                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-6256


JAMES ERICK JONES,

                Plaintiff - Appellant,

          v.

MULLINS POLICE DEPARTMENT; OFFICER BAILEY,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Joseph F. Anderson, Jr., District
Judge. (9:07-cv-00497-JFA)


Argued:   October 28, 2009                 Decided:   December 10, 2009


Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J.
TRENGA, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Mason Abram Summers, RICHARDSON, PLOWDEN & ROBINSON,
PA, Columbia, South Carolina, for Appellees. ON BRIEF: Seth M.
Jessee, Third Year Law Student, John F. Anderson, Third Year Law
Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate
Litigation Clinic, Charlottesville, Virginia, for Appellant.
Douglas C. Baxter, RICHARDSON, PLOWDEN & ROBINSON, PA, Columbia,
South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Appellant James Erick Jones (“Jones”) filed a claim under

42   U.S.C.     §    1983    against      Officer       Larry    Bailey    (“Bailey”),     a

police officer in the Mullins, South Carolina Police Department

(the       “Department”),      and       also   against     the     Department       itself.

Jones alleges that Bailey used excessive force in violation of

the Fourth Amendment in connection with his arrest on November

1, 2006 and that the Department is also liable for that use of

excessive      force      based     on    its   hiring     of    Bailey.    The      District

Court entered summary judgment against Jones on both of these

claims, and Jones has appealed from that ruling. We affirm.



                                                I.

       As set forth in his verified complaint, 1 Jones alleges that

on     November      1,     2006,    at     approximately          2:30    a.m., 2     Bailey

“maliciously,         recklessly          and        unlawfully”     tailgated        Jones’

vehicle       with    his    police       cruiser’s       high     beams     on,      thereby

“concealing his identity” for approximately one half mile as


       1
       The District Court’s record for the purposes of appellees’
motion for summary judgment consists of Jones’ verified
complaint, Bailey’s affidavit, and Jones’ subsequently filed
affidavit.
       2
        In a subsequently filed unverified “Correction in
Evidence,” Jones states that the encounter occurred at 12:30
a.m.



                                                3
Jones drove to “a secluded area.” JA at 8. Feeling “endangered,”

Jones “proceed[ed] to flee wrecking [his] vehicle.” Id. Bailey

then rammed his vehicle into the rear driver’s side of Jones’

vehicle. Jones continues:

      Upon apprehending me (James Jones) and rendering me
      unarmed, Officer Larry Bailey then did unjustly and
      without cause pull his firearm and shot me (James
      Jones) once in the left side adominal[sic] area at
      close range. Officer Larry Bailey then did shove me
      (James Jones) into the driver[’s] side door of his
      vehicle[,] point his firearm a second time in the
      upper area of the left side of my face, firing a
      second shot. Which I (James Jones) avoid because upon
      noticing Officer Larry Bailey[’s] intentions and Gods
      Mercy I grab and pushed the weapon away and began to
      struggle with Officer Bailey in fear of my life.

JA at 8-9. Jones also alleges that “there is probable cause to

believe that the Mullins Police Department did knowingly employ

Officer Bailey whom had a tarnished and unsatisfactory record.”

Id.

      In   response   to   the   verified   complaint,   Bailey   and   the

Department filed a motion for summary judgment. In an affidavit

filed in support of that summary judgment motion, Bailey gives

the following account of his encounter with Jones. On November

11, 2006, 3 while on patrol, Bailey noticed a vehicle recklessly

      3
        The conflict in the stated dates of Jones’ arrest
(November 1 compared to November 11, 2006) is not addressed in
the record, either in the District Court or this Court.
Nevertheless, this conflict is not a material one for the
purposes of the District Court’s summary judgment ruling that is
before us for review.


                                     4
traveling in excess of the posted speed. After he activated his

patrol    car’s    blue     lights,       the      vehicle    failed   to    stop,

accelerated for a distance, and then suddenly slammed on its

brakes, causing the vehicles to collide. Jones then exited this

vehicle and attacked Bailey, causing both to fall to the ground.

While on the ground, Jones grabbed Bailey from behind, placed a

weapon to the side of his head, and told Bailey that if he

moved, Jones would kill him. Bailey was able to unholster his

weapon with his right hand and reach across his body to fire his

weapon from behind and to his left side, hitting Jones in the

stomach. At the time he fired his weapon, “[Bailey] feared for

his life,” believing that Jones was going to kill him and “that

his actions were reasonable under the circumstances.” JA at 23.

      In response to Bailey’s affidavit, Jones filed an affidavit

in   which   he   repeats   much     of    his     original   account, 4    without

disputing    the    core     facts        stated     in   Bailey’s     affidavit.

Specifically in this regard, Jones does not dispute, as Bailey

affirmed, that the blue lights on Bailey’s police cruiser had

been activated during the encounter or that, during the struggle

      4
       There appears to be some non-material differences in
Jones’ description of events as between the verified complaint
and Jones’ supplemental affidavit. In Jones’ affidavit, Jones
attributes the damage to his car entirely to the collision that
occurred when Bailey rammed him, while in the verified
complaint, the “wrecking” of the car is described within the
context of Jones’ attempt to flee from Bailey.



                                          5
leading up to the shooting, Jones grabbed Bailey from behind,

placed a gun to Bailey’s head, and threatened to kill Bailey if

he moved. Moreover, Jones does not dispute, and his own version

of the facts is not inconsistent with, Bailey’s description of

how he and Jones were positioned relative to each other when

Bailey discharged his gun. While Jones states that Bailey shot

him after he “was rendered unarmed,” he does not claim that

Bailey knew he had been “rendered unarmed” when Bailey shot him

during the struggle. Jones also does not claim that Bailey knew,

or even that he should have known, that at some point during the

continuous struggle that ensued from the moment Jones exited his

vehicle up until the gunshot to Jones’ abdomen, Jones no longer

presented a threat to Bailey.



                                     II.

       The motion for summary judgment was initially considered by

the Magistrate Judge who, on January 3, 2008, issued his Report

and    Recommendation,     recommending       that      Bailey’s     and     the

Department’s   motion    for   summary     judgment   be    granted.   In    his

Report   and   Recommendation,    the      Magistrate      Judge   found    that

Bailey’s use of force was objectively reasonable in light of the

circumstances at the time and that Jones’ constitutional rights

were   therefore   not   violated.    He   also   found     that   Bailey   was

entitled to qualified immunity, that the Department could not be

                                     6
liable under the theory of respondeat superior, and that Jones

had not come forward with any evidence to otherwise establish

liability on the part of the Department.

     Jones       timely      filed       objections       to      the     Report        and

Recommendation and the District Court reviewed the motion for

summary   judgment      de   novo    pursuant     to     28    U.S.C.     §    636(b)(1).

Based    on     that   review,    the     District       Court    overruled        Jones’

objections, adopted the recommendations set forth in the Report

and Recommendation, and granted Bailey’s and the Department’s

motion    for    summary     judgment.     We     review      a   grant       of   summary

judgment de novo, viewing the facts in the light most favorable

to   plaintiff,        the    non-prevailing         party.       See         Holland   v.

Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007).



                                         III.

                                          A.

     Section 1983, by its own terms, prohibits constitutional

violations under color of state law. In this case, Jones claims

that his constitutional rights under the Fourth Amendment were

violated when Bailey used excessive force. In order to survive a

motion for summary judgment, Jones was required to present facts

sufficient to allow a reasonable fact finder to conclude that

Bailey    used    excessive      force    under    the    circumstances.           Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986) (explaining that a

                                           7
non-moving     party       must     come    forward         with    facts    sufficient         to

establish      a    genuine       issue     of       material      fact   for     trial).       In

assessing claims of excessive force under the Fourth Amendment,

the Court must apply a “reasonableness standard.” See Graham v.

Connor, 490 U.S. 386, 395 (1989). This standard of review is an

objective      one,     and       the    question       is    whether       an    objectively

reasonable         officer       under    the    same       circumstances         would       have

concluded that a threat existed to justify the particular use of

force. Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).

To determine the reasonableness of a particular use of force, it

is   important       for     a   court     to    assess      the    situation       “from      the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-

397. A police officer may use lethal force if the police officer

has “probable cause to believe that the suspect poses a threat

of   serious       physical      harm,     either      to    the    officer       or   others.”

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

      In   this      case,       Bailey     shot      Jones     during      what       both   men

describe as a life and death struggle, during which Jones placed

his own gun to Bailey’s head and threatened to kill him. Whether

Bailey     acted       reasonably           must       be     assessed           under    these

circumstances. See Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir.

1996) (“The court’s focus should be on the circumstances at the

moment force was used and on the fact that officers on the beat

                                                 8
are not often afforded the luxury of armchair reflection.”).

Jones contends that he was “rendered unarmed” before Bailey shot

him, but there is no contention that Bailey knew that Jones was

disarmed and no longer constituted a threat when Bailey shot

Jones. Indeed, within the context of the struggle that followed

Jones’ exit from his vehicle with a gun, late at night, in a

secluded       area,     the   facts,   as       described          by     Jones    himself,

demonstrate that Bailey had a reasonable fear that Jones was

armed and dangerous at the time he shot Jones. Even if Jones’

description of the struggle were accepted as true, no reasonable

jury     could    find     that     Bailey       was        not    under    a      reasonable

apprehension of serious physical harm at the hands of Jones when

he shot Jones. See Garner, 471 U.S. at 11.

       Jones     urges    us   to   place    the       struggle      and     the    shooting

within the context of what Jones claims was Bailey’s initial use

of excessive force in running Jones’ car off the road. Again,

even accepting as true Jones’ account of the events leading up

to the shooting, it remains uncontested that upon seeing Jones

drive by, Bailey activated his police cruiser’s blue lights to

signal Jones to pull over, and Jones not only failed to stop,

but    also     attempted      to   flee.    Jones’         own    description        of   the

encounter places Bailey’s police cruiser next to Jones’ vehicle

before    the    two     vehicles    collided.         By    the    time    the    collision

between the two vehicles occurred and Jones exited his vehicle,

                                             9
it would have been obvious to any reasonable observer in Jones’

situation that the other vehicle was a police cruiser and that

Bailey was a uniformed police officer. For that reason, Bailey

would    have       reasonably     thought         that    his        status       as    a   police

officer was known to Jones and that Jones’ conduct could not be

explained by anything other than an intention to harm him. In

any event, whether or not Jones was under some misapprehension

as to Bailey’s identity, the fact remains that Bailey needed to

respond instantaneously to Jones’ imminent threats to kill him.

Viewed    from      the   point    of    view      of     the    objectively            reasonable

officer as required by Graham, Bailey was confronted by a man

who emerged from his car with a firearm threatening to use it

after attempting to flee a police cruiser with its blue lights

flashing. The District Court correctly concluded that there were

no genuine issues of material fact and Bailey was entitled to

judgment as a matter of law on Jones’ Fourth Amendment claim

under Section 1983.

                                              B.

        The    District    Court       was    also      correct        in    concluding        that

Bailey        was   entitled      to    qualified         immunity          from    any      Fourth

Amendment violation. When government officers are performing a

discretionary         function,        they    are      entitled        to     a    defense     of

qualified       immunity    unless       their       conduct      clearly          violates      an

established         constitutional       right       that       the    officer          reasonably

                                              10
would have known to exist. Harlow v. Fitzgerald, 457 U.S. 800

(1983)(granting qualified immunity in the Section 1983 context).

Whether    or     not     a   police     officer         is   entitled       to    qualified

immunity is a question of law for the court, and when there are

no relevant disputed material facts, a court should rule on the

qualified       immunity       issue     at        the    summary      judgment       stage.

Willingham v. Crooke, 412 F.3d 553 (4th Cir. 2005) (“Ordinarily,

the    question      of   qualified     immunity         should   be    decided      at   the

summary judgment stage.”).

       In this case, as we have discussed above, Bailey did not

violate Jones’ Fourth Amendment rights at all, much less violate

a     clearly     established          right       that       Jones    had        under   the

circumstances. No reasonable law enforcement officer would think

that in the situation that Bailey found himself, he would not be

entitled to protect himself from Jones’ threats of deadly force.



                                           IV.

       The District Court also dismissed Jones’ claim against the

Department.       The     Court   must     therefore          determine       whether     the

Department was entitled to judgment in its favor based on the

absence of any genuine issues of material fact.

       The Court notes initially that there can be no municipal

liability       in    the     absence     of       an     underlying      constitutional

violation. Since the Court has found that Jones did not suffer

                                              11
any constitutional violation, there is no basis for imposing

liability on the Department. Nevertheless, the Court will review

the District Court’s decision, which appears to have been issued

on alternative grounds.

         Section 1983 does not limit its reach to individual state

actors who violate plaintiffs’ constitutional rights; it also

allows   claims      against   municipalities.      In     Monell   v.    Dept.   of

Social    Servs.,      436     U.S.   658    (1978),       the   Supreme     Court

established that a municipality could only be held liable if it

put into effect a policy or custom that caused a deprivation of

federal rights. Id. at 690-691. Here, Jones bases his                      Section

1983   claim    against      the   Department     solely    on   its     hiring   of

Bailey. While a        Section 1983 violation can be based on even a

single hiring decision, Board of County Commissioners of Bryan

County (Bryan) v. Brown, 520 U.S. 397 (1967), Jones’ claim is

viable   only   if    the    Department     was   “deliberately     indifferent”

towards how its hiring decision could lead to a deprivation of

federal rights. Id. at 407. The standard is a high one. As the

Supreme Court observed in Bryan:

       Only   where    adequate   scrutiny   of  an  applicant’s
       background would lead a reasonable policymaker to
       conclude that the plainly obvious consequence of the
       decision    to    hire   the  applicant   would   be   the
       deprivation of a third party’s federally protected
       right   can    the   official’s   failure  to   adequately
       scrutinize     the   applicant’s   background   constitute
       ‘deliberate indifference.’


                                       12
Id. at 411.

       In       the    District        Court,    Jones     did      not     assert       liability

against          the     Department       based       on   a        claim    of     “deliberate

indifference.” Rather, he based his claim against the Department

only       on    the     theory   of     respondeat        superior.        A     municipality,

however,         is    not   liable      for    constitutional            deprivations        under

Section         1983     based    on    the     doctrine       of    respondeat          superior.

Monell, 436 U.S. at 691 (1978)(“[A] municipality cannot be held

liable          solely    because       it      employs    a     tortfeasor          .    .   .    a

municipality           cannot     be    held     liable    under       Section       1983     on   a

respondeat superior theory.”) (emphasis in original). For these

reasons, the District Court’s dismissal of Jones’ claim against

the Department must be affirmed. 5




       5
       On appeal, Jones does assert that the Department may be
liable under the “deliberate indifference” standard articulated
in Bryan. Jones did not raise this argument in the District
Court, and he therefore forfeited it. See Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (1985) (explaining that pro se
litigants still need to raise arguments at the trial level in
order to preserve those issues for appeal). Nevertheless, all
that Jones alleges in connection with his claim against the
Department is that Bailey had been reprimanded in the past while
working for a different police department. That allegation is
clearly insufficient to support a claim under either Monell, 436
U.S. at 691, or Bryan, 520 U.S. at 411.



                                                 13
                                       V.

      The District Court correctly concluded that there were no

genuine    issues    of    material   fact   and     that    Bailey   and     the

Department were entitled to judgment in their favor as a matter

of   law   on   Jones’     Section    1983   claim    that    he   suffered    a

constitutional deprivation of his Fourth Amendment rights based

on   the   alleged   use   of   excessive    force   and     the   Department’s

hiring of Bailey. For these reasons, we affirm the judgment of

the District Court.

                                                                       AFFIRMED




                                       14
