Clifford Latham v. Matthew Faulkner

Case: 12-31008 Document: 00512338081 Page: 1 Date Filed: 08/12/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 12, 2013

No. 12-31008 Lyle W. Cayce

Clerk

CLIFFORD D. LATHAM,

Plaintiff-Appellee

v.

MATTHEW FAULKNER, individual and in his official capacity; K.

JOHNSON, individual and in his official capacity; OFFICER CROOK,

individual and in his official capacity; CITY OF BOSSIER CITY,

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:11-CV-597

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

This is an interlocutory appeal in which the Defendant officers and city

challenge the district court’s denial of their motion for summary judgment on the

basis of qualified immunity. For the reasons that follow, we DISMISS this

appeal.

*

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.

Case: 12-31008 Document: 00512338081 Page: 2 Date Filed: 08/12/2013

No. 12-31008

This case involves the arrest of Plaintiff-Appellee Clifford Latham at a

Louisiana casino. Latham was ejected from the casino for being disorderly due

to drunkenness. Defendant Officers Faulkner and Johnson were dispatched to

the scene. Latham alleges that Faulkner and Johnson arrested him in response

to his asking them a question. He alleges that in effecting the arrest, the officers

used excessive force resulting in an injury to his knee. Finally, he alleges that

after the arrest, Faulkner, Johnson, and Crook failed to provide adequate

medical care for his injury. Latham filed a § 1983 suit claiming, inter alia,

violations of (1) the Fourth Amendment for excessive force, (2) the First

Amendment for retaliatory false arrest and use of force, and (3) the Fourteenth

Amendment for denial of medical care. On this interlocutory appeal, Defendants

challenge the district court’s denial of summary judgment on these three claims.

In denying summary judgment, the district court stated that “genuine

disputes as to material facts remain.” We held in Kinney v. Weaver that we have

no jurisdiction to hear an interlocutory appeal where the district court denied

summary judgment based on qualified immunity, except to the extent that the

appeal turns on an issue of law. 367 F.3d 337, 346–47 (5th Cir. 2004).1

The bulk of this appeal turns on questions of fact and thus cannot be

considered by us under Kinney. The only noteworthy issue concerns Latham’s

claim that Defendants Faulkner and Johnson infringed on his First Amendment

right to free speech by conducting a retaliatory false arrest. The district court

has dismissed Latham’s false arrest claim “as precluded by the Heck doctrine,”

1

Defendants do not discuss jurisdiction on appeal. It is well established that a federal

court is not only permitted, but in fact required, to consider jurisdictional defects sua sponte.

E.g., United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (“No one has challenged

the ripeness of this case for adjudication. However, we must consider possible objections to our

Article III jurisdiction sua sponte. Every federal appellate court has a special obligation to

satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under

review, even though the parties are prepared to concede it.” (citations and internal quotation

marks omitted)).

2

Case: 12-31008 Document: 00512338081 Page: 3 Date Filed: 08/12/2013

No. 12-31008

citing Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). However, we

have no jurisdiction of that in this interlocutory appeal.

Appeal DISMISSED.

3