Faulkenbery v. Lee

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 21, 2009

No. 08-40569 Charles R. Fulbruge III

Summary Calendar Clerk

HANAH FAULKENBERY

Plaintiff-Appellee

v.

BUBBA LEE

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:07-CV-180

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Bubba Lee, a deputy sheriff, appeals the district

court's denial of his motion for summary judgment based on qualified immunity.

We affirm.

The § 1983 action filed by Plaintiff-Appellee Hanah Faulkenbery asserts

a violation, by Lee as a public official, of her constitutional right to the care,

custody, control and management of her three-year-old daughter. 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.

No. 08-40569

extensively, correctly, and completely analyzed in the district court's Order

Denying Defendant's Motion for Summary Judgment, the version of facts as

alleged by Faulkenbery as non-movant and supported by her summary judgment

evidence — which we must credit at this stage of the proceedings —

demonstrates that the discretionary acts of Lee in his capacity as a deputy

sheriff were not objectively reasonable and violated Faulkenbery's clearly

established constitutional right.

Even if we were to assume without granting that, under Lee's significantly

divergent version of the facts, he would eventually be deemed to have acted with

objective reasonableness, we still would not have appellate jurisdiction to

entertain this interlocutory appeal of denial of qualified immunity. This case

quite literally presents a quintessential example of the classic "he said, she said"

swearing match, making it obvious that Lee's summary judgment motion turns

entirely on a genuine issue of fact that clearly is material. Unlike our

jurisdiction to hear interlocutory appeals of denial of qualified immunity motions

that turn on materiality or other issues of law, we have no jurisdiction to hear

appeals of such denials based solely on disputes of fact when, as here, the non-

movant's version, if prevailing, would establish the violation of a clearly

established constitutional right by the discretionary acts of a public official that

were not objectively reasonable. Johnson v. Jones, 515 U.S. 304, 310-13 (1995);

Aucoin v. Haney, 306 F.3d 268, 271-72 (5th Cir. 2002); Cantu v. Rocha, 77 F.3d

795, 802-803 (5th Cir. 1996).

For lack of appellate jurisdiction, Lee's appeal is dismissed and this case

is remanded to the district court for further consistent proceedings.

DISMISSED and REMANDED.

2