Le Count P. Scott v. City of Pasadena;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Nancy Gertner, United States District Judge for the***
District of Massachusetts, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LE COUNT P. SCOTT,
Plaintiff - Appellee,
v.
CITY OF PASADENA; et al.,
Defendants - Appellants.
No. 09-55207
D.C. No. 2:07-cv-07856-MMM-
AJW
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted April 5, 2010**
Pasadena, California
Before: KOZINSKI, Chief Judge, D.W. NELSON, Circuit Judge, and GERTNER, ***
District Judge.
FILED
APR 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Defendants appeal from the district court’s denial of their motion for
summary judgment. They assert that plaintiff’s claim of excessive force is barred
by his prior conviction under California Penal Code § 148(a)(1). See Heck v.
Humphrey, 512 U.S. 477, 487 (1994); Smith v. City of Hemet, 394 F.3d 689, 693
(9th Cir. 2005) (en banc). Because the district court’s denial of summary judgment
on this claim is not an appealable collateral order, we lack jurisdiction and must
dismiss. Cunningham v. Gates, 229 F.3d 1271, 1284–85 (9th Cir. 2000).
Defendants also claim the district court erred by denying summary judgment
based on qualified immunity. The district court determined that a reasonable jury
could find that the arresting officer “threw [plaintiff] to the ground after he had
been effectively subdued, causing his leg to break.” [Order at 23] Defendants do
not claim that a reasonable officer would believe such conduct to be constitutional;
they claim the evidence doesn’t support the district court’s conclusion. We lack
jurisdiction to review the denial of a motion for qualified immunity on an
interlocutory appeal “when the basis for the defendant’s motion is that the evidence
in the pretrial record is insufficient to create a genuine issue of fact.” Watkins v.
City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998) (quoting Armendariz v.
Penman, 75 F.3d 1311, 1317 (9th Cir. 1996)). Defendants’ challenge to the district
court’s reliance on plaintiff’s affidavit does not transform this factual issue into a

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question of law; whether an affidavit is a sham is a question of fact. See Kennedy
v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991).
Because we lack jurisdiction to review defendants’ claims, this appeal must
be dismissed.
DISMISSED.

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