                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ANTHONY RICHARD HINDS,                 
                Plaintiff-Appellee,
                 v.
STEPHANIE MOHR, Police Officer,
Corporal, Prince George’s County
Police Department; MICHAEL
MARGULIS, Police Officer, Corporal,
Prince George’s County Police
Department; THOMAS HART, Police                  No. 02-6320
Officer, Prince George’s County
Police Department; NALESNIK, Police
Officer, Corporal, Prince George’s
County Police Department; DAVID
HINDS, Police Officer, Corporal,
Prince George’s County Police
Department,
              Defendants-Appellants.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
             Alexander Williams, Jr., District Judge.
                        (CA-00-2182-AW)

                      Argued: October 30, 2002

                      Decided: January 21, 2003

  Before WILKINSON, Chief Judge, GREGORY, Circuit Judge,
       and Frank J. MAGILL, Senior Circuit Judge of the
      United States Court of Appeals for the Eighth Circuit,
                     sitting by designation.
2                           HINDS v. MOHR
Dismissed in part and reversed in part by unpublished per curiam
opinion.


                             COUNSEL

ARGUED: Laura Jean Gwinn, Upper Marlboro, Maryland, for
Appellants. John F. Mercer, SOLOMON & MARTIN, Greenbelt,
Maryland, for Appellee. ON BRIEF: Leonard L. Lucchi, County
Attorney, John A. Bielec, Deputy County Attorney, Upper Marlboro,
Maryland, for Appellants.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

  Plaintiff Anthony Hinds brought suit under 42 U.S.C. § 1983
against a group of police officers who apprehended him following a
prolonged chase. He alleges that the officers set a police dog on him
while he was fully under their control. Defendants moved for sum-
mary judgment, but the district court denied the motion. The defen-
dants now appeal.

                                  I.

   Because this appeal arises from a motion for summary judgment,
the following facts are presented in the light most favorable to the
plaintiff as the non-moving party. All factual disputes are resolved in
plaintiff’s favor.

 On July 28, 1997, at approximately 4:00 a.m., Corporal Michael
Margulis was on routine patrol when he observed Officer Thomas
                            HINDS v. MOHR                             3
Hart and Corporal David Hinds ("Corporal Hinds") stopped with two
civilians, including plaintiff Anthony Richard Hinds ("Hinds"). When
Margulis approached, Hinds fled, and the police officers gave chase.
Margulis caught up with Hinds when he fell at one point during the
chase, but Hinds managed to free himself after a brief struggle and
ran away again. Shortly thereafter, Margulis again caught up with
Hinds. This time, Margulis pulled out his service weapon and pointed
it at Hinds, ordering him to stop running. He also hit Hinds in the face
with his gun. Another scuffle ensued, after which Hinds again slipped
away from Margulis and continued to flee.

   At some point during the chase, Hart saw Hinds holding a gun.
Shortly thereafter, Margulis saw Hinds make a throwing motion and
heard the sound of metal hitting metal. A gun was later recovered in
the general area where Margulis heard the noise.

   Hinds then jumped over a fence. Margulis reached over as he did
so and grabbed Hinds by his T-shirt. They struggled once again, and
Margulis struck Hinds with his flashlight. Hinds got away again, rip-
ping out of his T-shirt and leaving Margulis holding the shirt in his
hands. At this point, Margulis called for backup and a K-9 (canine)
unit. The K-9 handler, Corporal Stephanie Mohr, tracked Hinds to his
hiding place with the assistance of her dog. Corporal Nalesnik was
present during this stage of the apprehension, but did not participate
other than shouting at Hinds to stop running.

   When she saw Hinds, Mohr ordered him to surrender himself or the
dog would attack him. She then set the dog on him. When the dog
attacked Hinds, he was wearing only shorts. It was visible to the offi-
cers that he did not have a weapon. Hinds seized the dog by its throat
after it began to maul him. The officers ordered Hinds to place his
hands behind his back, but he did not obey their commands. Hinds
was repeatedly bitten in the front and back of his upper body and
down to the legs, suffering injuries for which he was later taken to the
hospital and put on antibiotics. While this was happening, the five
police officers stood around Hinds, observing the attack but taking no
action to restrain the dog. Later during the dog attack, Margulis
sprayed Hinds in the face with pepper spray.

  Hinds filed a lawsuit pro se in July 2000, although he is now repre-
sented by counsel. He alleged that Mohr, Margulis, Hart, Nalesnik,
4                           HINDS v. MOHR
and Corporal Hinds violated his constitutional rights by using exces-
sive force in violation of the Fourth Amendment. Discovery requests
were sent to Hinds in October 2001, but he did not receive them
because he was being transferred from one federal prison to another.
Defendants’ subsequent motion to compel was denied by the district
court on the grounds that defense counsel did not contact the incarcer-
ated Hinds in an effort to resolve the discovery dispute. Defendants
then filed a motion for summary judgment, supporting it with
excerpts from the transcript of Hinds’s trial on federal firearms
charges. See 18 U.S.C. § 922(g)(1) (felon in possession of a firearm).
Hinds filed no response to the motion. The district court denied the
motion.

                                   II.

   Plaintiff contends that Mohr unleashed a savage dog attack on a
compliant, unarmed, and unresisting suspect and did so for the sole
purpose of inflicting pain on him in retaliation for his previous efforts
to evade capture. Mohr in turn contends that she exerted force only
to the extent necessary to restrain a violent suspect who was resisting
arrest to the point of choking the police dog.

   These are very different and irreconcilable accounts of the events
of that night. At this stage in the proceedings, there has been no time
for the district judge to develop the record or apply either the
Supreme Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001), or
our own decision in Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991). As
a result, the appeal as to Mohr must be dismissed under Johnson v.
Jones, 515 U.S. 304 (1995) (holding that § 1983 defendants may not
immediately appeal a district court’s determination that the record
presents a genuine issue of material fact). The claims against Mohr
must be the subject of further proceedings in district court and, in all
probability, a trial.

   In contrast to his claims against Mohr, plaintiff’s other claims
present no triable issue. To begin with, the actions of the other defen-
dants during the chase itself were unexceptionable. Before cornering
Hinds with the K-9 unit’s assistance, they took reasonable measures
in an effort to apprehend an armed and fleeing suspect who had physi-
cally resisted arrest on not one, but several occasions. Even when
                             HINDS v. MOHR                              5
Hinds was finally cornered, there is no claim that Margulis, Hart,
Nalesnik, or Corporal Hinds exercised authority over the canine. The
dog was at all times under the control of Mohr. Plaintiff does not con-
tend that the remaining defendants possessed by virtue of their posi-
tions or their training any ability to restrain the dog while it was under
Mohr’s command. And 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," courts must afford them a measure
of deference in their on-the-scene assessments about the application
of force to subdue a fleeing or resisting suspect. Saucier, 533 U.S. at
205 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

   For the foregoing reasons, the appeal of Stephanie Mohr is dis-
missed. With respect to the other defendants, the judgment is reversed
and the case remanded with directions to enter judgment in their
favor.

                   DISMISSED IN PART AND REVERSED IN PART
