Le Count P. SCOTT, Plaintiff-Appellee, v. CITY OF PASADENA; et al., Defendants-Appellants, 373 F. App'x 759

MEMORANDUM Defendants appeal from the district court’s denial of their motion for

summary judgment. They assert that plaintiffs claim of excessive force is barred by his prior conviction under California Penal Code § 148(a)(1). See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir.2005) (en banc). Because the district court’s denial of

summary judgment on this claim is not an appealable collateral order, we lack jurisdiction and must dismiss. Cunningham v. Gates, 229 F.3d 1271, 1284-85 (9th Cir.2000). Defendants also claim the district court erred by denying

summary judgment based on qualified immunity. The district court determined that a reasonable jury could find that the arresting officer “threw [plaintiff] to the ground after he had been effectively subdued, causing his leg to break.” [Order at 23] Defendants do not claim that a reasonable officer would believe such conduct to be constitutional; they claim the evidence doesn’t support the district court’s conclusion.

We lack jurisdiction to review the denial of a motion for qualified immunity on an interlocutory appeal “when the basis for the defendant’s motion is that the evidence in the pretrial record is insufficient to create a genuine issue of fact.” Watkins v. City of Oakland, 145 F.3d 1087, 1091 (9th Cir.1998) (quoting Armendariz v. Penman, 75 F.3d 1311, 1317 (9th Cir.1996)). Defendants’ challenge to the district court’s reli-anee on plaintiffs affidavit does not transform this factual issue into a question of law; whether an affidavit is a sham is a question of fact. See Kennedy v. Allied Mut. Ins.

Co., 952 F.2d 262, 267 (9th Cir.1991). Because we lack jurisdiction to review defendants’ claims, this appeal must be dismissed. DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.