United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-30221 Summary Calendar

KEVEN EYER,

Plaintiff-Appellee,

versus

PATRICK EVANS; WILLIAM MCDADE; CHRISTIAN VARNADO; MICHAEL GLASSER; CITY OF NEW ORLEANS,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana (USDC No. 03-CV-342-A) _______________________________________________________

Before REAVLEY, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

As there is a fact issue as to whether Eyer was ever in active or constructive

possession of the marijauna, this court does not have jurisdiction. See Kinney v.

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

, 261-62 (5th Cir. 2002); Lemoine v. New Horizons Ranch

and Center, Inc.,

(5th Cir. 1999). DISMISSED.

2