                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT



                                No. 99-41361
                              Summary Calendar


MARIA GUAJARDO, Individually, on behalf of the estate of Juan Jose
Guajardo and as next friend of Thomas Guajardo, III, Cynthia
Guajardo and Caroline Guajardo, minor children,

                                                      Plaintiff-Appellee,

                                    VERSUS


CITY OF BROWNSVILLE, et al.,

                                                               Defendants,

EDUARDO TREVIÑO, Individually and in his official capacity;
ANA HERNANDEZ, Individually and in her official capacity,

                                                  Defendants-Appellants,




              Appeal from the United States District Court
                   For the Southern District of Texas
                          USDC No. B-97-CV-215
                              October 16, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

      Eduardo Treviño and Ana Hernandez appeal the district court’s

denial   of    their    summary   judgment   motion   based   on   qualified

immunity.      An order denying qualified immunity is immediately


  *
     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this opinion should not be published and is not precedent except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.
                                 No. 99-41361
                                      -2-

appealable   when   based   on    conclusions   of   law   rather    than   the

presence of a genuine issue of contested material fact.             See Palmer

v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999).             However, “if the

district court concludes that the summary judgment record raises a

genuine issue of material fact with respect to whether the defense

of qualified immunity is applicable, then that decision is not

immediately appealable.”      Id. at 351.

     The district court’s denial of summary judgment as to Treviño

was based on starkly differing versions of the facts surrounding

the altercation that preceded the death of Juan José Guajardo, a

pretrial detainee, which were offered through competent summary

judgment evidence.    The denial of qualified immunity as to Treviño

was based on a genuine issue of material fact as to whether Treviño

exerted force against Guajardo “‘in a good faith effort to maintain

or restore discipline, or maliciously and sadistically to cause

harm.’” Valencia v. Wiggins, 981 F.2d 1440, 1446-47 (5th Cir.)

(quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992) (providing a

standard for determining whether force used was constitutionally

excessive)), cert. denied, 509 U.S. 905 (1993). Because the denial

of qualified immunity as to Treviño was based on a genuine issue of

material fact rather than a question of law, this court does not

have jurisdiction over Treviño’s interlocutory appeal.              His appeal

is DISMISSED.   See Palmer, 193 F.3d at 351.

     On the other hand, appellate jurisdiction is not precluded
                                 No. 99-41361
                                      -3-

simply because the denial of a summary judgment based on qualified

immunity    contains    a    statement       that    “material        issues   of   fact

remain.” Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996) (quoting

Behrens v. Pelletier, 516 U.S. 299, 312 (1996)).                           This court

possesses jurisdiction to “‘take as given, the facts that the

district    court   assumed     when    it    denied        summary    judgment’      and

determine    whether    these        facts    state     a    claim     under   clearly

established law.”      Nerren v. Livingston Police Dep’t, 86 F.3d 469,

472 (5th Cir. 1996) (quoting Johnson v. Jones, 515 U.S. 304, 319

(1995)); see also Cantu, 77 F.3d at 803.                      Further, “where the

district court does not identify those factual issues as to which

it believes genuine issues remain, an appellate court is permitted

to go behind the district court’s determination and conduct an

analysis of the summary judgment record to determine what issues of

fact the district court probably considered genuine.”                      Colston v.

Barnhart, 146 F.3d 282, 285 (5th Cir.), cert. denied, 525 U.S. 1054

(1998).

     The magistrate judge’s report and recommendation adopted by

the district    court       states    that    a     bystanding    officer      such    as

Hernandez has the duty to “take reasonable measures to protect a

suspect from another’s use of force.”                 Snyder v. Trepagnier, 142

F.3d 791, 801 n.11 (5th Cir. 1998); see Hale v. Townley, 45 F.3d

914, 919 (5th Cir. 1995).        However, the report and recommendation

concludes only that:
                                    No. 99-41361
                                         -4-

      With regard to Officer Hernandez, Garcia [an inmate
      witness] testified that during the alleged incident he
      heard Officer Hernandez call to Officer Treviño to “stop
      it” . . . . Further, Officer Hernandez testified that
      she and Officer Treviño should remove Guajardo’s
      handcuffs, call their supervisor and call EMS. . . . A
      complete reading of this page reveals that EMS was in
      fact summoned almost immediately after Guajardo started
      having difficulty breathing.

The     report    and     recommendation         concludes   that   substantial

differences in the stories told by the witnesses precludes a

credibility determination, thus precluding summary judgment, but

does not cite additional evidence nor articulate a clear legal

conclusion as to how Hernandez’s actions could result in her

liability.

      This court has jurisdiction over Hernandez’s appeal because we

may determine whether the facts assumed by the district court

indicate a violation of clearly established law.                See Nerren, 86

F.3d at 472.     The district court erred in not finding any contested

issue    of   fact   to    be   material    to    Hernandez’s   entitlement    to

qualified immunity.         Her appeal involves only the legal question

whether the district court’s factual findings, the plaintiff’s

allegations, and the summary judgment evidence viewed in the light

most favorable to the plaintiff show that she violated clearly

established law against using excessive force in an objectively

unreasonable manner.

      The     undisputed    facts    show   that    Hernandez   first   saw   the

altercation after it had begun; that she did not know exactly what
                                No. 99-41361
                                     -5-

had happened that she went to the aid of Treviño, who seemed to be

in   trouble,   by    helping   him    get   Guajardo    on    the   floor    and

handcuffed; and that she sought medical assistance for Guajardo

when she observed him in distress. These facts undermine any claim

that   Hernandez     intended   to    violate     Guajardo’s   constitutional

rights.   But see Hale, 45 F.3d at 919 (denying summary judgment on

qualified immunity for an officer who laughed and encouraged an

officer using excessive force); Harris v. Chanclor, 537 F.2d 203,

205-06 (5th Cir. 1976) (upholding liability of a jail officer who

stood by and watched a vicious beating of a detainee without

objection and intervention, then refused to summon help for the

detainee).

       Moreover,     even   assuming     Hernandez     violated      a     clearly

established     constitutional       right   of   Guajardo,    the       findings,

allegations, and undisputed evidence show that Hernandez’s conduct

was objectively reasonable.          Cf. Anderson v. Creighton, 483 U.S.

635, 641 (1987).       The plaintiff does not explain how Hernandez’s

actions constituted excessive force nor does she suggest that her

actions were objectively unreasonable.            In light of the evidence,

a reasonable officer could have believed that Hernandez’s use of

force was lawful.

       The district court’s denial of summary judgment as to Ana

Hernandez’s qualified immunity is REVERSED.
