UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROGER HERMAN HOOVER,

Plaintiff-Appellant,

v.

MCDOWELL COUNTY; BOBBY HANES,

Former Sheriff, both individually

and in his representative capacity; No. 96-2566

SAM ARROWOOD, Deputy,

Defendants-Appellees,

and

RANDY SMITH, Lieutenant,

Defendant.

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Max O. Cogburn, Magistrate Judge.

(CA-95-182-4-C)

Submitted: May 26, 1998

Decided: June 15, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Gary Triggs, C. GARY TRIGGS, P.A., Morganton, North Carolina, for Appellant. Jackie D. Grant, Frank P. Graham, ROBERTS &

STEVENS, P.A., Asheville, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Roger Hoover appeals from the magistrate judge's order granting

summary judgment to the Appellees and dismissing Hoover's action

under 42 U.S.C. § 1983 (1994).1 After granting Hoover's motion to

submit the appeal on briefs, we find no reversible error and affirm.

On August 12, 1990, Officers Sam Arrowood and Randy Smith

responded to a call to investigate a report of a man with a gun and

shots fired. Arrowood, first to arrive on the scene, found Hoover

standing in his mother's driveway holding a hunting rifle. Others on

the scene included Hoover's nephew, sister, wife, and mother.

Arrowood exited his vehicle, took cover, pointed his gun at Hoover, and ordered Hoover to drop the rifle. Hoover claims that Arrowood "cursed" him, but admits that Arrowood ordered him to throw

down the rifle. Hoover refused to relinquish the rifle and squatted

down behind a car in the driveway. At this time, Smith arrived and

began ordering Hoover to throw down the rifle. Both officers contend

that Hoover pointed the rifle at them. Hoover disputes that he pointed

the rifle at the officers, but admits that Smith repeatedly told him to

drop the rifle and that he refused to comply with the order.

After some time, Hoover finally put the rifle on top of the car and

came out from behind the car. Both officers attempted to place Hoover under arrest, but a scuffle ensued and Hoover hit Arrowood in the

face with his closed fist. In response, Arrowood struck Hoover in the

face. Hoover also struck Smith in the face causing Smith to lose his

glasses. In response, Smith struck Hoover with his flashlight on or

about the head. Also, Hoover's wife stepped between Smith and Hoo-

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1 The parties consented to jurisdiction of the magistrate judge pursuant

to 28 U.S.C.A. § 636(c) (West 1994 & Supp. 1998).

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ver, and Hoover's nephew grabbed Arrowood around the waist causing a scuffle between the nephew and Arrowood. Eventually, Smith

was able to handcuff Hoover and Arrowood was able to handcuff the

nephew and place them in the patrol cars.

Prior to being placed in jail, Arrowood transported Hoover to the

McDowell County Hospital where Hoover was treated for one small

cut to his upper lip and one small cut on the top of his head. The hospital report did not note any other injuries, but did note that Hoover

was alcohol intoxicated.2 After being treated and released from the

hospital, Hoover was taken to the McDowell County Magistrate's

Office where he was charged with assaulting police officers, obstructing and delaying officers, and assault with a firearm on a police officer.

In August 1993, Hoover filed a complaint pursuant to 42 U.S.C.

§ 1983 (1994), against Officers Arrowood and Smith, McDowell

County, and Sheriff Hanes. Hoover asserted that Officers Arrowood

and Smith used excessive force in effecting his arrest; that the Officers' actions constituted malicious prosecution under the common law

of North Carolina; and that McDowell County and Sheriff Hanes

were deliberately indifferent to the Officers' use of excessive force.

Defendants filed a motion for summary judgment, which the district

court granted. Hoover noted a timely appeal.

This court reviews de novo a district court's grant of summary

judgment. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th

Cir. 1995). Summary judgment is appropriate when a non-moving

party fails to establish, by sworn evidence, an essential element of the

case. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

Hoover asserts that the district court erred in granting summary

judgment to Arrowood and Smith on the ground of qualified immunity. Qualified immunity shields government officials from § 1983

liability as long as "their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

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2 Hoover admitted to being intoxicated on the night of his arrest.

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have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In an

excessive force case, the specific inquiry "is whether a reasonable

officer could have believed that the use of force alleged was objectively reasonable in light of the circumstances." Rowland v. Perry, 41

F.3d 167, 173 (4th Cir. 1994).

A claim that a police officer used excessive force in attempting to

make an arrest is analyzed under the Fourth Amendment reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989).

Force is not excessive if it is objectively reasonable under the circumstances facing the officer, without regard to his underlying intent. See

id. at 397. Among the relevant factors in determining whether the

officers applied reasonable force is the conduct of the arrestee. See id.

at 396.

In the case at bar, the officers faced a violent situation as they

arrived on a scene where shots had been fired and Hoover was in possession of a hunting rifle that he refused to put down. After surrendering the weapon, Hoover began to fight with the officers as they

attempted to arrest him, and the bystanders also interfered with the

officers' attempt to arrest Hoover. Further, Hoover was intoxicated

and struck both officers. Under these circumstances, we find that the

officers' use of force to effectuate Hoover's arrest was objectively

reasonable.

Another relevant factor in the determination of whether excessive

force was used is the extent of injuries suffered by the plaintiff. See

Pressly v. Gregory, 831 F.2d 514, 518 (4th Cir. 1987). The medical

records show that Hoover did not suffer injuries indicative of the use

of unreasonably excessive force.

Hoover next asserts that Officers Arrowood and Smith caused warrants for Hoover's arrest to issue in an attempt to cover up their

unconstitutional acts. In North Carolina, a malicious prosecution

claims has four elements:

(1) the defendants initiated the earlier proceeding;

(2) malice on the part of the defendants in doing so;

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(3) lack of probable cause for the initiation of the earlier

proceeding; and

(4) termination of the earlier proceeding in favor of the

plaintiff.

See Best v. Duke Univ., 448 S.E.2d 506, 510 (N.C. 1994). Hoover

fails to establish the third element--lack of probable cause. The North

Carolina Supreme Court defines probable cause as"the existence of

such facts and circumstances, known to [the defendant] at the time,

as would induce a reasonable man to commence a prosecution." Cook

v. Lanier, 147 S.E.2d 910, 914 (N.C. 1966) (quoting Morgan v.

Stewart, 57 S.E. 149, 151 (N.C. 1907)). In North Carolina, as a general rule,

[i]n civil actions for malicious prosecution .. . our appellate

courts have followed the majority rule that "absent a showing that the conviction in District Court was procured by

fraud or other unfair means, the conviction conclusively

establishes the existence of probable cause, even though the

plaintiff was acquitted in Superior Court."

See Myrick v. Cooley, 371 S.E.2d 492, 495 (N.C. App. 1988). Hoover

was convicted of assault, resisting, delaying, and obstructing in state

district court but later acquitted in superior court. His conviction in

district court, however, establishes the existence of probable cause.

Therefore, we find this claim to be without merit.

Finally, Hoover asserts that McDowell County and Sheriff Hanes

failed to properly supervise or train Officers Arrowood and Smith to

prevent the alleged unconstitutional acts. Hoover failed to present any

evidence establishing that McDowell County and Sheriff Hanes were

deliberately indifferent to the constitutional rights of its citizens or

that they authorized unconstitutional behavior. See Spell v. McDaniel,

824 F.2d 1380, 1389 (4th Cir. 1987) (municipality responsible for

constitutional violation only when execution of a policy or custom

inflicts injury). Hoover admits that he is not aware of what training

procedures McDowell County has for training its officers or what

kind of disciplinary procedures are in place for disciplining officers.

Thus, this claim is without merit.

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Accordingly, we affirm the magistrate judge's order. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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