417 F.3d 813 (8th Cir. 2005), 04-2429, Andrews v. Fuoss

Docket Nº:04-2429.
Citation:417 F.3d 813
Party Name:Margaret ANDREWS, Appellant, v. Robert FUOSS, individually and in his capacity as Sheriff of Jones County, South Dakota, Appellee.
Case Date:August 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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417 F.3d 813 (8th Cir. 2005)

Margaret ANDREWS, Appellant,


Robert FUOSS, individually and in his capacity as Sheriff of Jones County, South Dakota, Appellee.

No. 04-2429.

United States Court of Appeals, Eighth Circuit.

August 1, 2005

Submitted: Feb. 18, 2005.

Appeal from the United States District Court for the District of South Dakota.

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Mike C. Fink, argued, Bridgewater, SD, for appellant.

Neil K. Fulton, argued, Pierre, SD, for appellee.


GRUENDER, Circuit Judge.

Margaret Andrews ("Andrews") sued Sheriff Robert Fuoss ("Sheriff Fuoss"), individually and in his capacity as Sheriff of Jones County, South Dakota, for violations of her federal constitutional rights pursuant to 42 U.S.C. § 1983 and for state law battery, which the district court had supplemental jurisdiction to consider under 28 U.S.C. § 1367. Andrews alleged that Sheriff Fuoss violated her Fourth Amendment right to be free from unreasonable searches and seizures when he briefly stopped her during an incident that occurred in the Jones County Courthouse, and that Sherif Fuoss employed excessive force in stopping her, also in violation of

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the Fourth Amendment. The district court [1 granted Sheriff Fuoss's motion for summary judgment on Andrews's § 1983 claim on the ground that he was entitled to qualified immunity because Andrews failed to establish that he violated a constitutional right. The district court also refused to exercise supplemental jurisdiction over Andrews's state law claim and dismissed that claim without prejudice. Andrews appeals, arguing that the district court erred in holding that Sheriff Fuoss's seizure of Andrews was constitutionally permissible and that Sheriff Fuoss's use of force was not excessive. We affirm.


On March 1, 2003, Andrews was in the Jones County Courthouse in Murdo, South Dakota, to attend the sentencing of her son James Andrews ("James") for his involvement in a crime spree that included assaulting an elderly woman at gunpoint, stealing her car, shooting at a house that provided day care, and lighting his mother's house on fire. At the time of his sentencing, James had an extensive prior criminal history. Even Andrews admitted that James's prior behavior led her to believe that he was dangerous and violent.

South Dakota Circuit Court Judge Max A. Gors ("Judge Gors") presided over James's case. Judge Gors told Sheriff Fuoss that he was free to exercise his discretion over how to keep the courtroom safe and secure, making Sheriff Fuoss his de facto bailiff. At James's earlier arraignment, Judge Gors asked Sheriff Fuoss how close James could get to spectators, including his mother. Sheriff Fuoss stated that there should be a ten-foot proximity limit for everyone except James's attorney Thomas W. Clayton ("Clayton"). Sheriff Fuoss did not communicate the ten-foot prohibition to Andrews, but did tell her, James and Clayton that she could not have physical contact with James. Prior to James's sentencing, Sheriff Fuoss informed Deputy Mike Kiewel ("Deputy Kiewel") that he was implementing a rule that no person other than Clayton could come within ten feet of James. Sheriff Fuoss's "ten-foot rule" was intended to maintain courtroom security and safety but again was not communicated to Andrews, James or Clayton.

On the day of James's sentencing hearing, Andrews was seated in the public seating area. On the other side of a waist-high wooden railing, James sat at counsel's table with Clayton. While waiting for the hearing to begin, Clayton motioned for Andrews to come to him. Andrews recalls Clayton asking her a question, which she could not hear, and stepping forward as Clayton motioned to her.

The parties dispute the details of what happened next. Andrews claims she took two or three steps towards Clayton, coming within five or six feet of James, when she felt a forceful blow on her left shoulder that came from behind. The blow was forceful enough to make her "see stars," and the force spun her around so that she was facing Sheriff Fuoss. Sheriff Fuoss told her to remain ten feet away from her son. She told Sheriff Fuoss to "keep your hands off me." According to Andrews, Sheriff Fuoss's push was strong enough that she would have fallen had Sheriff Fuoss not grabbed her arms. Clayton, who did not witness the initial contact, stated that he noticed Andrews had been backed up five to seven feet in a split second.

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In contrast, Sheriff Fuoss claims that the only contact he had with Andrews was when he extended his right arm and she ran into his open palm with her left shoulder, stopping her forward progress and only causing her to take one step back. Although Deputy Kiewel's description of the incident was similar to Andrews's, he stated that the only contact Sheriff Fuoss had with Andrews was a "straight-arm" push that caused Andrews to back up one step.

After the incident, Andrews was "shocked" and started to cry. Andrews reported an immediate pain flare-up relating to pre-existing neck and back conditions, but she returned to her seat and testified during the sentencing hearing. The incident left Andrews with a sore neck and a "horrible, horrible" headache. The next day, Andrews went to a physician due to continued soreness in her neck, arm and shoulder, but she could not recall whether she received any bruises from the encounter. Andrews also reported some increase in symptoms related to post-traumatic stress disorder, which she was diagnosed with after a prior, unrelated assault, but she admitted that her mental condition had been affected by other stressful events that also occurred at that time. Beyond exacerbation of her previous conditions, Andrews reported no other mental or physical problems resulting from the incident.


On appeal, Andrews asserts that the district court erred in granting Sheriff Fuoss's motion for summary judgment on the basis of qualified immunity because Sheriff Fuoss's actions violated her clearly established constitutional right to be free from unreasonable seizures under the Fourth Amendment to the United States Constitution as incorporated through the Fourteenth Amendment. We disagree.

"We review the district court's grant of summary judgment on the basis of qualified immunity de novo." DeArmon v. Burgess, 388 F.3d 609, 610 (8th Cir. 2004). State officers "are entitled to qualified immunity unless their...

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