# Janas v. Doss

> Court of Appeals for the Fifth Circuit · November 1, 1996 · 102 F.3d 550

URL: https://www.frixlaw.com/law-library/cases/10643

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 1, 1996
- **Citations:** 102 F.3d 550; 1996 WL 670343
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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opinion should not be published and is not precedent except under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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10643. Public record. Not legal advice.