                                                                              FILED
                            NOT FOR PUBLICATION                               APR 23 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GERALD W. MARSHALL,                              No. 09-15460

              Plaintiff - Appellee,              D.C. No. 3:07-cv-00222-RAM

  v.
                                                 MEMORANDUM*
BRUCE KIRBY, Lieutenant,

              Defendant - Appellant,

  and

MICHAEL POEHLMAN, Chief of Police;
et al.,

              Defendants.


                  Appeal from the United States District Court
                            for the District of Nevada
                 Robert A. McQuaid, Magistrate Judge, Presiding

                            Submitted April 14, 2010**
                             San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: KLEINFELD and THOMAS, Circuit Judges, and STAFFORD, Senior
District Judge.***

      The plaintiff, Gerald Marshall, sued the defendant, Lieutenant Bruce Kirby,

alleging unlawful detention, use of excessive force, and arrest without probable

cause, all in violation of the Fourth Amendment and 42 U.S.C. § 1983. Kirby

appeals from the trial court’s order denying his Rule 50(a) motion for judgment as

a matter of law on qualified immunity grounds. The motion was made before the

jury announced that it was unable to reach a unanimous verdict. The case thus

comes to us in the posture of an interlocutory appeal. We dismiss the appeal and

remand for further proceedings.

      Our jurisdiction, or scope of review, in an appeal of a district court’s denial

of an official’s motion for qualified immunity is limited to questions of law and

does not extend to matters of fact or questions of evidence sufficiency. In Johnson

v. Jones, 515 U.S. 304, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995), the Supreme

Court held that “a defendant, entitled to invoke a qualified immunity defense, may

not appeal a district court’s . . . order insofar as that order determines whether or

not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-20.

The Court later clarified Johnson by explaining that, “if what is at issue in the


        ***
            The Honorable William Stafford, United States District Judge for the
Northern District of Florida, sitting by designation.
                                            2
sufficiency determination is nothing more than whether the evidence could support

a finding that particular conduct occurred, the question decided is not truly

‘separable’ from the plaintiff's claim, and hence there is no ‘final decision’ under

Cohen and Mitchell.” Behrens v. Pelletier, 516 U.S. 299, 313, 116 S. Ct. 834, 133

L. Ed. 2d 773 (1996).

      Here, the trial court determined that multiple disputed issues of material fact

precluded entry of judgment in Kirby’s favor on all claims. On appeal, Kirby

continues to insist on facts that the trial judge concluded were in dispute, making

little, if any, attempt to demonstrate that he is entitled to qualified immunity even if

the evidence, and all reasonable inferences therefrom, are construed in the light

most favorable to Marshall.

      Because we find that this case does not fall within the category of cases open

to interlocutory appeal based on qualified immunity, the appeal is DISMISSED.

The case shall be returned to the trial court for further proceedings .




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