
    Keven EYER, Plaintiff-Appellee, v. Patrick EVANS; William McDade; Christian Varnado; Michael Glasser; City of New Orleans, Defendants-Appellants.
    No. 04-30221.
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Sept. 23, 2004.
    Brett John Prendergast, New Orleans, LA, for Plaintiff-Appellee.
    James B. Mullaly, City Attorney’s Office for the City of New Orleans, New Orleans, LA, for Defendants-Appellants.
    Before REAVLEY, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
   PER CURIAM:

As there is a fact issue as to whether Eyer was ever in active or constructive possession of the marijauna, this court does not have jurisdiction. See Kinney v. Weaver, 301 F.3d 253, 261-62 (5th Cir.2002); Lemoine v. New Horizons Ranch and Center, Inc., 174 F.3d 629, 633-34 (5th Cir.1999). 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       Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     