Kendall v. City of Greenwood ( 2003 )


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  •               IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
    
    
    
                              No. 02-60486
                            Summary Calendar
    
    
    
                    EDDIE KENDAL ROMANS SELF, Decedent,
               by EDDIE SELF, Duly Appointed Administrator
                of the Estate of the Decedent; EDDIE SELF,
                Individually and on Behalf of the Wrongful
                   Death Beneficiary, TARA SELF GOODMAN,
    
    
                                       Plaintiffs-Appellees,
    
    
                                 versus
    
    
                 CITY OF GREENWOOD, MISSISSIPPI, ET AL.,
    
    
                                       Defendants,
    
    
              RAYMOND MOORE, Individually and in His Official
                Capacity as a Police Officer for the City of
             Greenwood, Mississippi; SONYA BECK, Individually
            and in Her Official Capacity as a Police Officer
               for the City of Greenwood, Mississippi; JEROME
                 MCCASKILL, Individually and in His Official
                Capacity as a Police Officer for the City of
           Greenwood, Mississippi; SUSAN SWINDLE, Individually
            and in Her Official Capacity as a Police Officer
                   for the City of Greenwood, Mississippi,
    
                                       Defendants-Appellants.
    
                          --------------------
              Appeal from the United States District Court
                for the Northern District of Mississippi
                         USDC No. 4:01-CV-5-M-B
                          --------------------
                            January 14, 2003
    
    Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    
           Defendants Raymond Moore, Sonya Beck, Jerome McCaskill, and
    
    Susan Swindle (collectively, the defendants), assert that the
    
    district court erred in denying their “Immunity Defense Motion.”
    
    The plaintiffs have filed an unopposed motion to correct a clerical
    
    error in the caption with respect to the names of the plaintiffs-
    
    appellees, which is GRANTED.
    
           The defendants contend that they were entitled to absolute
    
    immunity.         Although the defendants preserved their defense of
    
    absolute immunity by raising it in their answers, they did not
    
    properly present the claim for pretrial consideration, as it was
    
    not included in their “Immunity Defense Motion.”                     See Mitchell
    
    v.    Forsyth,      
    472 U.S. 511
    ,    526    (1985)    (qualified     immunity);
    
    Harlow v. Fitzgerald, 
    457 U.S. 800
    , 807 (1982) (absolute immunity);
    
    Boyd v. Carroll, 
    624 F.2d 730
    , 732-33 (5th Cir. 1980).                   This court
    
    will       not   review   this   claim   that   the     district   court    did   not
    
    consider.
    
           The defendants also assert that the district court erred in
    
    denying their claims for qualified immunity.                 Contrary to Moore’s
    
    assertions, the district court did not conclude that the decedent
    
    had    a     constitutional      right   to    resist    arrest,   but     that   the
    
    plaintiffs had alleged a Fourth Amendment violation arising from
    
           *
            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.
    
                                              2
    excessive     force    during      a    seizure.       See   Tennessee    v.    Garner,
    
    
    471 U.S. 1
    , 7 (1985).                  With respect to Beck, McCaskill, and
    
    Swindle,    the   evidence         presented      by   the   plaintiffs    creates    a
    
    disputed    issue     of    fact      regarding    whether     their   actions     were
    
    “integral to the” illegal seizure.                See Melear v. Spears, 
    862 F.2d 1177
    , 1186 (5th Cir. 1989).              As for Moore, the evidence presented
    
    creates a dispute regarding whether Moore “ha[d] probable cause to
    
    believe that the suspect pose[d] a threat of serious physical
    
    injury   or    death       to   the     officer    [or   the   sheriff’s       deputies
    
    present].”     Fraire v. City of Arlington, 
    957 F.2d 1268
    , 1280 (5th
    
    Cir. 1992).       Because the district court’s denial of qualified
    
    immunity was based on a genuine issue of material fact and not upon
    
    a question of law, this court does not have jurisdiction over this
    
    interlocutory appeal.
    
         APPEAL DISMISSED; MOTION GRANTED.
    
    
    
    
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