We have
jurisdiction only to hear appeals from “final decisions of the district courts of
the United States.” 28 U.S.C. § 1291. “Although a denial of a defendant’s
motion for summary judgment is ordinarily not immediately appealable, the
Supreme Court has held that the denial of a motion for summary judgment
based upon qualified immunity is a collateral order capable of immediate
review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing



       2The report and recommendation does not address Appellees’ denial of medical care
claim. Regardless, Appellees expressly abandoned that claim at oral argument in this appeal.
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                                  No. 14-41003
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).            Yet the scope of our
interlocutory review of a denial of qualified immunity is confined “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) (internal quotation marks and
brackets omitted). Officials enjoy qualified immunity so long as their “their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). This court has explained that “[w]henever 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.’” Hogan, 722
F.3d at 730 (quoting Kinney, 367 F.3d at 346). The second is “that a ‘genuine
issue of fact exists regarding whether the defendant(s) did, in fact, engage in
such conduct.’” Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011) (quoting
Kinney, 367 F.3d at 346). “According to the Supreme Court, as well as our own
precedents, we lack jurisdiction to review conclusions of the second type on
interlocutory appeal.” Kinney, 367 F.3d at 346. Rephrasing this holding, the
en banc court in Kinney stated that, “in an interlocutory appeal we cannot
challenge 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 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.”). “As one of our cases succinctly puts it,
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                                       No. 14-41003
‘we can review the materiality of any factual disputes, but not their
genuineness.’” Kinney, 367 F.3d at 347 (quoting Wagner v. Bay City, 227 F.3d
316, 320 (5th Cir. 2000)); compare id., with Fed. R. Civ. P. 56(a) (“The court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”).
       Riggle makes three arguments in contending that the district court erred
in denying his motion for summary judgment. First, he argues that Juan
Fuentes’s testimony that he did not “see” Victor Fuentes holding a gun at the
time of the shooting is insufficient as a matter of law to preclude summary
judgment. 3 Second, Riggle argues that Juan Fuentes’s deposition contradicts
his prior statements in a police interview and therefore should have been
disregarded. Cf. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.
1996) (“It is well settled that this court does not allow a party to defeat a motion
for summary judgment using an affidavit that impeaches, without explanation,
sworn testimony.”). Third, Riggle argues, citing Scott v. Harris, 550 U.S. 372
(2007), that Juan Fuentes’s testimony is so thoroughly contradicted by the



       3 Riggle premises this argument on Royal v. Spragins, 575 F. App’x 300 (5th Cir. 2014)
(unpublished) (per curiam). In Royal, we held that a witness’s testimony that he did not “see”
the victim of an officer-involved shooting point his gun at the officers was insufficient to
create a fact issue precluding summary judgment where the officers all testified that the
victim did point the gun at them. Id. at 304–05. Riggle attempts to expand Royal into a per
se rule that a witness’s testimony that he did not “see” the shooting victim with a gun is
insufficient to defeat summary judgment and that only testimony that the victim in fact did
not have a gun is sufficient. But the testimony in Royal was insufficient because the witness
also testified that he was not looking at the victim at the time of the shooting, not because of
the witness’s diction. Id. at 304. Further, a witness’s testimony that he did not see the victim
pointing a gun at the officers immediately before a shooting is far less probative—and under
the facts in Royal, not probative at all—of the fact issue of whether the victim was pointing
a gun at the officers at the time of the shooting than testimony that the witness did not see
the victim holding a gun at all immediately prior to the shooting would have been.
Nevertheless, despite our skepticism, we do not pass on this argument as we lack jurisdiction,
as explained infra.
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                                       No. 14-41003
other evidence in the summary judgment record that no reasonable jury could
return a verdict in favor of the plaintiffs. But all of these arguments go to the
genuineness of the factual dispute, not its materiality. Riggle does not argue
that if he in fact shot an unarmed Victor Fuentes in the back, he did not violate
Victor Fuentes’s clearly established constitutional rights. His argument is that
the district court erred in concluding that sufficient facts were in the record to
permit such a factual finding. That is a classic argument that the factual
dispute was not genuine, and we therefore lack jurisdiction over his appeal.
See Duran v. Sirgedas, 240 F. App’x 104, 109–10 (7th Cir. 2007) (unpublished)
(“Officer Peslak claims that the district court should have stricken this
affidavit because it contradicted the previous testimony Moreno gave in her
deposition. . . . [U]nder Johnson, we lack jurisdiction in this case to review the
challenge to Moreno’s affidavit, as such a challenge is, in essence, an attack on
the district court’s conclusion as to whether or not the pretrial record sets forth
a ‘genuine’ issue of fact for trial.”). As such, we do not address the merits of
Riggle’s arguments and must dismiss this appeal for lack of jurisdiction. 4
       Riggle attempts to circumvent our jurisdictional limitations by arguing
that whether a reasonable jury could return a verdict in favor of the plaintiffs
is a “question of law.” Yet summary judgment—and all of its facets—is always
a question of law. The final judgment rule, however, places limits on which
questions of law are subject to interlocutory review. Were we to accept Riggle’s
argument, the distinction drawn in our cases between questions of genuineness



       4  We also do not express any opinion as to whether the principle in S.W.S. Erectors,
that a party cannot create a fact issue by writing an affidavit that impeaches prior sworn
testimony, applies to a case, like this one, where the first statement was not sworn but rather
was made during a police interview—though we note that no federal court of appeals has
done so and one has rejected such an approach. See Bank of Ill. v. Allied Signal Safety
Restraint Sys., 75 F.3d 1162, 1169 (7th Cir. 1996) (rejecting application of the rule barring
creation of a fact issue through testimony that impeaches prior sworn testimony where the
initial statements were unsworn statements to third parties, including police officers).
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                                   No. 14-41003
and questions of materiality would be obliterated. We would be left conducting
a plenary, de novo review of the district court’s decision on the summary
judgment motion. Riggle’s argument therefore fails.
      Nevertheless, we must pause for a moment to consider Riggle’s argument
predicated on Scott v. Harris. In Scott v. Harris, the Supreme Court heard an
appeal from a denial of summary judgment on qualified immunity grounds and
held that the district court erred in accepting the plaintiff’s version of facts as
correct when an undisputed video recording of the car chase at issue existed.
550 U.S. at 376, 380–81. In Scott, a police officer ended a high-speed pursuit
by ramming the fleeing suspect’s car off the road, rendering the suspect a
quadriplegic. Id. at 374–76. Considering an appeal from the district court’s
denial of summary judgment, the Supreme Court noted that while the norm at
summary judgment is to adopt “the plaintiff’s version of the facts,” the
situation is altered where there is “a videotape capturing the events in
question.” Id. at 378. The Court concluded that “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” Id. at
380. The Court stated that “[t]he Court of Appeals should not have relied on
such visible fiction [i.e., the plaintiff’s version of events]; it should have viewed
the facts in the light depicted by the videotape.” Id. at 380–81. The Court then
went on to address the legal standard for Fourth Amendment excessive force
claims and to apply it to the facts as shown in the videotape. Id. at 381–86.
While the question of jurisdiction does not appear to have been raised, the
Supreme Court later assumed that it had found that it had jurisdiction in Scott.
See Plumhoff v. Rickard, --- U.S. ---, ---, 134 S. Ct. 2012, 2020 (2014) (“The
District Court order here is not materially distinguishable from the District
Court order in Scott v. Harris, and in that case we expressed no doubts about
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                                 No. 14-41003
the jurisdiction of the Court of Appeals under § 1291.”).       Jurisdictionally
speaking, Scott is problematic, as deciding whose version of the facts must be
accepted falls squarely within the realm of a dispute as to genuineness. Scott
could be interpreted one of two ways. First, Scott may merely indicate that, if
(and only if) there is a dispute of the materiality of a factual issue, the court
need not evaluate the materiality issue while accepting an account of the facts
plainly discredited by undisputed documentary evidence.         Under such an
interpretation, we would lack jurisdiction over an argument that there is no
genuine dispute because of the existence of a videotape without an
accompanying     contention    that   the   factual   dispute   is   immaterial.
Alternatively, Scott may stand as an exception to the general rule, that the
genuineness of a fact dispute cannot be reviewed, where there is undisputed
documentary evidence that contradicts a plaintiff’s factual account. See Romo
v. Largen, 723 F.3d 670, 675 (6th Cir. 2013) (“The Scott opinion did not even
mention the Johnson holding, and Scott is easily limited as an exception for
blatantly contradicted facts.”). The second interpretation is problematic, as it
would extrapolate a significant, and nebulous, exception to the general rule in
Johnson from an opinion (Scott) that never addresses jurisdiction. Yet we need
not pass on whether or to what extent such an exception exists, as Scott is
plainly inapplicable here. See George v. Morris, 736 F.3d 829, 835–36 (9th Cir.
2013) (expressing skepticism that “Scott v. Harris implicitly abrogated a line
of precedent” but rejecting Scott’s application to the case even assuming that
it did); Blaylock v. City of Philadelphia, 504 F.3d 405, 412–14 (3d Cir. 2007)
(observing that Scott “may represent the outer limit of the principle of Johnson
v. Jones—where the trial court’s determination that a fact is subject to
reasonable dispute is blatantly and demonstrably false, a court of appeals may
say so, even on interlocutory review” but then distinguishing Scott and
concluding “[b]ecause the officers make no arguments regarding the false
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                                 No. 14-41003
arrest claim that do not ask us to contradict the District Court’s determination
of which facts are subject to genuine dispute, we will dismiss that portion of
their appeal for lack of jurisdiction under Johnson v. Jones.”). There is no
undisputed, contemporaneous recording of the disputed events here, as there
was in Scott, or its equivalent. As such, Scott, and any exception it may portend
from the normal jurisdictional limits in an appeal from a denial of a motion for
summary judgment, does not apply.
      Riggle has no doubt marshalled evidence that tends to undermine Juan
Fuentes’s account of Victor Fuentes’s death. His arguments that such evidence
precludes the existence of a genuine dispute of fact for purposes of Rule 56(a)
are, however, not cognizable in an interlocutory appeal.
                                      III.
      We therefore DISMISS the appeal for lack of jurisdiction.




                                       14
