                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                   September 23, 2004
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                        No. 04-30221
                                      Summary Calendar



       KEVEN EYER,

                                                           Plaintiff-Appellee,

                                             versus

       PATRICK EVANS; WILLIAM MCDADE;
       CHRISTIAN VARNADO; MICHAEL GLASSER;
       CITY OF NEW ORLEANS,

                                                           Defendants-Appellants.


                   Appeal from the United States District Court for
                          the Eastern District of Louisiana
                             (USDC No. 03-CV-342-A)
           _______________________________________________________


Before REAVLEY, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       As there is a fact issue as to whether Eyer was ever in active or constructive

possession of the marijauna, this court does not have jurisdiction. See Kinney v.


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Weaver, 301 F.3d 253, 261-62 (5th Cir. 2002); Lemoine v. New Horizons Ranch

and Center, Inc., 174 F.3d 629, 633-34 (5th Cir. 1999). DISMISSED.




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