White v. Balderama
| Decision Date | 30 November 1998 |
| Docket Number | No. 97-50612,97-50612 |
| Citation | 161 F.3d 913 |
| Parties | Donald Ray WHITE, Plaintiff-Appellee, v. Armando BALDERAMA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph Andrew Turner, Terrence W. Kirk, Law Office of Joseph A. Turner, Austin, TX, for Plaintiff-Appellee.
Robin Elizabeth Sanders, Austin, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before KING, SMITH and PARKER, Circuit Judges.
Defendant-appellant Armando Balderama appealed the district court's order denying his motion for summary judgment on the basis of qualified immunity as to plaintiff-appellee Donald Ray White's claim under 42 U.S.C. § 1983. We remanded with instructions that the district court set forth the factual scenario that it assumed in construing the summary judgment evidence in the light most favorable to plaintiff-appellee Donald Ray White. See White v. Balderama, 153 F.3d 237, 238 (5th Cir.1998). The district court has now done so. See White v. Balderama, No. A 96-CA-499 SS (No. 97-50612) (W.D.Tex. Sept. 8, 1998) (supplemental order). In light of its new order, we dismiss Armando Balderama's appeal for lack of jurisdiction.
In White, we found that to the extent that Balderama's arguments on appeal depend upon portions of his statement of facts that differ from the facts the district court assumed, we would lack jurisdiction to consider them because they would involve challenges to the sufficiency of the evidence to establish the facts assumed by the district court. See 153 F.3d at 242. To the extent that Balderama's arguments on appeal do not hinge upon such differences, however, we would possess jurisdiction to review them because they would constitute a claim that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment was objectively reasonable. See id. The district court's supplemental order reveals that it found that genuine factual issues remained as to which of the three bullets fired by Balderama actually struck and injured White, what direction White's car was heading in when he failed to observe Balderama's order to stop, and whether Balderama acted reasonably in continuing to shoot at White's vehicle after the first shot. Balderama asserts, however, that "[i]t is an indisputed historical fact that the first shot, fired while the vehicle was approaching Officer Balderama at a sixty (60) degree angle, entered the...
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...on appeal depend upon portions of his statement of facts that differ from the facts the district court assumed," White v. Balderama, 161 F.3d 913, 914 (5th Cir.1998), we dismiss Officer Cox's appeal for lack of jurisdiction and remand to the trial court for resolution of the parties' I. BAC......