UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41361 Summary Calendar

MARIA GUAJARDO, Individually, on behalf of the estate of Juan Jose Guajardo and as next friend of Thomas Guajardo, III, Cynthia Guajardo and Caroline Guajardo, minor children,

Plaintiff-Appellee,

VERSUS

CITY OF BROWNSVILLE, et al.,

Defendants,

EDUARDO TREVIÑO, Individually and in his official capacity; ANA HERNANDEZ, Individually and in her official capacity,

Defendants-Appellants,

Appeal from the United States District Court For the Southern District of Texas USDC No. B-97-CV-215 October 16, 2000 Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Eduardo Treviño and Ana Hernandez appeal the district court’s

denial of their summary judgment motion based on qualified

immunity. An order denying qualified immunity is immediately

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-41361 -2-

appealable when based on conclusions of law rather than the

presence of a genuine issue of contested material fact. See Palmer

v. Johnson,

(5th Cir. 1999). However, “if the

district court concludes that the summary judgment record raises a

genuine issue of material fact with respect to whether the defense

of qualified immunity is applicable, then that decision is not

immediately appealable.”

.

The district court’s denial of summary judgment as to Treviño

was based on starkly differing versions of the facts surrounding

the altercation that preceded the death of Juan José Guajardo, a

pretrial detainee, which were offered through competent summary

judgment evidence. The denial of qualified immunity as to Treviño

was based on a genuine issue of material fact as to whether Treviño

exerted force against Guajardo “‘in a good faith effort to maintain

or restore discipline, or maliciously and sadistically to cause

harm.’” Valencia v. Wiggins,

(5th Cir.)

(quoting Hudson v. McMillian,

(1992) (providing a

standard for determining whether force used was constitutionally

excessive)), cert. denied,

(1993). Because the denial

of qualified immunity as to Treviño was based on a genuine issue of

material fact rather than a question of law, this court does not

have jurisdiction over Treviño’s interlocutory appeal. His appeal

is DISMISSED. See Palmer,

.

On the other hand, appellate jurisdiction is not precluded No. 99-41361 -3-

simply because the denial of a summary judgment based on qualified

immunity contains a statement that “material issues of fact

remain.” Cantu v. Rocha,

(5th Cir. 1996) (quoting

Behrens v. Pelletier,

(1996)). This court

possesses jurisdiction to “‘take as given, the facts that the

district court assumed when it denied summary judgment’ and

determine whether these facts state a claim under clearly

established law.” Nerren v. Livingston Police Dep’t,

(5th Cir. 1996) (quoting Johnson v. Jones,

(1995)); see also Cantu,

. Further, “where the

district court does not identify those factual issues as to which

it believes genuine issues remain, an appellate court is permitted

to go behind the district court’s determination and conduct an

analysis of the summary judgment record to determine what issues of

fact the district court probably considered genuine.” Colston v.

Barnhart,

(5th Cir.), cert. denied,

(1998).

The magistrate judge’s report and recommendation adopted by

the district court states that a bystanding officer such as

Hernandez has the duty to “take reasonable measures to protect a

suspect from another’s use of force.” Snyder v. Trepagnier,

, 801 n.11 (5th Cir. 1998); see Hale v. Townley,

(5th Cir. 1995). However, the report and recommendation

concludes only that: No. 99-41361 -4-

With regard to Officer Hernandez, Garcia [an inmate witness] testified that during the alleged incident he heard Officer Hernandez call to Officer Treviño to “stop it” . . . . Further, Officer Hernandez testified that she and Officer Treviño should remove Guajardo’s handcuffs, call their supervisor and call EMS. . . . A complete reading of this page reveals that EMS was in fact summoned almost immediately after Guajardo started having difficulty breathing.

The report and recommendation concludes that substantial

differences in the stories told by the witnesses precludes a

credibility determination, thus precluding summary judgment, but

does not cite additional evidence nor articulate a clear legal

conclusion as to how Hernandez’s actions could result in her

liability.

This court has jurisdiction over Hernandez’s appeal because we

may determine whether the facts assumed by the district court

indicate a violation of clearly established law. See Nerren,

. The district court erred in not finding any contested

issue of fact to be material to Hernandez’s entitlement to

qualified immunity. Her appeal involves only the legal question

whether the district court’s factual findings, the plaintiff’s

allegations, and the summary judgment evidence viewed in the light

most favorable to the plaintiff show that she violated clearly

established law against using excessive force in an objectively

unreasonable manner.

The undisputed facts show that Hernandez first saw the

altercation after it had begun; that she did not know exactly what No. 99-41361 -5-

had happened that she went to the aid of Treviño, who seemed to be

in trouble, by helping him get Guajardo on the floor and

handcuffed; and that she sought medical assistance for Guajardo

when she observed him in distress. These facts undermine any claim

that Hernandez intended to violate Guajardo’s constitutional

rights. But see Hale,

(denying summary judgment on

qualified immunity for an officer who laughed and encouraged an

officer using excessive force); Harris v. Chanclor,

(5th Cir. 1976) (upholding liability of a jail officer who

stood by and watched a vicious beating of a detainee without

objection and intervention, then refused to summon help for the

detainee).

Moreover, even assuming Hernandez violated a clearly

established constitutional right of Guajardo, the findings,

allegations, and undisputed evidence show that Hernandez’s conduct

was objectively reasonable. Cf. Anderson v. Creighton,

(1987). The plaintiff does not explain how Hernandez’s

actions constituted excessive force nor does she suggest that her

actions were objectively unreasonable. In light of the evidence,

a reasonable officer could have believed that Hernandez’s use of

force was lawful.

The district court’s denial of summary judgment as to Ana

Hernandez’s qualified immunity is REVERSED.