                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 18, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT


    LEAH MONIQUE (“NIKKI”)
    FITZGERALD, individually; and
    LEAH MONIQUE (“NIKKI”)
    FITZGERALD and BRIAN W.
    FITZGERALD, husband and wife, in
    their capacities as parents, guardians,            No. 10-6082
    and next best friends of M.D.M.F. and       (D.C. No. 5:07-CV-00101-C)
    A.C.R.F., minor children,                          (W.D. Okla.)

                Plaintiffs-Appellees,

    v.

    ANTHONY JOHN RODRIGUEZ,
    individually,

                Defendant-Appellant,

    and

    POTTAWATOMIE COUNTY
    BOARD OF COUNTY
    COMMISSIONERS, a political
    subdivision of the state of Oklahoma;
    KENNETH VANDUSER,
    individually; KURT SHIRLEY,
    individually; JOHN DOE, 1 through 5,
    inclusive; KENNETH S. TICKNOR,

                Defendants.


                              ORDER AND JUDGMENT *

*
     After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
                                                                       (continued...)
Before HARTZ, Circuit Judge, and PORFILIO and BRORBY, Senior Circuit
Judges.



      In this interlocutory appeal, Deputy Anthony Rodriguez appeals the district

court’s denial of his motion for summary judgment as to plaintiff Leah Monique

Fitzgerald’s claim under 42 U.S.C. § 1983 for use of excessive force. We are

unable to review Deputy Rodriguez’s challenge to the district court’s ruling

because we are without jurisdiction to consider factual disputes. We dismiss the

appeal in favor of further proceedings in the district court.

                                          I.

      Responding to a request from the Alaska State Police, the Pottawatomie

County Sheriff’s Office initiated a welfare check at Ms. Fitzgerald’s home on her

sister and three-year-old niece, who were listed as missing in Alaska. Deputies

Rodriguez and Van Duser drove to Ms. Fitzgerald’s address. Ms. Fitzgerald, a

private investigator, showed her identification card, displayed her firearm, and

told the deputies she would not allow them into her home until they obtained a

warrant.


*
 (...continued)
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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      The deputies received court authorization to enter the home with force and

check on the welfare of the missing child. They, along with another

law-enforcement officer, then kicked down the door of the residence, handcuffed

Ms. Fitzgerald, and searched the home. They located the sister and niece hiding

in the attic with Ms. Fitzgerald’s own children. Ms. Fitzgerald was transported to

the sheriff’s office where she was booked on charges of obstructing an officer and

harboring a missing person. The charges against Ms. Fitzgerald were dismissed at

the preliminary hearing.

      Later Ms. Fitzgerald and her husband filed a civil-rights complaint,

asserting the use of excessive force in connection with her handcuffing, on the

part of Deputies Rodriguez and Van Duser, and John Doe officers and state-law

claims of assault and battery against Deputy Van Duser. She also alleged Fourth

Amendment claims against various defendants for the warrantless entry of her

home and her arrest.

      The district court entered summary judgment in favor of defendants on all

claims except the excessive-force claim against Deputies Rodriguez and Van

Duser and the state-law claims against Deputy Van Duser. Deputy Rodriguez

seeks an interlocutory appeal, arguing that Mr. Fitzgerald’s allegations do not

affirmatively link him to the handcuffing.




                                         -3-
                                           II.

      Generally this court lacks jurisdiction to consider interlocutory appeals.

“[T]he Supreme Court has limited appeals of interlocutory decisions denying the

defense of qualified immunity to cases presenting neat abstract issues of law. In

contrast, pretrial determinations of evidentiary sufficiency in qualified immunity

cases are not immediately appealable.” Weise v. Casper, 507 F.3d 1260, 1263-64

(10th Cir. 2007) (internal citations and quotation marks omitted) (“[E]videntiary

sufficiency determinations are not separable from a plaintiff’s claim and thus do

not constitute final decisions. . . .”). In other words, this court “lack[s]

jurisdiction to review a denial of summary judgment based on qualified immunity

if the claim on appeal is based on disputed facts.” Rosewood Servs., Inc. v.

Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1165 (10th Cir. 2005).

      With regard to Ms. Fitzgerald’s excessive-force claim against Deputy

Rodriguez, the present record contains at least four versions of her handcuffing.

In her complaint, she alleged that a John Doe tribal officer (identified in

deposition testimony as Officer Ticknor) bent her over and handcuffed her.

Afterwards, Deputy Van Duser put his knee in the middle of her back in a violent

and hurtful manner, removed her handcuffs, and then re-handcuffed her. She

alleged that during the second handcuffing, Deputy Van Duser bent her forward

onto her dining table, placed his knee in her back while removing the handcuffs,




                                           -4-
pulled her arm so hard that her shoulder made a popping sound, and tightly

recuffed her.

      Ms. Fitzgerald’s deposition testimony on handcuffing was similar to the

allegations in her complaint. She also stated that Deputy Van Duser refused to

loosen the handcuffs and so did Deputy Rodriguez and Officer Ticknor. At the

sheriff’s office, Deputies Van Duser and Rodriguez allegedly harassed her for

about five hours without loosening the handcuffs--causing excruciating pain.

Later, she learned that her rotator cuff was torn.

      During his deposition, Deputy Rodriguez described his own actions in

handcuffing plaintiff. He said he positioned her over the dining room table

because he was meeting resistance. Deputy Van Duser testified that he held Ms.

Fitzgerald’s arm to help handcuff her. He denied re-cuffing her. Officer Ticknor

testified that he did not handcuff Ms. Fitzgerald and that Deputy Rodriguez tested

the cuffs in the police car by putting his finger between the cuff and her wrist.

None of the law-enforcement officers acknowledged or mentioned a second

handcuffing.

      The record indicates that Deputy Rodriguez may be linked to the

handcuffing in three ways: (1) his own testimony that he did the initial

handcuffing; (2) Ms. Fitzgerald’s testimony that he refused to loosen her cuffs;

and (3) Officer Ticknor’s statement that Rodriguez tested the cuffs and decided

they were not too tight. A disputed issue of fact is apparent from the record.

                                          -5-
      Under these circumstances, this court does not have jurisdiction to review

the district court’s denial of Officer Rodriguez’s motion for summary judgment

because “it is predicated on evidence sufficiency, i.e. which facts a party may, or

may not, be able to prove at trial.” Armijo v. Wagon Mound Pub. Schs., 159 F.3d

1253, 1258 (10th Cir. 1998) (internal quotation marks omitted). Accordingly, the

appeal is DISMISSED for lack of jurisdiction.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Senior Circuit Judge




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