Summary Calendar L. DWAINE LORD v. David Larsen;

* Pursuant to 5TH CIR. R. 47.5, this 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that this opinion should not be published and is not precedent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
April 7, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10969
Summary Calendar
L. DWAINE LORD,
Plaintiff - Appellee,
v.
DAVID LARSEN; ET AL.,
Defendants,
DAVID LARSEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Texas
3:02-CV-1636
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
David Larsen, the Appellant, is accused of committing several
torts in relation to the search of the residence of L. Dwaine Lord,
the Appellee. Larsen, a former police officer, filed this

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1Larsen’s reliance on Lemoine v. New Horizons Ranch &
Center, Inc., 174 F.3d 629, 634 (5th Cir. 1999), fails to
overcome Johnson. In Lemoine, we held that jurisdiction exists
for determining if disputed facts are material. While the
Appellant claims to limit his argument to the materiality of the
facts, the effect of his appeal is a request to weigh the
disputed evidence. That is something this Court cannot do.
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interlocutory appeal asking for a reversal of the district court’s
decision denying him qualified immunity. We have no jurisdiction
to hear the appeal. Therefore, it is DISMISSED.
The denial of a motion for summary judgment is generally not
a final, appealable order. A district court’s denial of qualified
immunity, however, in some instances falls within the collateral
order doctrine allowing for an interlocutory appeal. Michalik v.
Hermann, 422 F.3d 252, 257 (5th Cir. 2005). Jurisdiction to hear
such an appeal only exists when the question turns on an issue of
law. Johnson v. Jones, 515 U.S. 304, 313–18 (1995). There is no
jurisdiction when a district court’s denial of qualified immunity
is based on a finding that genuine issues of material fact exist.
Id.; Michalik, 422 F.3d at 257.
In this case, the district court denied Larsen’s motion for
summary judgment on the grounds that genuine issues of material
fact prevented the court from granting qualified immunity.
Therefore, under Johnson and its progeny we have no jurisdiction to
hear this appeal.1
The district court opinion focused on Larsen’s actions in
obtaining a warrant to search Lord’s residence and does not address

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2The district court relies on United States v. Parker, 722
F.2d 179 (5th Cir. 1983), in deciding that the factual disputes
surrounding the warrant application bar summary judgment on
Lord’s other claims. At this time, we make no endorsement of
such an extension of Parker.
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the execution of the warrant. Larsen argues that this was error
and that he is entitled to qualified immunity with regard to Lord’s
claims of excessive force and state law claims of assault, battery,
false arrest, and illegal imprisonment. A qualified immunity
analysis requires a court to determine if the defendant’s conduct
was objectively unreasonable. Palmer v. Johnson, 193 F.3d 346, 351
(5th Cir. 1999). The information Larsen had concerning the warrant
affects the reasonableness of his actions in executing that
warrant. Therefore, the fact dispute concerning the warrant
application also applies to the claims stemming from the warrant’s
execution. The factual dispute is material to all of Lord’s claims
and fatal to this appeal.2 Johnson, 515 U.S. at 313.
Having no jurisdiction, we DISMISS the appeal.
The request for sanctions is DENIED.

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