Fisher v. Wal-mart Stores Inc.

• Decision Date: 01 September 2010
• Docket Number: Nos. 09-2696, 09-3488.,s. 09-2696, 09-3488.
• Citation: 619 F.3d 811
• Parties: Melinda R. FISHER, Appellant, v. WAL-MART STORES, INC.; Wal-Mart Stores East, LP; Officer James F. Junkin; Sergeant Dale Loney, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

619 F.3d 811

Melinda R. FISHER, Appellant,

v.WAL-MART STORES, INC.; Wal-Mart Stores East, LP; Officer James F. Junkin; Sergeant Dale Loney, Appellees.

Nos. 09-2696, 09-3488.

United States Court of Appeals,Eighth Circuit.

Submitted: Feb. 9, 2010.

Filed: Sept. 1, 2010.

COPYRIGHT MATERIAL OMITTED.

J. Michael Cronan, J. Michael Cronan, P.C., Overland Park, KS, argued, for appellant.

James D. Jarrow, Baker Sterchi Cowden & Rice, L.L.C., Kansas City, MO, argued, for appellees Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P.

Christopher L. Heigele, Sherman Taft Bangert Thomas & Coronado, P.C., Kansas City, MO, argued (Steven F. Coronado, on the brief), for appellees Junkin and Loney.

Before RILEY, Chief Judge, ¹ SMITH and SHEPHERD, Circuit Judges.

SMITH, Circuit Judge.

Melinda Fisher filed suit against Wal-Mart Stores East, L.P. and Wal-Mart Stores, Inc. (collectively “Wal-Mart”) and two Raymore, Missouri, police officers following an incident involving counterfeit money orders at a Raymore Wal-Mart store. Fisher sued Wal-Mart on various claims, including false imprisonment, slander, intentional infliction of emotional distress, and malicious prosecution. Fisher also brought a 42 U.S.C. § 1983 claim for unlawful arrest against the Raymore police officers who arrested her. The district court ² granted summary judgment on all counts for Wal-Mart and the officers. The court also awarded attorneys' fees to the officers because it found that Fisher's claims against the officers were groundless and unreasonable. Fisher appeals, contending that the district court erred in granting summary judgment to Wal-Mart on her false imprisonment, slander, and malicious prosecution claims, and erred in granting summary judgment to the officers on her § 1983 claim. Fisher also argues that her claim against the officers was not frivolous and therefore the district court abused its discretion in awarding the officers attorneys' fees. We affirm.

I. Background ³

On January 9, 2008, UPS delivered four counterfeit $500 Wal-Mart money orders to Fisher at her Belton, Missouri home. Each $500 money order was made payable to Melinda Fisher by a “Christine Shaw.” Fisher does not know a “Christine Shaw” and has never met or spoken with a “Christine Shaw.” Also on January 9, Fisher coincidentally received a $100 Wal-Mart money order from Clarene Banks, the grandmother of Fisher's nephew, Kadeem, who lives with Fisher. Banks sent the money order to Fisher as a birthday gift to Kadeem.

Fisher was suspicious that someone she did not know sent her four $500 money orders. Fisher surmised that “Christine Shaw” must have gotten her name and address from an internet website. Fisher then decided to go to Wal-Mart to cash the legitimate money order from Clarene Banks and check into the legitimacy of the four suspicious money orders. Fisher, her infant son, her boyfriend, her cousin, and Kadeem all went to the Raymore Wal-Mart. When Fisher arrived at the store, she immediately went to the customer service counter and spoke with associate Kristie Keen. Fisher first presented Keen with the genuine $100 money order, and Keen cashed it. Fisher then presented the four fraudulent money orders. Fisher asserts that she handed the four money orders to Keen and asked Keen if they were real. Fisher states she did not intend to cash them and only wanted to know if they were real or fake. Keen was the only Wal-Mart associate with whom Fisher spoke on January 9. Keen did not accuse Fisher of committing a crime.

Keen recognized the money orders as likely fraudulent and called Wal-Mart's asset protection manager, Wanda Gonzalez. Keen then told Fisher that she would need to keep the four counterfeit money orders. Fisher and her group then decided to leave Wal-Mart. Keri Christeson, another Wal-Mart asset protection employee, was called to the front of the store. Keen and Gonzalez told Christeson that a woman was trying to cash fake money orders. Christeson called the Raymore Police Department and had the following conversation with the police dispatcher:

DISPATCHER: Police Department, Officer Stevie.

CHRISTESON: Oh, hi, it's Keri at the Raymore Free-Mart. Hey, I have a girl at the service desk trying to cash some fake money orders and, uh, officers

wanted me to call [']em the next time this happened so they could get a little bit more information.

DISPATCHER: Allllll righty, are you guys going to keep her up there 'til we get there?

CHRISTESON: We're going to try.

DISPATCHER: All right, I'll let 'em know.

(Emphasis added.)

Officer James F. Junkin was in the Wal-Mart parking lot when the call came from the Raymore police dispatcher stating that a person was trying to pass fraudulent checks at the Wal-Mart service desk. After receiving the call from dispatch, Officer Junkin waited until people matching the description given by Wal-Mart to the police dispatcher exited the store. Officer Junkin then stopped Fisher and her entire group and asked for identification. Officer Junkin then asked them if they had been at the customer service desk. Sergeant Dale Loney soon arrived and went into the store to investigate while Officer Junkin remained outside with Fisher. Sergeant Loney testified that he spoke with Gonzalez, Keen, and Christeson. Gonzalez and Keen told Sergeant Loney that Fisher had attempted to cash counterfeit money orders. Christeson confirmed that Fisher brought the money orders to the service desk. Christeson also gave Sergeant Loney the fake money orders for his inspection.

Sergeant Loney had worked with Wal-Mart employees in the past and considered them reliable informants as to suspected crimes at the Wal-Mart store. Based on the purportedly fraudulent money orders and the statements from Wal-Mart employees that Fisher had attempted to cash them, Sergeant Loney believed that there was probable cause that Fisher had committed a crime. Sergeant Loney then directed Officer Junkin to arrest Fisher for attempting to commit an offense.

Officer Junkin arrested Fisher without incident. Neither Wal-Mart nor any of its associates signed a complaint in the underlying criminal matter. The Raymore City Prosecutor decided to prosecute Fisher for attempting to cash the counterfeit money orders. The case was later dismissed without prejudice because Keen did not appear in court to testify. Immediately after the suit was dismissed, Fisher filed this lawsuit. Fisher alleged civil claims for false imprisonment/unlawful arrest against both the Raymore police officers and Wal-Mart, as well as slander and intentional infliction of emotional distress and malicious prosecution against Wal-Mart.

The district court ruled against Fisher on all counts. First, the court found that although Fisher was restrained against her will, the police had probable cause to do so and thus Wal-Mart was not liable for false imprisonment for calling the police. Even assuming the arrest was unlawful, the district court held that Wal-Mart would not be liable because, as a matter of law, the employees did nothing more than provide the officers incorrect information and did not give false information knowing to it be false. The district court then concluded qualified immunity barred Fisher's slander claim against Wal-Mart. The court granted summary judgment to Wal-Mart on the intentional infliction of emotional distress claim after Fisher conceded in her answer that she could not maintain the claim. The court also found that Fisher's claim for malicious prosecution failed because Wal-Mart's conduct was not motivated by malice.

The district court also held that Fisher could not establish a § 1983 violation against the police because the police had probable cause to arrest Fisher. The district court awarded attorneys' fees to Sergeant Loney and Officer Junkin because it found that Fisher's continued prosecution of her § 1983 false arrest claim when there was clear probable cause was unreasonable. The court agreed that the police officers request of fees in the amount of $7,249.45 was reasonable, but it reduced the award to $2,414.07 due to Fisher's financial condition.

II. Discussion

On appeal, Fisher argues that the district court (1) erred in granting summary judgment to the officers on her § 1983 claim; (2) abused its discretion in awarding the officers attorneys' fees; and (3) erred in granting summary judgment to Wal-Mart on her false arrest; defamation; and malicious prosecution claims.

A. Section 1983 Claims

Fisher first argues that the police violated her Fourth Amendment rights against unreasonable seizure by falsely arresting her. Fisher contends that factual disputes remain as to exactly what information the police had at the time of making the arrest. Fisher contends that when the evidence is viewed most favorably to her, Sergeant Loney did not investigate the facts before ordering Officer Junkin to arrest Fisher and that Officer Junkin did not have probable cause to arrest Fisher.

Sergeant Loney and Officer Junkin respond that summary judgment was appropriate because, after viewing the facts in the light most favorable to Fisher, the police had probable cause to arrest Fisher. The officers maintain that (1) Wal-Mart employees reported to Raymore police that Fisher was attempting to cash fake money orders; (2) Sergeant Loney was told by one or more Wal-Mart employees that Fisher had tried to cash the fake money orders; (3) the Wal-Mart employees had been reliable informants about criminal activity at the store in the past; and (4) the police are not required to believe Fisher's claim of innocence.

Fisher's § 1983 claim, like the three claims against Wal-Mart that will follow, must be reviewed de novo, construing the record in the light most favorable to the nonmoving party. Johnson v. AT & T Corp., 422 F.3d 756, 760 (8th Cir.2005). “Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of...