IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60486 Summary Calendar

EDDIE KENDAL ROMANS SELF, Decedent, by EDDIE SELF, Duly Appointed Administrator of the Estate of the Decedent; EDDIE SELF, Individually and on Behalf of the Wrongful Death Beneficiary, TARA SELF GOODMAN,

Plaintiffs-Appellees,

versus

CITY OF GREENWOOD, MISSISSIPPI, ET AL.,

Defendants,

RAYMOND MOORE, Individually and in His Official Capacity as a Police Officer for the City of Greenwood, Mississippi; SONYA BECK, Individually and in Her Official Capacity as a Police Officer for the City of Greenwood, Mississippi; JEROME MCCASKILL, Individually and in His Official Capacity as a Police Officer for the City of Greenwood, Mississippi; SUSAN SWINDLE, Individually and in Her Official Capacity as a Police Officer for the City of Greenwood, Mississippi,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:01-CV-5-M-B -------------------- January 14, 2003

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:*

Defendants Raymond Moore, Sonya Beck, Jerome McCaskill, and

Susan Swindle (collectively, the defendants), assert that the

district court erred in denying their “Immunity Defense Motion.”

The plaintiffs have filed an unopposed motion to correct a clerical

error in the caption with respect to the names of the plaintiffs-

appellees, which is GRANTED.

The defendants contend that they were entitled to absolute

immunity. Although the defendants preserved their defense of

absolute immunity by raising it in their answers, they did not

properly present the claim for pretrial consideration, as it was

not included in their “Immunity Defense Motion.” See Mitchell

v. Forsyth,

(1985) (qualified immunity);

Harlow v. Fitzgerald,

(1982) (absolute immunity);

Boyd v. Carroll,

(5th Cir. 1980). This court

will not review this claim that the district court did not

consider.

The defendants also assert that the district court erred in

denying their claims for qualified immunity. Contrary to Moore’s

assertions, the district court did not conclude that the decedent

had a constitutional right to resist arrest, but that the

plaintiffs had alleged a Fourth Amendment violation arising from

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

2 excessive force during a seizure. See Tennessee v. Garner,

(1985). With respect to Beck, McCaskill, and

Swindle, the evidence presented by the plaintiffs creates a

disputed issue of fact regarding whether their actions were

“integral to the” illegal seizure. See Melear v. Spears,

(5th Cir. 1989). As for Moore, the evidence presented

creates a dispute regarding whether Moore “ha[d] probable cause to

believe that the suspect pose[d] a threat of serious physical

injury or death to the officer [or the sheriff’s deputies

present].” Fraire v. City of Arlington,

(5th

Cir. 1992). Because the district court’s denial of qualified

immunity was based on a genuine issue of material fact and not upon

a question of law, this court does not have jurisdiction over this

interlocutory appeal.

APPEAL DISMISSED; MOTION GRANTED.

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