Robin C. McDermott v. Thomas Dean Royal , 123 F. App'x 241 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3690
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Robin C. McDermott, *
*
Plaintiff-Appellant, *
*
v. *
*
Thomas Dean Royal, In their individual *
and official capacities as police officers *
for the City of Springfield; Darren *
Whisnant, In their individual and *
official capacities as police officers for *
the City of Springfield; Doug Wilson, *
In their individual and official *
capacities as police officers for the City * Appeal from the United States
of Springfield; Brian Phillips, In their * District Court for the Western
individual and official capacities as * District of Missouri.
police officers for the City of Spring- *
field; John A. Smith, In their * [UNPUBLISHED]
individual and official capacities as *
police officers for the City of *
Springfield; Mike Wray, In their *
individual and official capacities as *
police officers for the City of Spring- *
field; Lynn Rowe, In his individual *
capacity as Chief of Police for the City *
of Springfield; Ron Dirickson, In his *
individual capacity as Assistant City *
Attorney; City of Springfield, A *
municipal corporation of the State of *
Missouri, *
*
Defendants-Appellees. *
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Submitted: July 8, 2004
Filed: September 10, 2004
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Before WOLLMAN, LAY, and MELLOY, Circuit Judges.
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PER CURIAM.
This matter arises under Plaintiff’s petition for rehearing. We hold the petition
for rehearing should be granted. The court’s earlier opinion issued on July 27, 2004,
is ordered vacated and is replaced by the following opinion.
Robin McDermott appeals pro se from a final order entered in the United States
District Court for the Western District of Missouri1 granting Defendants’ motion for
summary judgment. In her complaint, McDermott alleged that she was denied the
rights secured to her by the First, Fourth, and Fourteenth Amendments to the United
States Constitution by virtue of Defendants’ actions in connection with her arrest and
subsequent prosecution on charges of obstruction of an officer in violation of section
26-17 the Code of the City of Springfield, Missouri.2 McDermott asserted a cause of
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
2
That section provides:
No person shall resist or obstruct a city officer making an arrest or
serving any legal writ, warrant or process or executing or attempting to
execute any other duty imposed by law.
SPRINGFIELD, MO., CODE § 26-17 (1981). Section 26-17 was later renumbered as
section 78-32(1) on October 23, 2000.
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action under 42 U.S.C. § 1983, supported by various legal theories, as well as pendent
state law claims.3
We review the entry of summary judgment de novo, applying the same standard
as the district court and viewing the record in the light most favorable to the non-
moving party. See Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
Summary judgment is proper only when it is shown that “there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). The district court construed McDermott’s pro se
complaint as seeking relief on several theories, including that Defendants subjected
her to: (1) excessive use of force; (2) false arrest; (3) malicious prosecution; and (4)
intentional infliction of emotional distress. After reviewing the parties’ submissions
and the applicable legal authorities, we find that summary judgment was properly
granted in favor of the Defendants on each theory articulated by the district court.
See 8th Cir. R. 47B.
This is not the end of the matter, however. Because McDermott is acting pro
se, we have a duty to construe the pleadings with liberality to determine whether any
allegations raised therein fairly state any claim entitling her to federal relief. See
Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994). In this case, we find that the
factual allegations raised in McDermott’s complaint were sufficient to raise the claim
that the municipal ordinance pursuant to which she was arrested, charged, and
prosecuted, was violative of the First Amendment.
These facts, viewed in the light most favorable to McDermott, demonstrate the
following: During the early morning hours of January 23, 1998, police officers from
3
McDermott also requested attorney fees and costs pursuant to 42 U.S.C.
§ 1988. We note that a pro se litigant is not entitled to attorney fees under section
1988. See Davis v. Parratt, 608 F.2d 717, 718 (8th Cir. 1979); see also Kay v. Ehrler,
499 U.S. 432, 435 (1991).
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the City of Springfield, Missouri, arrived at McDermott’s residence for the purpose
of arresting her son on charges of driving while intoxicated. When McDermott
became aware of the arrest, she stepped onto her front porch and began to harass or
otherwise annoy the police, telling them that they had no right to search her son’s
vehicle without a warrant and that they should leave her private property. At no point
did she offer any force or violence, or threat thereof, nor did she seek to close the
distance between herself and the police. The police informed McDermott that if she
did not quiet down and go back inside her residence, she would be arrested and taken
to jail. When McDermott refused to relent, the police made good on their threat:
McDermott was subsequently arrested and charged with a violation of § 26-17 of the
Springfield, Missouri, City Code. McDermott was ultimately acquitted on all charges
against her stemming from this altercation.
Under these circumstances, we believe that McDermott has raised a viable (if
not ultimately successful) claim that her First Amendment rights were violated insofar
as she was arrested, charged, and prosecuted for the mere verbal harassment of the
Defendant police officers. See City of Houston v. Hill, 482 U.S. 451, 455 (1987)
(striking down as unconstitutionally overbroad a municipal ordinance prohibiting an
individual from “oppos[ing], molest[ing], abus[ing] or interrupt[ing] any policeman
in the execution of his duty”) (quoting HOUSTON, TEX., ORDINANCES 34-11(a)
(1984)); id. at 462-63 (“The freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the principal characteristics by
which we distinguish a free nation from a police state.”); see also City of Columbia
v. Hardin, 963 S.W.2d 6, 10 (Mo. Ct. App. 1998) (noting that a conviction for an
analogous offense of obstructing government operations under the municipal code of
Columbia, Missouri, requires proof of physical interference).
Accordingly, we remand the cause to the district court for further proceedings
consistent with this opinion.
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