                                                                           FILED
                            NOT FOR PUBLICATION                             APR 08 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LE COUNT P. SCOTT,                               No. 09-55207

              Plaintiff - Appellee,              D.C. No. 2:07-cv-07856-MMM-
                                                 AJW
  v.

CITY OF PASADENA; et al.,                        MEMORANDUM *

              Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                              Submitted April 5, 2010 **
                                Pasadena, California

Before: KOZINSKI, Chief Judge, D.W. NELSON, Circuit Judge, and GERTNER, ***
District Judge.




        *
         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).
        ***
            The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
      Defendants appeal from the district court’s denial of their motion for

summary judgment. They assert that plaintiff’s claim of excessive force is barred

by his prior conviction under California Penal Code § 148(a)(1). See Heck v.

Humphrey, 512 U.S. 477, 487 (1994); Smith v. City of Hemet, 394 F.3d 689, 693

(9th Cir. 2005) (en banc). Because the district court’s denial of summary judgment

on this claim is not an appealable collateral order, we lack jurisdiction and must

dismiss. Cunningham v. Gates, 229 F.3d 1271, 1284–85 (9th Cir. 2000).

      Defendants also claim the district court erred by denying summary judgment

based on qualified immunity. The district court determined that a reasonable jury

could find that the arresting officer “threw [plaintiff] to the ground after he had

been effectively subdued, causing his leg to break.” [Order at 23] Defendants do

not claim that a reasonable officer would believe such conduct to be constitutional;

they claim the evidence doesn’t support the district court’s conclusion. We lack

jurisdiction to review the denial of a motion for qualified immunity on an

interlocutory appeal “when the basis for the defendant’s motion is that the evidence

in the pretrial record is insufficient to create a genuine issue of fact.” Watkins v.

City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998) (quoting Armendariz v.

Penman, 75 F.3d 1311, 1317 (9th Cir. 1996)). Defendants’ challenge to the district

court’s reliance on plaintiff’s affidavit does not transform this factual issue into a


                                            2
question of law; whether an affidavit is a sham is a question of fact. See Kennedy

v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991).

      Because we lack jurisdiction to review defendants’ claims, this appeal must

be dismissed.


      DISMISSED.




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