UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE A. GOEHRING,
Plaintiff-Appellee,

v.

MARK DOUGLAS CARR,
                                                                  No. 95-1250
Defendant-Appellant,

and

UNITED STATES OF AMERICA,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-93-4171-JFM)

Argued: November 1, 1995

Decided: September 10, 1996

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Dismissed by unpublished per curiam opinion. Judges Russell and
Hall concur, Judge Widener dissents.

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COUNSEL

ARGUED: Herbert Better, ZUCKERMAN, SPAEDER, GOLD-
STEIN, TAYLOR & BETTER, Baltimore, Maryland, for Appellant.
Charles Gerald Bernstein, BERNSTEIN & SAKELLARIS, Balti-
more, Maryland, for Appellee. ON BRIEF: Cyril V. Smith, ZUCK-
ERMAN, SPAEDER, GOLDSTEIN, TAYLOR & BETTER,
Baltimore, Maryland, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

The defendant, United States Postal Inspector Mark Carr, prose-
cutes an interlocutory appeal from the order of the district court deny-
ing his motion for summary judgment of qualified immunity in
defense of claims of excessive force in violation of the Fourth
Amendment. We dismiss the appeal.

The plaintiff, George Goehring, brought an action under the Fed-
eral Tort Claims Act, 28 U.S.C § 2671 et seq., against the United
States alleging assault, battery, and negligent planning and execution
of a search warrant. Goehring, in the same complaint, brought a sepa-
rate action against Carr individually for Bivens type violations of the
Fourth Amendment.1 The district court granted the United States'
motion for summary judgment on the finding that there were no facts
in the record from which a jury could infer that Carr or any other
agents acted with actual malice toward the plaintiff as required under
Maryland law.2 However, viewing the facts in the light most favor-
able to the plaintiff, the district court found that there was a genuine
issue of material fact as to whether a reasonable officer could have
believed that Carr's use of force (Goehring was shot in the hand and
forearm) was objectively reasonable under the circumstances. The
district court therefore denied Carr's motion for summary judgment
_________________________________________________________________
1 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
2 The summary judgment in favor of the United States is not mentioned
in this appeal even if it is an appealable order.

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of qualified immunity for the Fourth Amendment claims against him
individually.

As stated, the district court found a genuine issue of material fact
as to Carr's motion for summary judgment on the ground of qualified
immunity. Therefore the issue on appeal to this court is whether the
record contains evidence sufficient to create a genuine issue of mate-
rial fact. If so, the denial of summary judgment is not immediately
appealable. Johnson v. Jones, 63 U.S.L.W. 4552, 132 L.Ed. 2d 238,
115 S.Ct. 2151, 2159 (1995).

Judges Russell and Hall are of opinion that the record supports the
conclusion that there is such an issue of material fact, Judge Widener
is of opinion that it does not.

This appeal is accordingly

DISMISSED.

Judges Russell and Hall concur, Judge Widener dissents.

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