                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 07-2104
                                ___________

Joseph D. Amrine,                    *
                                     *
             Plaintiff – Appellant,  *
                                     *
      v.                             *
                                     *
George R. Brooks; Thomas J.          *
Brown, III; Richard Lee,             *
                                     *
             Defendants,             *
                                     *
John C. Hemeyer; Marilyn Schmutzler, *
Public Administrator and Personal    *
Representative of the Estate of      *
George Brooks,                       * Appeal from the United States
                                     * District Court for the
             Defendants – Appellees, * Western District of Missouri.
                                     *
Twin City Fire Insurance Company;    *
Missouri Department of Corrections,  *
                                     *
             Interested parties.     *
      _____________________          *
                                     *
National Association for the         *
Advancement of Colored People;       *
National Association for the         *
Advancement of Colored People,       *
Kansas City Branch,                  *
                                     *
             Not Parties – Amici on  *
             Behalf of Appellant.    *
                                   ___________

                             Submitted: January 16, 2008
                                Filed: April 8, 2008
                                 ___________

Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY,1 District
Judge.
                            ___________

MURPHY, Circuit Judge.

       After obtaining habeas relief from the Missouri Supreme Court, Joseph D.
Amrine brought this action under 42 U.S.C. § 1983 against prison investigator George
Brooks,2 deputy sheriff John Hemeyer, prosecutor Thomas J. Brown, III, and
prosecution investigator Richard Lee for their roles in the investigation which led to
his conviction for murder and sentence to death. The district court3 denied Amrine
leave to file a third amended complaint and granted summary judgment to defendants
Brown and Lee on the basis of prosecutorial immunity and to Brooks and Hemeyer
on the basis of qualified immunity. Amrine appeals from the dismissal of his claims
against Brooks and Hemeyer. We affirm.




      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
      2
       Brooks is deceased, and appellee Marilyn Schmutlzer is the personal
representative of his estate.
      3
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
                                         -2-
                                           I.

      Amrine was convicted in April 1986 of the murder of fellow inmate Gary
Barber in the Missouri state penitentiary. Barber was stabbed to death at
approximately 2:30 p.m. on October 18, 1985 in a multipurpose room, in which he as
well as Amrine and 40 to 50 other inmates were spending their recreation period.
Amrine had learned from inmate Terry Russell the previous week that Barber had
been spreading a rumor about having had sex with Amrine when he was passed out
from drinking alcohol. When Amrine and Russell confronted Barber about the rumor,
Russell and Barber ended up fighting. Both Barber and Russell were placed in
detention cells and not released until 10:00 a.m. on October 18, the day of the killing.

      At the time Barber was stabbed Officer John Noble was guarding a locked door
which was the only entrance in and out of the multipurpose room. Amrine claims that
Russell was also in the room, but appellees contend that he was not. Around 2:25
p.m. Officer Noble saw Barber chase another inmate from the back of the room to the
front near where Noble was standing. Noble saw an "ice-pick type weapon" in
Barber's hand and only realized that Barber had been stabbed when he collapsed near
him. Noble retrieved the weapon from the floor, opened the locked door, and called
for Sergeant Dobson who was stationed just outside the room. Dobson went in and
ordered an immediate lockdown of the room so that no inmate could either leave or
enter. Prison guidelines required officers to compile a list of every inmate in a
lockdown room. The rest of the prison was also locked down.

       Officer Danny Bowers entered the multipurpose room after the lockdown, and
Noble pointed out Russell as the inmate whom Barber was chasing. Officer Bowers
took Russell from the room out into the hall, searched him, and later escorted him to
an office for questioning. The parties disagree about whether Noble correctly
identified the person Barber was chasing. Noble asked the inmate Barber was chasing
for his name; he replied "Russell." Brooks and Hemeyer contend, however, that it was


                                          -3-
Amrine who answered with Russell's name. The two men apparently had similar skin
tone, physical characteristics, and hairstyle. Officer Noble testified in a 2006
deposition that he was certain that the person Barber was chasing was Russell.

       Appellee George Brooks, an investigator for the Missouri Department of
Corrections, learned of the stabbing almost immediately. He spoke to Officer Noble,
who told him that Barber had been chasing Russell, that Barber and Russell had been
fighting, and that both had just been released from confinement earlier that day.
Officers searched the multipurpose room several times while the inmates were still in
the room, and no blood or other physical evidence was found except where Barber
collapsed. Brooks performed his own search of the room and found nothing. Brooks
ordered that all inmates be searched as they left the room and that the room be
searched again afterwards. Officers also searched the area outside the room without
success.

      Brooks then went to talk with Russell. He stripsearched him, found nothing
suspicious, and did not question him about the stabbing. After Brooks received
information from a "confidential source" saying that he should investigate Amrine for
the murder because there had been talk that morning that he would attack Barber,
Brooks verified that Amrine was on the list of inmates who had been in the
multipurpose room. He then spoke with Captain Hallford, an officer in the supermax
unit where the incident had occurred, who told him that Amrine "was the man we
should be looking [at]." Brooks then spoke with Amrine. He stripsearched him and
observed a small red spot on his pants and three spots on his undershirt. Brooks took
Amrine's clothing into custody; the spots appeared to be blood, but they were not fresh
and were never identified as Barber's blood.

       Deputy John Hemeyer, Cole County Deputy Sheriff, arrived shortly after
Brooks took Amrine's clothing into custody. Hemeyer was involved in all the
interviews and investigation from that point forward. Brooks and Hemeyer began to


                                          -4-
question Amrine at 4:04 p.m. Amrine denied stabbing Barber and said that he had
never gotten close to Barber so the spots on his clothing could not be from him. They
terminated his interview without asking death penalty qualifying questions although
Hemeyer later testified that they had intended to ask them but forgot. Amrine was
placed in a detention cell for the investigation of murder.

       Brooks and Hemeyer interviewed Russell at 5:35 p.m. Russell admitted to his
fight with Barber the previous week. He also said that Amrine had wanted to stab
Barber to pay him back for spreading rumors about him but could not do it when
Barber was in isolation. Although Officer Noble had told Brooks that he saw Barber
chase Russell, the two investigators did not ask Russell any questions about the
stabbing. At 8:00 p.m. they took a formal statement from him. He admitted to being
in the multipurpose room at the beginning of the recreation period, but he claimed that
he was not inside at the time of the stabbing. He stated that he had asked Noble for
permission to leave the room to get aspirin and that Noble gave him permission and
opened the door for him.4 Russell said that he went to the control center where the
sergeant on duty gave him aspirin in a brown medicine bag and that he had been
talking with another inmate named "Peebles" at the time Sergeant Dobson yelled for
a stretcher. Russell returned to the multipurpose room, and Noble initially refused
to let him enter. Russell also claimed that he asked Amrine why he had stabbed
Barber and that Amrine said, "I had to do it."

       Hemeyer later testified that he had had "doubts" about Russell's story at the
time, but he and Brooks never located the brown medicine bag which Russell claimed
to have obtained after Noble let him out of the multipurpose room. They also did not
talk to the sergeant who purportedly gave Russell the aspirin, did not identify the
inmate called "Peebles," and never questioned Officer Noble about the inconsistencies
between his identification of Russell and Russell's claim that he was not in the room

      4
      Noble verified that he gave Russell permission to leave the room but did not
remember his actually leaving the room.
                                          -5-
or between Russell's statement that Noble let him back in the room after the lockdown
and Noble's testimony that he let no one reenter.

      At 10:30 p.m. on October 18 Brooks and Hemeyer began their second interview
with Amrine and asked the death penalty qualifying questions overlooked earlier.
Amrine denied stabbing Barber and said that he had been playing cards with other
inmates at the time of the attack. After this interview, Amrine was returned to a
detention cell and remained in segregated confinement until his trial in April 1986.

       On October 21 Brooks and Hemeyer interviewed inmate Jerry Poe, a
schizophrenic who told them he feared for his life. Poe said that he believed that his
life was threatened because of Barber's killing and that he would only give a statement
if he were moved to protective custody. Poe gave a statement about the stabbing
which conflicted with other evidence. He was the only witness to testify that someone
wiped blood off of Barber's face with a towel, and no towel was ever found. Brooks
and Hemeyer showed Poe pictures of inmates and asked him to identify the person
chased by Barber. On the day of the stabbing Poe had seen the officers take Amrine
from his cell, and he knew that Amrine was a suspect. When Poe was shown an eight
year old picture of Amrine, he stated "I want to say that he's the one that stabbed
Barber, but I can't be positive from this picture." Brooks asked him to flip over the
picture where Poe saw Amrine's name, prison number, and the date of the picture.
When asked if he was sure about his identification of Barber's murderer, Poe indicated
that he was. After he spoke to Brooks and Hemeyer, he was transferred to the county
jail.

       Russell took a polygraph exam on October 22, 1985. Brooks' final investigative
report indicates that Russell's polygraph was truthful, but Russell later testified at an
evidentiary hearing that the polygraph indicated a conflicted answer as to whether or
not he had been in the multipurpose room when the stabbing occurred. This evidence
was not presented in the jury trial. The polygraph also showed that Russell gave a


                                           -6-
truthful answer when he denied stabbing Barber. At a later evidentiary hearing
Russell stated that he had not wanted to testify against Amrine at his murder trial
because he did not know if Amrine had actually stabbed Barber, but that Brooks and
Hemeyer threatened to charge him with the murder if he did not.

       Brooks and Hemeyer also interviewed inmates Dodson, Willis, Jordan, Crume,
Ball, and Hines on October 22, but none of them said they had seen the stabbing.
While inmates Crume and Hines said they had seen Barber chase Amrine, Ball said
that Amrine had been playing cards with him when Barber was stabbed, and Jordan
said that Amrine was standing next to him at the poker table at the time.

       Despite the inconsistencies, Brooks and Hemeyer did not do any further
investigation before Brooks submitted his investigative report dated December 2,
1985. His report concluded that it "appeared" that Amrine had stabbed Barber.
Subsequently on January 24, 1986, Brooks met with inmate Jordan who changed his
earlier story and now said that Amrine had stabbed Barber and then was chased
around the room by him. Brooks and prosecution investigator Lee interviewed inmate
Wayne Garrison on April 8, 1986. At first Garrison said that he had not seen the
stabbing but had seen Barber chasing Amrine; later in the interview he said that he
saw Amrine stab Barber. Lee and Brooks interviewed inmate Henry Belk on April 9,
1986; Belk also stated that Barber had been chasing Amrine. They also interviewed
Randy Ferguson, who refused to say anything on tape until prosecutor Brown agreed
to drop a weapon charge against him; he then told Brooks and Lee that Amrine
stabbed Barber and was the man being chased.

       A jury convicted Amrine of Barber's murder on April 30, 1986, and he was
sentenced to death on May 1. The state's case rested on the testimony of inmates
Russell, Poe, and Ferguson. Officer Noble testified that he saw Barber chase Russell
across the room, and six inmates testified that Amrine was playing poker with them
in a different part of the room when the stabbing occurred. Three of those inmates


                                        -7-
identified Russell as the person Barber had been chasing. None of the six named
Amrine. Amrine's conviction and sentence were upheld on direct appeal, State v.
Amrine, 741 S.W.2d 665 (Mo. 1987), and he unsuccessfully sought post conviction
relief. Amrine v. State, 785 S.W.2d 531 (Mo. 1990). At an evidentiary hearing
during post conviction proceedings both Russell and Ferguson had recanted their trial
testimony, but Poe did not appear or testify.

       Amrine then filed a federal habeas petition. After the petition was denied by
the district court, Amrine obtained new counsel who located Poe and produced an
affidavit from him. In that affidavit Poe completely recanted his trial testimony and
swore that he had not seen Amrine stab Barber and that he had falsely identified
Amrine. After reviewing the voluminous record, we concluded that Amrine had made
a showing of actual innocence. Amrine v. Bowersox, 128 F.3d 1222, 1228 (8th Cir.
1997) (en banc). We therefore reversed and remanded for an evidentiary hearing in
the federal district court.

      On remand the district court heard testimony from Poe, as well as from Russell,
Ferguson, another inmate named Kevin Dean, and Officer Noble. After finding that
Poe's testimony was unreliable, the district court again denied the petition. We
affirmed, based on the district court's credibility findings. Amrine v. Bowersox, 238
F.3d 1023 (8th Cir. 2001). The Missouri Supreme Court later concluded that there
was clear and convincing evidence that Amrine was actually innocent of Barber's
murder, granted him habeas relief, and set aside his conviction and sentence. State ex
rel Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003).

       Amrine filed this § 1983 action in December 2004, alleging violation of
procedural due process, conspiracy, and malicious prosecution. After defendants
moved for summary judgment and Amrine moved to file a third amended complaint
asserting a substantive due process claim, the district court denied Amrine's motion
and granted that of the defendants. It dismissed the claims against Brown and Lee on


                                         -8-
the basis of prosecutorial immunity and concluded that the actions of Brooks and
Hemeyer were supported by probable cause or at least arguable probable cause and
that they were therefore entitled to qualified immunity. Since Amrine had not pled
substantive due process, his reckless investigation claim was dismissed, and the
district court determined that Brooks and Hemeyer had not violated Amrine's
procedural due process rights by bad faith withholding of exculpatory evidence from
the prosecutors. Amrine appeals the summary judgment granting Brooks and
Hemeyer qualified immunity on his procedural due process claim, which the district
court had construed to allege a Fourth Amendment violation.5

       Amrine contends on appeal that the only reliable evidence showed that he was
actually innocent of the stabbing and that the district court erred by granting qualified
immunity to Brooks and Hemeyer because they had violated his clearly established
right not to be arrested without probable cause. Amrine also argues that his due
process claim stated a substantive due process violation even though it was labeled as
"procedural" and that the district court erred by denying him leave to file a third
amended complaint. He asserts that any delay would not have unfairly prejudiced
appellees and that the amendment would not have been futile.

                                           II.

       We review a district court's grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Skare v. Extendicare
Health Services, Inc., 515 F.3d 836, 840 (8th Cir. 2008). Amrine asserts that the
district court erred by granting qualified immunity to Brooks and Hemeyer on his
Fourth Amendment claim because they arrested him without probable cause. We
review the finding of qualified immunity de novo. McClendon v. Story County
Sheriff's Office, 403 F.3d 510, 515 (8th Cir. 2005).

      5
       Amrine does not appeal the dismissal of his conspiracy and malicious
prosecution claims.
                                           -9-
       Qualified immunity is a defense available to government officials if they have
not violated "clearly established statutory or constitutional rights of which a
reasonable person would have known." Young v. Selk, 508 F.3d 868, 871 (8th Cir.
2007) (citation omitted); see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It
"allows officers to make reasonable errors so that they do not always 'err on the side
of caution'" for fear of being sued. Habiger v. City of Fargo, 80 F.3d 289, 295 (8th
Cir.) (citation omitted), cert. denied 519 U.S. 1011 (1996); see Davis v. Scherer, 468
U.S. 183, 196 (1984). This defense provides "ample room for mistaken judgments"
by protecting "all but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 343, 341 (1986).

       When considering whether a state official is entitled to qualified immunity, we
first determine whether the alleged facts, viewed in the light most favorable to the
injured party, demonstrate that the official's conduct violated a constitutional right.
See Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer to that inquiry is yes, we
next ask whether the constitutional right was clearly established at the time so that a
reasonable officer would have understood that his conduct violated that right. Id. at
201. Amrine submits that his placement in restrictive confinement by Brooks and
Hemeyer on October 18, 1985 following their Miranda warnings was an arrest
violating his Fourth Amendment right to be free from unreasonable seizure because
it was not supported by probable cause.6

      Prison officials may place inmates in segregated confinement without
implicating protected liberty interests so long as the confinement does not "impose[]
atypical and significant hardship on the inmate in relation to the ordinary incidents of


      6
        Count 1 of Amrine's Second Amended Complaint alleged a procedural due
process claim that he had a protected liberty interest in being free from wrongful
conviction and incarceration. The district court liberally construed this claim to allege
a violation of Amrine's Fourth and Fourteenth Amendment rights to be free of arrest
and prosecution without probable cause.
                                          -10-
prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Sandin involved
application of a state prison regulation rather than an alleged deprivation of a
fundamental right, however, and we have not had occasion to consider whether
placement in a detention cell within a prison on suspicion of commission of a crime
qualifies as an arrest for the purpose of the Fourth Amendment's probable cause
requirement. Cases from other circuits suggest that it does not because segregation
is used to discipline or investigate inmates for violations of prison regulations, to
protect them from the general population, or to provide a cooling off period after
altercations between inmates. See United States v. Duke, 527 F.2d 386, 390 (5th
Cir.), cert. denied 426 U.S. 952 (1976); see also United States v. Daniels, 698 F.2d
221, 223 (4th Cir. 1983) (segregated confinement is not an arrest for purposes of
constitutional protections ); United States v. Clardy, 540 F.2d 439, 441 (9th Cir.)
(placement in segregated confinement for five months until indictment not an arrest
for speedy trial purposes), cert. denied 429 U.S. 963 (1976). On the other hand, the
Supreme Court has suggested in dicta that a major change in conditions of
confinement, such as solitary isolation, may implicate liberty interests for which
minimum procedural safeguards are required by due process. See Wolff v.
McDonnell, 418 U.S. 539, 571 n.19 (1974).

      Even assuming that Amrine's detention by Brooks and Hemeyer on October 18,
1985 was an arrest, we find that it was supported by arguable probable cause. A
warrantless arrest is consistent with the Fourth Amendment if it is supported by
probable cause. See U.S. Const. amend. IV; United States v. Watson, 423 U.S. 411
(1976). Probable cause exists when the totality of the circumstances shows that a
prudent person would believe that the arrestee has committed a crime. See Illinois v.
Gates, 462 U.S. 213, 238–39 (1983); United States v. Washington, 109 F.3d 459, 465
(8th Cir. 1997). Exculpatory evidence is therefore relevant to whether an officer has
probable cause. Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). Officers are not
required to conduct a "mini-trial" before arrest, but probable cause "does not exist
when a 'minimal further investigation' would have exonerated the suspect." Id. at 650


                                        -11-
(citations omitted). Officers may also be entitled to qualified immunity if they arrest
a suspect under the mistaken belief that they have probable cause to do so, provided
that the mistake is objectively reasonable. Hunter v. Bryant, 502 U.S. 224, 228–29
(1991) (per curiam). We have characterized this inquiry as whether the officers had
"arguable probable cause." See Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir.
2000).

       On the evening of October 18, 1985, the inculpatory evidence against Amrine
included evidence of a motive to kill Barber, information from a confidential
informant saying to look at Amrine for the murder, Russell's statement that Amrine
had said he "had to do it," and blood spots on Amrine's clothing. The exculpatory
evidence included Officer Noble's identification of Russell as the inmate whom Barber
was chasing, Amrine's denial of involvement in the murder, and inconsistent evidence
regarding whether Russell was in the multipurpose room at the time of the murder.
Brooks and Hemeyer did not have the benefit of later discovered evidence when they
made the decision to give Amrine Miranda warnings and separate him from the rest
of the prison population.7 As probable cause is determined "at the moment the arrest
was made," any later developed facts are irrelevant to the probable cause analysis for
an arrest. United States v. Rivera, 370 F.3d 730, 733 (8th Cir. 2004).

       Amrine argues that these facts are similar to the Kuehl case and that this
supports his position that no probable cause existed for his arrest and qualified
immunity is not appropriate. See 173 F.3d at 648–49. In Kuehl, an officer
investigating an altercation spoke with the suspect for only twenty seconds, ignored
physical evidence that corroborated the suspect's claim that she was the victim of an
assault not the perpetrator, refused to acknowledge her explanation for why she hit the


      7
       Amrine also cites as exculpatory evidence Russell's inconclusive polygraph
response as to whether he was in the room at the time of the stabbing. Since the
polygraph was taken on October 21 and Amrine's arrest occurred on October 18, the
polygraph does not factor into the probable cause analysis for the arrest.
                                         -12-
other party, ignored an eyewitness account that corroborated her statement, and
omitted most exculpatory evidence from the police report. See id. at 648. We held
there that in the absence of exigent circumstances an officer who unreasonably fails
to investigate an incident sufficiently before arresting a suspect is not entitled to
qualified immunity. Id. at 651.

       Kuehl is distinguishable because Amrine was given two opportunities prior to
his arrest to present his side of the story, and the physical evidence – the blood stains
– tended at the outset to inculpate him. The exculpatory statement of an independent
witness, Officer Noble, was tempered by inconsistencies surrounding Russell's
location and by incriminating statements made to the investigators about Amrine.

        Considering the circumstances and the evidence known to Brooks and Hemeyer
on the evening of October 18, 1985, we conclude that arguable probable cause existed
to support separating Amrine from the rest of the prison population and placing him
in restrictive confinement. See Smithson, 235 F.3d at 1062. It would have taken more
than a "minimal further investigation," Kuehl, 173 F.3d at 650, to sort out the
inconsistencies surrounding Russell's location at the time of the murder, to ascertain
the source of the blood spots on Amrine's clothing, and to interview additional
witnesses who might have exculpated Amrine. Because Amrine's arrest was
supported by arguable probable cause, Brooks and Hemeyer are entitled to the
protection of qualified immunity on this claim.




                                          -13-
                                          III.

        Amrine argues that the district court abused its discretion in denying him leave
to file a third amended complaint. After the opposing party has filed a responsive
pleading, Rule 15 states that "a party may amend its pleading only with the opposing
party's written consent or the court's leave. The court should freely give leave when
justice so requires." Fed. R. Civ. P. 15(a)(2). A denial of leave to amend may be
justified by "undue delay, bad faith on the part of the moving party, futility of the
amendment or unfair prejudice to the opposing party." United States ex rel. Joshi v.
St. Luke's Hosp., Inc., 441 F.3d 552, 557 (8th Cir.) (citation omitted), cert. denied 127
S. Ct. 189 (2006).

       While we review the denial of a motion to file an amended complaint for abuse
of discretion, Joshi, 441 F.3d at 555, we review the finding of futility de novo. In re
Acceptance Ins. Cos. Sec. Litig., 423 F.3d 899, 904 (8th Cir. 2005). Because we find
that the amendment would have been futile, we need not address whether the delay in
seeking leave to file the third amended complaint could have resulted in unfair
prejudice to Brooks and Hemeyer or whether Amrine sought to file a third amended
complaint in bad faith. Amrine argues that the allegations in his third amended
complaint state a cause of action for reckless investigation in violation of his
substantive rather than procedural due process rights.

       We recognized a substantive due process cause of action for reckless
investigation in Wilson v. Lawrence County, Mo., 260 F.3d 946 (8th Cir. 2001),
where we identified the liberty interest at stake as the "interest in obtaining fair
criminal proceedings." Id. at 956 n.8, citing Brady v. Maryland, 373 U.S. 83, 87
(1963). The test for whether state officers' actions violate this protected liberty
interest is whether those actions shock the conscience. Id. at 956, citing County of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Mere negligent failure to investigate
does not violate substantive due process. Id. at 955. Likewise, allegations of gross


                                          -14-
negligence do not give rise to a constitutional violation. Id. Where state officials
"have the opportunity to deliberate various alternatives prior to selecting a course of
conduct, such action violates due process if it is done recklessly." Id. at 956. To
establish a violation of this right by a botched investigation, Amrine must show that
Brooks and Hemeyer intentionally or recklessly failed to investigate, thereby shocking
the conscience. See id. at 955–56. As the Wilson court noted, the recklessness
standard has a subjective component. Id. at 956 n.9.

        In Wilson, we found that the allegations of a mentally impaired twenty year old,
that a confession had been coerced from him by officers investigating a murder, met
the recklessness bar if proven at trial, id. at 957, and the motion for summary
judgment based on qualified immunity was therefore denied. Officers had
interviewed Wilson twice, and on both occasions he claimed that he knew nothing
about the murder and that he had been shopping with his mother when the murder
occurred. A sixteen year old, also mentally impaired and known by school officials
as a"very skilled liar," had told the officers that Wilson confessed the murder to him.
They picked up Wilson, read him his rights but told him he was not under arrest,
detained him in a windowless interrogation room for hours playing portions of the
other youth's statement, told him that an eyewitness placed him at the crime scene,
asked leading questions, threatened him when he gave answers inconsistent with the
crime facts, and encouraged him when his answers reflected the details of the murder.
Id. at 950. Eventually Wilson confessed. Id.8

       A similar due process claim was raised in Moran v. Clarke, 296 F.3d 638 (8th
Cir. 2002) (en banc), where a police officer brought a § 1983 case against police
officials and the St. Louis Board of Police Commissioners after being acquitted of
beating a man during a mistaken arrest. He charged that other officers had
intentionally set up an innocent man, and he produced evidence of "questionable

      8
       In 1995 the governor granted Wilson a full pardon after an independent
investigation made it clear that Wilson had not committed the murder.
                                          -15-
procedures, of pressures placed on officers to incriminate a specific person or
corroborate the department's official line, of a hasty condemnation of [himself] and
of improper consideration of his race" in addition to proof that defendants had
"purposely ignored" exculpatory evidence. Id. at 648. We held that Moran could
establish a due process violation if a jury were to find his evidence credible.

       Another claim of reckless investigation, also arising in the Missouri state
penitentiary and also involving investigator George Brooks, was brought in
Clemmons v. Armontrout, 477 F.3d 962 (8th Cir.), cert. denied 128 S. Ct. 155 (2007).
After a prisoner was stabbed to death, Corrections Officer Steigerwald identified
Clemmons as the perpetrator. Although inmate Dwight Clark told Captain Gross that
another prisoner named Fred Bagby was involved in the murder, id. at 964, Gross
never questioned Bagby or searched his cell. Captain Gross had decided Clark was
not a credible witness because Bagby's name was not on a list of prisoners who were
said to be out of their cells at the time of the murder, and he prepared an investigation
memorandum for investigator Brooks to that effect. Id. Brooks never interviewed
Clark or Bagby.9 Id. We concluded that the actions of the investigating officers were
not intentional or reckless, particularly because Officer Steigerwald's eyewitness
account had identified Clemmons as the killer. Id. at 966–67. Clemmons also had not
produced any evidence that Brooks consciously sought to suppress exculpatory facts
or pressured others not to investigate leads. Id. We determined that on these facts a
reasonable factfinder could not find that Brooks had acted recklessly. Id.

      These three cases dealing with claims of reckless investigation are instructive
here. Amrine has produced no evidence suggesting that Brooks and Hemeyer
attempted to coerce or threaten him as the officers did to the Wilson plaintiff. There


      9
        Clemmons eventually succeeded in winning a new trial after filing a habeas
petition claiming that exculpatory evidence had been withheld, particularly Clark's
statement. Clemmons v. Delo, 124 F.3d 944, 952 (8th Cir. 1997). He was acquitted
in his retrial. Clemmons, 477 F.3d at 965.
                                          -16-
is also no evidence that the investigators purposely ignored evidence suggesting that
Amrine was innocent, as occurred in Wilson and Moran. Neither was there any
indication of systemic pressure to implicate Amrine in the face of evidence to the
contrary as in Moran. The facts alleged by Amrine more closely resemble those in
Clemmons, for Brooks and Hemeyer similarly failed in his case to follow through on
investigating other leads. They did not investigate inconsistencies related to Russell's
location at the time of the murder, such as trying to locate "Peebles" or the medication
Russell claimed to have received. Construed with all reasonable inferences in favor
of Amrine, their early focus on him and their conduct of the investigation still do not
rise above negligence. Significant evidence uncovered during the investigation
pointed to Amrine. That trial witnesses later recanted some testimony does not
establish that the investigation into Barber's murder was reckless. Amrine, like
Clemmons, offered no evidence that the investigators consciously suppressed
potentially exculpatory evidence or recklessly pinned the murder on a convenient
suspect.10

       Because the facts alleged by Amrine are insufficient to make out a claim of
reckless investigation by Brooks and Hemeyer, we conclude that the district court did
not abuse its discretion in denying Amrine leave to file a third amended complaint
asserting a substantive due process cause of action for reckless investigation. The
amendment would have been futile.




      10
         Russell later stated that, on the morning he was to testify against Amrine at
trial, Brooks and Hemeyer threatened to charge him with the murder if he did not take
the stand. Amrine alleges that this proves that Brooks and Hemeyer covered up
exculpatory evidence. While this conduct was unlawful and reprehensible if true, it
still would not establish that the investigation phase of the stabbing was reckless.
                                          -17-
                                          IV.

       In hindsight it is certainly possible to see imperfections in the investigation of
Barber's murder and to question the almost immediate placement of Amrine in
detention on suspicion of murder, but the volatile circumstances in the prison setting
and the more than considerable evidence implicating Amrine must be considered.
Although Amrine lived under the judgment of a death sentence for many years,
judicial proceedings eventually rescued him from that fate. Our en banc court
determined in 1997 that he had made a showing of actual innocence sufficient to
justify an evidentiary hearing, and the Missouri Supreme Court subsequently
concluded that there was clear and convincing evidence that he was actually innocent
of the murder.

       The issues are different in this § 1983 case, and Brooks and Hemeyer had
arguable probable cause to detain Amrine on the evening of October 18, 1985. They
did not violate his Fourth Amendment right to be free from unreasonable seizure and
are therefore entitled to qualified immunity on that claim. We also conclude that the
district court did not abuse its discretion in denying Amrine leave to file a third
amended complaint because it would have been futile. Accordingly, we affirm the
judgment of the district court.11
                         ______________________________




      11
        Because of our conclusions, we need not address the contention that Amrine's
claims are barred by collateral estoppel.
                                          -18-
