                 UNITED STATES COURT OF     APPEALS

                      FOR THE FIFTH CIRCUIT


                           NO. 97-60250
                         Summary Calendar


                            REX HARRIS

                                                  Plaintiff-Appellee



                              VERSUS

     BRUCE KIRBY, Individually and as a member of the Police
 Department of the City of Brandon, Mississippi, and as a Metro
     Narcotics Agent of the Mississippi Bureau of Narcotics.

                                                 Defendant-Appellant




          Appeal from the United States District Court
            For the Southern District of Mississippi
                        (3:96-CV-747-BN)

                         January 21, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

     Appellee Rex Harris brought suit against Appellant Bruce

Kirby, under 42 U.S.C. § 1983 for use of excessive force when

affecting an allegedly wrongful arrest of Appellee, while Appellant

was acting as a Metro Narcotics Agent of the Mississippi Bureau of



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Narcotics.       Appellant plead the defense of qualified immunity and

made a motion for summary judgment based thereon.                     The district

court refused to grant that motion and this appeal followed.

     When reviewing the denial of a motion for summary judgment,

this Court lacks jurisdiction to review the sufficiency of the

evidence    in    support   of    and   opposing       the   motion    for   summary

judgment. Johnson v. Jones, --- U.S. ---, ---, 115 S.Ct 2151, 2156

(1995).       Therefore,     we    must       accept    the    district      court’s

determination      that   Appellee      has   introduced      sufficient     summary

judgment evidence to support his allegations and to present a jury

question on the issue of Officer Kirby’s qualified immunity. Nerren

v. Livingston Police Dep’t., 86 F.3d 469, 471-72 (5th Cir. 1996).

     The     allegations     of    Appellee’s      complaint,         presumptively

supported by sufficient evidence, demonstrate a violation of his

clearly established constitutional rights.               Furthermore, we cannot

say on these facts, as a matter of law, that Officer Kirby acted in

an objectively reasonable manner.              Therefore, the district court

did not err by refusing summary judgment based on the defense of

qualified immunity, and we affirm and remand this matter for trial

on the merits.

AFFIRMED.




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