                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 16-6316


HERMAN HARRIS,

                 Plaintiff – Appellant,

          v.

ZACHERY PITTMAN, Fayetteville Police Department,

                 Defendant – Appellee,

          and

MOOSE BUTLER,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:13-ct-03087-BO)


Submitted:   July 14, 2016                   Decided:    September 1, 2016


Before FLOYD and     HARRIS,    Circuit   Judges,       and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Herman Harris, Appellant Pro Se. Lisa Yvette Harper, Assistant
Attorney General, Fayetteville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Herman Harris appeals the district court’s order granting

Officer    Zachery    Pittman’s      summary      judgment         motion      on   Harris’

excessive    force    claim,     brought        pursuant      to    42    U.S.C.       § 1983

(2012).     The district court determined that no genuine issues of

material    fact    existed     as   to   whether       Pittman      was      entitled     to

qualified immunity when he effectuated Harris’ arrest.

      The relevant inquiry on summary judgment is “whether the

evidence     presents      a     sufficient           disagreement            to    require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.”                        Anderson v. Liberty

Lobby,    Inc.,    477   U.S.    242,     251-52       (1986).           In    determining

whether an officer is entitled to summary judgment on the basis

of   qualified     immunity,     a   district         court   is     required       to    ask

“whether the facts, viewed in the light most favorable to the

plaintiff, show that the officer’s conduct violated a federal

right.”    Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015).

      The parties offered different versions of the salient facts

surrounding       Pittman’s     arrest.          In    particular,            Harris’     and

Pittman’s     versions    of     events         critically         differ       over     what

occurred    when    Pittman     fired     the    final     shots     at       Harris    (e.g,

whether Harris was standing or lying down).                        Thus, the question

for the district court was whether, construing the facts in the

light most favorable to Harris (i.e., Harris was lying on the

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ground    when    Pittman,     still       on    top    of     him,    fired    the   final

shots),    a     reasonable    officer          would    have     probable      cause     to

believe   that     Harris     posed    a    significant          threat    of    death    or

serious    physical     injury        to    the        officer    or     others.         See

Tennessee v. Garner, 471 U.S. 1, 3, 11-12 (1985).

     Because       it   does    not        appear       that     the    district      court

construed the facts in the light most favorable to Harris, we

vacate the district court’s judgment and remand to the district

court for further proceedings.                    We leave it to the district

court to determine, in the first instance, if construing the

salient facts in the light most favorable to Harris, Pittman is

entitled to qualified immunity.                  We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                 VACATED AND REMANDED




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