(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10755
JOHNNY RAY McGINNIS, Plaintiff-Appellee,
versus
OFFICER ROMEO RODRIGUEZ, Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:88 CV 2576 P)
( April 6, 1995 )
Before REYNALDO G. GARZA, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
The district court denied Officer Rodriguez's motion for
summary judgment, persuaded that there were fact issues presented
by the defense of qualified immunity. In this excessive force case
brought by a prisoner, the circumstances of the altercation are
disputed. Under the plaintiff's version, the defendant engaged in
an unprovoked and unnecessary assault. The officer's version is

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that he used only the force necessary to restrain McGinnis when
McGinnis became violent.
We agree that these questions of fact must be resolved and
dismiss the appeal.
DISMISSED.

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