UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-6526

WILLIAM E. JONES, JR.,

Plaintiff - Appellant,

versus

T. R. WILD, S.O.D. 124/Badge 327; PTL; OFFICER

BENDER, Police Officer; K-9 OFFICER BOSCO, K-9

Dog,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Jerome B. Friedman, District

Judge. (2:06-cv-00169-JBF)

Submitted: June 27, 2007 Decided: July 30, 2007

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

William E. Jones, Jr., Appellant Pro Se. Richard Hoyt Matthews,

PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

William E. Jones, Jr., a Virginia prisoner, appeals the

district court’s order granting summary judgment in favor of

Defendants and dismissing his action filed under 42 U.S.C. § 1983

(2000). Jones claims he was attacked by a police dog during his

arrest, in violation of his constitutional right to be free from

excessive force. For the following reasons, we affirm.

We review de novo a district court’s order granting

summary judgment and view the facts in the light most favorable to

the nonmoving party. Beverati v. Smith, 120 F.3d 500, 503 (4th

Cir. 1997). We find that although the district court properly

concluded the officers did not violate Jones’s constitutional

rights, it applied the incorrect legal standard in analyzing his

excessive force claim. See Whitley v. Albers, 475 U.S. 312 (1986)

(describing standards applicable to alleged Eighth Amendment

violation arising out of the use of force by prison officials

during a prison riot). The use of force at the time of Jones’s

arrest is properly analyzed under the Fourth Amendment. See

Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir.

1998).

Because Jones reached into his car after being commanded

to put his hands up, and an officer gave a verbal warning prior to

releasing the dog, the facts in the record, even when viewed in

Jones’s favor, fail to support the conclusion that the police dog
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was unreasonably deployed. See id. at 178. By his own account,

Jones resisted after the officers deployed the dog. Given that the

officers were actively trying to gain control over Jones to

effectuate his arrest, we cannot conclude that it was unreasonable

for officers to wait until the situation had subsided completely

and Jones was secured in the police vehicle before calling off the

dog. See, e.g., Saucier v. Katz, 533 U.S. 194, 205 (2001)

(“Because ‘police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a

particular situation,’ the reasonableness of the officer’s belief

as to the appropriate level of force should be judged from that

on-scene perspective.” (citations omitted) (quoting Graham v.

Connor, 409 U.S. 386, 395 (1989)). Thus, even construing the

record in his favor, Jones cannot establish a constitutional

violation.

Accordingly, we affirm the district court’s order

granting summary judgment in favor of the officers on modified

reasoning. We dispense with oral argument because the facts and

legal contentions are adequately addressed in the materials before

the court and argument would not aid the decisional process.

AFFIRMED