Summary Calendar MATILDE ROSALES v. JOSE PENA, In his individual

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10575
Summary Calendar
MATILDE ROSALES
Plaintiff - Appellee
v.
JOSE PENA, In his individual and official capacity;
WILLIAM PHILLIPS, In his individual and official capacity
Defendants - Appellants
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CV-588
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
These police officers appeal from the district court’s judgment denying
their qualified immunity defense to plaintiff’s claim of assault and battery in the
course of an unlawful arrest. Appellants’ briefs present a spirited advocacy of
the record on their behalf. That will not suffice in view of the district court’s
decision that fact issues are raised by the evidence in favor of the plaintiff’s
United States Court of Appeals
Fifth Circuit
F I L E D
October 28, 2008
Charles R. Fulbruge III
Clerk

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No. 08-10575
Summary Calendar
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claim. This court therefore lacks jurisdiction of the appeal. See Kinney v.
Weaver, 367 F.3d 337, 348 (5th Cir. 2004).
DISMISSED.

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