“Since the district court determined questions of fact precluded summary judg- ment, we lack jurisdiction over the denial of summary judgment on Doss’ official immunity defense.”
How later courts described this case
- “Since the district court determined questions of fact precluded summary judg- ment, we lack jurisdiction over the denial of summary judgment on Doss’ official immunity defense.”
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50285
Summary Calendar
JON JANUSZ JANAS,
Plaintiff-Appellee,
VERSUS
WESLEY DOSS, ET AL.
Defendants,
WESLEY DOSS,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(A-95-CV-445)
October 31, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Appellant Wesley Doss appeals the district court’s refusal to
grant his motion for summary judgment, alleging he is exempt from
suit under the doctrines of qualified and official immunity. We
dismiss the appeal for lack of appellate jurisdiction.
Appellant Doss, an officer with the Manor Police Department,
stopped Appellee Jon Janas for running a stop sign. Janas alleged
1
Pursuant to Local 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
that after he refused to give Officer Doss his social security
number, Doss grabbed him by the neck, tried to remove him from his
car, and sprayed him in the face with mace. When Janas then
stumbled from his car, Doss threw him to the ground.
Janas originally sued several parties, including Doss, the
Manor Police Chief, and the City of Manor. The Defendants moved
for summary judgment, which was granted as to all parties on all
claims except for the following claims against Officer Doss: claims
under 42 U.S.C. § 1983 for unlawful arrest; the use of excessive
force in violation of the Fourth Amendment; and state law claims
for false arrest, false imprisonment, assault and battery,
malicious prosecution, negligence and gross negligence.
Doss alleges the district court wrongfully denied his motion
for summary judgment on the § 1983 claim for unlawful arrest
because he is entitled to qualified immunity. Qualified immunity
attaches to the acts of public officials unless they violate
clearly established rights of which a reasonable official would
have known. Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995).
The district court correctly stated that while qualified immunity
is a question of law for the court to decide, it could not at that
time make a determination on the defense because of a dispute in
the facts over when and why Doss arrested Janas.
A defendant entitled to invoke a qualified immunity defense
may not appeal a district court’s denial of summary judgment if it
determines only a question of “evidence sufficiency,” or what facts
2
a party will be able to prove at trial. Johnson v. Jones, 115
S.Ct. 2151, 2156 (1995). The district court’s decision is not a
final order under 28 U.S.C. § 1291. Id. We therefore lack
appellate jurisdiction over this portion of Doss’ appeal.
Doss’ next argument is that his actions were protected by
official immunity, so that Plaintiff’s state law claims should have
been dismissed. For a government employee to be immune to suit
under official immunity, the employee must have performed (1)
discretionary duties (2) in good faith (3) within the scope of that
employee’s authority. City of Lancaster v. Chambers, 883 S.W.2d
650, 653 (Tex. 1994).
The district court again found that while whether official
immunity attaches is a matter of law, it could not rule on the good
faith aspects of the defense presented by Doss until the jury
resolved the fact issues surrounding the arrest. Since the
district court determined questions of fact precluded summary
judgment, we lack jurisdiction over the denial of summary judgment
on Doss’ official immunity defense. Tamez v. City of San Marcos,
Tex., 62 F.3d 123, 125 (5th Cir. 1995).
Appeal DISMISSED.
3