                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           June 7, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk

                            No. 06-60960
                          Summary Calendar
                      ))))))))))))))))))))))))))

KENNETH DUKE

                Plaintiff–Appellee

     v.

SHARON DUCKWORTH, Individually and as a Deputy Sheriff of
Sharkey County

                Defendant–Appellant


            Appeal from the United States District Court
              for the Southern District of Mississippi
                          No. 5:04-CV-0322



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Before us is an appeal by Defendant-Appellant Sharon

Duckworth (“Duckworth”) of the district court’s decision to deny

her qualified immunity at the summary judgment stage on a claim

of excessive force bought by Plaintiff-Appellee Kenneth Duke

(“Duke”).   Because there are genuine issues of material fact

regarding Duckworth’s claim of qualified immunity, we lack



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
jurisdiction over this interlocutory appeal and DISMISS it.

                 I. FACTUAL AND PROCEDURAL HISTORY

     On the night of August 22, 2002, Brenda Stevens (“Stevens”),

Pennye Ward (“Ward”), and Sam Dobbins (“Dobbins”) arrived at

Stevens’s home in Sharkey County to find that Duke had locked

himself inside the house.    Duke, who had been drinking, opened

the door for them, and he and Stevens then went outside to talk.

The conversation turned into an argument and Duke’s pistol

accidentally fired.   Ward and Dobbins called 9-1-1 from inside

the house.   Stevens subsequently entered the house carrying

Duke’s pistol.   Duke left in his pick-up truck after trying,

unsuccessfully, to speak with Stevens, Ward, and Dobbins, who

would not let him inside the house.

     Duckworth, who is a Sharkey County Deputy Sheriff, and

Stanley Coleman (“Coleman”), also a Deputy, responded to the

call.   Duckworth questioned Stevens, Ward, and Dobbins while

Coleman searched the area for Duke.    While being questioned,

Dobbins saw Duke from a distance, chased him into a nearby cotton

field, and tackled him.   In the struggle that followed, Duke

gained the upper hand and pinned Dobbins to the ground.

     Duckworth asserts that when she came upon the two in the

cotton field, Duke was not simply holding Dobbins down but

appeared to be making stabbing motions.    Dobbins was also yelling

that Duke was killing him.    Duckworth ordered Duke to “freeze”



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several times, and, when Duke continued to assault Dobbins,

Duckworth shot Duke in the shoulder.    Statements taken from

Stevens, Ward, and Dobbins all support Duckworth’s recollection

of the facts.

     Duke, however, asserts that his tussle with Dobbins lasted

two to three minutes and that during that time he only hit

Dobbins twice.    The rest of the time, he just held Dobbins down

and tried to keep Dobbins from hitting him.    He claims Duckworth

never ordered him to stop.

     Duke brought suit against Duckworth, as well as the Sharkey

County Sheriff and other Sharkey County officials, pursuant to 42

U.S.C. § 1983.    He included claims of excessive force, assault,

battery, failure to train, malicious prosecution, and false

arrest and imprisonment.    Defendants moved for summary judgment,

and the district court granted their motions on all claims except

for Duke’s excessive force claim against Duckworth.       Given the

conflicting facts over what happened in the cotton field, the

district court determined that Duke had created a genuine issue

of material fact as to whether Duckworth was entitled to

qualified immunity on Duke’s claim that she used excessive force

when she shot him.    Duckworth has appealed this ruling.

                II. JURISDICTION AND STANDARD OF REVIEW

     We have jurisdiction over this appeal pursuant to the

collateral order doctrine, but our jurisdiction is limited to



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issues of law.     Hampton v. Oktibbeha County Sheriff Dep’t, 480

F.3d 358, 363 (5th Cir. 2007).    We can review a district court’s

determination that a fact issue is material, but we do not have

jurisdiction to review the district court’s decision that a fact

issue is genuine.     Bazan ex rel. Bazan v. Hidalgo County, 246

F.3d 481, 490 (5th Cir. 2001); see also Hampton, 480 F.3d at 363-

64.   Consequently, we must accept Duke’s version of the facts as

true and review de novo whether the district court erred in

determining that Duckworth was not entitled to qualified immunity

on that set of facts.     See Gobert v. Caldwell, 463 F.3d 339, 345

(5th Cir. 2006); see also Kinney v. Weaver, 367 F.3d 337, 348

(5th Cir. 2004) (en banc) (stating the court “consider[s] only

whether the district court erred in assessing the legal

significance of the conduct”).    The presence of a genuine issue

of material fact regarding qualified immunity will preclude us

from exercising jurisdiction.     See Glenn v. City of Tyler, 242

F.3d 307, 312 (5th Cir. 2001).

                            III. DISCUSSION

      On appeal, Duckworth asserts that she is entitled to

qualified immunity with respect to Duke’s claim that she used

excessive force.    “The doctrine of qualified immunity shields a

governmental official from civil liability for damages based upon

the performance of discretionary functions if the official’s acts

did not violate clearly established constitutional or statutory



                                   4
law of which a reasonable person would have known.”     Hampton, 480

F.3d at 363.   A governmental official need only plead her good

faith to shift the burden of proof to the plaintiff, who must

then rebut the defense by establishing that the official’s

allegedly wrongful conduct violated clearly established law.

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).     As

Duckworth has pleaded her good faith in shooting Duke, we now

consider whether Duke has successfully rebutted the qualified

immunity defense.

     The qualified immunity analysis is a two-step process.      Id.

at 257.   First, the plaintiff must allege the violation of a

clearly established constitutional right.    Easter v. Powell, 467

F.3d 459, 462 (5th Cir. 2006) (per curiam); see also Siegert v.

Gilley, 500 U.S. 226, 231-32 (1991).   A right is clearly

established if its contours are sufficiently clear so that a

reasonable official would understand that what she is doing

violates that right.    Anderson v. Creighton, 483 U.S. 635, 640

(1987); Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th

Cir. 2000).    If the plaintiff satisfies this burden, we must then

determine whether the official’s conduct was objectively

reasonable under the law at the time of the incident.     Michalik,

422 F.3d at 258.

     We now turn to Duke’s claim, in which he asserts that his

rights under the Fourth and Fourteenth Amendments to the United

States Constitution were violated when Duckworth used excessive

                                  5
force to seize him by shooting him in the shoulder.    It is

clearly established in this circuit that a claim for excessive

force requires (1) an injury; (2) that resulted directly and only

from the use of force that was excessive to the need; and (3)

that the force used was objectively unreasonable.     Flores v. City

of Palacios, 381 F.3d 391, 396 (5th Cir. 2004); Ikerd v. Blair,

101 F.3d 430, 433-34 (5th Cir. 1996).   It is also clearly

established that the use of deadly force is objectively

unreasonable unless the officer has probable cause to believe

that the suspect poses a significant threat of death or serious

physical injury to the officer or others.   Flores, 381 F.3d at

399 (citing Tennessee v. Garner, 471 U.S. 1, 3 (1985)).      Here,

Duke has alleged that Duckworth’s use of deadly force against him

violated his rights because he did not pose a significant threat

of death or serious physical injury to Dobbins.   Duke has, thus,

satisfied the first prong of the qualified immunity analysis.

     We must now consider whether Duckworth’s actions were

objectively reasonable.   Duckworth argues that, from her vantage

point that night, Duke was stabbing or attempting to stab Dobbins

and that he refused to stop when ordered to do so.    She points

out that the statements of the other witnesses back up her

version of events.   Therefore, she claims that her actions were

objectively reasonable because she believed Duke posed a

significant threat of death or serious physical injury to

Dobbins.   Duke, however, testified in his deposition that,

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although he hit Dobbins twice in the span of two to three

minutes, he was merely pinning Dobbins to the ground when he was

shot.   In its summary judgment order, the district court held

that “whether Duke merely was pinning Dobbins to the ground or

whether Duke was pummeling him unnecessarily is . . . a heavily

contested question of fact.”   (Summ. J. Order at 23.)

     As noted above, we cannot disturb the district court’s

finding that this is a genuine issue of fact.    See Kinney, 367

F.3d at 348 (holding that, in an interlocutory appeal, “we lack

the power to review the district court’s decision that a genuine

factual dispute exists”).   Duckworth’s argument that the district

court did not properly consider all the facts is essentially a

challenge to the genuineness finding.   We are not at liberty to

review such a finding and indeed lack the jurisdiction to do so.

     If we accept that a fact issue exists as to whether Duke

appeared to be assaulting Dobbins at the time Duckworth shot

Duke, it is clear that such a fact issue is also material, which

precludes summary judgment on qualified immunity.    Taking the

evidence in the light most favorable to Duke, Duckworth would not

have had probable cause to believe Duke posed a significant

threat of death or serious physical injury to Dobbins if all Duke

was doing was pinning Dobbins to the ground.    Without such a

threat, Duckworth’s use of deadly force would be objectively

unreasonable, meaning that qualified immunity would not protect

her actions.   Therefore, a genuine issue of material fact exists

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as to whether Duckworth is entitled to qualified immunity.

Consequently, we lack jurisdiction over her appeal and must

dismiss it.   See Bazan, 246 F.3d at 493 (dismissing interlocutory

appeal when there was a genuine issue of material fact).

                          IV. CONCLUSION

     For the foregoing reasons, we DISMISS Duckworth’s

interlocutory appeal for lack of jurisdiction.

     DISMISSED.




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