William Royster v. Tommy Nichols, et al

Filing

OPINION FILED - THE COURT: Kermit E. Bye, C. Arlen Beam and Lavenski R. Smith AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED), DISSENT BY: C. Arlen Beam [3968988] [10-3798]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 10-3798
___________________________
William Royster
lllllllllllllllllllll Plaintiff - Appellant
v.
Tommy Nichols
lllllllllllllllllllll Defendant - Appellee
James Corwin
lllllllllllllllllllll Defendant
Kansas City Board of Police Commissioners
lllllllllllllllllllll Defendant - Appellee
Karl Zobrist; Terry Brady; Mark Thompson; Mark Funkhouser; James Wilson
lllllllllllllllllllll Defendants
George D. Rosenkoetter; Kona Macadamia, Inc., doing business as Kona Grill
lllllllllllllllllllll Defendants - Appellees
Highwoods Properties, Inc.
lllllllllllllllllllll Defendant
Chesley Brown International, Inc., doing business as Plaza Security
lllllllllllllllllllll Defendant - Appellee
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John Doe; William Holbrook, Plaza Security Supervisor
lllllllllllllllllllll Defendants
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: June 12, 2012
Filed: October 30, 2012
____________
Before BYE, BEAM, and SMITH, Circuit Judges.
____________
SMITH, Circuit Judge.
William Edward Royster filed an eight-count second amended complaint
against, inter alia, Kansas City, Missouri Police Officer Tommy Nichols; the Kansas
City Board of Police Commissioners ("the Board"); Kona Macadamia, Inc. d/b/a
Kona Grill ("Kona Grill"); George D. Rosenkoetter; and Chesley Brown
International, Inc. d/b/a Plaza Security ("Plaza Security"),1 asserting a variety of
federal and state claims arising out of his arrest at the Kona Grill. The district court2

1

"On August 26, 2010, pursuant to a Stipulation of Dismissal filed by the
parties, the [district] [c]ourt dismissed plaintiff's claims against Highwoods
Properties, Inc.[,] and on November 3, 2010, the [district] [c]ourt granted plaintiff's
Motion to voluntarily dismiss defendants James Corwin and William Holbrook."
Royster v. Nichols, No. 08–0141–CV–W–FJG, 2010 WL 5067605, at *2 (W.D. Mo.
Dec. 6, 2010) (unpublished).
2

The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
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granted summary judgment to all the defendants. Royster appeals, arguing that the
district court improperly weighed facts. We affirm.
I. Background
"As this is an appeal from the grant of summary judgment, we review and recite
the facts in the light most favorable to [Royster] as the non-moving party." Fisher v.
Wal-Mart Stores, Inc., 619 F.3d 811, 814 n.3 (8th Cir. 2010).
On February 28, 2006, Royster went to the Kona Grill between 3:15 p.m. and
3:30 p.m. Upon his arrival, he handed a Kona Grill employee his American Express
credit card to open a tab. While at the Kona Grill, Royster and a friend ordered 15
Gray Goose vodka drinks, totaling $156.00 with tax.
Around 8:00 p.m., Rosenkoetter, the Kona Grill manager on duty, asked
Royster to leave the establishment because of Royster's unacceptable conduct.
According to Rosenkoetter, he contacted Plaza Security stating that he "need[ed]
someone escorted out" because Royster was "refusing to leave the restaurant." Before
security arrived, Royster left the Kona Grill without reclaiming his American Express
credit card and without signing a credit-card receipt. Plaza Security sent Officer
Nichols, a Kansas City, Missouri police officer working off-duty for Plaza Security,
in response to the call. According to Officer Nichols, Plaza Security "[d]ispatch
advised of a disturbance, a party refusing to pay." Officer Nichols testified that, upon
his arrival at the Kona Grill, he "was told [by Rosenkoetter] that the parties were
being told to leave from an inappropriate comment and that they refused to pay their
tab."3

3

In his suggestions in opposition to Officer Nichols's motion for summary
judgment, Royster deemed this fact "uncontroverted," stating that "that was Officer
Nichols's testimony." "Because [Royster] did not present any evidence to contradict
[Officer Nichols's] statements . . . , there [is] no material dispute regarding this
evidence." Fuller v. Cuyahoga Metro. Housing Auth., 334 F. App'x 732, 735 (6th Cir.
2009) (unpublished).
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Shortly after leaving the Kona Grill, Royster returned to get his American
Express credit card. Viewing the facts in the light most favorable to Royster—as we
must—the following events then occurred. Upon Royster's return to the Kona Grill,
"there were two Kansas City police officers dressed in Kansas City police officer's
uniform[s] and Plaza Security that walked into the [Kona] Grill as [Royster] was
approaching it." Then, "the Kansas City police officers and the Plaza Security came
back out on to the sidewalk accompanying the manager and that's when [everyone
was] together on the sidewalk." As the officers and Rosenkoetter "were walking out
of the [Kona] Grill onto the sidewalk in [Royster's] direction," Rosenkoetter pointed
at Royster and said, "That's the guy." When the officers and Plaza Security
approached Royster, he asked what was wrong. Then, either Rosenkoetter or one of
the police officers "brought up that [Royster] had stolen" something. Royster asked,
"What did I steal?" Officer Nichols then responded that Royster "didn't pay [his] bar
tab, that [he] didn't pay the bill." In response, Royster said, "Well[,] [Rosenkoetter's]
got my card."
Thereafter, Rosenkoetter went back into the Kona Grill and asked the server
to close Royster's tab. To close the tab, the server swiped Royster's credit card
through the credit-card machine. The credit-card receipt did not show an itemized
receipt of the drinks purchased. The server's normal practice was to print the
"itemized receipt along with [the] credit[-]card receipt," but she did not "remember
. . . 100%" whether she had done so that evening. After the server closed out the tab
and printed off the credit-card receipt, she handed the card, the receipt, and all other
items back to Rosenkoetter. Rosenkoetter then exited the Kona Grill with "a fistful
of what appeared to be receipts" and Royster's credit card. Royster then "reached
across through the police office[r] toward [Rosenkoetter] and . . . grabbed [his] card
back." Royster testified that after he obtained his card, Officer Nichols told Royster
"to sign the receipts." In response, Royster told Officer Nichols that he "hadn't seen
the receipts, that [he] do[es]n't just sign blindly something [he] ha[s]n't looked at."
Royster informed Officer Nichols, "I'm not going to sign something that I haven't
looked at."
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According to Rosenkoetter's testimony, which Royster credits,4 Officer Nichols
then responded, "You need to sign this bill . . . or you're going to be arrested for theft
of restaurant services."5 At some point during the exchange, Officer Nichols had
asked Rosenkoetter, "Will you prosecute if he refuses to pay the tab?" Rosenkoetter
had responded, "Yes." Officer Nichols had then asked Rosenkoetter, "Will you sign
a General Ordinance Summons?" Rosenkoetter again replied, "Yes."6 According to
the Joint Stipulation of Uncontroverted Facts ("Stipulation"), Rosenkoetter did, in
fact, "sign[] the general ordinance summons as the complaining party."
After Royster again informed Officer Nichols that he was "not signing anything
[he] ha[s]n't seen," Officer Nichols replied, "Then you're under arrest." In summary,
both parties admitted the following facts in their Stipulation:
11.

Officer Tommy Nichols asked that William Royster sign his
credit card charge.

12.

William Royster did not sign the charge for the $156.00 bill for
Kona Grill's restaurant services and product.

13.

Officer Tommy Nichols arrested William Royster for a municipal
violation of failing to pay for restaurant services which totaled
$156.00.

4

In his statement of the facts in his appellate brief, Royster cites Rosenkoetter's
testimony regarding what Officer Nichols said to Royster in response to Royster
stating that he would not sign something that he had not looked at.
5

Royster testified that Officer Nichols responded, "Are you going to sign that
or not?"
6

Again, in his statement of the facts, Royster credits Officer Nichols's recitation
of the facts regarding his exchange with Rosenkoetter about what Rosenkoetter would
do if Royster did not sign the receipt.
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When Officer Nichols began handcuffing Royster's hands behind his back,
Royster informed Officer Nichols that he had "service-connected injuries from [his]
Naval service from an ejection that [he] sustained." He told Officer Nichols that he
had "a shoulder injury and a back injury." Royster further requested that Officer
Nichols "not handcuff [Royster] behind [his] back" but instead to "please handcuff
[Royster] in front." Officer Nichols handcuffed Royster behind his back despite
Royster's request that he be handcuffed in front due to an old shoulder injury.
The Board establishes the policies and procedures for officers to follow in the
operations of the Kansas City Police Department (KCPD). When Officer Nichols
arrested Royster, he was dressed in a KCPD uniform. The handcuffs and the gun that
Officer Nichols carried were "Police Department issue." Off-duty officers like Officer
Nichols are bound by all KCPD policies. KCPD policy provides, in relevant part, that
[w]hen an officer places a person in handcuffs, the officer will:
***
d.

Make every attempt to place handcuffs behind the arrest[ee]'s
back. If the arrest[ee] has a medical or physical condition that
would preclude them from being handcuffed behind their back,
they will be handcuffed (double-locked) in front, and a wagon
will be requested to transport the arrest[ee]. Once the arrest[ee]
has been transported to the Detention Unit at Headquarters, the
officer will inform detention personnel that the arrest[ee] is
handcuffed in front and the reason for this action.

The charges against Royster for theft of restaurant services were eventually
dismissed, and Royster then brought the instant suit against, inter alia, Officer
Nichols, the Board, Plaza Security, the Kona Grill, and Rosenkoetter. In his second
amended complaint, Royster brought § 1983 claims against Officer Nichols, the
Board, Plaza Security, the Kona Grill, and Rosenkoetter. In Count I, he alleged that
Nichols and Rosenkoetter "knew or should have known that they had no probable
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cause to seize and arrest Royster, or to cause his arrest," resulting in an
"unconstitutional application of excessive force and . . . an unreasonable seizure in
violation of the Fourth Amendment."7 In Count III,8 Royster alleged that the Board
violated his constitutional rights by failing to or inadequately (1) supervising officers
regarding the appropriate use of force, (2) training and supervising officers "in the
techniques of properly conducting criminal investigations," (3) training and
supervising officers regarding their "obligation to truthfully report occurrences rather
than to falsify information to cover up misconduct," and (4) disciplining officers who
violate the law. Count III also alleged that the Board had "inadequate policies,
practices, customs[,] or procedures pertaining to . . . [c]overing up of police
misconduct by falsifying and fabricating evidence." Similarly, Count IV claimed that
the Kona Grill and Plaza Security had violated Royster's constitutional rights by
failing to or inadequately (1) training and supervising its employees regarding
investigatory techniques and customer complaints, (2) training and supervising its
employees regarding their "obligation to truthfully report occurrences rather than to
falsify information to cover up misconduct," and (3) disciplining employees who
violate the law during an investigation. Royster also alleged that the Kona Grill and
Plaza Security had "inadequate policies, practices, customs[,] or procedures
pertaining to . . . [c]overing up of misconduct by falsifying and fabricating evidence."
In addition to the § 1983 claims, Royster also brought the following state-law
claims against Officer Nichols, Plaza Security, the Kona Grill, and Rosenkoetter: (1)

7

He also alleged that "[t]he [d]efendants' actions . . . deprived [him] of his right
to substantive due process and his right to be free from cruel and unusual punishment,
in violation of the Fifth, Eighth[,] and Fourteenth Amendments of the United States
Constitution."
8

In Count II, Royster alleged a conspiracy between Officer Nichols and
Rosenkoetter to deprive Royster of his constitutional rights. The district court
determined that Royster offered no evidence in support of his claim and that a
conspiracy charge cannot succeed where there is no underlying civil rights violation.
Royster has not challenged this determination on appeal.
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false arrest and unlawful imprisonment (Count V); (2) an alternative claim for
negligence resulting in wrongful arrest and detention (Count VI); (3) malicious
prosecution (Count VII); and (4) the tort of outrageous conduct (Count VIII).9
All of the defendants moved for summary judgment on all claims, which the
district court granted. See Royster, 2010 WL 5067605; Royster v. Nichols, No.
08–0141–CV–W–FJG, 2011 WL 2011479 (W.D. Mo. May 23, 2011) (unpublished).
II. Discussion
On appeal, Royster argues that the district court erroneously granted summary
judgment on all of his claims to Officer Nichols, the Board, Plaza Security, the Kona
Grill, and Rosenkoetter. According to Royster, the district court improperly weighed
the facts in determining that all of his claims failed.
"This court reviews a district court's grant of summary judgment de novo and
may affirm the district court on any basis supported by the record." St. Martin v. City
of St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012).
A. Officer Nichols
1. Wrongful Arrest
According to Royster, Officer Nichols lacked probable cause to arrest him for
a simple civil dispute between a customer and a proprietor over a bill for restaurant
services. Royster contends that, prior to his arrest, Officer Nichols did not allow
Royster to review the credit card charge and the check even after Royster advised him
that he would not sign a receipt that he had not seen. He concludes that, under the
totality of the circumstances, Officer Nichols lacked probable cause to believe that
Royster had actually committed the crime of theft of restaurant services. Royster

9

Our review of the record reveals that Royster has apparently abandoned this
claim, and he has not raised it as an issue on appeal.
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contends that Officer Nichols based his decision to arrest solely on Rosenkoetter's
complaint.
"A warrantless arrest is consistent with the Fourth Amendment if it is supported
by probable cause." Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir.
2010) (quotation and citation omitted). We must determine, as a matter of law,
whether Officer Nichols "had probable cause at the time of [Royster]'s arrest." Id. "An
officer has probable cause to make a warrantless arrest when the facts and
circumstances are sufficient to lead a reasonable person to believe that the defendant
has committed or is committing an offense." Id. (quotation and citation omitted). In
determining whether probable cause existed at the time of the arrest, "we look at the
totality of the circumstances as set forth in the information available to the officer[]
at the time of arrest." Id. (quotation and citation omitted). "As probable cause is
determined at the moment the arrest was made, any later[-]developed facts are
irrelevant to the probable cause analysis for an arrest." Id. (quotation and citation
omitted). In evaluating whether probable cause existed for Royster's arrest, "we
determine from the totality of the circumstances whether a prudent person would
believe [Royster] had committed or was committing a crime, giving [Officer Nichols]
substantial latitude in interpreting and drawing inferences from factual
circumstances." Id. at 817 (quotation and citation omitted).
Generally, an officer is "entitled to rely on the veracity of information supplied
by the victim of a crime." Id. at 817 (quotation and citation omitted). "In considering
information given by a victim of a crime, an officer need not conduct a 'mini-trial'
before effectuating an arrest although he cannot avoid 'minimal further investigation'
if it would have exonerated the suspect." Borgman v. Kedley, 646 F.3d 518, 523 (8th
Cir. 2011) (quoting Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (holding that
no probable cause existed where officer only spoke with suspect for 20 seconds,
ignored exculpatory evidence, and disregarded eyewitness account)). "When an
officer is faced with conflicting information that cannot be immediately resolved,
however, he may have arguable probable cause to arrest a suspect." Id. Although "[i]t
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is usually not possible for an officer to be certain about a suspect's state of mind at the
time of a criminal act, . . . he need not rely on an explanation given by the suspect."
Id. at 524 (internal citations omitted). Thus, the officer may "rely on the implications
of the information known to him when assessing whether a suspect possessed the
state of mind required for the crime." Id. (quotation and citation omitted). Ultimately,
"Fourth Amendment analysis . . . turns on what a reasonable officer could have
believed under the circumstances, not on the state of mind or subjective beliefs of
the[] particular officer[]." McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011).
"Viewing the record and drawing all reasonable inferences in the light most
favorable to [Royster], while simultaneously viewing the facts from the perspective
of a reasonable officer on the scene,10 " Montoya v. City of Flandreau, 669 F.3d 867,

10

The dissent fails to recognize this court's dual obligation not only to view the
facts in the light most favorable to Royster but also to view the facts from the
perspective of a reasonable officer on the scene. The dissent accuses the majority of
"fail[ing] to consider certain undisputed facts that were favorable to [Royster]."
Fuller, 334 F. App'x at 734. These facts include that (1) no one at the Kona Grill
asked Royster to sign a receipt prior to Officer Nichols's arrival and that (2) Royster
was presented with a credit-card receipt without an itemization in violation of the
Kona Grill's normal practice. See infra at 21. But "[t]he objective reasonableness of
an officer's stop, seizure, or use of force, depends on what was known to the officer
at the time he engaged in the conduct at issue." Id. (emphasis added). "Accordingly,
the omitted evidence would only be material to the . . . analysis if it was known to
[Officer Nichols]." Id. There is no evidence in the record that Officer Nichols's knew
that "Royster's server at Kona [Grill] testified that her . . . normal practice was for a
server to print an 'itemized receipt along with [the] credit[-]card receipt' to be
presented to the customer but she did not 100 percent remember if she had done so
at the time of this . . . event." See infra at 21 (third and fourth alterations in original).
Put another way, Royster has presented no evidence that Officer Nichols knew that
Kona Grill's "normal practice"—as termed by the dissent—was to present a creditcard receipt with an itemization. See infra at 21. Nor has Royster shown that Officer
Nichols knew that "no demand for payment was made [or that no] . . . tab [was]
prepared and presented until Royster returned for his credit card." See infra at 21.
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871 (8th Cir. 2012) (quotation and alteration omitted), we conclude that Officer
Nichols had probable cause to arrest Royster. First, Royster has not controverted
Officer Nichols's testimony that Plaza Security informed him that there was a
"disturbance" at the Kona Grill involving "a party refusing to pay" or that
Rosenkoetter informed him upon his arrival that the parties were asked to leave the
Kona Grill because of "an inappropriate comment" and a "refus[al] to pay their
tab."See Fisher, 619 F.3d at 817 ("Undisputed facts show that Christeson called the
Raymore police and told them that 'a girl at the service desk [is] trying to cash some
fake money orders.'" (alteration in original)).
Second, Rosenkoetter identified Royster to Officer Nichols as the individual
who had not paid his bill, stating, "That's the guy." See Fisher, 619 F.3d at 817
("Christeson confidently identified Fisher to Sergeant Loney as the person at the front
desk who had brought the fake money orders.").
Third, Officer Nichols, by Royster's own recitation of the facts, did speak with
both parties regarding the dispute. Officer Nichols saw that Rosenkoetter was
carrying—in Royster's own words—"receipts" out of the Kona Grill and discussed
with Rosenkoetter whether he would prosecute and sign a General Ordinance
Summons if Royster "refuses to pay the tab." Officer Nichols informed Royster of the
complaint against him—that he did not pay his bill. When Officer Nichols told
Royster "to sign the receipts," Royster told Officer Nichols, "I'm not going to sign
something that I haven't looked at." In the Stipulation, all parties agree that Royster
"did not sign the charge for the $156.00 bill for Kona Grill's restaurant services and
product."
We conclude that Royster's refusal to "sign the charge for the $156.00
bill"—even if Royster correctly believed that he did not have to sign—gave Officer
Therefore, Royster "has not shown that the evidence [is] material to . . . [the]
analysis." Fuller, 334 F. App'x at 734.
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Nichols probable cause to arrest Royster for theft of restaurant services. Officer
Nichols "was entitled to rely on what he was told by [Rosenkoetter]," i.e., that
Royster had not paid his bill. Borgman, 646 F.3d at 523. Moreover, Royster
confirmed to Officer Nichols that he was not going to sign the charge. As the district
court noted, "[i]t is irrelevant for the probable cause analysis, that the bill was
eventually paid by American Express." Royster, 2010 WL 5067605, at *10. The
relevant inquiry is "whether, viewing the evidence in [Royster's] favor, [Officer
Nichols] . . . had probable cause at the time of the arrest; that is, whether the facts and
circumstances would have led to a reasonable conclusion that a crime had been
committed." Fisher, 619 F.3d at 817 (emphasis added). At the time of the arrest, a
reasonable officer would have known that Kansas City, Missouri ordinance § 50-106
provides, in relevant part:
(b)

A person commits the ordinance violation of stealing if he
appropriates property or services of another with the
purpose to deprive him thereof, either without his consent
or by means of deceit.

(c)

Evidence of the following is admissible in any criminal
prosecution under this section on the issue of the requisite
knowledge of belief of the alleged stealer:
***
(2)

That he left the hotel, restaurant, inn or
boardinghouse with the intent not to pay for property
or services.

(Emphases added.)
Again, viewing the facts in the light most favorable to Royster, a reasonable
officer would know that (1) § 50-106 makes it a crime to leave a restaurant with the
intent not to pay, (2) Rosenkoetter identified Royster as the individual who had not
paid his bill, and (3) Royster would not and did not, for whatever reason, sign the
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charge for the $156 bill. Under the totality of the circumstances, we conclude that
Officer Nichols had probable cause to arrest Royster for theft of restaurant services.11
11

Royster cites several cases purportedly supporting his argument that a dispute
over a restaurant bill is civil in nature and does not give rise to probable cause to
arrest. See, e.g., Stevens v. Rose, 298 F.3d 880, 884 (9th Cir. 2002) (holding that
plaintiff's Fourth Amendment rights were violated by deputy sheriff and other officers
who arrested plaintiff while they were seeking a set of car keys involved in a civil
dispute; deputy knew that keys were subject of a civil dispute such that there was no
probable cause for arrest); Allen v. City of Portland, 73 F.3d 232, 237–38 (9th Cir.
1995) (holding that police officer did not have probable cause to arrest restaurant
patron for theft of services based on information that patron had eaten at restaurant,
that patron's husband offered coupon to pay for meal, that restaurant claimed coupon
was invalid, and that family left restaurant and also holding that "civil dispute[s]
cannot give rise to probable cause"); Peterson v. City of Plymouth, 60 F.3d 469,
476–77 (8th Cir. 1995) (holding that police officer lacked probable cause to swear out
complaint charging landlord with felony theft in connection with dispute over
ownership of snowblower that former tenant left in garage of rental home where the
officer had in his possession a tape recording of confrontation between tenant and
landlord indicating that landlord believed that snowblower was abandoned and thus
that necessary criminal intent was lacking and that the matter was a civil dispute);
Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1347 (7th Cir. 1985) (stating that,
on remand of § 1983 action against arresting deputies arising out of warrantless
entries into plaintiffs' campers to effectuate plaintiffs' arrests on charges of theft of
services from restaurant, it would not be necessary as to the probable-cause issue to
submit a separate question concerning whether plaintiffs consented to the entries; the
consent issue would simply be part of the overall probable cause determination,
including a determination as to whether responses to deputies' questions were
coerced).
But none of these cases cited a specific ordinance—such as in the present
case—prohibiting theft of restaurant services. For example, in Allen, the officer
acknowledged that he "knew absolutely [that he] did not have the right to take [the
plaintiff] to jail for that particular charge." Allen, 73 F.3d at 236 (emphasis omitted).
By contrast, § 50-106 gave Officer Nichols a legal basis for the arrest. And, although
Allen cited Peterson in support of its conclusion "that a civil dispute cannot give rise
to probable cause to arrest," id. at 237, we have explained that "Peterson does not
stand for the blanket proposition that civil disputes always negate the elements of
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2. Excessive Force
Royster argues that Officer Nichols cuffed Royster's hands behind his back
despite Royster's request that Officer Nichols cuff him in the front because of an old
back and shoulder injury. Royster alleges that he was injured as a result of the
handcuffing, meaning that he has a viable claim for excessive force against Officer
Nichols.
"All claims that law enforcement officers have used excessive force, whether
deadly or not, in the course of an arrest, investigatory stop, or other seizure are
analyzed under the Fourth Amendment's objective reasonableness standard." Nance
v. Sammis, 586 F.3d 604, 609–10 (8th Cir. 2009). "Not every push or shove violates
the Fourth Amendment, but force is excessive when the officers' actions are not
objectively reasonable in light of the facts and circumstances confronting them."
Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir. 2009) (quotations, alteration, and
citation omitted). "The key question is whether the officers' actions are objectively
reasonable in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation." Nance, 586 F.3d at 610 (quotations and
citation omitted). "Objective reasonableness depends on the facts and circumstances
of the case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight." Rohrbough, 586 F.3d at 586
(quotations and citations omitted).
"A de minimis use of force is insufficient to support a claim, and it may well
be that most plaintiffs showing only de minimis injury can show only a corresponding

criminal intent." Anderson v. Cass Cnty., Mo., 367 F.3d 741, 745–46 (8th Cir. 2004).
"[A] probable cause determination is fundamentally a fact-specific inquiry." United
States v. Khounsavanh, 113 F.3d 279, 285 (1st Cir. 1997). Under the facts of the
present case, as explained supra, we find that Officer Nichols did have probable
cause to arrest Royster for theft of restaurant services.
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de minimis use of force." Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011)
(internal citation omitted). "The degree of injury is certainly relevant insofar as it
tends to show the amount and type of force used." Id. However, the possibility exists
for a plaintiff "to prove an excessive use of force that caused only a minor injury." Id.
"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." Id. This is
because some people are "thicker-skinned than others, and the same application of
force will have different effects on different people." Id. Therefore, "[t]he rule . . .
focus[es] . . . on whether the force applied is reasonable from the perspective of a
reasonable officer on the scene at the time the force is used." Id. In Wilkins v. Gaddy,
130 S. Ct. 1175, 1178 (2010), the Supreme Court "reinforce[d] two propositions that
are relevant [to an excessive-force claim under the Fourth Amendment]: 'The extent
of the injury may . . . provide some indication of the amount of force applied,' but
'[i]njury and force . . . are only imperfectly correlated.'" Id. at 906 n.3 (quoting
Wilkins, 130 S. Ct. at 1178) (third, fourth, and fifth alterations in original).
Here, KCPD policy provides that an officer should "[m]ake every attempt to
place handcuffs behind the arrest[ee]'s back." "[H]andcuffing [of an arrestee's] hands
behind his back [is] a routine police procedure." Dunn v. Denk, 79 F.3d 401, 403 (5th
Cir. 1996). "Standard police practice called for cuffing an arrestee's hands behind
[his] back and [Officer Nichols's] decision not to deviate from this practice was a
judgment call, pure and simple." Calvi v. Knox Cnty, 470 F.3d 422, 428 (1st Cir.
2006). "Although . . . handcuffing a suspect behind the back in the face of a severe
and obvious medical injury [may] constitute[] excessive force, the evidence does not
support the assertion that [Royster's] arm injury was obvious." Blosser v. Gilbert, 422
F. App'x 453, 459 (6th Cir. 2011) (unpublished) (quotation and internal citation
omitted). Nor has Royster presented evidence "that his injury was visible." Id.
Instead, viewing the facts in the light most favorable to Royster, he only informed
Officer Nichols that he had a preexisting injury.

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Therefore, based on our review of the record, "[t]he aggravation of [Royster's]
old injury was not attributable to the excessive component of the force used. Rather
the aggravation of [Royster's] old shoulder injury was claimed to have been caused
by handcuffing his hands behind his back, a routine police procedure." Dunn, 79 F.3d
at 403 (emphasis added). Accordingly, the district court correctly granted summary
judgment to Officer Nichols on Royster's excessive-force claim.
3. State-law Claims
Royster brought three state-law claims against Officer Nichols: (1) unlawful
imprisonment, (2) negligence resulting in wrongful arrest, and (3) malicious
prosecution. On appeal, Royster argues that "[b]ecause there is evidence that [Officer]
Nichols'[s] arrest of Royster was without probable cause, all of the state[-]law claims
are viable against [Officer Nichols]."
We hold that all of these claims fail as a matter of law because Officer Nichols
had probable cause to arrest Royster. See Gibbs v. Blockbuster, Inc., 318 S.W.3d 157,
170 (Mo. Ct. App. 2010) ("[N]o action for false imprisonment may be maintained for
an arrest which is lawful, no matter at whose instigation nor for what motive the
arrest was made. If the arrest of the plaintiff was lawful, an action for false arrest will
not lie, and it can make no difference at whose instigation it was made or what the
motive was. This must be so in reason, for there can be no trespass where the arrest
is by warrant of law." (quotations and internal citations omitted) (emphases added));
Bramon v. U-Haul, Inc., 945 S.W.2d 676 (Mo. Ct. App. 1997) (explaining that
because "[n]egligent causation of arrest claims are not intentional torts," the plaintiff
must prove, inter alia, "negligent discharge [of the] duty [of care]" (quotation and
citation omitted)); Sanders v. Daniel Int'l Corp., 682 S.W.2d 803, 807 (Mo. 1984) (en
banc) ("A person suing on a theory of malicious prosecution must plead and prove
. . . the want of probable cause for the prosecution . . . .").

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B. Plaza Security and the Board
Royster argues that Plaza Security and the Board are vicariously liable for
Officer Nichols's unlawful seizure and detention of his person and liable pursuant to
42 U.S.C. § 1983 for failure to train and supervise.
Even assuming that Plaza Security is a state actor for § 1983 purposes, we hold
that Royster's claims against Plaza Security and the Board fail as a matter of law.
First, "respondeat superior is inapplicable to claims under 42 U.S.C. § 1983." Bell v.
Kan. City Police Dep't, 635 F.3d 346, 347 (8th Cir. 2011) (per curiam). Second, we
have already determined that Officer Nichols's did not violate Royster's constitutional
rights; therefore, Royster's "failure to train and failure to supervise claims . . . [can]not
be sustained absent an underlying constitutional violation by the officer." Sitzes v.
City of W. Memphis Ark., 606 F.3d 461, 470–71 (8th Cir. 2010) (citing City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978) ("Congress did not intend municipalities to be held
liable unless action pursuant to official municipal policy of some nature caused a
constitutional tort."); Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th
Cir. 2007) ("Without a constitutional violation by the individual officers, there can
be no § 1983 or Monell failure to train municipal liability.")).12

12

Royster also brought state-law claims against Plaza Security. Before the
district court, Royster "state[d] that Count V, the unlawful imprisonment count [wa]s
no longer being pursued." Royster, 2010 WL 5067605, at *7. The district court
granted summary judgment to Plaza Security on Royster's claims of malicious
prosecution and negligence resulting in wrongful arrest and detention. Id. Even
assuming that Plaza Security could be vicariously liable for Officer Nichols's actions
as to Royster's state-law claims, those claims necessarily fail because Officer Nichols
had probable cause to arrest Royster. See Part II.A.3.

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C. Kona Grill and Rosenkoetter
In Count I, Royster alleged that Officer Nichols and Rosenkoetter "knew or
should have known that they had no probable cause to seize and arrest Royster, or to
cause his arrest," resulting in an "unconstitutional application of excessive force and
. . . an unreasonable seizure in violation of the Fourth Amendment." In Count IV,
Royster claimed that Plaza Security had failed to train and supervise its employees.
Finally, in Counts V, VI, and VII, Royster brought state-law claims against the Kona
Grill and Rosenkoetter. Royster argues that the district court erroneously granted
summary judgment to the Kona Grill and Rosenkoetter on all his § 1983 claims.
According to Royster, "[b]ecause there was a lack of probable cause for [his] arrest
pursuant to [his] evidence, [the Kona Grill and Rosenkoetter] are subject to liability
on all counts." He also argues that the district court erred in granting summary
judgment to the Kona Grill and Rosenkoetter on his state-law claims.
We hold that all of Royster's claims against the Kona Grill and Rosenkoetter
fail as a matter of law. First, assuming that Rosenkoetter and the Kona Grill acted
under color of state law, we have already concluded that Officer Nichols did have
probable cause to arrest Royster and that Officer Nichols's use of force was not
excessive, meaning that no violation of Royster's constitutional rights occurred. See
Part II.A.1. Second, assuming that the Kona Grill is a state actor for § 1983 purposes,
Royster's failure-to-train and failure-to-supervise claims against it fail because they
"[can]not be sustained absent an underlying constitutional violation by the officer."
Sitzes, 606 F.3d at 470. Third, Royster's state-law claims against Rosenkoetter and
the Kona Grill fail because Officer Nichols had probable cause to arrest Royster. See
Part II.A.3.
III. Conclusion
Accordingly, we affirm the judgment of the district court.

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BEAM, Circuit Judge, dissenting.
The district court granted summary judgment to all defendants, finding that
Tommy Nichols, a sometimes Kansas City, Missouri, police officer, had probable
cause to arrest William Royster. The court majority erroneously affirms this
conclusion. Accordingly, I dissent.
The court's determination of the material facts at issue in this case and its
conclusion that Nichols was functioning as a sworn Kansas City police officer at all
relevant times are both problematic.
I agree with the court that "'[a]s this is an appeal from the grant of summary
judgment, we review and recite the facts in the light most favorable to [Royster] as
the non-moving party.'" Ante at 3 (second alteration in original) (quoting Fisher v.
Wal-Mart Stores, Inc., 619 F.3d 811, 814 n.3 (8th Cir. 2010)). But, the court fails to
honor this requirement as to Nichols' arrest authority and as to his supposed probable
cause to arrest Royster. The facts and law concerning these separate issues are
intertwined and substantially related.
Kona Grill (Kona) was a tenant of the County Club Plaza (Plaza). The Plaza
provided security services for its tenants, including Kona, and provided such services
through Chesley Brown International, Inc., d/b/a Plaza Security (Chesley Brown).
Nichols' day job, so to speak, was as a member of the Kansas City Police Department.
However, at all times relevant to this dispute he was an employee of Chesley Brown.
Chesley Brown had a security station "right above" Kona which included a jail that
was at times referred to as a holding cell. During the time of his interactions with
Royster, Nichols was being paid, and perhaps even provided fringe benefits by
Chesley Brown, and was directly supervised by Chesley Brown personnel, not by
members of the Kansas City Police Department.

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The Kansas City Police Department specifically authorized its officers such as
Nichols to accept employment as "off-duty [security] officer[s]" and the Department
specifically stated that it "[did] not provide workers' compensation or general liability
coverage for off-duty employment. The legal authority [of officers working off-duty]
is limited to the enforcement of federal law, state statutes and municipal ordinances."
But, "[o]fficers cannot use police authority to enforce a private employer's policies
and regulations."
With this for background, I turn to the facts, reviewing them as I must in the
light most favorable to Royster, the non-moving party. I agree generally with a good
bit of the court's factual recitation. I disagree, however, with several facts adopted
by the court and include several material facts omitted by the court.
I agree that Royster went to Kona during the afternoon of February 28, 2006,
and that he was asked to leave. The record indicates that this request was triggered
when Royster's guest purportedly made an untoward comment to one of Kona's
regular customers and Rosenkoetter, Kona's manager, asked the two of them to leave
Kona. And, while Royster left without his credit card and without signing a "creditcard receipt," the evidence clearly indicates that he was not asked to sign a receipt,
indeed, no such receipt was even generated by Kona until the later confrontation
between Rosenkoetter, Nichols and Royster occurred upon Royster's return for his
card. Thus, while Royster conceded that Nichols testified that he (Nichols) "was told
[by Rosenkoetter] that the parties were being told to leave from an inappropriate
comment and that they refused to pay their tab," ante at 3-4 (alteration in original),
Royster did not concede that the statement was true, as stated in the court's footnote
3. Royster's evidence clearly shows that no demand for payment was made nor was
a tab prepared and presented until Royster returned for his credit card and was
accosted by Rosenkoetter in Nichols' presence.
Of more importance are other omitted facts and acts that occurred at Kona and
in Nichols' presence. Royster's server at Kona testified that her (and by clear
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inference Kona's) normal practice was for a server to print an "itemized receipt along
with [the] credit[-]card receipt" to be presented to the customer but she did not 100
percent remember if she had done so at the time of this untoward event. But, on this
occasion, she testified that after closing the tab and printing off the credit-card receipt
after Rosenkoetter's request, she handed the card, the receipt and all other items to
Rosenkoetter. Thus, reviewing these facts in the "light most favorable to [Royster],"
Fisher, 619 F.3d at 814 n.3, Royster, in Nichols' presence, was either being presented
a credit-card receipt without an itemization in violation of the normal practice at
Kona (and most other establishments in America) or a credit-card receipt and an
itemization that he was not permitted to examine before being required to sign the
receipt–even though he vigorously demanded the right to see an itemization before
being forced to do so. Neither Nichols nor Royster appear to dispute this scenario but
even if they do, the evidence when viewed favorably to Royster, as required, clearly
establishes this set of circumstances.
Also, from the evidence viewed favorably to Royster, it does not appear that
Nichols actually made the probable cause decision to arrest in this instance, it was
Nichols' employer Chesley Brown's client Rosenkoetter who did so. Indeed, before
Nichols agreed to seize Royster, Nichols had asked Rosenkoetter if he would "sign
a [General Ordinance Summons]." Rosenkoetter said he would sign the complaint
on behalf of Kona. Thus, under these circumstances, Nichols' act was, rather than
police business, more in the nature of enforcement of a private employer's (Kona's)
"policies and regulations,"–an action prohibited by the Kansas City Police
Department's published procedures.
Finally, as to whether Royster's detention was public or private business, after
Nichols seized Royster he did not immediately turn him over to the custody of the
police department. He handcuffed Royster, over his seemingly valid protests given
the state of his health, the nature of the offense and the conflict of interest Nichols
had in the situation, and took him upstairs to the Chesley Brown jail cell. At this

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location, Royster remained in handcuffs for some time, was refused toilet privileges
and held for what appears to have been an unreasonable and an unpleasant period of
time.
On the facts considered favorably to Royster, this case must be remanded for
trial. I dissent.
______________________________

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