Kendrick Hawkins v. Nathan McMillan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999781263-2]. Originating case number: 5:13-ct-03025-FL. Copies to all parties and the district court/agency [999965410]. Mailed to: Kendrick D. Hawkins. [16-6160]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6160

KENDRICK D. HAWKINS,
Plaintiff - Appellant,
v.
NATHAN MCMILLAN; C/O J. HERNDON; SERGEANT B. CORRELL,
Defendants - Appellees,
and
JOSHUA HOLMES,
Defendant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-ct-03025-FL)

Submitted:

October 27, 2016

Decided:

November 9, 2016

Before KING, KEENAN, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Kendrick D. Hawkins, Appellant Pro Se. Kimberly D. Grande, Kari
Russwurm Johnson, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kendrick

D.

Hawkins

granting

Defendants’

excessive

force

(2012).

appeals

summary

claim,

the

district

judgment

brought

court’s

motion

pursuant

to

42

on

order

Hawkins’

U.S.C.

§ 1983

The district court determined that no genuine issues of

material fact existed as to whether Defendants were entitled to
qualified immunity when they used force on Hawkins.
This

Court

reviews

a

district

court’s

grant

of

summary

judgment de novo, “viewing all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (internal
quotation

marks

judgment

is

omitted).

“whether

The

the

relevant

evidence

inquiry

presents

on

a

summary

sufficient

disagreement to require submission to a jury or whether it is so
one-sided

that

one

party

must

prevail

as

a

matter

of

law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate only when “the pleadings, the
discovery and disclosure materials on file, and any affidavits,
. . . construed in favor of the nonmoving party show that there
is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law.”

Seremeth v. Bd. of

Cty. Comm’rs Frederick Cty., 673 F.3d 333, 336 (4th Cir. 2012).
In

determining

whether

an

officer

is

entitled

to

summary

judgment on the basis of qualified immunity, a district court is
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required to ask “whether the facts, viewed in the light most
favorable

to

the

plaintiff,

violated a federal right.”

show

that

the

officer’s

conduct

Smith v. Ray, 781 F.3d 95, 100 (4th

Cir. 2015).
The parties offered different versions of the salient facts
surrounding

the

complaint.

We

use-of-force
have

reviewed

incident
the

alleged

record,

in

Hawkins’

including

Hawkins’

verified complaint and his sworn declaration, and conclude that
the district court failed to construe the facts in the light
most favorable to Hawkins.

Because there are genuine issues of

material fact in dispute, we vacate the district court’s order
and remand for further proceedings in the district court.

We

deny

We

Hawkins’

dispense

with

motion
oral

for

the

argument

appointment
because

of

the

counsel.

facts

and

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

VACATED AND REMANDED

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