Hutchison v. Brookshire Bros Ltd

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 5, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 02-41356
Summary Calendar
__________________
RAYMOND BERNARD HUTCHISON,
Plaintiff-Appellee,
versus
THE CITY OF DAYTON, TEXAS; ET AL.,
Defendants,
RICHARD CRAIG McCOWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(1:01-CV-539)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
For this civil rights action, pursuant to 42 U.S.C. § 1983,
concerning an altercation arising out of the purchase of gasoline,
Officer McCown appeals the partial denial of his summary-judgment
motion (it was also granted in part), in which McCown contended he

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was entitled to qualified immunity from Hutchison’s claim of
unreasonable seizure under the Fourth Amendment.
This court must consider, sua sponte if necessary, the issue
of its own jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). “To determine whether a denial of summary judgment
based on qualified immunity is immediately appealable, this Court
looks at the legal argument advanced. When [as here] a district
court denies summary judgment on the basis that genuine issues of
material fact exist, it has made two distinct legal conclusions:
that there are ‘genuine’ issues of fact in dispute, and that these
issues are ‘material.’” Reyes v. City of Richmond, Tex., 287 F.3d
346, 350-51 (5th Cir. 2002). Although our court lacks jurisdiction
to review the district court’s conclusion that issues are
“genuine”, we have jurisdiction to review its determination that
issues are “material”. Id. at 351. “An officer challenges
materiality when he contends that ‘taking all the plaintiff’s
factual allegations as true no violation of a clearly established
right was shown.’” Id. (citation omitted).
Review of Officer McCown’s numerous contentions reveals that
he does not present the facts in the requisite light most favorable
to Hutchison and his assertions assume facts different from those
assumed by the district court. Officer McCown does not properly
take into account the whole of Hutchinson’s deposition, upon which
the district court relied in denying qualified immunity for the

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claim at issue. Contrary to Officer McCown’s assertions, the
district court properly considered the testimony. See FED R. CIV.
P. 56(c), (e); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,
490 (5th Cir. 2001).
Because Officer McCown’s contentions amount to a challenge to
the genuineness of the factual disputes in this action, this court
lacks jurisdiction. See Reyes, 287 F.3d at 351-52. Accordingly,
McCown’s appeal is DISMISSED for lack of jurisdiction and this
action is REMANDED to the district court.
DISMISSED; REMANDED

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