IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

______________

No. 00-10119 ______________

ROY TRUJILLO, JR., THE ESTATE OF ROY TRUJILLO, JR., DECEASED; ROY TRUJILLO, SR., Representative of the Estate of Roy Trujillo, Jr., Deceased; DEBBIE TRUJILLO, Representative of the Estate of Roy Trujillo, Jr., Deceased; MARTHA ALICIA ORTIZ, Individually and on behalf of Roy Ricardo Trujillo III, on behalf of Adam Alexander Trujillo, on behalf of the Estate of Roy Trujillo, Jr., Deceased; MARY MONCIBIAZ, Individually and on behalf of the Estate of Roy Trujillo, Jr., Deceased, on behalf of Mary Alice Trujillo,

Plaintiffs-Appellees,

versus

STEVEN G. O’BRIEN; ET AL.,

Defendants,

STEVEN G. O’BRIEN,

Defendant-Appellant.

--------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CV-1669-H February 13, 2001

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Roy Trujillo, Jr., filed this

civil rights

suit against appellant Steven G. O’Brien, a Dallas police officer,

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and other defendants, alleging that O’Brien used excessive force

when effecting an arrest of him. O’Brien filed a motion for

summary judgment on the basis of qualified immunity. The district

court refused to grant that motion, and this appeal followed.

District court orders denying summary judgment on the basis of

qualified immunity are immediately appealable under the collateral

order doctrine, notwithstanding their interlocutory character, when

based on a conclusion of law. See Mitchell v. Forsyth,

(1985). Such orders are not immediately appealable,

however, if they are based on a determination that a genuine issue

of material facts exists. See Johnson v. Jones,

(1995). Because the district court’s ruling was based on a

determination that significant factual issues remained as to

circumstances surrounding O’Brien’s shooting and subduing of

Trujillo, this court does not have jurisdiction to review the

denial of O’Brien’s motion for summary judgment based on qualified

immunity. Accordingly, the appeal is DISMISSED FOR LACK OF

JURISDICTION.