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Appeal from the United States District Court For the Southern District of Texas

Plaintiff Alex Reyes was shot by Defendant Dan Cox of the Richmond Police Department. Reyes, who is now confined to a wheelchair, sued Cox and the City of Richmond alleging violations of Reyes’ Fourth and Fourteenth Amendment rights to be free from the use of excessive force. See 42 U.S.C. � 1983. Plaintiff Virginia Martinez, Reyes’ wife, also seeks damages for loss of consortium.

Officer Cox moved for summary judgment based on qualified immunity. The magistrate judge denied the motion, positing that “[g]iven the widely different witness accounts of the shooting of Plaintiff Reyes, the case simply cannot be resolved on summary judgment.” Officer Cox appealed the magistrate’s decision to this Court, arguing: (1) that we have jurisdiction over this interlocutory appeal under the “collateral order doctrine,” and (2) that, under the theory of qualified immunity, he is entitled to summary judgment as a matter of law. Because we conclude that Officer Cox’s “arguments 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’ claims.

 
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