UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD K. HART,
Plaintiff-Appellant,

v.
                                                                       No. 97-2472
MICHAEL W. ROGERS; TOWN OF
WILKESBORO, NORTH CAROLINA,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CA-94-16)

Submitted: April 28, 1998

Decided: June 16, 1998

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Wm. Bynum Marshall, Sparta, North Carolina; John E. Hall, Wilkes-
boro, North Carolina, for Appellant. Allan R. Gitter, Tyrus V. Dahl,
Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Winston-Salem, North Carolina; William C. Gray, Jr., FERREE,
CUNNINGHAM & GRAY, P.A., Wilkesboro, North Carolina; Wil-
liam F. Brooks, Wilkesboro, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Richard Hart appeals from the district court's order
accepting the report and recommendation of a magistrate judge and
granting the Defendants' motion for summary judgment on his com-
plaint filed pursuant to 42 U.S.C. § 1983 (1994), and declining to
exercise jurisdiction over his state law claims. On appeal, Hart alleges
that Defendant Rogers, a police officer, used excessive force in arrest-
ing him, that Rogers was not entitled to qualified immunity, and that
the record supported his state law claims. Finding no reversible error,
we affirm.

Summary judgment is appropriate when there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. Anderson
v. Liberty Lobby, Inc., 

, 247-48 (1986); Fed. R. Civ. P.
56(c). In determining whether the moving party has shown that there
is no genuine issue of material fact, we must assess the factual evi-
dence and all inferences to be drawn therefrom in the light most
favorable to the non-moving party. See Ross v. Communications Sat-
ellite Corp., 

, 364 (4th Cir. 1985). We review a grant of
summary judgment de novo. Higgins v. E.I. DuPont de Nemours &
Co., 

, 1167 (4th Cir. 1988). In the present case, we find
that the district court properly granted Defendants' motion.

The essential facts of this case are undisputed. Hart, his girlfriend,
and his uncle consumed several beers the day prior to the incident in
question.1 The trio also consumed half of a half gallon container of
liquor. Hart and his girlfriend consumed the remainder of the liquor
_________________________________________________________________
1 The record discloses that Hart was arrested for drunk driving at one
point during the day and was arrested again later that evening following
an altercation at a convenience store where the clerk refused to sell him
more beer. Hart was released after both arrests.

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the next morning. Shortly after finishing the liquor, Hart and his com-
panions proceeded to a local shopping mall. There, witnesses
observed Hart fall down an embankment at least twice.

Sergeant Hunt was the first officer to arrive at the scene, and Rog-
ers arrived a short time later. After efforts to call a cab failed, Hunt
decided to take Hart and his girlfriend to the jail until they sobered
up.2 Hunt placed Hart's girlfriend in his vehicle, and Rogers took Hart.3
By this time, Hart was swearing profusely. As Rogers was placing
Hart into his vehicle, Hart, who was significantly taller than Rogers,
glared down at Rogers, swore at him, said he was not going back to
jail, shoved Rogers in the chest, and began to flee toward the mall.
Rogers staggered briefly and gave chase.4 When Rogers caught up to
Hart, he wrapped his arms around Hart's waist in a"bear hug." Hart
continued to squirm in an effort to get away. Eventually, both men
fell to the ground, with Rogers' arms still wrapped around Hart's
waist. Hart hit his head on the pavement and received minor injuries.
Upon seeing Hart's injuries, Rogers immediately summoned for med-
ical assistance.

Hart filed a complaint under § 1983 alleging that Rogers used
excessive force because he intentionally threw Hart to the ground.
Rogers, however, claimed that he lost his balance in the struggle and
both men fell to the ground accidentally. Contrary to Hart's allega-
tions, this does not create a genuine issue of material fact. We review
Hart's excessive force claim to see if Rogers' actions were "objec-
tively reasonable" in light of the circumstances existing at the time of
the incident. See Graham v. Connor, 

(1989); Martin v.
Gentile, 

, 869 (4th Cir. 1988). Often, as here, these cir-
cumstances involve split-second decisions made under stressful con-
ditions. Rogers was faced with an intoxicated and belligerent
individual, who was significantly taller than he was, had just shoved
him and fled toward a shopping mall, and who refused to calm down
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2 It appears from the record that Hart's uncle was no longer intoxicated.
3 Neither person was handcuffed.
4 The chase was brief due to Hart's intoxication, lasting only about
forty to fifty feet. Hunt also observed the shove and gave chase, but he
tripped and fell after three or four steps.

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after Rogers grabbed him around the waist. Even assuming Rogers
intentionally threw Hart to the ground, we find that a reasonable offi-
cer in Rogers' position might find it necessary to tackle such a suspect.5
Accordingly, the district court correctly granted summary judgment
on Hart's excessive force claim.

We further find that the district court properly granted summary
judgment on the basis of qualified immunity.6 It is well-settled that
police officers performing discretionary functions are shielded from
civil liability as long as their actions are not clearly prohibited by law.
See McLenagan v. Karnes, 

, 1006 (4th Cir. 1994);
Slattery v. Rizzo, 

, 216-17 (4th Cir. 1991). We find no
such prohibition here. Police officers are entitled to subdue a suspect
who flees and resists arrest.

Finally, since the district court properly disposed of Hart's federal
claims, we find that it did not abuse its discretion by refusing to exer-
cise jurisdiction over his pendent state claims. See Shanaghan v.
Cahill, 

, 109 (4th Cir. 1995) (federal district courts have
wide discretion concerning whether or not to address state law claims
after federal claims are dismissed).

We therefore affirm the district court's order. We dispense with
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
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5 We note that once Hart was on the ground no further force was used.

6 We reject Hart's contention that the state has waived qualified immu-
nity to the extent of insurance coverage pursuant to N.C. Gen. Stat.
§ 160A-485 (1994). This statute waives sovereign immunity in certain
cases, not qualified immunity.




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