United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2195
___________
Kevin Chambers, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Michael Pennycook, Agent, St. Louis *
County Drug Task Force; Bradley *
Kelling, Officer; Andria Van Mierlo, *
*
Appellees. *
___________
Submitted: October 20, 2010
Filed: June 6, 2011
___________
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Appellant Kevin Chambers brought this action against three law enforcement
officers pursuant to 42 U.S.C. § 1983. He alleged that the officers violated his rights
under the Fourth Amendment by using excessive force against him during and shortly
after his arrest. The district court1 concluded that Chambers’s failure to show greater
than de minimis injury was fatal to his claim and dismissed the complaint. We now
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
conclude that a citizen may prove an unreasonable seizure based on an excessive use
of force without necessarily showing more than de minimis injury, but we hold that
the officers here are entitled to qualified immunity, because their alleged actions did
not violate clearly established law. Accordingly, we affirm the district court’s grant
of summary judgment.
I.
On the afternoon of August 4, 2005, a team of police officers from St. Louis
County executed a warrant to search for evidence of illegal drug activity at the
apartment of Chambers’s stepdaughter. Chambers was visiting when police arrived,
and he was quickly placed under arrest. All three defendants participated in the
search of the apartment. Bradley Kelling, a sergeant with the St. Louis County Police
Department and a member of its Tactical Response Team, entered the apartment and
observed Chambers until he was arrested and handcuffed. Andria Van Mierlo, a
detective with the St. Louis County Police Department, and Michael Pennycook, an
officer with the City of Maplewood, Missouri, Police Department, entered the
apartment only after the Tactical Response Team had arrested and handcuffed
Chambers.
At his deposition, Chambers testified that members of the Tactical Response
Team held him on the floor, handcuffed him, and jammed guns into his back while
Kelling asked him what he was doing at the apartment. According to Chambers,
when he told Kelling that he was at the apartment to visit his stepdaughter, Kelling
called him a liar, cursed at him, kicked him several times on both sides of his body,
and pressed his foot down on Chambers’s back. Chambers stated that the officers
then brought him outside. According to Chambers, Kelling later emerged from the
apartment, announced that he was going to search Chambers again, and planted a
glass pipe in Chambers’s pocket. Kelling was the only member of the Tactical
Response Team whom Chambers identified by name.
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Following Chambers’s arrest, he was transported to the St. Louis County Police
Department, and then to the county jail. Chambers repeatedly complained of back
pain, and shortly after his arrival at the jail, Pennycook and Van Mierlo transported
him in an unmarked police car to St. Mary’s Health Center for an evaluation. Van
Mierlo drove while Chambers sat in the passenger seat, and Pennycook sat in the seat
immediately behind Chambers. Chambers was handcuffed behind his back and his
seatbelt was fastened.
Chambers testified at his deposition that Van Mierlo and Pennycook adjusted
his seat so that it was leaning as far forward as possible, with Chambers’s head almost
touching the dashboard. The officers complained that Chambers was wasting their
time by requiring a ride to the hospital. According to Chambers, Van Mierlo began
to drive erratically, accelerating and braking suddenly so that Chambers would be
jerked back and forth in his seat. Chambers testified that Pennycook, meanwhile,
forcefully kicked the back of his seat and used his arm to choke Chambers from
behind, while complaining that Chambers was wasting their time. In Chambers’s
account, the trip lasted approximately twenty minutes because Van Mierlo chose to
drive in circles rather than go straight to the hospital. Chambers also testified that
after they arrived at St. Mary’s, Van Mierlo and Pennycook roughly jerked him
around by his handcuffs during the walk from the car to the building’s front doors.
Once Chambers arrived at the hospital, he was evaluated by Dr. Randall Speck.
Chambers testified that he told Speck that he was suffering from back and neck pain,
which was so severe that Chambers was crying and had difficulty concentrating.
Chambers stated that Speck had told him that his back showed signs of redness and
bruising.
According to a note that Speck signed, Chambers told the hospital personnel
that he had pain in his upper back caused by the officers who initially arrested him,
although he said he was unsure whether the officers actually struck him or just fell
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on him. The note said that Chambers denied any head or neck injury, arm or leg pain,
or shortness of breath. Speck signed another note describing Chambers’s final
diagnosis as a “back contusion,” while noting that there was no bruising or swelling
on Chambers’s spinal area, that Chambers showed no acute distress, and that
Chambers had full range of motion in his arms and legs without discomfort. The note
also stated that x-rays of Chambers’s spine and ribs showed no evidence of acute
fractures. Speck declared Chambers fit for confinement and recommended that he
“take either Tylenol or Ultram [a pain medication] . . . as needed for pain.” The State
prosecuted Chambers in connection with his arrest, and he eventually pleaded guilty
to a felony drug charge pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).
On September 12, 2005, Chambers commenced this action against St. Louis
County, the St. Louis County Drug Task Force, and the three officers in their official
and personal capacities, alleging that the defendants had violated his rights under the
Fourth, Fifth, Eighth, and Fourteenth Amendments. In the same action, Chambers
brought an assault and battery claim under Missouri law. He sought damages and
declaratory and injunctive relief. The district court granted the defendants’ motions
to dismiss all of Chambers’s claims. Chambers v. St. Louis Cnty., No. 4:05-cv-
01469-SNL, slip op. at 4 (E.D. Mo. April 18, 2006). Chambers appealed, and a panel
of this court affirmed the dismissal of the claims against St. Louis County and the St.
Louis County Drug Task Force, reversed the dismissal of the claims against Kelling,
Pennycook, and Van Mierlo in their individual capacities, and remanded to the
district court for further proceedings. Chambers v. St. Louis Cnty., 247 F. App’x 846
(8th Cir. 2007) (per curiam).
On May 11, 2009, the district court granted summary judgment in favor of the
remaining defendants. The court reasoned that Chambers had presented no evidence
that he had suffered anything more than de minimis injuries, and “[s]ince plaintiff has
failed to produce evidence of any serious or permanent injuries, his claim for
excessive force in violation of the Fourth Amendment fails.” Chambers v. St. Louis
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Cnty., No. 4:05-cv-01469-SNLJ, slip op. at 10-11 (E.D. Mo. May 11, 2009). The
district court also dismissed the state law assault and battery claims without prejudice,
declining to exercise supplemental jurisdiction over those claims after it determined
that all the federal claims should be dismissed. Having found no constitutional
violation, the district court did not address the officers’ claims of qualified immunity.
Chambers again appealed to this court, arguing that the district court lacked
jurisdiction and that the court erred by dismissing his claim for damages against the
officers in their individual capacities, refusing his requests for appointed counsel, and
failing to reprimand the defendants and their counsel for “deceitful and unethical
tactics.” On February 23, 2010, we affirmed the judgment of the district court.
Chambers v. Pennycook, 366 F. App’x 707 (8th Cir. 2010) (per curiam). Chambers
filed a petition for rehearing, arguing that our decision conflicted with the Supreme
Court’s holding in Wilkins v. Gaddy, 130 S. Ct. 1175 (2010), which was decided on
the day before we issued our opinion. We granted the petition for rehearing, vacated
our opinion and judgment of February 23, 2010, and appointed counsel to represent
Chambers. We also directed the parties to file supplemental briefs concerning the
question whether a plaintiff must show some minimum level of injury in order to state
a valid Fourth Amendment excessive force claim under § 1983, and, if not, whether
the officers here are entitled to qualified immunity.
II.
A.
Chambers first argues that the district court lacked jurisdiction to rule on the
officers’ motions for summary judgment while his interlocutory appeal of the district
court’s denial of his motion for appointment of counsel was still pending. Generally,
“[t]he filing of a notice of appeal . . . confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case involved in the
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appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam) (emphasis added); see Ahlberg v. Chrysler Corp., 481 F.3d 630, 638 (8th Cir.
2007). Because the defendants’ motions for summary judgment were not “aspects of
the case involved in the appeal” of the district court’s denial of Chambers’s motion
for appointment of counsel, the court retained jurisdiction to rule on the dispositive
motions.
B.
We review the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.
2006). Although the district court did not reach the qualified immunity issue, “[w]e
may uphold a grant of summary judgment for any reason supported by the record,
even if different from the reasons given by the district court.” Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Qualified immunity shields a
government official from liability and the burdens of litigation in a § 1983 action for
damages unless the official’s conduct violated a clearly established constitutional or
statutory right of which a reasonable official would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts qualified immunity
at the summary judgment stage, the plaintiff must produce evidence sufficient to
create a genuine issue of fact regarding whether the defendant violated clearly
established law. Johnson v. Fankell, 520 U.S. 911, 915 (1997).
To defeat a claim of qualified immunity, a plaintiff alleging excessive use of
force must present sufficient facts to show that the officer’s conduct violated a
constitutional right, and he also must establish that the constitutional right was clearly
established. While we have discretion to decide which question should be addressed
first, Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), we think it best in this case to
start with the constitutional question. This court has said several times, over the
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course of more than fifteen years, that “[i]t remains an open question in this circuit
whether an excessive force claim requires some minimum level of injury.” Copeland
v. Locke, 613 F.3d 875, 881 (8th Cir. 2010) (alteration in original) (internal quotation
omitted); see also Cook v. City of Bella Villa, 582 F.3d 840, 850 (8th Cir. 2009);
Cavataio v. City of Bella Villa, 570 F.3d 1015, 1019-20 (8th Cir. 2009); Andrews v.
Fuoss, 417 F.3d 813, 818 (8th Cir. 2005); Hunter v. Namanny, 219 F.3d 825, 831 (8th
Cir. 2000); Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995). Continued
postponement of that question has resulted in uncertainty about the rights of citizens
and the responsibilities of law enforcement officers under the Fourth Amendment.
One aspect of the recurring “open question” is squarely presented in this case:
whether a plaintiff must demonstrate greater than de minimis injury to establish a use
of excessive force that violates the Fourth Amendment. Resolution of that issue will
give guidance to officials about how to comply with legal requirements and will allow
an avenue of redress for wronged citizens in appropriate circumstances. The question
is unlikely to be resolved in the context of a criminal case or in litigation over
municipal liability. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
And none of the factors that typically counsel against a decision on the constitutional
question are present here. See Pearson, 129 S. Ct. at 818-20. Having thought hard
twice about how to exercise our discretion, see Camreta v. Green, No. 09-1454, 2011
WL 2039369, at *9 (U.S. May 26, 2011), and having ordered supplemental briefing
and devoted substantial resources to considering the constitutional question in this
case, we will proceed to decide it.2
2
This case does not present the question whether an excessive force claim may
proceed without a showing of “actual injury,” see Dawkins, 50 F.3d at 535, a question
that apparently has divided the circuits. Compare Morrison v. Bd. of Trs., 583 F.3d
394, 407 (6th Cir. 2009), Slicker v. Jackson, 215 F.3d 1225, 1231-32 (11th Cir.
2000), and Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993), with Glenn v. City of
Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
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C.
We begin by asking whether Chambers has presented evidence sufficient to
make out the deprivation of a constitutional right. Pearson, 129 S. Ct. at 815-16.
Chambers complains that the officers’ alleged use of force violated his rights under
the Fourth, Fifth, and Eighth Amendments (as incorporated against the States through
the Fourteenth Amendment), but we think the only provision properly invoked is the
Fourth Amendment. “Where, as here, the excessive force claim arises in the context
of an arrest or investigatory stop of a free citizen, it is most properly characterized as
one invoking the protections of the Fourth Amendment . . . .” Graham v. Connor,
490 U.S. 386, 394 (1989); see Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th
Cir. 2009).
At oral argument, counsel for two of the officers asserted that Chambers’s
claim against them does not arise under the Fourth Amendment, because the Fourth
Amendment applies only up to the point of arrest. We have noted the existence of a
“legal twilight zone” between arrest and sentencing, where it is unclear whether
excessive force claims are governed by the Fourth Amendment or cases decided
based on the Fourteenth Amendment and substantive due process. Wilson v. Spain,
209 F.3d 713, 715 (8th Cir. 2000). This court has ruled, however, that it is
appropriate to use a Fourth Amendment framework to analyze excessive force claims
arising out of incidents occurring shortly after arrest, apparently because those
incidents still occur “in [the] course of” a seizure of a free citizen. See Moore v.
Novak, 146 F.3d 531, 535 (8th Cir. 1998). In particular, we have applied Fourth
Amendment excessive force standards to incidents occurring during the
transportation, booking, and initial detention of recently arrested persons. See
Wilson, 209 F.3d at 715-16; Moore, 146 F.3d at 535; Mayard v. Hopwood, 105 F.3d
1226, 1228 (8th Cir. 1997). The alleged excessive force here occurred during and
shortly after Chambers’s arrest, while he was on the floor of the apartment where
police encountered him and while he was transported to the hospital for a medical
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evaluation as part of the detainee intake process. Our cases therefore dictate that the
claims against the officers are governed by the Fourth Amendment.
In Graham v. Connor, the Supreme Court mandated the application of an
objective “reasonableness” standard when evaluating claims that government agents
used excessive force in violation of the Fourth Amendment. 490 U.S. at 396. It is
well-established that “the right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical coercion or threat thereof to
effect it.” Id. An officer’s use of force violates the Fourth Amendment when it is
objectively unreasonable, given the facts and circumstances of the particular case, as
“judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. at 396-97. The determination whether the force used
to effect a seizure was reasonable ultimately requires a case-specific balancing of
“‘the nature and quality of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
The officers here assert that Chambers has failed to show the violation of a
constitutional right, because he offered no evidence that he suffered greater than de
minimis injuries as a result of the alleged excessive force. This court has concluded
that “relatively minor scrapes and bruises” and a “less-than-permanent aggravation
of a prior shoulder condition” are to be considered de minimis injuries, Wertish v.
Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006), and we agree that Chambers has not
offered evidence to show that he suffered any greater injury.
We are not convinced, however, that evidence of only de minimis injury
necessarily forecloses a claim of excessive force under the Fourth Amendment. The
appropriate inquiry is “whether the force used to effect a particular seizure is
‘reasonable.’” Graham, 490 U.S. at 396 (emphasis added). A de minimis use of force
is insufficient to support a claim, see Hunter, 219 F.3d at 832; Curd v. City Court,
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141 F.3d 839, 841 (8th Cir. 1998), and it may well be that most plaintiffs showing
only de minimis injury can show only a corresponding de minimis use of force. The
degree of injury is certainly relevant insofar as it tends to show the amount and type
of force used. See Cavataio, 570 F.3d at 1020; Cook, 582 F.3d at 850; Wertish, 433
F.3d at 1067; Curd, 141 F.3d at 841; Greiner v. City of Champlin, 27 F.3d 1346, 1355
(8th Cir. 1994); Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir.
1990). But it is logically possible to prove an excessive use of force that caused only
a minor injury, and a rule that forecloses a constitutional claim in that circumstance
focuses on the wrong question.
The degree of injury should not be dispositive, because the nature of the force
applied cannot be correlated perfectly with the type of injury inflicted. Some
plaintiffs will be thicker-skinned than others, and the same application of force will
have different effects on different people. A greater than de minimis injury
requirement under the Fourth Amendment would mean that the same quantum of
force, in the same circumstances, could be unconstitutional when applied to a citizen
with a latent weakness and constitutional when applied to a hardier person. The
governing rule should not turn on such unpredictable and fortuitous consequences of
an officer’s use of force. See Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002).
The rule should focus instead on whether the force applied is reasonable from the
perspective of a reasonable officer on the scene at the time the force is used. See
Graham, 490 U.S. at 396.3
3
The Supreme Court’s decision in Wilkins v. Gaddy, holding that de minimis
injury does not foreclose an excessive force claim under the Eighth Amendment, is
not controlling here. “[T]he subjective motivations of the individual officers are of
central importance in deciding whether force used against a convicted prisoner
violates the Eighth Amendment,” Graham, 490 U.S. at 398, while “[t]he Fourth
Amendment inquiry is one of ‘objective reasonableness’ under the circumstances, and
subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.”
Id. at 399. Wilkins, however, does reinforce two propositions that are relevant here:
“The extent of injury may . . . provide some indication of the amount of force
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Our cases concerning excessive force claims arising from handcuffing do
include language that might support the position of the officers here. We said in
Hanig v. Doe, 415 F.3d 822 (8th Cir. 2005), that “[f]or the application of handcuffs
to amount to excessive force, there must be something beyond minor injuries.” Id.
at 824; accord Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003).
Those decisions, however, should not be read to establish a general rule equating
quantum of injury with quantum of force under the Fourth Amendment.
“Handcuffing inevitably involves some use of force,” Wertish, 433 F.3d at 1067, and
it almost inevitably will result in some irritation, minor injury, or discomfort where
the handcuffs are applied. See Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.
2002). To prove that the force applied was excessive in that context, therefore, a
plaintiff must demonstrate something more. See Fisher v. City of Las Cruces, 584
F.3d 888, 898 (10th Cir. 2009). As a general proposition, however, there is no
uniform requirement that a plaintiff show more than de minimis injury to establish an
application of excessive force. See Lambert v. City of Dumas, 187 F.3d 931, 936 (8th
Cir. 1999) (holding that “[a] single small cut of the lateral right eyelid and small
scrapes of the right posterior knee and upper calf” were sufficient to support an
excessive force claim).4
The officers here contend that if greater than de minimis injury is not required
in order to state a Fourth Amendment excessive force claim, then police officers will
be reluctant to use any force when making a seizure, for fear of causing some slight
applied,” but “[i]njury and force . . . are only imperfectly correlated.” 130 S. Ct. at
1178.
4
It appears that most circuits to have considered the issue have reached the
same conclusion. See Morrison, 583 F.3d at 407; Chelios v. Heavener, 520 F.3d 678,
690 (7th Cir. 2008); Hayes v. New York City Police Dep’t, 212 F. App’x 60, 62 (2d
Cir. 2007) (per curiam); Wardlaw v. Pickett, 1 F.3d 1297, 1304 n.7 (D.C. Cir. 1993);
see also Bastien v. Goddard, 279 F.3d 10, 14-16 & n.5 (1st Cir. 2002); Wilks, 5 F.3d
at 416. But see Glenn, 242 F.3d at 314.
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harm that violates a detainee’s constitutional rights. We appreciate the concerns of
the officers, but we think they are misplaced. Nothing in our opinion today lightens
the significant burden that a plaintiff must carry in a § 1983 suit based on a Fourth
Amendment excessive force claim. Police officers undoubtedly have a right to use
some degree of physical force, or threat thereof, to effect a lawful seizure, Graham,
490 U.S. at 396, and reasonable applications of force may well cause pain or minor
injuries with some frequency. It remains firmly established that “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a judge’s chambers,
violates the Fourth Amendment.” Id. (internal citation and quotation omitted). The
dispositive question is whether the officer’s conduct was objectively reasonable under
the circumstances, as judged from the perspective of a reasonable officer on the scene
at the time the force was applied. See id.; Cook, 582 F.3d at 849.
The facts of the incident in this case are hotly disputed, but taking them in the
light most favorable to Chambers, we conclude that the alleged conduct of the
officers was not objectively reasonable. According to Chambers’s testimony, Kelling
kicked him several times on both sides of his body, although he was restrained on the
ground and offering no resistance. Chambers also testified that Pennycook repeatedly
choked and kicked him during the trip to the hospital, and that Van Mierlo extended
the journey by taking a roundabout route and intentionally driving so erratically that
Chambers was jerked roughly back and forth in his car seat while his head was
positioned adjacent to the dashboard. While the absence of significant injury surely
would be one factor that a jury would consider in determining whether to credit the
plaintiff’s account, Chambers has presented sufficient evidence, if believed, to
establish a violation of the Fourth Amendment. The gratuitous use of force alleged
by Chambers was not reasonable under the circumstances.
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D.
The second step in the qualified immunity analysis is to determine whether the
right that was violated was “clearly established” at the time of the defendant’s alleged
misconduct. Pearson, 129 S. Ct. at 816. For a right to be clearly established, “[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). A plaintiff need not show that the “very action in question
ha[d] previously been held unlawful,” but he must establish that the unlawfulness was
apparent in light of preexisting law. Id. In other words, we must ask whether the law
at the time of the events in question gave the officers “fair warning” that their conduct
was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Generally speaking, of course, it was clearly established in August 2005 that
an arrestee had a right to be free from the use of excessive force. See, e.g., Kukla v.
Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002). It was not clearly established, however,
that an officer violated the rights of an arrestee by applying force that caused only de
minimis injury. Just three days before the events giving rise to this case, we filed an
opinion reiterating that “[i]t remains an open question in this circuit whether an
excessive force claim requires some minimum level of injury.” Andrews, 417 F.3d
at 818 (alteration in original) (internal quotation omitted). The Andrews opinion
suggested that “de minimis injuries” may “preclude a claim for excessive force,” id.
(emphasis added), and also noted that “the lack, or minor degree, of any injury is also
relevant in determining the reasonableness of the force used to effect an arrest.” Id.
(emphasis added) (citing Greiner, 27 F.3d at 1355). The court ultimately resolved
that case based on qualified immunity. Id. at 819.
Given the state of the law in August 2005, a reasonable officer could have
believed that as long as he did not cause more than de minimis injury to an arrestee,
his actions would not run afoul of the Fourth Amendment. A reasonable officer was
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permitted to assume that legal conclusion when determining how to proceed, and he
is entitled to have his conduct judged according to that standard for purposes of
qualified immunity. See Dunn v. Denk, 79 F.3d 401, 403 (5th Cir. 1996) (en banc);
Harper v. Harris Cnty., 21 F.3d 597, 601 (5th Cir. 1994) (per curiam).
According to the testimony given by Chambers, the officers used a degree of
force that was excessive. Under the law in August 2005, the officers ran the risk of
liability if that force caused significant injury. But the converse is also true. The
officers knew there was some chance that their actions would cause only de minimis
injury, and it was reasonable for the officers to believe that they remained within
constitutional bounds if that was the result. As it turned out, the force did not cause
more than de minimis injury. We reject in this decision a constitutional rule that turns
on the arrestee’s degree of injury, but given the law prevailing at the time of the
incident, we conclude that the officers are entitled to qualified immunity.
III.
Chambers raises two other points on appeal. First, he contends that the district
court erred in failing to grant his request to sanction appellees and their counsel under
Federal Rule of Civil Procedure 11 for “deceitful and unethical tactics.” The district
court’s on-the-scene judgment in sanctions matters is entitled to substantial deference,
Teamsters Nat’l Freight Indus. Negotiating Comm. v. MME, Inc., 116 F.3d 1241,
1242 (8th Cir. 1997) (per curiam), and after a careful review of the record, we see no
abuse of discretion.
Second, Chambers asserts that the district court erred in denying his request for
appointment of counsel. Chambers had no constitutional or statutory right to
appointed counsel, Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006),
but the district court has authority to recruit counsel for an indigent person in
appropriate circumstances. See 28 U.S.C. § 1915(e)(1). The court has a good deal
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of discretion to determine whether representation is warranted given the nature of the
case and the litigants. Phillips, 437 F.3d at 794. We think the district court
reasonably determined that recruitment of counsel was not necessary in view of the
relatively straightforward questions of fact that the court thought dispositive under
the prevailing law. We later appointed counsel on appeal to assist with our
consideration of more complex legal issues, and Chambers thus suffered no prejudice
from any deficiency of his legal acumen in the district court.
The court appreciates the efforts of appointed counsel in presenting the case
for Mr. Chambers on rehearing.
* * *
The judgment of the district court is affirmed.
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