Nicholas Brandt v. Boyce R. Davis

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 99-1128
___________

Nicholas Brandt and Debbie Hux, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Boyce R. Davis, City of Prairie Grove, *
Arkansas, Andrew Bain, in his capacity *
as Prairie Grove Mayor and in his *
individual capacity, and Robin Casey, *
*
Appellees. *
___________

Submitted: June 18, 1999
Filed: September 15, 1999
___________

Before BOWMAN and HEANEY, Circuit Judges, and LONGSTAFF,1 District Judge.
___________

RONALD E. LONGSTAFF, District Judge.

Debbie Hux and her son Nicholas Brandt appeal the district court’s2 grant of
summary judgment in favor of defendants in their civil rights suit against the City of

1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa, sitting by designation.
2
The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas.
Prairie Grove (the “City”), its police chief Robin Casey, its mayor Andrew Bain, and
its attorney, Boyce Davis. We affirm the judgment of the district court.

I.

At times relevant to the instant appeal, Hux and Brandt lived in Prairie Grove,
Arkansas. Plaintiffs’ neighbor, Loyd Thurman, kept construction equipment on his lot,
a practice that Hux believed violated city zoning laws. In early 1995, Hux went before
the Prairie Grove city council to request enforcement of the zoning laws against
Thurman. The city council did not act on her request. Instead, some city council
members laughed at her and suggested the problem was her own. Hux pursued
enforcement of the alleged zoning ordinance through other means, including circulating
a petition requesting that the City enforce the zoning laws with regard to Thurman. As
she pursued enforcement of the zoning laws, she learned that the Prairie Grove police
chief, Robin Casey, had received a misdemeanor conviction for child abuse several
years ago. Hux tried to obtain further information about Casey’s criminal record.
During her activities to bring forth removal of construction equipment from Thurman’s
property, the city attorney, Boyce Davis, purportedly warned her to discontinue her
pursuit of information surrounding the conviction. Hux further alleges that because the
zoning laws were never enforced against her neighbor, it was impossible for her to sell
her home within a reasonable time at a reasonable price.

On April 25, 1995, Police Chief Robin Casey was called to Prairie Grove High
School regarding a student disturbance. When Casey arrived at the school,
administrators informed him they had sent Nicholas Brandt home because he had
assaulted a female student. Casey was called back to the school later in the day, after
Brandt returned to the school and was again involved in an altercation. Casey arrested
Brandt for disorderly conduct. With the help of state police trooper Chuck Webb,

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Casey handcuffed Brandt and placed him in the patrol car for transportation. Trooper
Webb rode with Casey and Brandt in the patrol car. Juvenile authorities informed
Chief Casey that because of prior problems with Brandt, they wanted him to take
Brandt to the Washington County Juvenile Detention Center. Brandt became unruly
in the patrol car, and kicked the car door. Brandt and Casey’s accounts of the
subsequent events differ appreciably.

Brandt alleges that when he became unruly, Casey stopped the patrol car, yanked
him out of the car by his feet, and dragged him into a gravel parking lot face down. He
claims Casey picked him up and slammed him into the gravel, face first, while saying
to him, “Maybe your mother would like some of this.” Subsequently, Casey slammed
his knees into Brandt’s neck and back, and proceeded to “hogtie” Brandt. After
returning to the patrol car and driving, Casey stopped the car a second time and
subjected Brandt to additional forceful measures. Brandt alleges that the abusive
treatment Casey inflicted on him caused back pain, numbness or lessened feeling in his
hand for approximately a month, and chest pain.

Chief Casey recounts a different version of the events, set forth in his affidavit
which accompanied appellees’ motion for summary judgment. According to Chief
Casey, Brandt became extremely violent in the patrol car while traveling to the juvenile
detention center. He claims that Brandt maneuvered his body through his cuffed arms,
kicked the doors of the patrol car, and banged his head violently on the screen
separating the front and back seats of the car. Casey alleges that he pulled over,
retrieved restraints from the trunk, and opened the back passenger door. At that time,
Brandt kicked Casey in the stomach. Casey claims that in response to Brandt’s violent
behavior in the patrol car, as well as Brandt’s kicking, he “restrained [Brandt] on the
ground by placing my knee between his shoulders and neck and tried to grab his legs.”
By this time, Trooper Webb and Captain Jim Acker (an employee of the Washington
County Sheriff’s Office) had stopped to assist Casey. Additionally, Prairie Grove

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police officer Darrel Hignite, who was off duty, saw the struggle and pulled over to
offer assistance. With the above-described help, Casey alleges he was able to tie
Brandt’s feet together and place him in the back of the car. Brandt’s feet were secured
to the bottom of the cage divider, so he could not kick the doors again or sit up and hit
his head on the divider.

Casey also explained that Brandt pulled free and again began banging his head
on the screen and kicking. Casey pulled over the patrol car a second time. With
Trooper Webb’s assistance, Casey pulled Brandt from the patrol car while Brandt
kicked at the officers. At this time, Casey hogtied Brandt and placed him in the car on
his stomach, to prevent him from banging his head on the screen. Brandt once again
freed himself and began banging his head on the screen. Rather than pull over a third
time, Casey states he turned on the police siren and drove quickly to the juvenile
detention center.

On June 20, 1995, Brandt appeared before an Arkansas juvenile court judge
(Hon. Charles Williams) regarding the charges arising from the April 25, 1995 incident.
Prior to the final disposition of the criminal proceedings against Brandt, Casey wrote
a letter to Judge Williams accusing Brandt of what Brandt considers “numerous
inflammatory and unproven charges.” Similarly, Bain and Davis each sent a letter to
Judge Williams which portrayed Brandt in a negative manner. All of these letters were
sent only to the judge, and neither Brandt nor his criminal counsel were informed of the
letters’ existence or contents. Based on the letters sent to Judge Williams, Brandt
alleges appellees Bain, Casey, and Davis deprived him of due process because
appellees did not notify Brandt that they sent the letters to the judge, and Brandt was
not afforded an opportunity to respond to the letters’ complaints.

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 Appellants filed a civil rights lawsuit against appellees making several allegations
pursuant to 42 U.S.C. § 1983, including: Chief Casey used excessive force to effectuate
Brandt’s arrest; Bain, Casey, and Davis deprived and conspired to deprive Brandt of
due process by sending letters to the juvenile court judge presiding over Brandt’s case
without sending a copy to Brandt’s criminal defense attorney; the City violated Hux’s
equal protection rights by refusing to enforce its zoning ordinances against her
neighbor. Appellees filed for summary judgment on all claims. Appellants’ response
to the motion consisted of a three-page brief. Appellants did not submit affidavits,
exhibits, or other evidence with their response. The district court granted the motion
for summary judgment in its entirety, and judgment was entered in favor of appellees
on all claims. The district court’s decision rested in part on appellants’ response to the
motion for summary judgment, which the district court discussed as follows:

Plaintiffs’ brief in response to the motion for summary judgment is
woefully inadequate. It barely touches on the issue of whether any
constitutional violations exist and ignores the issue of qualified immunity.
In fact, plaintiffs’ entire brief in response to the motion is only three pages
in length which includes both the caption and the signature. It contains
little substance and is not helpful.

Appendix at 76-77 (December 7, 1998 District Court Order, at 17-18). The district
court also noted the lack of citations in appellants’ response brief.

II.

“We review a district court’s grant of summary judgment de novo, considering
all evidence in a light most favorable to the nonmoving party.” Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Summary judgment is properly
granted when the record, viewed in the light most favorable to the nonmoving party,

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shows that there is no genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Johnson, 172 F.3d
at 535. “We 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, 172
F.3d at 535.

III.

Appellants argue the district court erred in granting appellees’ motion for
summary judgment regarding the excessive force claim and denying their concurrently
filed motion to amend the complaint. Appellants had requested leave to amend the
complaint to add the charges against Chief Casey in his individual capacity.3

In moving for summary judgment, appellees maintained that the force Casey
used to restrain Brandt was necessary to prevent Brandt from injuring himself or the
officers transporting him. Chief Casey’s affidavit, submitted as a supporting exhibit
with appellees’ motion for summary judgment, sets forth his recollection of the
incident. Appellants did not submit any evidence–in the form of affidavits, depositions,
or otherwise–in response to the motion. Rather, appellants rested on the pleadings,
stating the evidence appellees had submitted was insufficient and did not require a
response.

3
Appellants titled their district court brief “Brief in Support of Response to
Motion for Summary Judgment, and Motion for Permission to Amend Complaint to
Include All Defendants in their Official Capacities.” Joint Appendix, at 56-58. On
appeal, appellants reposition themselves by making statements such as “appellant-
plaintiff did not respond with affidavits, but rather requested the right to amend the
complaint.” Appellants’ Brief, at 15. We consider appellants’ position as it was
presented to the district court.

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 Because appellants did not submit even a shred of evidence to contradict Chief
Casey’s affidavit, we are compelled to regard the Chief’s version of the incident as
uncontroverted. See generally Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986) (Rule 56 contains no express or implied requirement that
the moving party support its motion with affidavits or other evidence negating the
opponent’s claim); Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 427 (8th Cir.
1997) (when a motion for summary judgment is made, the nonmoving party may not
rest on the complaint alone and “must introduce affidavits or other evidence to avoid
summary judgment.”). We therefore consider the excessive force claim using the
uncontroverted facts set forth in Chief Casey’s affidavit.

Excessive force claims “are analyzed under the Fourth Amendment, and the test
is whether the amount of force used was objectively reasonable under the particular
circumstances.” Griener v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).
“When an arrestee flees or resists, some use of force by the police is reasonable.”
Griener v. City of Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994). “The calculus of
reasonableness must embody allowance for the fact that police officers are often forced
to make split-second judgments–in circumstances that are tense, uncertain, and rapidly
evolving–about the amount of force that is necessary in a particular situation.” Graham
v. Connor, 409 U.S. 386, 396-97 (1989). Therefore, “[n]ot every push or shove, even
if it may later seem unnecessary...” is considered excessive. Graham, 490 U.S. at 396
(citation and internal quotation marks omitted). A court should not judge an officer’s
conduct in hindsight; rather, a court examining an excessive force claim should place
itself in the shoes of a reasonable officer under the circumstances. See Foster v.
Metropolitan Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir. 1990).

The reasonableness evaluation, like that of other Fourth Amendment analyses,
focuses on an objective inquiry: “whether the officers’ actions are objectively
reasonable in light of the facts and circumstances confronting them, without regard to

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their underlying intent or motivation.” Graham, 490 U.S. at 397 (emphasis added)
(citation and internal quotation marks omitted). “Circumstances such as the severity
of the crime, whether the suspect posed a threat to the safety of the officers or others,
and whether the suspect was resisting arrest are all relevant to the reasonableness of
the officer’s conduct.” Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998) (citation
and internal quotation marks omitted). Additionally, if the complaining party’s injuries
are likely explained by the arrestee’s own actions, the allegations cannot create a
material fact issue as to whether the arresting officer used excessive force. See
Greiner, 27 F.3d at 1355.

We conclude Chief Casey’s account of the events indicates the force he used to
detain Brandt was objectively reasonable, and that no genuine issues of fact pertaining
to the reasonableness of his actions exist for trial.4 Chief Casey described Brandt as
an unruly and violent arrestee, which Brandt admitted in the statement of material facts
he submitted. The police chief described his actions as necessary to prevent Brandt
from harming himself and fleeing through a window or door in the patrol car. Under
the standards set forth in Celotex, Brandt’s failure to submit any evidence disputing
these facts is fatal to his claim. Because Brandt failed to come forward with evidence
to prove an essential element of his claim–that the force Casey used was
unreasonable–we find summary judgment was properly granted on this issue. Given
the above analysis, we also find the district court did not abuse its discretion in denying

4
Indeed, one of appellants’ statements in the appellate brief supports this
conclusion: “If the Appellees set forth a prima facie case that the force used was
reasonable, Brandt should be required to respond with affidavit or testimony on oath
showing facts from which the claim of excessive force could reasonably prevail at trial,
on pain of dismissal of his case.” Appellants’ Brief, at 17-18. This is precisely what
the district court did, after studying Chief Casey’s affidavit, in which he described the
force he used as objectively reasonable. Yet, appellants chose not to respond with
affidavits or testimony under oath.

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the motion to amend, as there existed no cause of action against Casey in his individual
capacity.

IV.

On appeal, Brandt argues the district court should have granted his motion to
amend the complaint so he could correct pleading deficiencies in his claim that Bain,
Casey, and Davis denied him due process by writing and delivering letters to the
juvenile court judge.

“The Confrontation Clause of the Sixth Amendment guarantees to a defendant
the opportunity for effective cross-examination of witnesses against him....” United
States v. Triplett, 104 F.3d 1074, 1078 (8th Cir. 1997). It acts as a guarantee that in the
proceedings at issue, the accused was able to fairly defend himself. See United States
v. Molina, 172 F.3d 1048, 1059-60 (8th Cir. 1999). Bain, Casey, and Davis were not
parties to the civil proceeding of the juvenile court and were under no constitutional or
statutory obligation to send copies of the letter to Brandt. We decline to extend the
scope of the right to include a cause of action against the parties offering information,
whether in open court or by letter. If the juvenile proceedings contained constitutional
infirmities, Brandt’s appropriate course of action is appeal of the proceeding. We
therefore find Brandt’s claim as against Bain, Casey, and Davis fails as a matter of law.
Similarly, we find no merit in Brandt’s claim that appellants conspired to deny him
rights. The juvenile court judge made a decision as to whether examination of these
witnesses was warranted and whether he wished to consider the letters. Excluding the
role of the juvenile court judge, what remains of appellant’s claim is a conspiracy to
write letters, which we decline to find actionable under these circumstances.

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 In Brandt’s motion to amend before the district court, and in his argument on
appeal, he neglected to explain how he would amend the complaint to save the claim.
See Batra v. Board of Regents of the Univ. of Nebraska, 79 F.3d 717, 722 (8th Cir.
1996). We therefore find no abuse of discretion in the district court’s denial of his
motion to amend.

V.

Appellant Hux appeals the district court’s ruling that the City’s failure to enforce
zoning laws against her neighbor violated her equal protection rights. She argues that
summary judgment was inappropriate because neither party put forth proof on the
matter.

The Equal Protection Clause “prohibits government officials from selectively
applying the law in a discriminatory way.” Central Airlines, Inc. v. United States, 138
F.3d 333, 334-35 (8th Cir. 1998) (citation omitted). It protects “fundamental rights,”
“suspect classifications,” and “arbitrary and irrational state action.” See Batra, 79 F.3d
at 721. For example, “[t]he unlawful administration by state officers of a state statute
fair on its face, resulting in unequal application to those who are entitled to be treated
alike, is not a denial of equal protection unless there is shown to be present in it an
element of intentional or purposeful discrimination.” Batra, 79 F.3d at 721 (citations
and internal quotation marks omitted). “[T]he key requirement is that plaintiff allege
and prove unlawful, purposeful discrimination.” Batra, 79 F.3d at 722.

In a similar section 1983 action, Gagliardi v. Village of Pawling, the plaintiff
landowners had filed several claims, including an equal protection claim, against the
defendants for their failure to enforce zoning laws against the plaintiffs’ neighbors. 18
F.3d 188, 193 (2d Cir. 1994). The named defendants included the village, a zoning

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board of appeals and its members, a planning board, a board of trustees, and a building
inspector. The court of appeals affirmed the district court’s dismissal of the equal
protection claim, noting that to establish the necessary purposeful discrimination, a
complaining party must allege similarly situated people have been treated differently.
The court observed that the plaintiffs had made no allegations that the defendants
would have enforced the zoning laws at the request of another resident similarly
situated to plaintiffs. Therefore, their claim was insufficient as a matter of law.

We believe Hux’s claim fails for similar reasons. In her complaint, she fails to
allege any manner in which she experienced purposeful discrimination. Because she
did not plead an essential element of her claim, appellees had no reason to put on proof
supporting their motion for summary judgment. We therefore find Hux’s equal
protection claim fails as a matter of law.

For the reasons stated above, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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