                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-2333


BARBARA GOODMAN,

                Plaintiff – Appellee,

           v.

DEWAYNE BARBER, individually and in his official capacity
as a deputy with the Sampson County Sheriff’s Department;
OHIO CASUALTY INSURANCE,

                Defendants – Appellants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cv-00153-F)


Argued:   May 15, 2013                     Decided:   August 28, 2013


Before KING and AGEE, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Torin L. Fury, FRAZIER HILL & FURY, RLLP, Greensboro,
North Carolina, for Appellants.   Mark Anthony Key, Lillington,
North Carolina, for Appellee.     ON BRIEF:   William L. Hill,
FRAZIER HILL & FURY, RLLP, Greensboro, North Carolina, for
Appellants.


Unpublished opinions are not binding precedent in this circuit.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

       We are asked in this interlocutory appeal to review the

district court’s denial of qualified immunity at the summary

judgment          stage     of    this     42    U.S.C.      § 1983    action,      in    which

defendant            DeWayne     Barber,    a    deputy      with     the   Sampson      County

(North          Carolina)      Sheriff’s        Department,     is     accused      of    using

excessive force against plaintiff Barbara Goodman.                                See Goodman

v.   Barber,          No.   7:11-cv-00153          (E.D.N.C.      Oct.      16,   2012)   (the

“Order”), ECF No. 51. 1                As explained below, we affirm the ruling

of the district court.



                                                 I.

                                                 A.

       Because Deputy Barber’s request for qualified immunity was

made       in    a    motion     for     summary      judgment,       the   district      court

properly “relate[d] the facts in the light most favorable to

Goodman,”         while     also    “not[ing]         that   Deputy     Barber     vigorously

disputes Goodman’s version of the facts.”                              See Order 2.          In

brief, the Order recounted that the alleged use of excessive

force occurred on June 19, 2008, following Barber’s arrest of

Goodman’s brother in the presence of Goodman and approximately

       1
       The district court’s unpublished Order is found at J.A.
257-74. (Citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.)



                                                  2
eight    other     family   members      on      the    family’s    multi-residence

property    in     Salemburg,    North      Carolina.       After     Barber    placed

Goodman’s brother in a patrol car, Goodman began walking toward

one   of    the    family   homes      to     retrieve     her     purse,    with   the

intention of following her brother to the local detention center

and posting his bond.            According to Goodman, Barber informed

her, “‘You’re not going anywhere.                      I’m going to arrest you,

too.’”      J.A. 163.       Barber then placed a single handcuff on

Goodman’s    left     wrist.      At     that     point,    Goodman’s       stepfather

grabbed Goodman’s right arm and began twirling Goodman in an

effort to prevent her arrest.                   Having been informed by Barber

that he, too, was under arrest, Goodman’s stepfather ran from

Barber, but Barber eventually caught up to the stepfather and

deployed     a     taser    to   subdue         him.       Concerned        about   her

stepfather’s heart condition, Goodman ran over to assist him,

placing her arms around him to ease his fall.

      While Goodman was assisting her stepfather, Deputy Barber

allegedly came up behind Goodman, grabbed her by the handcuffed

arm, pulled her away from her stepfather, and threw her to the

ground, fracturing her finger.              Goodman was then, in her words,

“in so much pain” and “screaming that [her] finger was broken.”

J.A. 135.         Nonetheless, Goodman was not physically aggressive,

i.e., she “was not thrashing [her] arms, or moving them in any

erratic way.”         Id.   With Goodman still on the ground, Barber

                                            3
placed Goodman’s right arm behind her back and cuffed her hands

together.   Although Goodman was completely subdued by that time,

Barber “continued to maul [Goodman’s] face into the ground, hit

[her,] and started kneeing [her] in the back.”                  Id.; see also

id. at 172 (Goodman’s testimony that Barber “just mauled my head

in the dirt.     I mean, he had his feets [sic] in my back.              He was

just mauling it”).

     Along with her finger fracture, which required surgery and

physical therapy, Goodman sustained a right knee abrasion and

bruising to her face, arms, and back.                 She was admitted to a

local hospital for a single night and then discharged into the

custody of the Sampson County Sheriff’s Department.                  Goodman was

later convicted in a North Carolina state court of resisting,

delaying,   or     obstructing   an        officer,    but     the    prosecutor

dismissed the charge during the pendency of Goodman’s appeal.

On the dismissal form, the prosecutor wrote that Goodman “has no

prior record and has performed sufficient community service in

the way of volunteer work with the church.”             J.A. 115.

                                      B.

     In her 42 U.S.C. § 1983 civil action, Goodman has invoked

the Fourth and Fourteenth Amendments in asserting that Deputy

Barber used excessive force against her.               See Orem v. Rephann,

523 F.3d 442, 446 (4th Cir. 2008) (explaining “that the Fourth

Amendment   only   governs   claims    of     excessive      force   during   the

                                      4
course of an arrest, investigatory stop, or other seizure of a

person,” while “excessive force claims of a pretrial detainee or

arrestee      are     governed        by   the     Due    Process    Clause    of   the

Fourteenth Amendment” (alterations and internal quotation marks

omitted)). 2        Addressing Barber’s summary judgment motion, the

district      court       observed    that   the       qualified   immunity    analysis

encompasses         two     questions:           (1)     whether    Barber’s   actions

violated a constitutional right; and (2) whether the right at

issue was clearly established at the time of his conduct.                           See

Order 6-7 (citing, e.g., Pearson v. Callahan, 555 U.S. 223, 232

(2009)).

     As to the first question, the district court recognized

that “[t]he Fourth Amendment proscribes the use of excessive

force    by    officers       while    effectuating         an   arrest.”      Order   7


     2
       Goodman initiated this action in a North Carolina state
court on June 20, 2011, asserting a single § 1983 claim premised
on multiple theories, plus various state law claims.      Deputy
Barber removed the action to the Eastern District of North
Carolina on July 27, 2011.       An additional defendant, Ohio
Casualty Insurance, was added on February 20, 2012, as a
necessary party.   Along with the excessive force theory of her
§ 1983 claim, Goodman has asserted, inter alia, that her arrest
was violative of the Fourth Amendment because it was made
without probable cause.   By its Order of October 16, 2012, the
district court granted summary judgment to Barber on the illegal
arrest component of Goodman’s § 1983 claim.    See Order 13-14.
Meanwhile, Goodman has conceded the infirmity of her other
§ 1983 theories, as well as that of several state law claims.
Id. at 1, 14.    She continues, however, to pursue a state law
claim for assault and battery. Id. at 14-17.



                                             5
(citing Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc)).      The court expounded “that a Fourth Amendment excessive

force claim must be analyzed under the standard of ‘whether the

officers’ actions [were] “objectively reasonable” in light of

the facts and circumstances confronting them, without regard to

their underlying intent or motivation.’”                     Id. (alteration in

original) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

The court concluded that, “[v]iewing the facts in the light most

favorable to Goodman, [it could not] say that Deputy[] Barber’s

use of force was objectively reasonable as a matter of law.”

Id. at 8.

      According to the district court, “[t]he first factor of the

Graham analysis — the severity of the crime at issue — actually

weighs      against    Goodman.”        Order   8    (explaining         that,    “[b]y

allowing a family member to spin her around in circles [to evade

arrest]     while     Deputy   Barber    was    outnumbered        and    surrounded,

Goodman      committed    a    serious     crime”).          The    court        further

determined, however, that the second and third Graham factors —

whether the suspect posed an immediate threat to the safety of

the officers or others, and whether she actively resisted arrest

or attempted to evade arrest by flight — “weigh in favor of a

finding that Deputy Barber’s use of force was excessive.”                            Id.

at 8-9.      In so ruling, the court relied on Barber’s “fail[ure]

to   show    how    Goodman    constituted      a   threat    to    the    safety    of

                                          6
[Barber] or others after she was fully restrained.”                         Id. at 9.

The    court     also    invoked   Goodman’s         “alleg[ation]      that      Deputy

Barber continued to use force during the arrest after she was

completely restrained and was not resisting in any manner.”                           Id.

The court summarized that, “relying on Goodman’s version of the

facts, Deputy Barber’s use of force was excessive and Goodman’s

constitutional right to be free from excessive force during an

arrest was violated.”          Id. at 10.

       Turning    to     the   qualified       immunity      question      of    whether

Goodman’s right was clearly established at the time of Deputy

Barber’s conduct, the district court framed the issue before it

as follows:        “[W]hether, on June 19, 2008, it was clear to a

reasonable officer that it was unlawful to continue beating a

suspect   who     was    under   arrest,       who   had   both    hands    handcuffed

behind her, who was pinned on the ground with the officer on top

of her, and who was not actively resisting arrest.”                         Order 11.

Easily answering “yes,” the court noted that “Fourth Circuit

case    law    clearly    establishes      that      officers      employ       excessive

force   when     they    assault   a   suspect       [who]   has    been    physically

restrained.”       Id. at 12 (citing, e.g., Bailey v. Kennedy, 349

F.3d 731 (4th Cir. 2003); Jones v. Buchanan, 325 F.3d 520 (4th

Cir. 2003); Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993)).                           The

court thus deemed “the test for denying qualified immunity” to

be satisfied, and denied Barber’s motion for summary judgment

                                           7
“insofar as it relies on qualified immunity to defeat Goodman’s

alleged excessive force claim[].”                 Id.



                                            II.

       Deputy    Barber    timely       noted      this       interlocutory      appeal,

invoking our jurisdiction under 28 U.S.C. § 1291.                       Barber relies

on Mitchell v. Forsyth, wherein the Supreme Court held “that a

district court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.”                       472 U.S. 511, 530 (1985).

Significantly, the Court has since clarified “that a defendant,

entitled to invoke a qualified immunity defense, may not appeal

a district court’s summary judgment order insofar as that order

determines      whether   or    not    the      pretrial      record    sets    forth   a

‘genuine’ issue of fact for trial.”                     Johnson v. Jones, 515 U.S.

304, 319-20 (1995).

       Conceding,   as    he    must,       that   the     whole   of   the    district

court’s    qualified      immunity      decision         is    unassailable      without

improperly      “reweigh[ing]         the    record       evidence      to     determine

whether material factual disputes preclude summary disposition,”

see Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 275 (4th

Cir.   2011)    (internal      quotation        marks     omitted),     Deputy    Barber

urged us at oral argument to fault the court for not entering a

                                            8
partial summary judgment award with respect to his qualified

immunity defense.      According to Barber, the court should have

granted   qualified   immunity   for       all   his   actions   prior    to   the

point in time when Goodman was fully handcuffed and subdued,

including the alleged conduct that resulted in Goodman’s finger

fracture.    Because Barber did not present this partial summary

judgment theory below, however, it is not properly before us

today.    See Muth v. United States, 1 F.3d 246, 250 (4th Cir.

1993) (“As this court has repeatedly held, issues raised for the

first time on appeal generally will not be considered.”).                       We

are therefore constrained to affirm the district court.

                                                                         AFFIRMED




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