UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

C. Gary Triggs, C. GARY TRIGGS, P.A., Morganton, North Caro-
lina, 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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________

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 Hoo-
ver, and ordered Hoover to drop the rifle. Hoover claims that Arro-
wood "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 Hoo-
ver 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-
_________________________________________________________________
1 The parties consented to jurisdiction of the magistrate judge pursuant
to 28 U.S.C.A. § 636(c) (West 1994 & Supp. 1998).

                    2
ver, and Hoover's nephew grabbed Arrowood around the waist caus-
ing 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 hos-
pital 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, obstruct-
ing and delaying officers, and assault with a firearm on a police offi-
cer.

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 Offi-
cers' 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 immu-
nity. 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
_________________________________________________________________

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

                    3
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 objec-
tively 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 reasonable-
ness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989).
Force is not excessive if it is objectively reasonable under the circum-
stances 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 pos-
session of a hunting rifle that he refused to put down. After surrender-
ing 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 war-
rants 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;

                     4
          (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 gen-
eral rule,

          [i]n civil actions for malicious prosecution .. . our appellate
          courts have followed the majority rule that "absent a show-
          ing 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.

                    5
Accordingly, we affirm the magistrate judge's order. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

                    6
