PER CURIAM: This 42 U.S.C. § 1983 action arises from a prisoner’s pro se allegations of physical abuse at the hands of certain prison guards. The defendant prison guards file this interlocutory appeal challenging the district court’s denial of their
summary judgment motion. The guards argue that the district court should have granted
summary judgment in their favor since they were entitled to qualified immunity; specifically, the guards argue that their alleged behavior was not so unreasonable as to preclude a qualified immunity defense. Because the district court’s denial of
summary judgment was not a final decision, review of this interlocutory appeal is limited. Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir.2004). This court “lack[s] interlocutory jurisdiction to review the district court’s conclusion that the plaintiff has created a genuine issue of fact as to some matter.” Id. The court may, however, review whether the fact issues are material, Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir.2001), or whether the defendants nonetheless are entitled to qualified immunity based upon the facts as alleged by the plaintiff, Colston v.
Barnhart, 130 F.3d 96, 98-99 (5th Cir.1997). The district court noted that there were factual issues as to whether each of the guards knew of or participated in the alleged physical abuse. These issues, according to the district court, prevented
summary judgment and overcame the qualified immunity defense. On appeal, the guards do not argue that the factual issues identified by the district court are immaterial. Instead, the guards assert that, even accepting Dingler’s version of facts as true,
summary judgment should have been granted in the guards’ favor. Dingier alleges that the guards physically abused him by repeatedly opening doors with his head while his hands were restrained and by repeatedly kicking and punching him while he was prone and restrained on the floor, thereby causing him physical injuries. Assuming these facts are true, we cannot say that the guards would be entitled to qualified immunity. Accordingly, we do not have appellate jurisdiction to hear this interlocutory appeal. The interlocutory appeal is DISMISSED. Pursuant to 5th Cir.
R. 47.5, the court has determined that this opinion should not be published and is not precedent except under limited circumstances set forth in 5th Cir. R. 47.5.4. .
The district court noted that Dingler’s assertions "complie[d] with the affidavit requirements” and ”provide[d] sufficient detail as to the description of the incident, the parties involved, and the injuries suffered to create a genuine issue of material fact.” The district court also noted that the guards’ affidavits "denfied] knowledge of or participation in the most significant parts of the alleged incident and create[d] a genuine issue of material fact.”