Kimberly Sipes, as Administrator of the Estate of M.B.S. v. Johnny D. Cooper, individually and officially

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2437
KIMBERLY SIPES, as Administrator of the Estate of M.B.S.,
Plaintiff - Appellee,
v.
JOHNNY D. COOPER, individually and officially,
Defendant – Appellant,
and
MICHAEL FERRARO, individually and officially; CITY OF MORGANTON,
Defendants.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cv-00269-MR-DLH)
Submitted: July 31, 2014 Decided: August 21, 2014
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
James P. Cooney, III, Scott D. MacLatchie, WOMBLE CARLYLE
SANDRIDGE & RICE, LLP, Charlotte, North Carolina, for Appellant.
Charles McB. Sasser, THE SASSER LAW FIRM, P.A., Charlotte, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On the night of August 29, 2010, seventeen-year-old
Michael Blake Sipes was shot and killed on the front porch of
his trailer by Morganton, North Carolina Public Safety
Department Officer Johnny D. Cooper, who was responding to a
noise complaint. Michael’s mother, Kimberly Sipes, as the
administrator of Michael’s estate, filed a wrongful death action
against Cooper, Michael Ferraro, and the City of Morganton (“the
City”), asserting three state law claims and a claim pursuant to
42 U.S.C. § 1983 (2012). Defendants moved for summary judgment
on the grounds of qualified immunity and public official
immunity. The district court granted summary judgment in favor
of Ferraro, but denied it with respect to Cooper and the City of
Morganton. Cooper appealed.*
This court may exercise jurisdiction only over final
decisions, 28 U.S.C. § 1291 (2012), and certain interlocutory
and collateral orders. 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
(1949). A final decision is one that “ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment.” Catlin v. United States, 324 U.S. 229, 233
(1945). Although interlocutory orders generally are not
* The City did not join in the appeal.

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appealable, an order denying a defendant’s claim of qualified
immunity is immediately appealable under the collateral order
doctrine “to the extent that it turns on an issue of law.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Iko v. Shreve,
535 F.3d 225, 234 (4th Cir. 2008). However, a district court’s
determination that a genuine issue of material fact exists that
precludes summary judgment on qualified immunity grounds is not
immediately appealable. Johnson v. Jones, 515 U.S. 304, 313-20
(1995); Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir. 2010).
Thus, this court has “no jurisdiction over a claim that a
plaintiff has not presented enough evidence to prove that the
plaintiff’s version of the events actually occurred, but [the
court has] jurisdiction over a claim that there was no violation
of clearly established law accepting the facts as the district
court viewed them.” Winfield v. Bass, 106 F.3d 525, 530 (4th
Cir. 1997) (en banc).
Because the qualified immunity determination in this
matter ultimately turns on presently unresolved questions of
fact rather than on an evaluation of the legal significance of
undisputed facts, we do not possess jurisdiction over this
appeal. Therefore, we dismiss. We dispense with oral argument
because the facts and legal contentions are adequately presented

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in the materials before this court and argument would not aid
the decisional process.
DISMISSED

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