Tyrone Taylor; Leo Hammond; Gregory Hammond v. Steven Payne; William Marks; Eric Smith; Earl Razor; City of New Orleans

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30259
TYRONE TAYLOR; LEO HAMMOND; GREGORY HAMMOND
Plaintiffs - Appellees
v.
STEVEN PAYNE; WILLIAM MARKS; ERIC SMITH; EARL RAZOR; CITY
OF NEW ORLEANS
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.
PER CURIAM:*
Defendants Steven Payne, William Marks, Eric Smith, and Earl Razor,
former New Orleans police officers, appeal the district court’s denial of their
motion for partial summary judgment. Having no jurisdiction over this appeal,
we DISMISS.
Plaintiffs in this case brought a § 1983 suit against the defendant police
officers in their individual capacities, claiming violations of their rights under
the Fourth and Fourteenth Amendments relating to their arrests on charges of
United States Court of Appeals
Fifth Circuit
F I L E D
February 6, 2008
Charles R. Fulbruge III
Clerk

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No. 07-30259
1 All charges against the defendants were eventually nolle prosequied.
2
drug possession.1 The plaintiffs’ claims include allegations that the search
warrant used in gathering evidence for the arrest was predicated on false and
misleading statements, that, during the course of their arrest, drugs were
planted at the scene and plaintiffs’ money was stolen, and, finally, that the
subsequent police report detailing the circumstances of the arrest was false.
In their motion for summary judgment, the defendants countered by
claiming qualified immunity. The district court granted summary judgment for
Marks, Smith, and Razor with respect to the procurement and execution of the
warrant. But the district court also found that genuine issues of material fact
existed as to the other claims made by the plaintiffs against the officers and
accordingly denied the motion for summary judgment as to those issues. The
defendants appeal that decision.
We have limited jurisdiction over appeals from denials of summary
judgment. See Reyes v. City of Richmond, 287 F.3d 346, 350–51 (5th Cir. 2002).
Our review in this context is limited to determining whether the issues over
which the district court determined there was a genuine dispute are material.
Id. And “[a]n 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. at 351 (quoting Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir.
1996)). Here, it is evident from the defendants’ arguments that they do not wish
us to take all the plaintiffs’ factual allegations as true. Thus, although we make
no determination as to the likelihood that a judgment in favor of the plaintiffs
would be upheld on later appeal, we are without jurisdiction to consider the
defendants’ instant appeal. We therefore DISMISS.

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