Duke v. Cartlidge

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 7, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-60960
Summary Calendar
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KENNETH DUKE
Plaintiff–Appellee
v.
SHARON DUCKWORTH, Individually and as a Deputy Sheriff of
Sharkey County
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
No. 5:04-CV-0322
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Before us is an appeal by Defendant-Appellant Sharon
Duckworth (“Duckworth”) of the district court’s decision to deny
her qualified immunity at the summary judgment stage on a claim
of excessive force bought by Plaintiff-Appellee Kenneth Duke
(“Duke”). Because there are genuine issues of material fact
regarding Duckworth’s claim of qualified immunity, we lack
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
jurisdiction over this interlocutory appeal and DISMISS it.
I. FACTUAL AND PROCEDURAL HISTORY
On the night of August 22, 2002, Brenda Stevens (“Stevens”),
Pennye Ward (“Ward”), and Sam Dobbins (“Dobbins”) arrived at
Stevens’s home in Sharkey County to find that Duke had locked
himself inside the house. Duke, who had been drinking, opened
the door for them, and he and Stevens then went outside to talk.
The conversation turned into an argument and Duke’s pistol
accidentally fired. Ward and Dobbins called 9-1-1 from inside
the house. Stevens subsequently entered the house carrying
Duke’s pistol. Duke left in his pick-up truck after trying,
unsuccessfully, to speak with Stevens, Ward, and Dobbins, who
would not let him inside the house.
Duckworth, who is a Sharkey County Deputy Sheriff, and
Stanley Coleman (“Coleman”), also a Deputy, responded to the
call. Duckworth questioned Stevens, Ward, and Dobbins while
Coleman searched the area for Duke. While being questioned,
Dobbins saw Duke from a distance, chased him into a nearby cotton
field, and tackled him. In the struggle that followed, Duke
gained the upper hand and pinned Dobbins to the ground.
Duckworth asserts that when she came upon the two in the
cotton field, Duke was not simply holding Dobbins down but
appeared to be making stabbing motions. Dobbins was also yelling
that Duke was killing him. Duckworth ordered Duke to “freeze”
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several times, and, when Duke continued to assault Dobbins,
Duckworth shot Duke in the shoulder. Statements taken from
Stevens, Ward, and Dobbins all support Duckworth’s recollection
of the facts.
Duke, however, asserts that his tussle with Dobbins lasted
two to three minutes and that during that time he only hit
Dobbins twice. The rest of the time, he just held Dobbins down
and tried to keep Dobbins from hitting him. He claims Duckworth
never ordered him to stop.
Duke brought suit against Duckworth, as well as the Sharkey
County Sheriff and other Sharkey County officials, pursuant to 42
U.S.C. § 1983. He included claims of excessive force, assault,
battery, failure to train, malicious prosecution, and false
arrest and imprisonment. Defendants moved for summary judgment,
and the district court granted their motions on all claims except
for Duke’s excessive force claim against Duckworth. Given the
conflicting facts over what happened in the cotton field, the
district court determined that Duke had created a genuine issue
of material fact as to whether Duckworth was entitled to
qualified immunity on Duke’s claim that she used excessive force
when she shot him. Duckworth has appealed this ruling.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to the
collateral order doctrine, but our jurisdiction is limited to
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issues of law. Hampton v. Oktibbeha County Sheriff Dep’t, 480
F.3d 358, 363 (5th Cir. 2007). We can review a district court’s
determination that a fact issue is material, but we do not have
jurisdiction to review the district court’s decision that a fact
issue is genuine. Bazan ex rel. Bazan v. Hidalgo County, 246
F.3d 481, 490 (5th Cir. 2001); see also Hampton, 480 F.3d at 363-
64. Consequently, we must accept Duke’s version of the facts as
true and review de novo whether the district court erred in
determining that Duckworth was not entitled to qualified immunity
on that set of facts. See Gobert v. Caldwell, 463 F.3d 339, 345
(5th Cir. 2006); see also Kinney v. Weaver, 367 F.3d 337, 348
(5th Cir. 2004) (en banc) (stating the court “consider[s] only
whether the district court erred in assessing the legal
significance of the conduct”). The presence of a genuine issue
of material fact regarding qualified immunity will preclude us
from exercising jurisdiction. See Glenn v. City of Tyler, 242
F.3d 307, 312 (5th Cir. 2001).
III. DISCUSSION
On appeal, Duckworth asserts that she is entitled to
qualified immunity with respect to Duke’s claim that she used
excessive force. “The doctrine of qualified immunity shields a
governmental official from civil liability for damages based upon
the performance of discretionary functions if the official’s acts
did not violate clearly established constitutional or statutory
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law of which a reasonable person would have known.” Hampton, 480
F.3d at 363. A governmental official need only plead her good
faith to shift the burden of proof to the plaintiff, who must
then rebut the defense by establishing that the official’s
allegedly wrongful conduct violated clearly established law.
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). As
Duckworth has pleaded her good faith in shooting Duke, we now
consider whether Duke has successfully rebutted the qualified
immunity defense.
The qualified immunity analysis is a two-step process. Id.
at 257. First, the plaintiff must allege the violation of a
clearly established constitutional right. Easter v. Powell, 467
F.3d 459, 462 (5th Cir. 2006) (per curiam); see also Siegert v.
Gilley, 500 U.S. 226, 231-32 (1991). A right is clearly
established if its contours are sufficiently clear so that a
reasonable official would understand that what she is doing
violates that right. Anderson v. Creighton, 483 U.S. 635, 640
(1987); Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th
Cir. 2000). If the plaintiff satisfies this burden, we must then
determine whether the official’s conduct was objectively
reasonable under the law at the time of the incident. Michalik,
422 F.3d at 258.
We now turn to Duke’s claim, in which he asserts that his
rights under the Fourth and Fourteenth Amendments to the United
States Constitution were violated when Duckworth used excessive
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force to seize him by shooting him in the shoulder. It is
clearly established in this circuit that a claim for excessive
force requires (1) an injury; (2) that resulted directly and only
from the use of force that was excessive to the need; and (3)
that the force used was objectively unreasonable. Flores v. City
of Palacios, 381 F.3d 391, 396 (5th Cir. 2004); Ikerd v. Blair,
101 F.3d 430, 433-34 (5th Cir. 1996). It is also clearly
established that the use of deadly force is objectively
unreasonable unless the officer has probable cause to believe
that the suspect poses a significant threat of death or serious
physical injury to the officer or others. Flores, 381 F.3d at399 (citing Tennessee v. Garner, 471 U.S. 1, 3 (1985)). Here,
Duke has alleged that Duckworth’s use of deadly force against him
violated his rights because he did not pose a significant threat
of death or serious physical injury to Dobbins. Duke has, thus,
satisfied the first prong of the qualified immunity analysis.
We must now consider whether Duckworth’s actions were
objectively reasonable. Duckworth argues that, from her vantage
point that night, Duke was stabbing or attempting to stab Dobbins
and that he refused to stop when ordered to do so. She points
out that the statements of the other witnesses back up her
version of events. Therefore, she claims that her actions were
objectively reasonable because she believed Duke posed a
significant threat of death or serious physical injury to
Dobbins. Duke, however, testified in his deposition that,
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although he hit Dobbins twice in the span of two to three
minutes, he was merely pinning Dobbins to the ground when he was
shot. In its summary judgment order, the district court held
that “whether Duke merely was pinning Dobbins to the ground or
whether Duke was pummeling him unnecessarily is . . . a heavily
contested question of fact.” (Summ. J. Order at 23.)
As noted above, we cannot disturb the district court’s
finding that this is a genuine issue of fact. See Kinney, 367
F.3d at 348 (holding that, in an interlocutory appeal, “we lack
the power to review the district court’s decision that a genuine
factual dispute exists”). Duckworth’s argument that the district
court did not properly consider all the facts is essentially a
challenge to the genuineness finding. We are not at liberty to
review such a finding and indeed lack the jurisdiction to do so.
If we accept that a fact issue exists as to whether Duke
appeared to be assaulting Dobbins at the time Duckworth shot
Duke, it is clear that such a fact issue is also material, which
precludes summary judgment on qualified immunity. Taking the
evidence in the light most favorable to Duke, Duckworth would not
have had probable cause to believe Duke posed a significant
threat of death or serious physical injury to Dobbins if all Duke
was doing was pinning Dobbins to the ground. Without such a
threat, Duckworth’s use of deadly force would be objectively
unreasonable, meaning that qualified immunity would not protect
her actions. Therefore, a genuine issue of material fact exists
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as to whether Duckworth is entitled to qualified immunity.
Consequently, we lack jurisdiction over her appeal and must
dismiss it. See Bazan, 246 F.3d at 493 (dismissing interlocutory
appeal when there was a genuine issue of material fact).
IV. CONCLUSION
For the foregoing reasons, we DISMISS Duckworth’s
interlocutory appeal for lack of jurisdiction.
DISMISSED.
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