UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMIE NELSON,
Plaintiff-Appellant,

v.
                                                                      No. 95-7444
TIM STRAWN, Officer; THE CITY OF
MONCKS CORNER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-93-66-2-18AJ)

Submitted: December 26, 1995

Decided: February 28, 1996

Before HALL, MURNAGHAN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________

COUNSEL

Jimmie Nelson, Appellant Pro Se. Sandra J. Senn, STUCKEY &
KOBROVSKY, Charleston, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Jimmie Nelson appeals from a district court order granting sum-
mary judgment in favor of Defendants, entered on recommendation
of a magistrate judge acting pursuant to 28 U.S.C.§ 636(b) (1988).
We affirm the order in part, vacate in part, and remand for further
proceedings.

Nelson filed a complaint under 42 U.S.C. § 1983 (1988), alleging
that Defendant Strawn, a police officer, violated Nelson's civil rights
by effecting an unlawful detention, using excessive force in effecting
the detention, and denying him medical attention for serious medical
needs arising from Strawn's acts. Nelson also alleged that the City of
Moncks Corner, South Carolina (City), violated Nelson's civil rights
by failing to train or supervise Strawn adequately.

The district court properly granted summary judgment in favor of
the City. First, the City cannot be liable under the theory of
respondeat superior. Monell v. Department of Social Servs., 

, 694 (1978). Second, Nelson's allegations of municipal wrongdo-
ing through failure to train or supervise were unsupported by any
objective evidence that the City was deliberately indifferent to any of
Nelson's rights in its training and supervision of its police officers.
City of Canton v. Harris, 

, 389 (1989). Nelson submitted
nothing showing the city had a "policy" not to train officers or that
there existed a pattern of unconstitutional behavior by police officers
that would have necessitated action on the part of the City to cure the
improprieties. See id. Thus, there was no genuine issue of material
fact regarding the City's right to judgment in its favor, and the district
court properly granted summary judgment in its favor.

The same is true of Nelson's claim against Strawn for seizure with-
out probable cause. At the time this claim came before the district
court, Nelson had admitted that he had set two fires in his jail cell.
He alleged that Strawn was called by jail officials to help remove Nel-
son to another cell. This is the improper seizure Nelson alleged as his
initial Fourth Amendment claim. We assume for purposes of the sum-
mary judgment motion that Strawn did help move Nelson. It is clear

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that Strawn had a sound basis for effecting Nelson's seizure and mov-
ing him to another cell: he was acting on information from jail offi-
cials that Nelson had engaged in a criminal act, arson; he properly
seized Nelson on a charge of arson and moved him to another cell.
Thus, this claim was properly denied by summary judgment in favor
of Strawn, and we affirm the order on this basis.

With regard to Nelson's claims that Strawn used excessive force in
moving him to another cell and that Strawn improperly denied Nel-
son's requests for medical attention, we vacate the district court order
and remand the claims. The district court improperly found that the
complaint alleged causes of action against Strawn only in his official
capacity. First, even had the complaint expressly stated that the claims
were so intended, the body of the complaint revealed to the contrary,
and the district court should have construed the claims to present
claims against Strawn in his individual capacity. Biggs v. Meadows,

, 58, 61 (4th Cir. 1995). Second, a document filed by Nel-
son during the litigation and prior to the grant of summary judgment
revealed that Nelson was attempting to make claims against Strawn
in his individual capacity. The district court's error meant that it never
reached the substance of Nelson's claims. We may do so on de novo
review of the summary judgment order. See Anderson v. Liberty
Lobby, Inc., 

, 248-49 (1986).

The district court was confronted, as are we, with conflicting,
sworn allegations regarding the transfer of Nelson to another cell.
Nelson swore that, during his pre-trial detention, Strawn used "chuck
sticks" (sticks connected by a short chain) to move Nelson, resulting
in bleeding, swelling, and pain, when such force was unnecessary.
Nelson also alleged that Strawn kicked and beat him during the move.
These allegations state Fourth Amendment claims, Graham v.
Connor, 

, 394 (1989), and the sworn complaint was suf-
ficient to confront Defendant's affidavits to the contrary, Williams v.
Griffin, 

, 823 (4th Cir. 1991). Further, Nelson's allega-
tions that he was in need of medical attention, requested such atten-
tion, and that Strawn denied the request, are sworn, are in direct
contravention of the Defendant's affidavits, and state a Fourteenth
Amendment claim, Martin v. Gentile, 

, 870 (4th Cir.
1988.)* The record will not support Defendants' motion for summary
judgment.
_________________________________________________________________
*We assume for purposes of this appeal that Nelson was, with regard
to the arson charges that precipitated the action here, a pretrial detainee,
so that the claims are not evaluated under the Eighth Amendment.

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Thus, we affirm the district court order, albeit on somewhat differ-
ent grounds, McMahan v. International Assoc. of Bridge, Structural
& Ornamental Iron Workers, 

, 1467 (4th Cir. 1992)
(court may affirm for any reason appearing on the record), with
regard to the grant of summary judgment in favor of the City and with
regard to the claim against Strawn that he seized Nelson without
probable cause. We vacate the order with respect to Nelson's claims
of excessive use of force and denial of medical needs. We express no
opinion on the merits of those claims but remand them for further pro-
ceedings not inconsistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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