The opinion
Case: 13-30980 Document: 00512599982 Page: 1 Date Filed: 04/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30980
FILED
April 17, 2014
Lyle W. Cayce
ERIC DRESSNER, Clerk
Plaintiff - Appellee
v.
ROBERT J. CROWE, in his official capacity as former Sheriff of Washington
Parish; RANDY SEAL, in his official capacity as Sheriff of Washington
Parish, also known as Country Seal; TIM EVANS, Individually and in his
capacity as Washington Parish Sheriff’s Deputy,
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CV-81
Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Following a confrontation between Plaintiff Eric Dressner (“Dressner”)
and another man not a party hereto, Deputy Tim Evans (“Evans”) arrested
Dressner and the other man for aggravated assault. Dressner sued Evans, as
well as Robert Crowe and Randy Seal in their official capacities (former and
current sheriffs of Washington Parish, respectively, hereinafter referred to as
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30980 Document: 00512599982 Page: 2 Date Filed: 04/17/2014
No. 13-30980
“the Sheriff Defendants”), under 42 U.S.C. § 1983 for false arrest. The district
court, citing disputed fact questions, denied the Defendants’ motions for
summary judgment premised on qualified immunity. They seek interlocutory
review. We DISMISS.
In limited circumstances, we may consider an interlocutory appeal of a
denial of qualified immunity at the summary judgment stage. See Cruz-Gomez
v. Rivera-Hernandez, 444 F.3d 29, 33–34 (5th Cir. 2006). However, a district
court’s rejection of the qualified immunity defense cannot be the subject of an
interlocutory appeal where the court determines that the application of the
defense involves a genuine issue of material fact. Id.
Here, there is clearly a genuine issue of fact central to the question of
whether Evans is entitled to qualified immunity. According to Evans,
Dressner and the other individual simultaneously pointed weapons at one
another. According to Dressner, however, he unholstered his gun while
standing on his property in response to the other party waving a knife at him
while advancing towards him. Taking the facts in the light most favorable to
Dressner, a jury could conclude that there was no probable cause to arrest him
for assault under “the totality of the facts and circumstances
within . . . [Evans’s] knowledge at the moment of arrest.” See Lockett v. New
Orleans City, 607 F.3d 992, 998 (5th Cir. 2010) (emphasis removed). The
differences in fact affect the outcome such that we lack jurisdiction over
Evans’s appeal. Cruz-Gomez, 444 F.3d at 33–34.
As to the Sherriff Defendants, the district court did not expressly address
their separate “municipal liability” contention. Even though Dressner did not
oppose the motion to dismiss those parties, and did not brief the issue on
appeal, we do not have jurisdiction to interlocutorily review a summary
judgment denial of qualified immunity with respect to officers sued in their
official capacity. See Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir.
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No. 13-30980
2005). The Sheriff Defendants are free to bring this issue to the district court’s
attention on remand.
DISMISSED and REMANDED.
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