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. *-3- ___________ Submitted: September 8, 1998
Filed: December 22, 1998

___________ Befo re McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPAR D ARNOLD, Circuit Judges.

___________ PER CURIAM.Miranda v. Arizona , 384 U.S. 436 (1966). 1 -4- Ken drick Lee Harris appeals from the final judgment entered in the Distric t Court for the Eastern District of Missouri dismissing his 42 U.S.C. § 1983 action with prej udice. For reversal, Harris argues that the district court erred in (1) denying hi s motion for a default judgment against defendant Derrick Mack, and (2) grantin g Mack & s Fed. R. Civ. P. 12(b)(6) motion to dism iss Harris & s complaint. For the reasons discussed below, we affirm in part and reverse and remand in part.
Harris al leged the following against Mack. After two detectives from the St

. Louis, Missouri police department stopped Harris while he was walking down a street witha beer in his hand, defendant Mack, who had been called as a back-up polic e officer, threatened to mace, shoot, or beat Harris if he did not confess to a felony, and failedto read Harris his Miranda rights. Mack later threatened to plant evidence on 1 Harris, “brushed up against” Harris, “used physical force,” and cut upHarris & s bus pass after pulling his knife on H arris. Harris contended that he “felt his life was in danger” whenMack threatened him with “lethal deadly weapons,” namely, mace, a gun, and a knife.
Wereview 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.) (stan dardof review), cert. denied , 483 U.S. 1025 (1987). We cannot say that th e district court abused its discretion here, because Mack filed an answer to Harris & s co mplaint after obtaining leave of court to file the answer out of time. Cf. Ackr a Direct Mktg. Corp. v. Fingerhut Corp. , 86 F.3 d 852, 857 (8th Cir. 1996) (district court may g rant default judgment against party who willfully, contumaciously, o r intentionally fails to defend).
After de novo review of the district court & s Rule 12(b)(6) dismissal, se e Springdale Educ. Ass & n v. Springdale Sch. Dist. , 133 F.3d 649, 651 (8th Cir. 1998)-5-

(standard of review), we agree with the district court that Harris cannot assert a § 1983 claimbased on the destruction of his bus pass, because Harris has an adequat e postdeprivation remedy in state court for conversion

. See Reese v. Kennedy , 865 F.2d 186, 1 87 (8th Cir. 1989) (per curiam) (state tort remedies preclude § 1983 claim fo r deprivation of property); Maples v. United Sav. & Loan Ass & n , 686 S.W.2d 525, 527 (Mo. Ct. App. 1985) (defi ning conversion as “unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner & s ri ghts”). We also agree that Mack & s failure to read Harris his constitutional rights i s 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) (i f stat ements obtained during custodial interrogation are not used against party durin g criminal trial, party & s constitutional rights are not violated).
We conclude, however, that Harris & s allegations concerning Mack & s threats t o use wea pons against Harris and Mack & s use of physical force were sufficient t o withstandMack & s motion to dismiss. See Fed. R. Civ. P. 8(a)(2) (federal pleadin g rules requ ire only short and plain statement of claim showing pleader is entitled t o relief); Leatherman v. Tarrant County Narcotic s 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) (pe r curiam) (pro se complaints should be construed libera lly). 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 arre sts are appropriately analyzed under Fourth Amendment & s reasonablenes s standard); Mayard v. Hopwood , 105 F.3d 1226, 1228 (8th Cir. 1997) (explainin g reasonableness standard as whether police officer & s conduct was ob jectively reasonable un der circumstances; concluding slapping and punching restrained arrestee wa s actionable).-6-

Accordingl y, we affirm both the district court & s refusal to enter a defaul t judgment against Mack, and the court & s dismissal of Harris & s § 1983 claims concerning his b us pass and Mack & s failure to read Harris his Miranda rights. We reverse th e cour t & s dismissal of Harris & s § 1983 claim that Mack threatened him with variou s weapons and used physical force against him, and we remand this matter fo r proceedings consistent with this opinion. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.