UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 98-1810EMSL

Kendrick Lee Harris, *

*

Appellant, * Appeal from the United States

* District Court for the

St. Louis Police Department; City * Eastern District of Missouri

of St. Louis, *

*

Appellee, *

*

Officer Mack, #976 *

*

Officer Finan Kelly, #8657; Area *

II Command; Officer Rice, #2204, *

*

Defendants. *

On the court’s own motion, the opinion of December 7, 1998, is vacated.

The clerk is directed to issue the attached corrected opinion.

The court’s judgment of December 7, 1998, remains in effect, and the period for

filing a motion for rehearing or rehearing en banc will run from December 7, 1998.

December 22, 1998

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit
United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1810

___________

Kendrick Lee Harris, *

 *

Appellant, *

 *

v. *

 *

St. Louis Police Department; City of *

St. Louis, * Appeal from the United States

 * District Court for the

Defendants, * Eastern District of Missouri 

 *

Officer Mack, #976, * [TO BE PUBLISHED]

 *

Appellee, *

 *

Officer Finan Kelly, #8657; Area II *

Command; Officer Rice, #2204, *

 *

Defendants. *
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___________

 Submitted: September 8, 1998

 Filed: December 22, 1998

___________

Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD

ARNOLD, Circuit Judges. 

___________

PER CURIAM.
 Miranda v. Arizona, 384 U.S. 436 (1966). 1

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Kendrick Lee Harris appeals from the final judgment entered in the District

Court for the Eastern District of Missouri dismissing his 42 U.S.C. § 1983 action with

prejudice. For reversal, Harris argues that the district court erred in (1) denying his

motion for a default judgment against defendant Derrick Mack, and (2) granting

Mack&s Fed. R. Civ. P. 12(b)(6) motion to dismiss Harris&s complaint. For the reasons

discussed below, we affirm in part and reverse and remand in part.

Harris alleged the following against Mack. After two detectives from the St.

Louis, Missouri police department stopped Harris while he was walking down a street

with a beer in his hand, defendant Mack, who had been called as a back-up police

officer, threatened to mace, shoot, or beat Harris if he did not confess to a felony, and

failed to read Harris his Miranda rights. Mack later threatened to plant evidence on 1

Harris, “brushed up against” Harris, “used physical force,” and cut up Harris&s bus pass

after pulling his knife on Harris. Harris contended that he “felt his life was in danger”

when Mack threatened him with “lethal deadly weapons,” namely, mace, a gun, and

a knife.

We review for abuse of discretion the district court&s denial of Harris&s motion

for a default judgment. See Swink v. City of Pagedale, 810 F.2d 791, 792 (8th Cir.)

(standard of review), cert. denied, 483 U.S. 1025 (1987). We cannot say that the

district court abused its discretion here, because Mack filed an answer to Harris&s

complaint after obtaining leave of court to file the answer out of time. Cf. Ackra

Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (district court

may grant default judgment against party who willfully, contumaciously, or

intentionally fails to defend).

After de novo review of the district court&s Rule 12(b)(6) dismissal, see

Springdale Educ. Ass&n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998)
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(standard of review), we agree with the district court that Harris cannot assert a § 1983

claim based on the destruction of his bus pass, because Harris has an adequate

postdeprivation remedy in state court for conversion. See Reese v. Kennedy, 865 F.2d

186, 187 (8th Cir. 1989) (per curiam) (state tort remedies preclude § 1983 claim for

deprivation of property); Maples v. United Sav. & Loan Ass&n, 686 S.W.2d 525, 527

(Mo. Ct. App. 1985) (defining conversion as “unauthorized assumption of the right of

ownership over the personal property of another to the exclusion of the owner&s

rights”). We also agree that Mack&s failure to read Harris his constitutional rights is

not actionable because Harris did not allege that he was tried for a crime pursuant to

his arrest. See Davis v. City of Charleston, 827 F.2d 317, 322 (8th Cir. 1987) (if

statements obtained during custodial interrogation are not used against party during

criminal trial, party&s constitutional rights are not violated).

We conclude, however, that Harris&s allegations concerning Mack&s threats to

use weapons against Harris and Mack&s use of physical force were sufficient to

withstand Mack&s motion to dismiss. See Fed. R. Civ. P. 8(a)(2) (federal pleading

rules require only short and plain statement of claim showing pleader is entitled to

relief); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 168 (1993) (under federal rules, there are no heightened pleading standards

for § 1983 claims); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per

curiam) (pro se complaints should be construed liberally). In particular, we believe the

facts pleaded were sufficient to call into question whether Mack&s conduct during his

arrest and search of Harris was objectively reasonable under the circumstances. See

Graham v. Connor, 490 U.S. 386, 394-95 (1989) (excessive force claims arising from

arrests are appropriately analyzed under Fourth Amendment&s reasonableness

standard); Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997) (explaining

reasonableness standard as whether police officer&s conduct was objectively reasonable

under circumstances; concluding slapping and punching restrained arrestee was

actionable).
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Accordingly, we affirm both the district court&s refusal to enter a default

judgment against Mack, and the court&s dismissal of Harris&s § 1983 claims concerning

his bus pass and Mack&s failure to read Harris his Miranda rights. We reverse the

court&s dismissal of Harris&s § 1983 claim that Mack threatened him with various

weapons and used physical force against him, and we remand this matter for

proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.