1The Honorable William G. Cambridge, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2946

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Rita Carroll,

Appellant,

v.

Fredrick W. Pfeffer,

Appellee.

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Appeal from the United States

District Court for the

District of Nebraska.

[PUBLISHED]

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Submitted: April 19, 2001

 Filed: August 23, 2001

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Before WOLLMAN, Chief Judge, BEAM and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

Rita Carroll appeals the district court's1 adverse grant of summary judgment in

her 42 U.S.C. § 1983 action against Fredrick Pfeffer, a police officer in Omaha,

Nebraska. We affirm.
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I.

Carroll filed a lawsuit against Officer Pfeffer for his conduct which she alleges

was in retaliation for her complaints to city and police officials about an altercation

between Officer Pfeffer and Carroll's adult son that occurred on May 22, 1994. The

facts, viewed in the light most favorable to Carroll, are as follows. The first incident

between Carroll and Officer Pfeffer took place on May 24, 1994, when Officer Pfeffer

approached her vehicle and attempted to open her car door while she was stopped at

an intersection. On February 13, 1995, Officer Pfeffer bumped into her in a Hallmark

card shop, and she told him that one of them would have to leave. On April 15, 1997,

while Carroll was on a street corner passing out petitions to recall the county attorney,

Officer Pfeffer stopped his vehicle, shouted out the window, and shook his fist at her

while holding what appeared to be a copy of the petition. On May 13, 1997, Carroll

was in a phone booth on a street corner, and Officer Pfeffer drove by her twice, glared

at her, and taunted her. Later that same day, as Carroll was pulling out of a parking lot

after voting, Officer Pfeffer's vehicle nearly collided with Carroll's car. As a result of

these five incidents, Carroll sued Officer Pfeffer in both his official and individual

capacities for violating her civil rights. The district court granted Officer Pfeffer's

motion for summary judgment on the basis of qualified immunity. Carroll appeals. 

II.

We review the grant of a motion for summary judgment de novo. Coplin v.

Fairfield Pub. Access Television Comm., 111 F.3d 1395, 1401 (8th Cir. 1997). In

conducting our review, we view the record in the light most favorable to the nonmoving

party. Id. Summary judgment is proper when there is "'no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.'"

Id. (quoting Fed. R. Civ. P. 56(c)). 
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Qualified immunity is a defense available to government officials who can prove

that 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). We engage in a two-part analysis when determining whether an official

is entitled to qualified immunity. Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505,

509 (8th Cir. 1995). First, we consider whether the plaintiff has alleged a violation of

a constitutional right. Id. Then, "we must determine whether that right was clearly

established at the time of the alleged violation." Id. 

Carroll begins her appeal by challenging the district court's sua sponte order

directing Officer Pfeffer to file an answer after the pretrial conference was held and

after the pretrial order had been entered. The district court realized, shortly before trial

was to begin, that Officer Pfeffer had never filed an answer or raised any defenses. The

district court determined that this omission was plain error and that the case should not

be allowed to proceed because it had not met even the most basic pleading

requirements. Although an order on a final pretrial conference normally controls the

subsequent course of action, the order can be modified to prevent manifest injustice.

Fed. R. Civ. P. 16(e). "A pretrial order will be modified only if there is no substantial

injury or prejudice to the opponent." Hale v. Firestone Tire & Rubber Co., 756 F.2d

1322, 1335 (8th Cir. 1985). There was no substantial injury or prejudice to Carroll in

allowing Officer Pfeffer to file a late answer in this case. Had the case proceeded to

trial, Carroll likely would have been the party prejudiced, as she would have had to put

on her entire case-in-chief only to have it later dismissed by the district court for failure

to establish a submissible claim. Not allowing Officer Pfeffer to file his answer and

raise his defense of qualified immunity would have been a manifest injustice. Here, the

district court acted in the interests of fair play while at the same time recognizing the

need to conserve judicial resources. We find no error in the district court's decision to

modify the pretrial order.
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 Next, Carroll asserts that Officer Pfeffer was not entitled to summary judgment

based upon qualified immunity because he violated her clearly established

constitutional right to freedom of speech by retaliating against her for speaking out

about his altercation with her son and chilling her right to political expression. We

disagree. In order to establish the elements of a retaliation claim under 42 U.S.C. §

1983, Carroll must show that she was engaged in constitutionally protected activity,

that Officer Pfeffer's adverse action caused her to suffer an injury which would "chill

a person of ordinary firmness from continuing . . . in that activity," and that the adverse

action was motivated in part by Carroll's exercise of her constitutional rights. See

Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). The only question in this case is

whether Officer Pfeffer's conduct would chill a person of ordinary firmness from

exercising the constitutionally protected right of political expression. Viewing the

evidence in the light most favorable to Carroll, we conclude that Carroll has failed to

show that Officer Pfeffer's conduct violated her constitutional rights. Officer Pfeffer's

alleged harassing conduct occurred over a period of three years, with nearly two years

passing between the second and third incidents, yet during this period of time Carroll

and Officer Pfeffer lived within only six or seven blocks of each other. Each encounter

was brief. There were no verbal threats. There was no physical contact, other than

bumping into each other at Hallmark. Although Officer Pfeffer's alleged conduct was

unprofessional and inappropriate, it does not rise to the level of a constitutional

violation. These few and far between improper actions would not chill a person of

ordinary firmness from engaging in constitutionally protected activity. Because Carroll

has not established a violation of her constitutional rights, she has failed to state a claim

under 42 U.S.C. § 1983, and Officer Pfeffer was entitled to qualified immunity.

Finally, Carroll contends that the district court erred in granting summary

judgment because it based its decision on matters of credibility, which should have

been left to the jury. We need not address this issue because, viewing the facts in light

most favorable to Carroll, Officer Pfeffer was entitled to qualified immunity because

Carroll failed to establish a constitutional violation.
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III.

For the foregoing reasons, we affirm the judgment of the district court. 

A true copy.

Attest:

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