S.L. Ex Rel. Lenderman v. St. Louis Metropolitan Police Department Board of Police Commissioners

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-3193

___________________________

S.L., a minor, by next friend Ron Lenderman

lllllllllllllllllllll Plaintiff - Appellee

v.

St. Louis Metropolitan Police Department Board of Police Commissioners;

Richard Gray, Vice President; Bettye Battle-Turner, President; Michael L.

Gerdine, Treasurer; Francis G. Slay, Ex-Officio Member; Daniel W. Isom, Chief

of Police; Reggie L. Harris; Lathan Isshawn-O'Quinn

lllllllllllllllllllll Defendant - Appellants

Antoinette Filla; Henrietta Arnold

lllllllllllllllllllll Defendants

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

Submitted: March 12, 2013

Filed: August 5, 2013

____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

____________

MURPHY, Circuit Judge.

S.L. brought this 42 U.S.C. § 1983 action against several St. Louis police

officers for arresting her on false charges and conspiring to hide it. She also brought

municipal liability claims for deliberate indifference and inadequate supervision. The

district court1 denied qualified immunity to the officers responsible for the false arrest

and to Lieutenant Colonel Reggie Harris and Sergeant Lathan Isshawn-O'Quinn for

involvement in covering up the arrest. It also denied summary judgment to the St.

Louis Metropolitan Police Department Board of Police Commissioners ("Board") on

S.L.'s municipal liability claims. Isshawn-O'Quinn, Harris, and the municipal

defendants appeal. We affirm the denial of qualified immunity to the two officers and

dismiss the Board's appeal for lack of jurisdiction.

I.

Officer Susie Lorthridge and Lieutenant Henrietta Arnold were St. Louis

Metropolitan Police Department (SLMPD) officers assigned to the eighth district.

During the July 3, 2010 workday Officer Lorthridge drove Lieutenant Arnold home

to pick up some medication. There, Arnold was surprised to discover her son's

girlfriend, S.L., in his bedroom. She ordered S.L. out of the house and warned her,

"[I]f somebody doesn't come and get you in five minutes, then I'm going to call your

parents. And if they don't answer, then I'm going to take you to jail."

When S.L. was unable to find a ride home, Officer Lorthridge suggested to

Lieutenant Arnold that they arrest her. Arnold initially expressed some concern, but

Lorthridge assured her that an arrest would be lawful because S.L. had been

trespassing. Lorthridge then handcuffed S.L., and the two officers took her to the

police station. S.L. testified that during the ride to the station, Arnold called her a

"white bitch" and stated she would like to "slit [S.L.'s] throat." S.L. also heard

1

The Honorable Carol E. Jackson, United States District Judge for the Eastern

District of Missouri.

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Arnold make a call on her cell phone, reporting that she and Lorthridge had "a

problem, but when we get there, we'll talk to you about it." It seemed to S.L. that

Arnold was talking to a superior officer. Since Lieutenant Arnold was the highest

ranking officer in her own district at that time, S.L. later concluded that the call must

have been made to Lieutenant Colonel Reggie Harris, the head of SLMPD's internal

affairs unit.

At the police station S.L. was given a "city court summons" ordering her to

appear in court on trespassing charges on September 1, 2012. She was then placed

in a holding cell for about an hour. When an officer visited the cell to inquire why

S.L. was there, S.L. told her, "I was just seeing my boyfriend, . . . [Lieutenant

Arnold's] son, and she arrested me for trespassing." According to S.L. the officer

replied, "Are you serious?" and shook her head. Another officer later removed S.L.

from the cell and took her to a second police station. There, S.L. was placed in a cell

"with about six or seven other girls" for "about four or five hours" before an officer

informed her that she was free to leave. S.L. then told that officer about her arrest

and stated that she "really d[id]n't believe that [she] did anything wrong." She asked

for his advice, and the officer told her that she should raise her concerns at her

scheduled court hearing. No information was given to S.L. about the right to counsel

or how she might contact a lawyer.

SLMPD procedures require an arresting officer to submit an incident report

within 48 hours of making an arrest. S.L. was arrested on July 3, and Lorthridge

submitted her first report about the arrest the next day. It was rejected without

comment by an eighth district sergeant. On July 5 a new sergeant, Isshawn-O'Quinn,

was assigned to the eighth district. Lorthridge gave him a second draft of the arrest

report that morning and told him that it "need[ed] to be looked at."

Isshawn-O'Quinn rejected Lorthridge's second report based on several

deficiencies. He pointed out that among other things the report had been submitted

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in the wrong name, did not identify the district in which the arrest had occurred, and

failed to include the information that an "assisting officer" had been present during

the arrest. Lorthridge then produced two more draft reports for consideration by

Isshawn-O'Quinn, both of which he rejected. In the fourth draft Lorthridge named

Arnold for the first time as an officer assisting in the arrest. Isshawn-O'Quinn

advised Lorthridge to remove Arnold's name because she had been on limited

administrative duty at the time of the arrest and therefore lacked authority to

participate in S.L.'s arrest.2 He explained to Lorthridge, "That puts the department

in a bad situation if she's out there taking police actions. I just couldn't do that."

Isshawn-O'Quinn also informed Lorthridge that he could not approve the report

without a named witness to the arrest. He instructed her to look in the SLMPD

computer system for a name and to "be creative."

Lorthridge submitted a fifth draft of the arrest report on July 6. It omitted any

assisting officer and included false statements about the fabricated offense. S.L.'s

trespass was set in a new location and an eyewitness was included. The report

indicated that S.L. had been arrested for "trespassing on private property" after she

was found "walking in the area . . . appear[ing] to be extremely unke[m]pt, as she was

not wearing shoes and her hair was scattered about her head." According to this draft

of the report, the victim of the trespass was Riverway Development, LLC, which was

said to have previously asked S.L. "repeatedly . . . not to trespass on [its] property."

Riverway Development had actually owned a vacant lot adjacent to Arnold's property,

but it was no longer in operation there at the time of S.L.'s arrest.

The arrest report also named an intersection within the St. Louis city limits as

the location of the arrest, while Arnold's property where it had actually occurred was

2

Arnold had been placed on limited administrative duty after being "involved

in a vehicle accident during normal working hours while shopping . . . and improperly

using a St. Louis Metropolitan Police Department vehicle."

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just beyond the city limits and outside of SLMPD jurisdiction. Finally, the report

inserted the name of Richard Delaney, termed a Riverway Development employee,

as a witness to the trespass. Delaney was an Indiana resident whose name had been

found in the police department's computer system after Isshawn-O'Quinn suggested

that Lorthridge "be creative" in finding one there. Delaney's name was in the

computer system because he had been involved in a minor car accident in St. Louis

in 2007. He had never returned to Missouri after that and had never been employed

by Riverway Development which no longer operated at the site of the imaginary

trespass. One half hour after Lorthridge submitted the fifth arrest report, Isshawn-

O'Quinn reviewed it and gave it his approval.

Shortly thereafter, Captain William Swiderski of the eighth district heard "a

rumor floating around the patrol station" that Arnold had arrested her son's girlfriend

for trespassing. He reviewed the fifth draft of Lorthridge's incident report and noticed

that it did not mention Arnold's involvement. The captain also found it problematic

that the police report charged S.L. with trespass for being on a public intersection.

After consulting with others in the department, he filed an employee misconduct

report and commenced an internal affairs investigation. Arnold, Lorthridge, and S.L.

were interviewed between August and October of 2010. Arnold made several false

statements during her interview, including denying that her son had been involved

with S.L., stating that she had not participated in S.L.'s arrest, and insisting that the

arrest had occurred on the vacant lot neighboring her property. Police also

interviewed Richard Delaney, the alleged witness and resident of Indiana, who

confirmed that he had not visited St. Louis since his car accident in the city three

years before.

As the head of the SLMPD internal affairs division, Colonel Harris received

periodic updates on the investigation involving Lieutenant Henrietta Arnold. The

record contains no evidence as to the content of these updates. S.L. alleges, however,

that Harris received confidential information about the investigation which he then

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shared with Arnold. She points to police records showing that Lorthridge and Arnold

had both searched in the SLMPD computer system for references to Richard Delaney

shortly after he was interviewed as part of the confidential internal police

investigation in August 2011. S.L. contends that Lorthridge and Arnold would not

have searched for Delaney's name unless they had been informed about his recent

interview by internal police investigators, and that neither would have known about

it unless Harris had leaked the information to Arnold. The record also contains some

evidence of a close relationship between Colonel Harris and Lieutenant Arnold,

including his deposition testimony that he had recommended that Arnold "be

promoted to the rank of lieutenant," and Arnold's testimony that she considered Harris

a mentor and that he had previously visited her home and kissed her.

One week after Arnold's first interview with internal investigators, her son

Jonathan visited S.L. at her parents' home to encourage her to change her story to the

police. S.L. testified that Jonathan told her "that his mom was going to lose her job

if I didn't lie and say that I wasn't arrested at their house." S.L.'s father testified that

he overheard that conversation between Jonathan and S.L. and that Jonathan had

similarly warned him that "if [S.L.] doesn't change that story, my mom is going to

lose her job." According to S.L., she told Jonathan, "I'm not going to change the truth

. . . . I don't feel that I should have to lie for [Arnold], because she was in the wrong

and I wasn't."

After S.L.'s parents left for work the following day, Jonathan again began

pressuring her to change her story. She refused, and an argument escalated until

Jonathan threw S.L. to the floor and choked her. S.L. attempted to flee through the

front door, but Jonathan grabbed her by the hair. S.L. had learned a month earlier that

she was pregnant with Jonathan's child, and she protested, "You're hurting me . . . .

You're not supposed to put your hands on me. I'm about to have a baby." Jonathan

continued to choke and hit S.L., threw her against a washer/dryer, and left the house.

S.L. called the police, and an ambulance took her to the hospital. There she was

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diagnosed with a punctured lung, air around the heart, severe bruising, and severe

emotional distress.

The internal affairs investigation continued, and the Summary Hearing Board

ultimately disciplined both Lieutenant Arnold and Sergeant Isshawn-O'Quinn.

Officer Lorthridge voluntarily resigned from the SLMPD. At Isshawn-O'Quinn's

hearing in March 2011, the Board found that he had failed to supervise Lorthridge

adequately. According to the Board, Isshawn-O'Quinn should also have inquired

further into Arnold's role in the arrest, which would have revealed that the arrest

occurred in her home outside SLMPD jurisdiction and that the arrestee was the

girlfriend of Arnold's son. The Board also concluded that Isshawn-O'Quinn had

"failed to review the supporting documents to the police report, including the

summons," thereby violating the department's requirement that he "review all

documentation . . . to make sure they appeared legitimate and appropriate."

Isshawn-O'Quinn received a one day suspension and a written reprimand from the

Board.

Meanwhile Lieutenant Arnold had been suspended without pay in December

2010 for false reporting charges, but her hearing did not take place until August 2011.

At that hearing the Board considered testimony from S.L. and several SLMPD

officers. The Board then determined that Arnold had participated in the arrest of S.L.

without probable cause, in the creation of a false incident report, in altering the

location of an arrest to place it within the city of St. Louis, and in making false

statements during the internal affairs investigation. Arnold was found to have

brought discredit on the department, and her employment was terminated.

The Board did not make any findings with respect to Colonel Harris, the nature

of his relationship with Arnold, or any role he may have had in covering up the arrest.

He was also never interviewed by the SLMPD's internal affairs division of which he

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was the head. Harris's testimony was not sought until S.L. filed this § 1983 action

alleging that he had participated in the cover up of her unlawful arrest.

II.

S.L. filed this action under 42 U.S.C. § 1983 alleging that her arrest by

Lorthridge and Arnold, and the cover up of that arrest by Harris and

Isshawn-O'Quinn, had violated her constitutional rights. She claimed that Arnold and

Lorthridge had violated her Fourth Amendment rights by making a false arrest and

that Lieutenant Isshawn-O'Quinn had participated in the violation by suggesting and

approving a falsified incident report. S.L. also alleged that the four police officers

had conspired to cover up a false arrest in violation of § 1983. She claimed that

Arnold, Lorthridge, Isshawn-O'Quinn, and Harris had violated her Fourteenth

Amendment rights "to due process, property, equal protection under the law, and

equal justice" by "conspir[ing] together and with others, including the son of

Defendant Arnold, and reach[ing] a mutual understanding to undertake a course of

conduct that violated [S.L.'s] civil rights."

S.L. also brought municipal liability claims against the Board and certain

officers in their official capacities. She claimed that the Board had been deliberately

indifferent to pervasive unlawful arrests and false reporting in the SLMPD, and that

Colonel Harris, Chief of Police Isom, Lieutenant Colonel Anoinette Filla, and the

Board were liable for inadequate supervision of Lorthridge, Arnold, and

Isshawn-O'Quinn. According to S.L., Lieutenant Colonel Filla had learned of her

false arrest and then "knowingly allowed the matter to be assigned [to] the Internal

Affairs Division rather than immediately suspend[ing]" the arresting officers, which

amounted to inadequate supervision.

The individual officers moved for summary judgment on qualified immunity

grounds. The Board, Harris, Isom, and Filla also moved for summary judgment on

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the ground that S.L. had not presented sufficient evidence to demonstrate that the

Board had been deliberately indifferent to false reporting or that any of the defendants

were liable for inadequate supervision.

The district court granted summary judgment to Isshawn-O'Quinn on S.L.'s

Fourth Amendment claim. It reasoned that he had not participated in the unlawful

arrest of S.L. because a seizure is "a single act, and not a continuous fact," citing

Thompson v. Whitman, 85 U.S. 457, 471 (1873), and Isshawn-O'Quinn had not been

"present at the scene of [S.L.'s] arrest and did not learn of the arrest until two days

later." The district court also granted summary judgment to Lieutenant Colonel Filla

on S.L.'s inadequate supervision claim, concluding that "[t]here is no evidence that

Filla . . . should have known that proceeding with a formal complaint would result in

harm to [S.L.]."

Summary judgment was denied on all other claims. As relevant to this appeal,

the district court concluded that Arnold, Lorthridge, Isshawn-O'Quinn, and Harris

were not entitled to qualified immunity on the § 1983 conspiracy charge because

there was "evidence of intentional conduct designed to conceal a violation of [S.L.'s]

constitutional rights and . . . influence the outcome of the investigation." It concluded

with respect to municipal liability that a reasonable jury could find on evidence in the

record that the Board had been deliberately indifferent to widespread false arrests by

SLMPD officers and that the Board, Harris, and Isom had failed to supervise Arnold,

Lorthridge, and Isshawn-O'Quinn adequately.

Isshawn-O'Quinn, Harris, Isom, and the Board then filed this interlocutory

appeal. Isshawn-O'Quinn and Harris argue that the district court erred in denying

them qualified immunity because conspiring to cover up an already completed

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constitutional violation does not violate § 1983.3 The Board, Isom, and Harris appeal

the district court's denial of summary judgment on S.L.'s municipal liability claims,

urging us to exercise pendent jurisdiction over these issues because they are

inextricably intertwined with the question of qualified immunity. Arnold and

Lorthridge do not appeal the district court's denial of qualified immunity as to them.

III.

Isshawn-O'Quinn and Harris challenge the district court's denial of qualified

immunity to them on S.L.'s conspiracy claim. State officials enjoy qualified immunity

from a § 1983 action if their conduct did not violate "clearly established statutory or

constitutional rights of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is appropriate only if "no

reasonable factfinder" could determine that (1) the facts viewed in the light most

favorable to the plaintiff show that the officer's conduct violated a constitutional

right, and (2) the constitutional right was "clearly established at the time of the

deprivation so that a reasonable officer would understand his conduct was unlawful."

Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009).

The district court denied qualified immunity to Isshawn-O'Quinn and Harris

after determining that a reasonable jury could find on evidence in the record "that

Lorthridge and Isshawn-O'Quinn conspired to conceal Arnold's role in the arrest[] and

that Harris conspired with Arnold to keep her informed of the course of the [internal

affairs] investigation." It then observed that a § 1983 conspiracy claim "can proceed

on an allegation of a cover-up designed to deprive [S.L.] of a valid § 1983 claim"

arising from Arnold and Lorthridge's misconduct. The district court concluded that

3

Harris and Isshawn-O'Quinn also challenge the sufficiency and admissibility

of S.L.'s proffered evidence linking them to any conspiracy, but that is collateral to

the question before the court. See Johnson v. Jones, 515 U.S. 304, 314 (1995).

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S.L. had provided sufficient evidence for a jury to find that Isshawn-O'Quinn and

Harris "conspired to deprive her of her constitutional rights."

We review de novo the district court's denial of qualified immunity to

Isshawn-O'Quinn and Harris, "viewing the facts in the light most favorable to [S.L.]

and drawing all reasonable inferences in [her] favor." Nance, 586 F.3d at 609. On

appeal we review only questions of law and not "a district court's determination that

the evidence is sufficient to permit a particular finding of fact after trial." Johnson,

515 U.S. at 314. We therefore accept the district court's determination of what facts

were "sufficiently supported for purposes of summary judgment." Lockridge v. Bd.

of Trs. of Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en banc) (citation

omitted). Our review is limited to whether the alleged conduct "violated the

plaintiff's clearly established federal rights." Id.

A.

In reviewing the district court's denial of qualified immunity to

Isshawn-O'Quinn and Harris, we consider first whether its findings and the factual

record support a conclusion that the officers violated S.L.'s constitutional rights. See

Lockridge, 315 F.3d at 1008. S.L. alleges that Harris and Isshawn-O'Quinn conspired

to violate her constitutional rights in violation of § 1983. To succeed on her § 1983

conspiracy claim, S.L. must show that (1) Harris and Isshawn-O'Quinn conspired to

deprive her of a constitutional or federal right, (2) "at least one of the alleged co-

conspirators engaged in an overt act in furtherance of the conspiracy," and (3) S.L.

was injured by that overt act. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999).

As to the first element, we agree with the district court that S.L. had a

constitutional right to bring a § 1983 action for her false arrest and detention by

Arnold and Lorthridge. "[T]he right of access to courts for redress of wrongs is an

aspect of the First Amendment right to petition the government," Sure-Tan, Inc. v.

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NLRB, 467 U.S. 883, 896–97 (1984), which our court has recognized as a

"fundamental right of every citizen," Gunter v. Morrison, 497 F.3d 868, 874 (8th Cir.

2007) (citation omitted). Individuals who have been falsely arrested are therefore

"entitled to 'free and unhampered access to the courts'" to pursue § 1983 actions. Id.

(quoting Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427–28

(8th Cir. 1986)). In this case it was particularly important that S.L. be able to pursue

her § 1983 action because that statute was enacted "to protect the people from

unconstitutional action under color of state law," Mitchum v. Foster, 407 U.S. 225,

242 (1972), and to "deter state actors" such as Arnold and Lorthridge "from using the

badge of their authority to deprive individuals of their federally guaranteed rights,"

Wyatt v. Cole, 504 U.S. 158, 161 (1992).4

To complete our analysis of the first element, we consider whether the record

supports a conclusion that Harris and Isshawn-O'Quinn conspired with Arnold and

Lorthridge to deprive S.L. of her valid § 1983 claim. We conclude that it does. As

to Isshawn-O'Quinn, the district court determined that a reasonable jury could find

from the evidence that he and Lorthridge had "conspired to conceal Arnold's role in

the arrest[]," and we accept that determination at this stage. See Lockridge, 315 F.3d

at 1008. Other evidence in the record also tends to support Isshawn-O'Quinn's

involvement in the alleged conspiracy. He encouraged Lorthridge to "be creative" in

providing an imaginary witness to S.L.'s arrest by searching for a name in the

department's computer system. He also instructed her to remove Arnold's name as

4

The dissent relies on a pro se case with national security implications,

Christopher v. Harbury, 536 U.S. 403 (2002), arguing that S.L. has stated neither a

"backward-looking" nor "forward-looking" claim for access to courts. Our court has

never interpreted Harbury to require this type of categorization, however, and the

Supreme Court itself emphasized that "[b]ifurcation into forward-looking and

backward-looking access claims is a simplification," rather than "the only possible

categorization." Id. at 414 n.11. Moreover, while the plaintiff in Harbury was

actively pursuing simultaneous tort claims for her injuries in that case, id. at 422, S.L.

has no alternative cause of action against Harris and Isshawn-O'Quinn.

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assisting officer. After Lorthridge implemented his suggestions, Isshawn-O'Quinn

accepted and approved the fifth incident report without inquiring about the changes

or alerting any superior officer about the creative reporting. Isshawn-O'Quinn's

deposition testimony establishes that his approval was sufficient for the falsified

arrest report to escape review by any other supervising officer.

With respect to Harris, the district court similarly determined that the record

was sufficient for a reasonable jury to find that he had "conspired with Arnold to keep

her informed of the course of the [internal affairs] investigation." The record contains

evidence that Harris and Arnold had a close professional relationship, that he had

advocated for her promotion, and that she considered him a mentor. Arnold indicated

that in August 2009 Harris had visited her home and kissed her, and that "[a] couple

of months later" he had kissed her again at work. There is also evidence that Arnold

and Lorthridge searched in the SLMPD computer system for information about

Richard Delaney after he was interviewed by the internal affairs division. Harris

oversaw that division and had access to confidential information about Delaney's

interview. Viewing the record in the light most favorable to S.L. as we must, a

"reasonable inference[]" could be made that confidential information about the

internal affairs investigation was shared with Arnold by Harris. Nance, 586 F.3d at

609. The record at this stage is sufficient not to dismiss S.L.'s claim that Harris and

Isshawn-O'Quinn conspired with others to conceal facts on which a legal action for

false arrest and detention could be based.

Turning to the second element, the record also contains evidence that "at least

one of the alleged co-conspirators engaged in an overt act in furtherance of the

conspiracy." Askew, 191 F.3d at 957. Isshawn-O'Quinn instructed Lorthridge to "be

creative" in repairing deficiencies in her arrest report, and he accepted the revised

incident report without inquiring as to its striking inconsistencies with previous

drafts. The evidence similarly supports an inference that Harris leaked information

to Arnold about the ongoing investigation, including informing her when Richard

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Delaney was being interviewed. Alleged conspiracy members Arnold and Lorthridge

also engaged in overt acts by submitting the falsified arrest report and misleading the

investigators during the internal affairs investigation. These facts would be sufficient

to establish an overt act in furtherance of the conspiracy.

Finally as to the third element, the record at this stage has support for S.L.'s

claim of injury by an overt act of the conspiracy. Isshawn-O'Quinn reviewed and

approved the falsified arrest documents related to S.L.'s arrest, including a summons

for a city court hearing. S.L.'s father testified in his deposition that after viewing the

summons he told her that "it looks like you're going to court, and we're going to need

a lawyer." The lawyer retained by S.L. ultimately recommended filing this § 1983

action rather than appearing for the scheduled hearing. Isshawn-O'Quinn's approval

of the summons therefore injured S.L. by requiring her to retain defense counsel

related to the trespassing charge. There is also no evidence at this point about

whether the trespassing charge was ever expunged from S.L.'s record or whether she

has been deterred from seeking employment based on the false arrest report.

While there is no direct evidence that Arnold instructed her son Jonathan to

coerce S.L. to change her story, the record shows that he began pressuring S.L. to

change her story one week after Arnold was interviewed by investigators. When S.L.

refused, Jonathan choked and beat her to the point of causing a punctured lung, air

around her heart, and bruising. S.L.'s father testified that her hospital bills from that

assault were about $10,000 and that she did not have health insurance.

Approximately $8,000 of the bills remain unpaid. Circumstantial evidence therefore

links S.L.'s physical and economic injuries to Arnold's overt acts, see Westborough

Mall, Inc. v. City of Cape Girardeau, 693 F.2d 733, 743 (8th Cir. 1982), which are in

turn related to Harris's acts of providing her with information about the internal

affairs investigation so she could protect her own interests.

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Finally, S.L. testified that the arrest and cover up caused her to be "deathly

afraid of police officers" and that when she encounters one she "get[s] really, really

upset and cr[ies]." She also stated, "I'm just depressed and don't feel that I can

motivate myself like the same way that I used to. I just felt like I was . . . the target

for no reason at all. I don't understand, I guess, why all of that happened." Such

evidence could support a finding that S.L. was injured as a result of Lorthridge's overt

act of filing the false police report and Isshawn-O'Quinn's act of approving it.

The dissent argues that S.L. is not entitled to bring a § 1983 action against

Harris and Isshawn-O'Quinn because she may bring claims against Arnold,

Lorthridge, and others to recover for her injuries. The fact that S.L. may bring a

separate action against other actors involved in a prior constitutional violation,

however, does not provide adequate redress for her injuries arising from the

misconduct of Harris and Isshawn-O'Quinn. The "very purpose of § 1983 [is] to

interpose the federal courts between the States and the people . . . [and] to protect the

people from unconstitutional action under color of state law." Mitchum, 407 U.S. at

242. There is supporting evidence that Harris and Isshawn-O'Quinn deliberately

falsified arrest records to protect the department's reputation following Arnold and

Lorthridge's abusive misconduct. In such circumstances S.L. has the right to bring

a § 1983 action against them for unlawfully covering up a constitutional violation.

We conclude that the record, when viewed in the light most favorable to S.L.,

would be sufficient for a reasonable factfinder to find that Harris and

Isshawn-O'Quinn participated in a § 1983 conspiracy to violate her constitutional

rights.

B.

We turn next to the question of whether S.L.'s constitutional rights are clearly

established such that Harris and Isshawn-O'Quinn would understand that their

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conduct was unlawful. The Supreme Court has long held that "civil rights actions are

of 'fundamental importance . . . in our constitutional scheme' because they directly

protect our most valued rights," Bounds v. Smith, 430 U.S. 817, 828 (1977) (citations

omitted), and has observed that it was through the enactment of § 1983 that "the role

of the Federal Government as a guarantor of basic federal rights against state power

was clearly established," Mitchum, 407 U.S. at 238–39. Our court has similarly

suggested that "intentional" police misconduct "ar[ising] from a conspiracy" would

violate a plaintiff's clearly established constitutional rights. Mettler v. Whitledge, 165

F.3d 1197, 1206 (8th Cir. 1999). We conclude that conspiring to prevent a plaintiff

from bringing a viable § 1983 action by covering up a false arrest therefore may

amount to a violation of a clearly established right.

In the particular circumstances of this case, Harris and Isshawn-O'Quinn also

had reason to know that their conduct violated S.L.'s constitutional rights.

Isshawn-O'Quinn instructed Lorthridge to "be creative" in revising the incident report

documenting S.L.'s arrest. After Lorthridge resubmitted a revised report, he approved

it without inquiring into the inconsistencies, thereby preventing any other officers

from scrutinizing its content. The record at this stage similarly supports an inference

that Colonel Harris, the head of SLMPD's internal affairs division, informed Arnold

about the internal investigation into her misconduct. A reasonable factfinder could

determine that an officer overseeing such a unit, which was part of the SLMPD's

bureau of professional standards, would know that divulging confidential information

to the subject of an investigation is improper. In a situation where a supervising

officer has "intentional[ly]" aided a subordinate office in concealing the

circumstances surrounding an improper arrest, Mettler, 165 F.3d at 1206, that officer

has reason to "understand his conduct was unlawful" and in violation of the arrestee's

constitutional rights, Nance, 586 F.3d at 609.

Our conclusion is also consistent with the "obvious function" of qualified

immunity, which is to "excuse an officer who makes a reasonable mistake in the

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exercise of his official duties" but not one who "intentionally abuse[s] a person's

known rights." Edwards v. Baer, 863 F.2d 606, 607 (8th Cir. 1988). A reasonable

officer would be aware that it is impermissible to assist in falsifying an arrest report

or hinder an investigation into the underlying misconduct. Nor is this a circumstance

in which officers unwittingly accepted a falsified arrest report or disclosed details of

an investigation. Rather, Isshawn-O'Quinn instructed Lorthridge to fabricate portions

of the report, resulting in her inserting a false witness, false place of arrest, and false

incident summary. He then approved the modified report without question or

comment. Drawing "reasonable inferences in [S.L.'s] favor," Nance, 586 F.3d at 609,

the record similarly supports that Harris disclosed confidential information to Arnold

in order to assist her in concealing facts sought by investigators.

We conclude that the material facts identified by the district court and the

record viewed in the light most favorable to S.L. would support a conclusion that

Harris and Isshawn-O'Quinn conspired with Arnold and Lorthridge to prevent S.L.

from filing a § 1983 action following her false arrest, which amounted to participation

in a § 1983 conspiracy. The record at this stage is sufficient for a reasonable jury to

find that Harris and Isshawn-O'Quinn violated S.L.'s clearly established constitutional

rights, and the district court accordingly did not err in denying qualified immunity to

them.

IV.

The district court's denial of summary judgment on S.L.'s municipal liability

claims is also appealed. The Board appeals the district court's denial of summary

judgment on S.L.'s claim that it was deliberately indifferent to a pattern of

unconstitutional conduct by the SLMPD. The Board, Chief of Police Isom, and

Harris appeal the denial of summary judgment on S.L.'s inadequate supervision

charge. We generally lack jurisdiction "to hear an immediate appeal from a district

court's order denying summary judgment, because such an order is not a final

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decision." Krout v. Goemmer, 583 F.3d 557, 563–64 (8th Cir. 2009). We will

exercise pendent appeal jurisdiction over such an appeal only in the "exceptional

circumstance" in which it is "inextricably intertwined" with the qualified immunity

appeal, which occurs when the resolution of the qualified immunity claim

"necessarily resolves the pendent claims as well." Lockridge, 315 F.3d at 1012

(citation omitted).

We conclude that the municipal liability claims are not "inextricably

intertwined" with the qualified immunity appeal and we thus lack jurisdiction to

consider them at this stage. Id. Granting qualified immunity to Harris and

Isshawn-O'Quinn would not determine whether the Board was deliberately indifferent

to any pattern of false arrests in St. Louis. To establish a custom or practice by the

Board of ignoring false arrests by the SLMPD, S.L. must show (1) the existence of

a widespread pattern of unconstitutional misconduct by the department, (2) deliberate

indifference to that conduct by the Board, and (3) that S.L. was injured by the

misconduct. Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998).

The misconduct alleged by S.L. to show the Board's deliberate indifference

differs from her proffered facts supporting denial of qualified immunity to Harris and

Isshawn-O'Quinn. The deliberate indifference claim relies largely on allegations

related to the structure and decisions of the Board itself. S.L. alleges, for example,

that the Board received no information about the frequency of false arrests in St.

Louis and was unaware of any SLMPD practices or procedures following a false

arrest allegation. S.L. also need not prove liability of any individual municipal

employee to succeed on her deliberate indifference claim because the Board may be

liable if "the combined actions of multiple officials" created a pattern of

unconstitutional conduct which could not be individually attributed to any one

officer. Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002).

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Nor would a grant of qualified immunity to Harris and Isshawn-O'Quinn

"necessarily resolve[]" S.L.'s claim that the Board, Isom, and Harris failed to

supervise Arnold, Lorthridge, and Isshawn-O'Quinn. Lockridge, 315 F.3d at 1012.

To establish liability for failure to supervise, S.L. must show "deliberate indifference

[to] or tacit authorization of the offensive acts." Brockinton v. City of Sherwood, 503

F.3d 667, 673 (8th Cir. 2007) (citation omitted). With respect to the Board and Chief

of Police Isom, this issue "requires entirely different analys[i]s" from the question of

qualified immunity, Veneklase v. City of Fargo, 78 F.3d 1264, 1270 (8th Cir. 1996),

because it would require examination of SLMPD supervision and training policies

rather than the actions of individual officers, see Tilson v. Forrest City Police Dep't,

28 F.3d 802, 812–13 (8th Cir. 1994).

Granting qualified immunity to Harris also would not resolve S.L.'s failure to

supervise claim against him. Harris is entitled to qualified immunity if his conduct

did not violate "clearly established statutory or constitutional rights of which a

reasonable person would have known," Harlow, 457 U.S. at 818, but he may be liable

for failure to supervise even without having "personally participated in any

constitutional deprivation" or "know[ing] about any violation at the time it occurred,"

Wever v. Lincoln Cnty., Neb., 388 F.3d 601, 606 (8th Cir. 2004) (citation omitted).

The issues raised by the municipal defendants are thus not inextricably intertwined

with the question of qualified immunity, and we lack jurisdiction to consider them at

this time.

V.

Accordingly, we affirm the district court's denial of qualified immunity to

Colonel Harris and Sergeant Isshawn-O'Quinn, and we dismiss the appeal by the

SLMPD Board of Police Commissioners, Chief of Police Isom, and Colonel Harris

on S.L.'s municipal liability claims for lack of jurisdiction.

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GRUENDER, Circuit Judge, concurring in part and dissenting in part.

I concur in Parts I, II, and IV of the court’s opinion. Because S.L.’s complaint

does not support a denial-of-access claim, I respectfully dissent as to Parts III and V

(in part).

In Scheeler v. City of St. Cloud, Minn., we said that the “right of access to the

courts is well-established” in this circuit and concluded that a police department’s

failure to properly investigate a crime could result in the denial of a person’s

meaningful access to the courts. 402 F.3d 826, 830 (8th Cir. 2005) (citing

Christopher v. Harbury, 536 U.S. 403, 415 (2002)). In Scheeler, the plaintiffs

claimed that the defendant police officers’ failure to investigate properly the death of

their son caused a loss of evidence that precluded them from pursuing “a wrongful

death action . . . against the individual that killed [their son].” Id. at 829 (quoting the

complaint). We recognized the denial-of-access claim as properly stated but affirmed

summary judgment in favor of the defendants, determining that the plaintiffs failed

to make the required showing that the defendants displayed “deliberate indifference

to their right of access to the courts.” Id. at 831.

Prior to our decision in Scheeler, the Supreme Court explained the allegations

that a plaintiff must make to pursue a constitutional denial-of-access claim. See

Harbury, 536 U.S. 403. In Harbury, the plaintiff alleged that her husband, a

Guatemalan rebel leader, was captured by Guatemalan army forces that included

officers trained in the United States and retained as informants by the Central

Intelligence Agency (“CIA”). Id. at 406. Eventually, Harbury’s husband was

executed by order of the CIA-affiliated officers. Id. According to Harbury’s

complaint, White House and State Department officials intentionally misled her

regarding her husband’s whereabouts, preventing her from filing a lawsuit against the

United States that could have saved her husband’s life. Id. at 409-10. In a Bivens

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action, Harbury alleged that various federal officials “unconstitutionally impeded her

access to the courts.” Id. at 408-10.

In reviewing Harbury’s claim, the Supreme Court divided denial-of-access

claims into two categories. Id. at 412-14. First are forward-looking claims, in which

“systemic official action frustrates a plaintiff or plaintiff class in preparing and filing

suits at the present time.” Id. at 413. In these cases, “[t]he opportunity has not been

lost for all time . . . the object of the denial-of-access suit, and the justification for

recognizing that claim, is to place the plaintiff in a position to pursue a separate claim

for relief once the frustrating condition has been removed.” Id. Typical cases include

prisoners seeking to use a prison’s law library, or “cases challenging filing fees that

poor plaintiffs cannot afford to pay.” Id. Second are “backward-looking” claims, in

which “[t]he official acts claimed to have denied access may allegedly have caused

the loss or inadequate settlement of a meritorious case, the loss of an opportunity to

sue, or the loss of an opportunity to seek some particular order of relief.” Id. at 413-

14 (citations omitted).

These cases do not look forward to a class of future litigation, but

backward to a time when specific litigation ended poorly, or could not

have commenced, or could have produced a remedy subsequently

unobtainable. The ultimate object of these sorts of access claims, then,

is not the judgment in a further lawsuit, but simply the judgment in the

access claim itself, in providing relief obtainable in no other suit in the

future.

Id. at 414 (emphasis added) (footnotes omitted). Thus, in backward-looking claims,

the complaint must identify a “remedy that may be awarded as recompense but not

otherwise available in some suit that may yet be brought.” Id. at 415. “There is,

after all, no point in spending time and money to establish the facts constituting

denial of access when a plaintiff would end up just as well off after litigating a

simpler case without the denial-of-access element.” Id.

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The Supreme Court determined that Harbury alleged a backward-looking claim

and that her complaint “did not come even close to stating a constitutional claim for

denial of access upon which relief could be granted.” Id. at 418. It reasoned that “the

complaint failed to identify the underlying cause of action that the alleged deception

had compromised, going no further than the protean allegation that the State

Department and [National Security Council] defendants’ ‘false and deceptive

information and concealment foreclosed Plaintiff from effectively seeking adequate

legal redress.’” Id. More importantly for our purposes here, even if the Supreme

Court accepted Harbury’s allegation at oral argument that she would have filed a

claim for intentional infliction of emotional distress, “she could not satisfy the

requirement that a backward-looking denial-of-access claim provide a remedy that

could not be obtained on an existing claim.” Id. at 420-21. The Supreme Court

reasoned that the plaintiff’s complaint already included a claim for intentional

infliction of emotional distress and that she could seek damages through that cause

of action. Id at 421.

In sum, Harbury requires a backward-looking denial-of-access claim to state

a remedy that is unavailable in a current or future lawsuit. See id. at 415; see also

Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007); Broudy v. Mather, 460 F.3d 106,

117-18 (D.C. Cir. 2006); Jennings v. City of Stillwater, 383 F.3d 1199, 1207-09 (10th

Cir. 2004). In Scheeler, the plaintiff stated this element by pleading that the

underlying violation—a failure to investigate—deprived them of the evidence needed

to pursue a civil lawsuit. See 402 F.3d at 829. Here, however, S.L. makes no such

allegation.

In Count IV of S.L.’s amended complaint, she alleges that Arnold, Lorthridge,

Officer Harris, and Officer Isshawn-O’Quinn conspired to “violate [her] civil rights

by unlawfully seizing her person, detaining her, and creating a false report to cover

up the unlawful arrest.” The complaint further alleges that the conspiracy “deprived

[her of] her rights under the Fourth and Fourteenth Amendments to the United States

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Constitution.” S.L., then, does not make a “forward-looking” claim because she does

not allege that “systemic official action frustrates [her] in preparing and filing suits

at the present time.” Harbury, 536 U.S. at 413. Rather, she claims the “loss of an

opportunity to seek some particular order of relief,” id. at 414, by alleging that

Officers Harris and Isshawn O’Quinn conspired to “creat[e] a false police report to

cover up the unlawful arrest and detention.”

Applying Harbury to S.L.’s complaint, I conclude that S.L. fails to state a

constitutional claim for denial of access because Count IV of the complaint does not

seek “relief obtainable in no other suit in the future.” Id. at 414. The remedy S.L.

seeks through Count IV—damages and other appropriate relief resulting from a

deprivation of her Fourth and Fourteenth Amendment rights—is the very same

remedy she seeks through Count I. Compare Compl. ¶ 73 (alleging that the

conspiracy “deprived [her] of her rights under the Fourth and Fourteenth

Amendments to the United States Constitution”) with Compl. ¶ 49 (alleging that

Arnold and Lorthridge “subjected [her] to an unlawful and unjustified search and

seizure . . . in violation of the Fourth and Fourteenth Amendments”). This is virtually

the same scenario the Supreme Court confronted when it rejected the plaintiff’s

denial-of-access claim in Harbury. See Harbury, 536 U.S. at 421-22. Unlike the

plaintiff in Scheeler, S.L. does not allege that the coverup led to a loss of evidence

that will prejudice her cause of action for the unlawful search and seizure. I cannot

discern how Count IV would provide her with a remedy unavailable through the

prosecution of Count I.

Moreover, even the court’s speculative attempt to identify injuries caused by

the alleged conspiracy fails to identify a unique remedy that could support a denial-

of-access claim. The court states that S.L. suffered injury from the alleged conspiracy

to cover up her arrest because she was required to retain a lawyer to represent her at

a city court hearing related to the false arrest. The court additionally concludes that

S.L. suffered injury from the alleged coverup when Arnold’s son Jonathan choked

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and beat her. In both cases, S.L. may seek redress for the injury in “some suit that

may yet be brought.” Id. at 415. The cost of hiring an attorney arises from the

unlawful search and seizure and may be recovered through S.L.’s § 1983 claim

against Arnold and Lorthridge. And while Jonathan’s alleged assault of S.L. is

reprehensible, S.L. could seek relief for the injuries Jonathan inflicted upon her

through her claims against Arnold or through a primary tort suit against Jonathan.

Again, S.L.’s complaint contains no allegation that the alleged coverup somehow

prejudiced her current ability to bring such a suit.

The court ignores Harbury, except to point out that its bifurcation of denial of

access claims “‘into forward-looking and backward-looking access claims is a

simplification,’ rather than ‘the only possible categorization.’” Ante at 12 n.4

(quoting Harbury, 536 U.S. at 414 n.11). This observation by the Supreme Court

does not affect Harbury’s central holding. In any case where a plaintiff alleges that

an official’s past action denied her access to the courts, her complaint “should state

the underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as

if it were being independently pursued, and a like plain statement should describe any

remedy available under the access claim and presently unique to it.” Harbury, 536

U.S. at 417-18 (footnote omitted). Whether or not we call it a backward-looking

claim, S.L.’s denial of access claim fails to meet the pleading standard required by

Rule 8(a) and Harbury. Moreover, it is of no moment under the reasoning of

Harbury that S.L. “has no alternative cause of action against Harris and Isshawn-

O’Quinn,” ante at 12 n.4, because the dispositive question is whether the remedy

sought from them is obtainable elsewhere.5 As discussed above, S.L. identifies no

5

Indeed, the denial-of-access claim that the Supreme Court rejected in Harbury

was directed at different defendants than the underlying claim for intentional

infliction of emotional distress. See Harbury, 536 U.S. at 409 (describing Harbury’s

denial-of-access counts as naming National Security Council and State Department

officials as defendants); id. at 419 n.17, 421 n.20 (noting that the intentional-

infliction-of-emotional-distress counts underlying the denial-of-access claim named

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injury apart from those compensable in her underlying claims against Arnold,

Lorthridge, and, potentially, Jonathan. In short, S.L. fails to describe any remedy

available under the access claim and presently unique to it.

I do not suggest as a general matter that S.L. could not bring a § 1983 action

against Officers Harris and Isshawn-O’Quinn merely due to “[t]he fact that S.L. may

bring a separate action against other actors involved in a prior constitutional

violation.” Ante at 15. The problem is that she fails to plead the necessary elements

of a claim against those officers. If the record viewed in the light most favorable to

S.L. indicated that Officers Harris and Isshawn-O’Quinn violated a clearly

established constitutional right, S.L. would indeed be entitled to bring a claim under

§ 1983, irrespective of her claims against Arnold and Lorthridge. But the record does

not so indicate. The only constitutional violation the court identifies as involving

Officers Harris and Isshawn-O’Quinn arises from their alleged conspiracy “to deprive

S.L. of her valid § 1983 claim.” Ante at 12. As discussed above, a denial-of-access

claim requires the plaintiff to identify a remedy uniquely available through the claim,

and S.L.’s allegations in that regard are insufficient. This fact, combined with her

failure to identify any other constitutional injury arising from Officer Harris’s and

Officer Isshawn-O’Quinn’s alleged conduct, leads to her inability to identify the

“unconstitutional action under color of state law” that is required to survive summary

judgment against the officers. Id. at 15 (quoting Mitchum, 407 U.S. 225, 242 (1972)).

The alleged conduct of Officers Harris and Isshawn-O’Quinn is inexcusable.

Nevertheless, though their actions were “unprofessional, [S.L. has] failed to

demonstrate that that conduct constituted a constitutional violation.” King v. Olmsted

Cnty., 117 F.3d 1065, 1068 (8th Cir. 1997); see also Rubek v. Barnhart, 814 F.2d

1283, 1285 (8th Cir. 1987) (“While we deplore the action complained of if the

[plaintiffs’] allegations are true, it is well established that not every violation of state

CIA officials as defendants).

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tort or criminal assault laws committed by a state official results in a constitutional

violation cognizable under section 1983.”). Because S.L.’s complaint does not

identify a “remedy that may be awarded as recompense but not otherwise available

in some suit that may yet be brought,” Harbury, 536 U.S. at 415, her allegations do

not support a denial-of-access claim. It follows that S.L.’s complaint fails to establish

that Officers Harris and O’Quinn violated her constitutional rights. See Steidl, 494

F.3d at 633 (reversing the denial of qualified immunity on a denial-of-access claim

and holding that the plaintiff failed to establish a constitutional violation because his

complaint did “not ask[] for any remedy relating to the denial of access to the courts

that he [could not] ‘still . . . obtain [] through another procedure’” (quoting Harbury,

536 U.S. at 415) (third and fourth alterations in original)). I therefore conclude that

Officers Harris and Isshawn-O’Quinn are entitled to qualified immunity and would

reverse the district court’s holding to the contrary.

____________________________

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