Rosales v. City of Arlington TX, et al, No. 08-10575 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED October 28, 2008 No. 08-10575 Summary Calendar Charles R. Fulbruge III Clerk MATILDE ROSALES Plaintiff - Appellee v. JOSE PENA, In his individual and official capacity; WILLIAM PHILLIPS, In his individual and official capacity Defendants - Appellants Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CV-588 Before REAVLEY, WIENER, and PRADO, Circuit Judges. PER CURIAM:* These police officers appeal from the district court s judgment denying their qualified immunity defense to plaintiff s claim of assault and battery in the course of an unlawful arrest. Appellants briefs present a spirited advocacy of the record on their behalf. That will not suffice in view of the district court s decision that fact issues are raised by the evidence in favor of the plaintiff s * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 08-10575 Summary Calendar claim. This court therefore lacks jurisdiction of the appeal. See Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). DISMISSED. 2

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