                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS         October 6, 2003
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                        _____________________                   Clerk

                             No. 02-11292
                        _____________________

                   MARY ANN TREVINO BURROUGHS,

                        Plaintiff - Appellee,

                                versus

                         KEVIN HUNT, et al.,

                             Defendants,

  KEVIN HUNT, individually and in his official capacity of the
               Texas Department of Public Safety,

                        Defendant - Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                   District Cause No. 01-CV-376
_________________________________________________________________

Before WIENER, CLEMENT and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

          The appellant in this interlocutory appeal challenges

the district court’s order denying his motion for summary

judgment on qualified immunity grounds.    After considering the

appellant’s issues and the parties’ arguments, this Court


     1
      Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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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determines the district court erred by denying the appellant’s

motion regarding the plaintiff’s false arrest claim, but

determines the Court has no jurisdiction to address the

appellant’s issue regarding the excessive force claim.

                          Factual Background

     The lawsuit underlying this appeal arose from the arrest of

the appellee, Mary Ann Trevino Burroughs (Burroughs), for driving

while intoxicated.   The appellant, Trooper Kevin Hunt, arrested

Burroughs after she rolled her vehicle in a one-vehicle accident.

Although Burroughs left the accident scene, Hunt later

interviewed Burroughs and concluded that Burroughs was

intoxicated when she wrecked her vehicle.      Hunt then placed

Burroughs under arrest.

     Burroughs subsequently sued Hunt under section 1983 for

allegedly violating her right to be free from false arrest and

the excessive use of force.    In response, Hunt moved for summary

judgment on qualified immunity grounds.    The district court,

however, denied the motion without specifying the basis of the

ruling.   Hunt appealed and maintains on appeal that the district

court relied on immaterial issues of fact in denying his motion.

                          Standard of Review

     This Court does not have jurisdiction to review

interlocutory appeals from the denial of summary judgment based

on qualified immunity grounds when the appeal challenges the


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district court’s ruling that genuine issues exist concerning

material facts.    See Jones v. Collins, 132 F.3d 1048, 1051-52

(5th Cir. 1998).   The Court, however, has jurisdiction over

appeals that challenge questions of law, such as the materiality

of factual issues.     See Bazan v. Hidalgo County, 246 F.3d 481,

490 (5th Cir. 2001).    The determination of whether a defendant’s

conduct was objectively reasonable is a question of law, but that

question of law can only be reviewed when there are no underlying

genuine issues of material fact.       Id.   This Court has

jurisdiction over the first issue presented in this appeal

because that issue turns on a question of law that can be decided

on undisputed material facts.     See Gonzales v. Dallas County,

Tex., 249 F.3d 406, 411 (5th Cir. 2001).

                        The False Arrest Claim

     In his first issue, Hunt maintains he is entitled to

qualified immunity on Burroughs’s false arrest claim because he

reasonably believed Burroughs had committed the offenses of

driving while intoxicated and failing to report a vehicle

accident.   For a defendant to be entitled to qualified immunity,

the district court must first determine whether the plaintiff

alleged a violation of a clearly established right–a question not

in dispute here, and then determine whether the defendant

official’s conduct was objectively reasonable in light of clearly

established law at the time of the alleged violation.         See


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Fontenot v. Cormier, 56 F.3d 669, 673 (5th Cir. 1995); see also

Siegert v. Gilley, 500 U.S. 226, 231-33 (1991).    An officer acts

with objective reasonableness in arresting a person if he has

probable cause to believe the person has committed a criminal

offense.    See Graham v. Connor, 490 U.S. 386, 396 (1989) (stating

Fourth Amendment is not violated by an arrest based on probable

cause).    In the instant case, uncontroverted summary judgment

evidence shows Hunt had probable cause to arrest Burroughs for

driving while intoxicated.

     The summary judgment evidence shows that at the time he

arrested Burroughs, Hunt knew that Burroughs was involved in a

one vehicle roll-over accident; the accident occurred very early

on a Sunday morning; Burroughs did not report the accident to

police, but sought assistance from a friend; shortly after the

accident, Burroughs had an odor of alcohol on her breath;

Burroughs was uncooperative with Hunt’s efforts to conduct a

sobriety test; and faced with instruction to put her drink down

for the test, Burroughs chose instead to go to jail.    Although

Burroughs maintains a question of fact exists about whether Hunt

had probable cause to arrest her, apparently because Hunt did not

observe her driving her vehicle in an intoxicated state, Hunt’s

observations would lead a reasonable officer to conclude that

Burroughs had been intoxicated at the time of her accident.    As a

result, Hunt was entitled to summary judgment on qualified


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immunity grounds.

                      The Excessive Force Claim

     In her complaint, Burroughs alleged that Hunt used excessive

force during her arrest and caused injury to her left shoulder

and right ankle.    In his remaining issue, Hunt maintains the

district court erred in denying his motion for summary judgment

on Burroughs’s excessive use of force claim because he did not

cause Burroughs’s injuries.    To prevail on her excessive force

claim, Burroughs was required to prove: (1) some injury (2) which

resulted directly from the use of force that was clearly

excessive to the need and (3) the force used was objectively

unreasonable.   See Williams v. Bramer, 180 F.3d 699, 703 (5th

Cir. 1999); Dunn v. Denk, 79 F.3d 401, 403 (5th Cir. 1996).

Although Hunt maintains the uncontroverted summary judgment

evidence indicates he did not cause Burroughs’s injuries, the

summary judgment evidence raises at least two questions of

material fact that preclude this Court’s jurisdiction.    The

evidence indicates the following facts.

     After Hunt arrested Burroughs, Hunt escorted Burroughs into

the jail.   Once she was inside the jail, Burroughs grabbed onto a

barred door and refused repeated orders to let go of the bars.

Three officers were involved in pulling Burroughs away from the

bars.   Although Hunt testified in his deposition that he assisted

with removing Burroughs from the bars by pulling on Burroughs’s


                                  5
right arm and the other two officers pulled on Burroughs’s left

arm, Sergeant Tobias indicated in his incident report that Hunt

“put [Burroughs’s] left arm behind [Burroughs’s] back and

[Burroughs] held on to the bars with her right hand . . . .

Officer Medina and Officer Hunt then pulled on [Burroughs’s] left

arm making her release her grip of the bars.”   Although Tobias

did not recall these details during his deposition, this evidence

is sufficient to raise two questions about the cause of

Burroughs’s shoulder injury–that is, did Hunt pull on Burroughs’s

left arm, and whether that action was the direct cause of

Burroughs’s injury to her left shoulder.   These questions deprive

this Court of jurisdiction over Hunt’s issue about Burroughs’s

excessive force claim.   As a result, the Court will dismiss this

issue.

                            Conclusion

     Because uncontroverted summary judgment evidence shows Hunt

had probable cause to arrest Burroughs for driving while

intoxicated, Hunt was entitled to summary judgment on Burroughs’s

false arrest claim.   Consequently, the district court erred by

denying Hunt’s motion for summary judgment on that claim.   As a

result, this Court REVERSES that portion of the district court’s

order denying Hunt’s motion for summary judgment on Burroughs’s

false arrest claim and RENDERS judgment in favor of Hunt as to

that claim.



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     Hunt, however, was not entitled to summary judgment on

Burroughs’s excessive force claim because questions of material

fact exist about the cause of Burroughs’s injuries.   Because the

questions about the cause of Burroughs’s shoulder injury preclude

this Court’s jurisdiction, the Court DISMISSES that portion of

Hunt’s appeal challenging the district court’s order denying his

motion for summary judgment on Burroughs’s excessive force claim.

Because the excessive force claim remains unresolved, the Court

REMANDS this case to the district court for further proceedings.

REVERSED and RENDERED in part; DISMISSED in part; case REMANDED.




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