                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                                                           U.S. COURT OF APPEALS
                          ________________________           ELEVENTH CIRCUIT
                                                               AUGUST 24, 2005
                                                               THOMS K. KAHN
                                No. 04-15236                       CLERK
                          ________________________

                     D. C. Docket No. 02-03050-CV-TWT-1

ANTHONY FEW,

                                                           Plaintiff-Appellant,

                                      versus

COBB COUNTY, GEORGIA,
WILLIAM HUDSON, III, Individually
and in His Official Capacity as a Cobb
County Police Officer, et al.,

                                                            Defendants-Appellees.
                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________
                               (August 24, 2005)

Before BIRCH, CARNES and FAY, Circuit Judges.

PER CURIAM:

      This is Plaintiff Anthony Few’s appeal from the district court’s entry of

summary judgment in favor of Cobb County, Georgia Officer William Hudson
whom Few sued under 28 U.S.C. § 1983. Few sued Hudson and others in

connection with his arrest during which Hudson shot him. Few alleged Hudson

and others used excessive force in connection with the arrest. The district court

granted summary judgment to all defendants on the excessive force claim. Few

appeals only as to Hudson and only as to his claim of excessive force as a result of

the shooting. (He does not appeal the entry of summary judgment on his claim

that excessive force was used against him after the shooting.)

      The premise of the district court’s grant of summary judgment against Few

is that at the time of the shooting Few was fleeing from Officer Smith and running

toward Hudson and was only a short distance away at the time Hudson fired. In

his deposition Few testified that he was not fleeing from Smith and running

towards Hudson at the time he was shot, but instead he was standing still in an

unmenacing manner when he was shot without warning. Despite the obligation to

view all of the evidence in the light most favorable to the non-movant, the court

did not accept Few’s deposition testimony as true for purposes of summary

judgment. It gave three reasons for declining to do so.

      First, the district court reasoned that Few’s guilty plea to, and conviction on,

obstruction of justice charges in state court collaterally estops him from

contending that he was not running at the time he was shot, because fleeing from

                                          2
Smith was essential to that charge and conviction. That reasoning is foreclosed by

our decisions in Webb v. Ethridge, 849 F.2d 546 (11th Cir. 1988), and Farred v.

Hicks, 915 F.2d 1530 (11th Cir. 1990).

      Second, the district court reasoned that Few’s deposition testimony should

be disregarded because it is inconsistent with his sworn statement to an officer

investigating the shooting for the Internal Affairs Unit of the Cobb County

Department of Public Safety. That reasoning is foreclosed by our decision in

McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1240 n.7 (11th Cir. 2003).

In this case, as in that one, the plaintiff offered an explanation for his prior

inconsistent statement, the truth of which should be left to the factfinder.

      Third, the district court reasoned that Few’s deposition testimony is

inconsistent with the allegation in paragraph no. 8 of his complaint, which states

that: “Anthony Few attempted to elude Officer Smith by running from him, and in

doing so, unknowingly headed in the direction of Officers Hudson and Land.”

The district court cited no authority for the proposition that deposition testimony

of the plaintiff may be disregarded for summary judgment purposes if it

contradicts an allegation in the complaint. See Dosier v. Miami Valley Broad.

Corp., 656 F.2d 1295, 1301 (9th Cir. 1981) (“[The defendant] has done nothing

more than point out an inconsistency between [the plaintiff’s] deposition and his

                                            3
complaint. . . . This inconsistency leaves a genuine issue of material fact which

must be resolved at trial.” (internal citations omitted)). Moreover, the very next

paragraph of the complaint states that after initially fleeing from Smith:

             At some point Anthony Few stopped running, and while
      stopped heard a noise 30 or so feet away to his right, and as he turned
      his head to the right in the direction of the sound he heard a gunshot
      and immediately felt great searing pain in his upper body. The bullet
      entered the right side of his chest and traveled sideways through the
      front part of his chest . . . .

Complaint ¶ 9. The allegation of the complaint that Few was standing still when

shot from a distance of approximately 30 feet away is consistent with the crucial

statement in his deposition testimony that he was not running toward any officer

when shot.

      All of the factors that the district court relied upon—the guilty plea, the

conviction, the sworn statement during the Internal Affairs investigation,

concessions made in the complaint—all may be used to destroy Few’s credibility

if he testifies to the contrary of them at trial. It is, however, up to the factfinder to

weigh those factors and make the ultimate credibility determination.

      The district court’s ruling that Hudson was entitled to summary judgment

not only on the merits of the claim but also on qualified immunity was based upon

its disregard of Few’s deposition testimony. Because that was error the qualified


                                            4
immunity ruling must be reversed, too.

      The grant of summary judgment in favor of Officer Hudson on the excessive

force claim is REVERSED to the extent that it concerns the shooting. The grant

of summary judgment is otherwise AFFIRMED.




                                         5
