                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1384



TYRONE LORENZO ROBINSON,

                                            Plaintiff - Appellant,

          and


TONYA LEDELL ROBINSON,

                                                        Plaintiff,

          versus


SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY;
THE SOUTH CAROLINA HIGHWAY PATROL; JOSEPH
FRANKLIN CLIPSE, Public Safety Trooper First
Class,

                                           Defendants - Appellees.



                            No. 06-1741



TYRONE LORENZO ROBINSON,

                                            Plaintiff - Appellant,

          and


TONYA LEDELL ROBINSON,

                                                        Plaintiff,

          versus
SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY;
THE SOUTH CAROLINA HIGHWAY PATROL; JOSEPH
FRANKLIN CLIPSE, Public Safety Trooper First
Class,

                                             Defendants - Appellees.


Appeals from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:05-cv-03198-SB)


Submitted:   February 9, 2007            Decided:    March 28, 2007


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Tyrone Lorenzo Robinson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Tyrone Lorenzo Robinson appeals the district court’s

orders dismissing, sua sponte, his complaint filed under 42 U.S.C.

§   1983   (2000),    and    denying    his     motions   for    reconsideration.

Robinson asserts on appeal that he should have been allowed to sue

Officer Clipse in his individual capacity and that the district

court erred by dismissing his action.             Robinson also contends that

the court improperly resolved a factual dispute in finding that

Clipse was entitled to qualified immunity.

            We    have     reviewed    the    record   and    conclude   that   the

district court made an improper credibility finding in determining

that Clipse was entitled to qualified immunity.                 In support of his

claim that Clipse used excessive force in violation of Robinson’s

Fourth Amendment rights, Robinson submitted affidavits from two

witnesses and also submitted a copy of the transcript of his state

court trial at which Clipse testified about the events surrounding

Robinson’s       arrest.      The     district    court      concluded   that   the

affidavits did not refute Clipse’s state court trial testimony.

However, in his complaint sworn under penalty of perjury, Robinson

contradicted the version of events to which Clipse testified in the

state court trial.          See Vathekan v. Prince George’s County, 154

F.3d 173, 179-80 (4th Cir. 1998) (reversing summary judgment where

disputed facts existed as to events surrounding use of force);

Rainey v. Conerly, 973 F.2d 321, 324 (4th Cir. 1992) (finding that


                                        - 3 -
district court properly denied defendant’s immunity-based summary

judgment motion because “a determination of what actually happened

is   absolutely   necessary   to   decide   whether   [defendant]   could

reasonably have believed that his actions were lawful”).

           Accordingly, we vacate the portions of the district

court’s orders in which the court found that Clipse was entitled to

qualified immunity and remand for further proceedings in the

district court.    We affirm the remainder of the district court’s

orders, grant Robinson’s motions to add Clipse as a party* and to

amend and supplement his informal brief, and deny his motion to

appoint counsel.   We also deny Robinson’s motion for oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                    AFFIRMED IN PART, VACATED IN PART, AND REMANDED




      *
      We note that, in footnote one of its order denying the motion
for reconsideration, the district court explicitly denied
Robinson’s motion to amend his complaint to add a claim against
Clipse in his individual capacity. However, the district court
effectively made Clipse a party by concluding that he was entitled
to qualified immunity--a defense that is available only to a person
sued in his individual capacity. See Ridpath v. Bd. of Governors,
447 F.3d 292, 306 (4th Cir. 2006).

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