Herman Harris v. Zachery Pittman


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-ct-03087-BO. Copies to all parties and the district court/agency. [999921544]. Mailed to: Herman Harris. [16-6316]

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Appeal: 16-6316 Doc: 18 Filed: 09/01/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6316 HERMAN HARRIS, Plaintiff – Appellant, v. ZACHERY PITTMAN, Fayetteville Police Department, Defendant – Appellee, and MOOSE BUTLER, Defendant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:13-ct-03087-BO) Submitted: July 14, 2016 Before FLOYD and Circuit Judge. HARRIS, Decided: Circuit Judges, September 1, 2016 and DAVIS, Senior Vacated and remanded by unpublished per curiam opinion. Herman Harris, Appellant Pro Se. Lisa Yvette Harper, Assistant Attorney General, Fayetteville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6316 Doc: 18 Filed: 09/01/2016 Pg: 2 of 3 PER CURIAM: Herman Harris appeals the district court’s order granting Officer Zachery excessive force Pittman’s claim, summary brought judgment pursuant motion to 42 on Harris’ U.S.C. § 1983 (2012). The district court determined that no genuine issues of material fact existed as to whether Pittman was entitled to qualified immunity when he effectuated Harris’ arrest. The relevant inquiry on summary judgment is “whether the evidence presents a 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.” Lobby, Inc., 477 U.S. 242, 251-52 Anderson v. Liberty (1986). In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, a district court is required to ask “whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a federal right.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The parties offered different versions of the salient facts surrounding Pittman’s occurred Pittman’s versions when of Pittman arrest. In events fired particular, critically the final differ shots whether Harris was standing or lying down). Harris’ at and over what Harris (e.g, Thus, the question for the district court was whether, construing the facts in the light most favorable to Harris (i.e., Harris was lying on the 2 Appeal: 16-6316 ground Doc: 18 when Filed: 09/01/2016 Pittman, shots), a believe that serious physical still reasonable Harris on officer posed injury Pg: 3 of 3 a to top of would him, have significant the officer fired probable threat or of the final cause to death or others. See district court Tennessee v. Garner, 471 U.S. 1, 3, 11-12 (1985). Because it does not appear that the construed the facts in the light most favorable to Harris, we vacate the district court’s judgment and remand to the district court for further proceedings. We leave it to the district court to determine, in the first instance, if construing the salient facts in the light most favorable to Harris, Pittman is entitled to qualified immunity. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED AND REMANDED 3

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