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as a courtesy to the reader. They are not part of the opinion of the court.
151690P.pdf 08/01/2017 United States v. William Gauld U.S. Court of Appeals Case No: 15-1690 U.S. District Court for the Western District of Arkansas - Texarkana
[PUBLISHED] [Smith, Author, for the Court En Banc] Criminal case - Sentencing. For the panel's opinion in the matter, see United States v. Gauld, 833 F.3d 941 (8th Cir. 2016). A state juvenile-delinquency adjudication is not a prior conviction under 18 U.S.C. Sec. 2252(b)(1); to the extent United States v. Woodward, 694 F.3d 950 (8th Cir. 2012) held otherwise, it is overruled; defendant's 15-year sentence is vacated, and the matter is remanded for resentencing. 161773P.pdf 08/01/2017 Shawn Rainer v. Wendy Kelley U.S. Court of Appeals Case No: 16-1773 U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[PUBLISHED] [Gritzner, Author, with Riley and Gruender, Circuit Judges] Prisoner case - Habeas. Where the state trial court excluded evidence that the victim had a history of knife assaults, the exclusion of the evidence did not prevent defendant from presenting his theory of defense - that the victim tripped and fell on the knife, inflicting a fatal wound; since the character of the victim is not an element of an accident defense, the evidence was inadmissible and Rainer's trial and appellate counsel could not have been ineffective for not renewing objections to the exclusion of the evidence; Rainer's right to due process was not violated. 163107U.pdf 08/01/2017 United States v. Brittney Lehr U.S. Court of Appeals Case No: 16-3107 U.S. District Court for the Northern District of Iowa - Waterloo
[UNPUBLISHED] [Per Curiam - Before Colloton, Beam and Benton, Circuit Judges] Criminal case - Sentencing. The district court did not abuse its broad discretion in weighing the 3553(a) factors, and defendant's sentence was not substantively unreasonable. 163118P.pdf 08/01/2017 Michelle Day v. United States U.S. Court of Appeals Case No: 16-3118 U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Melloy, Author, with Loken and Murphy, Circuit Judges] Civil case - Federal Tort Claims Act. Where the government conceded it provided substandard care when a VA radiologist failed to identify a cancerous mass in the liver of the deceased, the district court did not err in granting the government's motion for summary judgment on the ground that plaintiff had failed to establish that the substandard care was the proximate cause of death; with respect to plaintiff's claim for pain damages, the court did not err in granting the government's motion for summary judgment as the evidence in the record was insufficient to raise a triable issue of fact as to whether any liver cancer treatment would have alleviated any of the deceased's pain; because the medical malpractice claims fail, so too must plaintiff's wrongful-death claims. 163574P.pdf 08/01/2017 Union Pacific Railroad Co. v. United States U.S. Court of Appeals Case No: 16-3574 U.S. District Court for the District of Nebraska - Omaha
[PUBLISHED] [Arnold, Author, with Wollman and Gruender, Circuit Judges] Civil case - Railroad Retirement Tax Act. In a suit to recover a refund of $75 million in taxes the railroad paid the federal government from 1991 to 2007 under the Railroad Retirement Act, the district court erred in rejecting the refund request and granting the government's motion for summary judgment; the Act unambiguously does not require the payment of RRTA taxes on remuneration in stock; additionally, ratification payments made to employees were not subject to the tax because the payments were not made for services rendered to the railroad. Reversed and remanded for further proceedings. 163617P.pdf 08/01/2017 K.T. v. Culver-Stockton College U.S. Court of Appeals Case No: 16-3617 U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Arnold, Circuit Judge] Civil case - Title IX. Assuming arguendo that plaintiff's status as a non-student does not preclude her from asserting a Title IX harassment claim based on an assault she suffered while on defendant's campus on a sports recruitment visit, the district court did not err in dismissing the complaint for failure to state a claim as plaintiff failed to allege the college's deliberate indifference subjected her to harassment or made her vulnerable to it or that the college had actual knowledge of discrimination; nor does an allegation of a single sexual assault plausibly allege the pervasive discrimination required to state a peer harassment claim. 163783P.pdf 08/01/2017 United States ex rel Fields v. Bi-State Development Agency U.S. Court of Appeals Case No: 16-3783 U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Kelly, Author, with Gruender and Murphy, Circuit Judges] Civil case - False Claims Act. For the court's prior opinion in the matter, see United States ex rel Fields v. Bi-State Dev. Agency of the Mo.-Ill Dist., 829 F.3d 598 (8th Cir. 2016. The district court did not err in finding defendant Bi-State is akin to a local government entity and not entitled to Eleventh Amendment immunity; the factors used in making the "arm-of-the-state" analysis point in both directions; in such a situation, the prime guide for making the determination must be the twin reasons underlying the Amendment - respect for the dignity of the states as sovereigns and prevention of federal court judgments that must be paid out of a State's treasury; applying these reasons it is clear that a suit against Bi-State does not present the same kind of sovereignty issues involved in a suit against a state and that any federal judgment would not be paid with state funds; as a result, the district court properly found Bi-State was not entitled to Eleventh Amendment immunity. 163790P.pdf 08/01/2017 United States v. Jose Almeida-Olivas U.S. Court of Appeals Case No: 16-3790 U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Per Curiam - Before Loken, Murphy and Melloy, Circuit Judges] Criminal case - Criminal law. The evidence was sufficient to support defendant's convictions for conspiring to distribute 500 or more grams of methamphetamine and for using a communications device to facilitate distribution of the drug; based on the evidence presented, a jury could not have rationally found defendant was guilty of the lesser-included offense of conspiracy to distribute less than 500 grams of the drug, and the district court did not err in refusing to give the jury a lesser-included offense instruction. 163846U.pdf 08/01/2017 United States v. Francisco Hernandez U.S. Court of Appeals Case No: 16-3846 U.S. District Court for the Southern District of Iowa - Des Moines
[UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. District court did not err in calculating the amount of drugs attributable to defendant. 163868U.pdf 08/01/2017 United States v. Dontavious Cunningham U.S. Court of Appeals Case No: 16-3868 U.S. District Court for the Northern District of Iowa - Ft. Dodge
[UNPUBLISHED] [Per Curiam - Before Wollman, Gruender and Shepherd, Circuit Judges] Criminal case - Criminal law and sentencing. The evidence on inducement was in conflict and there is no reason to disturb the jury's verdict; the evidence was, therefore, sufficient to support defendant's conviction; evidence that defendant possessed and sold drugs in Alabama was admissible to complete the story of the charged felon-in-possession offense and give the jury a complete picture of the charged crime; no error in admitting drug-related evidence seized with the firearm in this felon-in-possession prosecution as it was intrinsic to the crime charged and was neither irrelevant nor unduly prejudicial; no error in imposing an enhancement under Guidelines Sec. 2K2.1(b)(1)(A) for possession of three firearms. 163894U.pdf 08/01/2017 Charles Black v. James Linker U.S. Court of Appeals Case No: 16-3894 U.S. District Court for the Eastern District of Arkansas - Little Rock
[UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Civil case - Civil rights. Defendant, a former inmate, failed to show that the alleged delays in medical care had a detrimental effect on his health, that he was denied pain medication or that the defendants were deliberately indifferent to his serious medical needs. 163897P.pdf 08/01/2017 Tracey White v. Thomas Jackson U.S. Court of Appeals Case No: 16-3897 U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Murphy, Author, with Loken and Melloy, Circuit Judges] Civil case - Civil rights. In actions by six sets of plaintiffs alleging multiple claims arising out of the police response to the demonstrations in Ferguson, Missouri in August, 2014 following the police shooting of Michael Brown, the district court found that the defendants were entitled to qualified immunity on the plaintiffs' Section 1983 claims for unlawful arrest and excessive force; held: (1) plaintiff Burns's claim for unreasonable seizure fails because the St. Louis County police had at least arguable probable cause to arrest him for failure to disperse, and his claim for false arrest fails because he failed to present any evidence of bad faith or malice; (2) plaintiffs Coleman's and Green's claims for unreasonable seizure fail because the police had arguable probable cause to arrest them for failure to disperse and they failed to show that the named defendants used excessive force, either by shooting them with rubber bullets or while cuffing Coleman; (3) plaintiff Harris has waived review of the dismissal of his underlying substantive claim and cannot challenge dismissal of the municipal liability claims; (4)plaintiffs White, Sandy Bowers and Kai Bowers could not state a claim for unreasonable seizure as officers had arguable probable cause to arrest them for refusal to disperse; as their underlying substantive claims against individual defendants fail, these plaintiffs' failure to train, supervise and discipline must also fail; (5) plaintiffs White's and Davis's false arrest claims fail as officers had arguable probable cause to arrest them for interfering with the duties of a police officer; these plaintiffs' failure to train, supervise and discipline must also fail in the absence of a viable substantive claim against individual officers; (6) plaintiff Matthews's false arrest claim fails as officers had arguable probable cause to arrest him for failure to disperse; defendant Jackson's use of non-lethal force against Matthews was reasonable under the circumstances; officers' actions in pushing Matthews to the ground and placing a knee on his back to effect his arrest did not constitute excessive force; however, the district court erred in granting four defendant officers summary judgment on Matthews's allegations that the officers held his head under water, pepper sprayed him and took turns punching and kicking him while he was handcuffed as use of such force against a handcuffed suspect who is not resisting and is fully subdued is objectively unreasonable under the Fourth Amendment; since the summary judgment on Matthews's substantive claim is reversed, the summary judgment on his claims for failure to train, supervise and discipline is also reversed. 164261U.pdf 08/01/2017 Letsie Bass v. Laurence Alexander U.S. Court of Appeals Case No: 16-4261 U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Civil case - Employment discrimination. Dismissal affirmed without comment. 164352U.pdf 08/01/2017 United States v. Blaine Kills Back U.S. Court of Appeals Case No: 16-4352 U.S. District Court for the District of South Dakota - Rapid City
[UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant's sentence was not an abuse of the district court's discretion.
