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                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 18-13436
                              ________________________

                          D.C. Docket No. 3:16-cv-00161-TCB

RAYVIE HALL,

                                                         Plaintiff - Appellee,

versus

KIMBERLY FLOURNOY,
sued in her individual capacity,

                                                         Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                   (September 17, 2020)

Before BRANCH and MARCUS, Circuit Judges, and UNGARO,* District Judge.

MARCUS, Circuit Judge:




*
  Honorable Ursula M. Ungaro, United States District Judge for the Southern District of Florida,
sitting by designation.
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        Rayvie Hall was arrested after marijuana was found on his property. He

now brings claims under 42 U.S.C. § 1983, alleging, among other things, false

arrest and malicious prosecution, against Kimberly Flournoy, a county sheriff’s

deputy. The premise of Hall’s argument is that Flournoy, or one of her law

enforcement colleagues, planted the marijuana they found on his property.

Flournoy moved for summary judgment, which the district court denied, rejecting

her affirmative defense of qualified immunity. The court determined that there

were material issues of fact in dispute, and, therefore, the case should be presented

to a jury. Flournoy now pursues an interlocutory appeal of the district court’s

qualified immunity ruling. Because Flournoy does not raise a legal question on

appeal and only seeks review of the factual sufficiency of the district court’s

determination that there is a genuine dispute as to whether the marijuana evidence

was planted, we conclude that we lack jurisdiction to hear Flournoy’s appeal at this

time.

                                          I.

        The relevant facts, construed in favor of Hall, the non-moving party, are

these. Hall purchased property in Meriwether County, Georgia, on April 17, 2015.

Rodriguez Favors had been selling marijuana and squatting on the property before

Hall bought it. Hall obtained a Writ of Possession on May 14, 2015 from the




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Meriwether County Magistrate Court. The judgment granting the Writ of

Possession read:

      After hearing evidence, and the Court having determined that the
      Plaintiff is entitled to the issuance of a Writ of Possession in the above-
      styled matter;

      IT IS HEREBY ORDERED AND ADJUDGED that a Writ of
      Possession issue placing plaintiff in peaceful and quiet possession of
      those premises known as 40 GILBERT CIRCLE, LUTHERSVILLE,
      GA 30251; provided, however, issuance of the Writ of Possession be,
      and is hereby stayed for a period of seven (7) days from the date of this
      Judgment, as required by O.C.G.A. §44-7-55.

After obtaining the writ, Hall engaged the sheriff to deliver an eviction notice.

Hall also told Favors he could not return to the property, and Hall claims that

Favors obeyed his ban.

      Sometime after obtaining the writ, the existing building on the property

burned down. Hall then built an “accessory building” on the land, designed to be

his “man cave.” Inside, there was a television, pool table, stereo, table, and a

refrigerator with beer, wine, and other drinks. Hall said that he invited his family

to the building for “cookouts,” but he “did not allow anyone” in the building when

he was not present; he “restricted” the number of people who visited the building;

he “did not allow strangers” into the building, only relatives and close friends; and

usually less than five people at a time were with Hall in the accessory building.

However, Hall did not detail precisely how he restricted access to the premises.



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          Sometime in August 2015, Colonel Byron Hadley of the Meriwether County

Sheriff’s Department received an anonymous tip that illegal drugs and alcohol

were being sold out of Hall’s building. He passed this tip along to deputy sheriff

Flournoy. Flournoy arranged for a paid confidential informant (“CI”) to purchase

illegal drugs from persons in the building. She had used the CI three or four times

previously and considered him reliable.1 On August 20, Flournoy executed the

sting with the CI. As a precaution, Flournoy first searched the CI and his vehicle,

gave him a marked bill for the purchase, and followed him to Hall’s property. The

CI later returned to Flournoy with marijuana, claiming he purchased it from Favors

in Hall’s accessory building. The CI was then paid $40 in cash, as was typical for

a buy of this type.

          Hall strongly denies that the CI purchased marijuana in his building, and

asserts that Favors had not been present on his property for the entirety of August

2015 -- nor, he claims, since the new accessory building was erected. Flournoy

admitted in her deposition that she had never seen Favors on the property herself,

nor had she ever seen Favors at all. Favors was never arrested or charged in

connection with the sting, and the marked bill was not recovered.

          After the controlled buy, Flournoy obtained a search warrant for the

premises. The warrant identified only “Rodriguez Dekota Favors” by name, but


1
    Flournoy did not specify the CI’s gender, but we will treat him as male, as the district court did.
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listed an address corresponding to Hall’s building. Flournoy and four other

officers executed the warrant six days later and found a small amount (less than

one ounce) of marijuana in a plastic bag, as well as rolling papers and a grinder. It

is unclear who found the marijuana, or where it was found; Flournoy claims that

law enforcement officers Brian Hammock and Jeremy Blount searched for and

located the drugs, but she did not identify which one made the discovery, or if it

was both simultaneously. Nor did Flournoy specify where exactly the marijuana

was found, only saying that some was in a grinder and some was in a plastic bag.

It does not appear that there were separate rooms within the accessory building; it

was an open space. While Flournoy conceded that she was “in charge of writing

the search warrant and [its] execution,” she said she was not in charge of the

search, which was conducted by Hammock and Blount.

      Hall and his daughter waited outside while the search of the accessory

building took place. After the search concluded, Hall denied owning the

marijuana, but told Flournoy that he “would accept responsibility to prevent [his]

daughter from being arrested.” Flournoy proceeded to arrest Hall and a court date

was set for May 24, 2016. Notably, Flournoy did not appear in court and the

charge was dismissed for want of prosecution.

      Hall then brought this civil rights suit in the United States District Court for

the Northern District of Georgia, on October 7, 2016, raising four claims under 42


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U.S.C. § 1983: (1) an illegal search, (2) the use of excessive force, (3) false arrest,

and (4) malicious prosecution. He also brought a state law claim of trespass.

      After discovery, Flournoy moved for summary judgment on all of the

claims. Relevant to this appeal, Flournoy argued that the search uncovered

marijuana and paraphernalia; that Hall admitted the marijuana belonged to him;

and that Hall had no evidence to support his assertion that Favors never returned to

the property after eviction. Flournoy claimed she had at least arguable probable

cause for Hall’s arrest because Hall accepted responsibility for the marijuana. In

the alternative, she argued that Hall had “constructive possession” of the marijuana

because it was found on his property, which would support arguable probable

cause as well.

      The district court granted Flournoy’s motion for summary judgment on the

illegal search, excessive force, and state law trespass claims. However, the district

court rejected Flournoy’s qualified immunity defense and denied summary

judgment on Hall’s false arrest and malicious prosecution claims, finding that there

was a genuine issue of material fact about whether Flournoy planted the marijuana

in Hall’s accessory building. In support, the district court first pointed to the court-

ordered Writ of Possession evicting Favors from Hall’s property and Hall’s sworn

statement that he had told Favors not to return to his property, combined with

Hall’s statement that he did not allow anyone into the accessory building without


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being present. The court also referenced Hall’s testimony that there were no drugs

or paraphernalia in his building; that he told Flournoy that the marijuana was not

his; and that any confession he made was only to “take the blame” to “prevent his

daughter from being arrested.” And the district court relied on Hall’s affirmative

testimony that access to outsiders was severely restricted; thus, Hall argued,

because the marijuana and paraphernalia were not his, they must have been

planted.

      Taken together, the district court concluded that a reasonable jury could

believe Hall’s story about how the marijuana appeared in his accessory room, in

part because Flournoy never “substantively” responded to Hall’s claim that she had

planted the evidence. If Hall was right, Flournoy would indisputably be ineligible

for qualified immunity, because probable cause could not be found. Therefore, the

district court said, there was a genuine issue of material fact as to whether the

evidence was planted, and denied summary judgment on these two claims.

Flournoy appeals from that ruling.

                                          II.

      First, we are required to explore whether we have jurisdiction to entertain

this interlocutory appeal before we may proceed to the merits. See Ex parte

McCardle, 74 U.S. (7 Wall.) 506, 514 (1869) (“Without jurisdiction the court

cannot proceed at all in any cause.”). Because this appeal comes before us at a


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preliminary stage, and because Flournoy raises no issue other than the sufficiency

of the evidence, we lack the power to hear her appeal now.

        “The judicial power of the United States, shall be vested in one Supreme

Court, and in such inferior courts as the Congress may from time to time ordain

and establish.” U.S. Const. art. III, § 1. Pursuant to its constitutional authority,

Congress has granted us jurisdiction generally to review “all final decisions of the

district courts.” 28 U.S.C. § 1291; Firestone Tire & Rubber Co. v. Risjord, 

, 373 (1981) (emphasis added). Conversely, as a court of limited

jurisdiction, we are generally barred from entertaining appeals of non-final orders

because we have no congressional grant to do so.2 The long-stated purpose of the

finality requirement is to promote judicial efficiency and discourage piecemeal

review of the many issues arising from a lawsuit. This rule also affords us the

benefit of reviewing a complete record at the conclusion of the proceeding and has

the concomitant benefit of avoiding any disruption of the trial court’s procedures.

See Johnson v. Jones, 

, 309 (1995).

       Congress has not defined what a “final” decision is. Some district court

decisions are obviously final in that they terminate the litigation, like a jury verdict,




2
 Congress has granted us jurisdiction in narrow circumstances to review the grant or denial of a
preliminary injunction, as well as, in some rare cases, the power to entertain a non-final decision
which has “substantial ground for difference of opinion” and would expedite the termination of
the suit. See 28 U.S.C. § 1292. However, neither of these exceptions applies here.
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a decision issued at the end of a bench trial, or an order granting final summary

judgment. But that a decision is “‘final’ within the meaning of § 1291 does not

necessarily mean [it is] the last order possible to be made in a case.” Gillespie v.

U.S. Steel Corp., 

, 152 (1964). Thus the “collateral order doctrine”

classifies some determinations, including certain denials of qualified immunity, as

final for purposes of appeal, even though the underlying case is still ongoing in the

trial court. The key factor common to these orders is that they are wholly

“collateral” to the merits, because any issue that is not collateral to the merits is by

definition non-final until the case has been terminated. In order to qualify as a

collateral order, the decision must “(1) conclusively determine the disputed

question, (2) resolve an important issue completely separate from the merits of the

action, and (3) be effectively unreviewable on appeal from a final judgment.” P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

, 144 (1993)

(citation omitted).

      Qualified immunity is the added protection afforded government officials to

protect them against “the costs of trial [and] the burdens of broad-reaching

discovery,” as long as their conduct does not “violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 

, 817–18 (1982); see also Willingham v. Loughnan, 

, 1187 (11th Cir. 2001) (observing that qualified immunity’s higher


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liability standard “protects from suit all but the plainly incompetent or one who is

knowingly violating the federal law”). “The purpose of this immunity is to allow

government officials to carry out their discretionary duties without the fear of

personal liability or harassing litigation.” Lee v. Ferraro, 

, 1194

(11th Cir. 2002).

      After a government official has demonstrated that the conduct at issue falls

within the discretionary job responsibilities of the officer, a plaintiff must meet two

requirements before qualified immunity may be rejected. First, that the officer in

fact violated the plaintiff’s rights, see

the violation contravened

“clearly established statutory or constitutional rights of which a reasonable person

would have known.” Castle v. Appalachian Tech. Coll., 

, 1197 (11th

Cir. 2011) (citing 

). While the first inquiry may be a

mixed question of law and fact (what did the officer do and did it violate the law?),

the second is purely a question of law, as it requires analysis of an issue wholly

distinct from the merits of the case: even if the events transpired in the way the

plaintiff asserts, did the alleged misconduct amount to a violation of clearly

established law?

      In Mitchell v. Forsyth, 

(1985), the Supreme Court dealt with

the second requirement -- the clearly established nature of the violation -- and held

that a decision denying qualified immunity would be subject to interlocutory


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review since the clearly-established inquiry involves only “a question of law.”

Later, in Johnson v. Jones, 

(1995), the Supreme Court

clarified its approach to qualified immunity and interlocutory review. It reasoned

that while “a claim of immunity is conceptually distinct from the merits of the

plaintiff’s claim,” 

(quoting 

),

purely factual questions of whether a defendant violated the plaintiff’s rights are

not separable from the merits of his claim.

. a defendant simply

wants to appeal a district court’s determination that the evidence is sufficient to

permit a particular finding of fact after trial, it will often prove difficult to find

[any] question . . . that is significantly different from the fact-related legal issues

that likely underlie the plaintiff’s claim on the merits.”

the Court

decided that when a defendant’s only challenge to the denial of qualified immunity

is that the record did not contain sufficient facts to conclude that the defendant

violated the plaintiff’s rights, an appellate court does not have interlocutory

jurisdiction to review the matter. See

(holding that because the

defendant police officer was challenging the denial of summary judgment on an

excessive force claim by arguing only that she did not do what she was accused of

doing -- striking, punching or kicking the plaintiff -- she was asking for a review of

the claim’s merits, which is not permissible on interlocutory review). The Court

summed it up this way: “[A] defendant, entitled to invoke a qualified immunity


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defense, may not appeal a district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets forth a ‘genuine’ issue of

fact for trial.”

      Since Johnson, the Supreme Court has reiterated that when legal questions

of qualified immunity are raised -- either to determine whether any constitutional

right was violated or whether the violation of that right was clearly established --

interlocutory appellate jurisdiction exists. But if the only question before the

appellate court is a factual one, review must wait for a later time. In Plumhoff v.

Rickard, 

(2014), an excessive force case, the Court found jurisdiction

and distinguished Johnson because the officers “d[id] not claim that other officers

were responsible for shooting Rickard; rather, they contend[ed] that their conduct

did not violate the Fourth Amendment and, in any event, did not violate clearly

established law.”

That is, the dispute was not merely factual, since the

parties agreed that these officers did shoot Rickard. The Court made it clear that

the officers “raise[d] legal issues; these issues are quite different from any purely

factual issues that the trial court might confront if the case were tried.”

be sure, the presence of a factual dispute on appeal does not

automatically foreclose interlocutory review; rather, jurisdictional issues arise

when the only question before an appellate court is one of pure fact. Thus, as the


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Supreme Court made clear in Behrens v. Pelletier, when a defendant challenges

the conclusion that an alleged act violated clearly established law -- a question of

law -- an appellate court may also consider factual questions that are inherently

tied into such an evaluation. 

, 311–13 (1996) (finding jurisdiction in

the legal question of whether interference by an official with the plaintiff’s

employment intruded on a clearly established right, even though there were also

outstanding material issues of fact concerning the context of the claim). Similarly,

in Scott v. Harris, the Supreme Court exercised jurisdiction over an excessive force

case raising the legal question of whether ramming a car off the road constituted a

violation of the Fourth Amendment. 

, 381 & n.8 (2007) (“[W]hether

[the officer’s] actions have risen to a level warranting deadly force is a pure

question of law.” (quotation and citation omitted)). Notably, that case also raised

fact questions, including how to view the facts at the summary judgment stage

when videotape evidence “quite clearly contradicts the [plaintiff’s] version of the

story.”

Nevertheless, because a legal question was involved too, an

appellate court had the power to review the matter on an interlocutory basis.

      Our Circuit’s precedents are consistent. See, e.g., Keating v. City of Miami,

, 759 (11th Cir. 2010) (explaining that Johnson “did not dismiss the

interlocutory appeal on an issue of law concerning qualified immunity, but rather

dismissed the appeal on the sole issue of disputed facts”); Bryant v. Jones, 575


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, 1294 n.19 (11th Cir. 2009) (observing that “we do not have jurisdiction

to entertain such appeals when the defendant’s argument is merely, ‘I didn’t do it.’”

(emphasis added)); Koch v. Rugg, 

, 1296 (11th Cir. 2000) (“We lack

jurisdiction for . . . appeals regarding solely evidence sufficiency because they are

not immediately appealable final decisions since they involve the determination of

‘facts a party may, or may not, be able to prove at trial.’” (citing 

)); Stanley v. City of Dalton, 

, 1287 & n.11 (11th Cir. 2000)

(stating that a review of factual sufficiency is appealable only if the facts are

“inextricably intertwined” with a legal question, and even if so,“[a]lthough we may

independently review the record facts, we will not disturb a factual finding by the

district court if there is any record evidence to support that finding” (emphasis

added and citations omitted)). The long and the short of our case law is clear: if

there is no legal question to review -- like whether the officer’s conduct violated a

plaintiff’s constitutional rights or whether those constitutional rights were clearly

established by the Supreme Court, this Court or the highest court of the state in

which the cause arose -- we cannot review a trial court’s determination of the facts

alone at the interlocutory stage.

      As explained further, in this appeal, Flournoy does not present a legal

question such as whether her alleged conduct violated Hall’s rights or whether the

constitutional right in question was clearly established by the Supreme Court.


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Rather, she only asks us to review the factual sufficiency of the district court’s

decision classifying the dispute at issue -- whether the marijuana found in Hall’s

accessory building was planted -- as genuine. 3 Hall’s evidence largely consisted of

an affidavit stating that the marijuana was not his; that he “did not allow anyone”

in the building when he was not present; that he “restricted” access to the building;

that he obtained a Writ of Possession to keep Favors off the property; and that

Favors was not on the property any time during the month of August. These

assertions, deputy sheriff Flournoy says, are not enough to create a genuine issue

of fact about whether she or the other officers planted the evidence.

       But Flournoy concedes that the planting of evidence, if true, would violate

clearly established law. Our precedents are, of course, also unequivocal that a law

enforcement officer who plants evidence violates clearly established law. See,

e.g., Jones v. Cannon, 

, 1289 (11th Cir. 1999) (“Using or planting

false evidence in an effort to obtain a conviction violates the Constitution.”). See

also Napue v. Illinois, 

, 269 (1959) (“[I]t is established that a

conviction obtained through use of false evidence, known to be such by



3
 Flournoy argues for the first time on appeal that she was not “in charge” of the search and that
she did not personally find the marijuana. She claims this means she cannot be liable. But
Flournoy has waived this argument having only raised it for the first time on appeal. See Access
Now, Inc. v. Sw. Airlines Co., 

, 1331 (11th Cir. 2004) (“This Court has repeatedly
held that an issue not raised in the district court and raised for the first time in an appeal will not
be considered by this court.” (quotation omitted)). We also note that at her deposition, Flournoy
admitted she was “in charge” of executing the search warrant.
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representatives of the State, must fall under the Fourteenth Amendment”).

Because Flournoy admits, as she must, that a police officer who plants evidence

violates clearly established law, all we are left with is the factual review of what

happened -- was Hall’s version of events right, or was Flournoy’s?

      Flournoy, nonetheless, asks us to review whether the district court was right

in determining that there was a genuine dispute about whether the marijuana was

planted, and whether a reasonable jury could believe Hall’s story. Tellingly,

Flournoy argues that the district court “took Hall’s conclusory speculation as fact,

without even a scintilla of evidence” and that Hall failed to “produce more than a

scintilla of evidence.” In Johnson, the Supreme Court foresaw exactly this kind of

case, where the appellants used exactly the same language: the appellate court

lacked interlocutory jurisdiction even when the officers argued there was “not a

scintilla of evidence” to support the conduct 

(quotation

omitted and emphasis added). So too here. Johnson could not be clearer: where,

like in Flournoy’s case, the appellant is merely claiming, “we didn’t do it,”

interlocutory review is foreclosed.

      Flournoy also argues that Rowe v. City of Fort Lauderdale supports

interlocutory jurisdiction. 

(11th Cir. 2000). But Rowe is irrelevant.

The appeal in that case was not taken from the denial of summary judgment, but

rather from the grant of final summary judgment. The district court found that an


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officer was entitled to qualified immunity, and thus it “entered final judgment

dismissing the case with prejudice.”

There is no doubt that Flournoy

may proceed with an appeal at some point. But Rowe tells us nothing about our

power to review interlocutory orders on appeal.

      Flournoy proposes that a district court’s denial of qualified immunity based

on “speculation” creates a question of law that grants us jurisdiction. This

argument misapprehends the specific restraints placed on the exercise of

interlocutory review. What Flournoy terms as “speculation” is simply an argument

about the factual inferences the district court drew from a series of circumstances.

We may disagree with the inferences the district court has drawn, and they are far

from airtight. However, to review that determination now would amount to

nothing more than weighing the evidence supporting the district court’s summary

judgment determination, which is precisely what the Supreme Court has said we

cannot do at this interlocutory stage.

      Flournoy further claims that if this kind of “speculation” is allowed to stand

at the preliminary stage, “it sets the precedent that every arrested suspect” could

simply say “that ain’t mine, they must have planted it,” and thereby create a

“triable issue” in every case. We remain unpersuaded. For one thing, Flournoy’s

hypothetical does not apply here. While Flournoy may disagree with the district

court’s evaluation of the evidence, Hall did not merely say “that ain’t mine.” He


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offered a body of evidence supporting his claim that the drugs were not his, which

the district court found sufficient to take the issue to a jury. Despite Flournoy’s

characterization of the factual dispute, this is not a case where the plaintiff failed to

offer any evidentiary support for his claims.

       Moreover, the Supreme Court has already contemplated the burden this rule

might place on officers. Indeed, in Johnson, the Supreme Court expressly

acknowledged that a rule prohibiting the review of factual sufficiency “threatens to

undercut the very policy (protecting public officials from lawsuits) that (the

Mitchell Court held) militates in favor of immediate appeals.” 

. Nonetheless, the Court still concluded, as a matter of policy, that “the

countervailing considerations that we have mentioned (precedent, fidelity to

statute, and underlying policies) are too strong to permit the extension of Mitchell

to encompass appeals” asking courts to evaluate merely factual sufficiency.

And with that in mind, the Court barred us from preliminarily reviewing

“whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”

  As for the argument that the Supreme Court ruling in Scott v. Harris might allow for
interlocutory review of facts alone when the plaintiff’s story is “blatantly contradicted” by the

, we need not address it today. Scott itself clearly raised the legal
question of whether ramming a car off the road constitutes excessive force -- a legal issue over
which appellate courts have interlocutory jurisdiction, according to Johnson. And, in any event,
we are not faced with evidence from Flournoy that “blatantly contradict[s]” or categorically
refutes Hall’s presentation of the facts.
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at 319–20. Flournoy’s broader argument has already been addressed -- and

foreclosed -- by binding Supreme Court precedent.

      Finally, Flournoy’s fear that we are creating precedent for arrestees to claim

that evidence was planted, destroying qualified immunity en masse, is itself

unfounded. District courts have the authority to decide in the first instance

whether a claim of planted evidence is supported by enough to move the case to

trial. Even if a rush of plaintiffs begin to make specious arguments in opposition

to summary judgment, we have every reason to believe that the district courts will

reject these claims where the plaintiffs have failed to create a genuine issue of

material fact, as set forth in the summary judgment rules and our case law. See

Fed. R. Civ. P. 56(a) (authorizing summary judgment only when “there is no

genuine dispute as to any material fact” and the movant is “entitled to judgment as

a matter of law”); Fed. R. Civ. P. 56(c) (allowing a nonmovant to dispute a

material fact through an affidavit, which must be “made on personal knowledge,

set out facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.”); see also, e.g., Anderson v.

Liberty Lobby, Inc., 

, 248 (1986) (instructing that a “genuine” issue

of fact exists to preclude summary judgment “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party”); United States v.

Stein, 

, 857 (11th Cir. 2018) (en banc) (recognizing that a


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nonmovant’s affidavit in opposition to summary judgment “cannot be

conclusory”). Indeed, the Supreme Court in Johnson explained that while

appellate courts may add some value in reviewing abstract legal questions, we

“enjoy no comparative expertise” in determining “the existence, or nonexistence,

of a triable issue of fact,” which district court judges confront “almost 

.

      In short, Flournoy challenges no legal issue we can find. Rather, she simply

asks us to review whether the evidence presented supports the trial court’s

determination that there was a genuine dispute of material fact over whether the

marijuana was planted. Because we are asked to resolve no more at this

preliminary stage, we are required to DISMISS Flournoy’s appeal for lack of

jurisdiction.

      APPEAL DISMISSED.




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