                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1057
                        ___________________________

                                    Tamela Muir

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                   Decatur County, Iowa; Ben Boswell, Sheriff

                     lllllllllllllllllllllDefendants - Appellants
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                         Submitted: December 12, 2018
                             Filed: March 8, 2019
                                ____________

Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      Plaintiff Tamela Muir was fired by the acting Decatur County Sheriff, Ben
Boswell, shortly after her husband, Bert Muir, had been removed as Sheriff. Tamela
alleges that Boswell fired her simply because she was married to Bert and that
Boswell therefore violated her First Amendment right to intimate association.
Boswell and Decatur County moved for summary judgment, arguing that Boswell was
entitled to qualified immunity and that the County was not subject to liability. The
district court denied summary judgment. We reverse.

                                   I. Background

      The three main parties in this case are Tamela Muir, Bert Muir, and Ben
Boswell. Until recently, all three worked for the Decatur County Sheriff’s Office
(“DCSO”). Tamela began working for the DCSO in November 1996 as a jailer and
dispatcher. Her employment was at-will. Bert started working for the DCSO on
March 19, 1998, when he was elected Sheriff. He hired Boswell as a Deputy Sheriff
in September 2001. Tamela married Bert on January 11, 2008, and Boswell attended
their wedding. The DCSO had no policy that prevented Bert and Tamela from
continuing to work together as a married couple.

       In November 2015, Boswell received a complaint from a female dispatcher
who alleged that Bert had sexually harassed her. An investigation followed and
uncovered additional allegations of harassment. Because the County Attorney was
going to be called as a witness, the County hired Thomas Miller, a former criminal
prosecutor, to prepare a petition to remove Bert as Sheriff. The petition was
supported by affidavits from six DCSO employees. Miller presented Bert with the
petition for removal on March 4, 2016, and Bert immediately resigned. That same
day, Boswell was named acting Sheriff, and Miller advised him that he should
consider placing Tamela on administrative leave. Miller was concerned that
“problems” might arise if Tamela “was allowed to remain working around employees
whom her husband had harassed, and who had signed affidavits in support of her
husband’s removal from office.” Boswell agreed and placed Tamela on indefinite
administrative leave on March 4, 2016.

       On March 28, 2016, Boswell sent a letter to Tamela telling her that he intended
to terminate her employment. In the letter, Boswell explained that he did not want

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the DCSO employees “who experienced harassment to perceive that [her] return to
employment threaten[ed] the work environment in different ways due to loyalty to
[her] husband, past loyalties to him as the former Sheriff or for other reasons.”
Specifically, Boswell was concerned that employees would fear “retaliation towards
them in response to their testimony which resulted in Bert’s resignation.” Boswell
concluded that he needed “to have absolute trust in the employees who work for
[him]” and that he “would not have this trust in [her] were [she] to return to work.”
On April 21, Boswell sent Tamela another letter confirming that he had officially
terminated her employment.

        On June 6, 2016, Tamela filed suit under 42 U.S.C. § 1983, alleging First
Amendment retaliation. More specifically, she alleged that Decatur County and
Boswell, in his individual and official capacity, violated her First Amendment right
to intimate association by firing her simply because she was married to Bert. Boswell
and Decatur County moved for summary judgment arguing that Boswell was entitled
to qualified immunity and that Decatur County was not liable for his actions. The
district court denied their motion, finding that (1) Boswell was not entitled to
qualified immunity because Tamela and Bert’s marriage was a motivating factor in
his decision to fire Tamela; and (2) Decatur County could be subject to municipal
liability because Boswell’s decision to fire Tamela might have constituted an
unconstitutional custom, practice, or policy of the County.

                                   II. Jurisdiction

       We have limited jurisdiction over an appeal from a denial of qualified
immunity. Shannon v. Koehler, 616 F.3d 855, 861 (8th Cir. 2010). Our jurisdiction
“extends only to ‘abstract issues of law,’ not to ‘determination[s] that the evidence
is sufficient to permit a particular finding of fact after trial.’” Id. (alteration in
original) (quoting Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)). “Appellate
review in these circumstances is therefore limited to ‘determin[ing] whether all of the


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conduct that the district court “deemed sufficiently supported for purposes of
summary judgment” violated the plaintiff’s clearly established federal rights.’” Id.
(alteration in original) (quoting Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d
1005, 1008 (8th Cir. 2003) (en banc)). We also have jurisdiction over pendent claims
if they are “inextricably intertwined” with a qualified immunity claim. Id. at 866. A
pendent claim is inextricably intertwined with a qualified immunity claim only if
resolution of the qualified immunity claim “necessarily resolves the pendent claim[]
as well.” Id. (citation omitted).

                               III. Standard of Review

        We review de novo a denial of summary judgment on qualified immunity
grounds. Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014). Whether a
government official is entitled to qualified immunity requires a two-step analysis: “(1)
whether the facts shown by the plaintiff make out a violation of a constitutional or
statutory right, and (2) whether that right was clearly established at the time of the
defendant’s alleged misconduct.” Id. (quoting Winslow v. Smith, 696 F.3d 716, 731
(8th Cir. 2012)). This Court has discretion to decide which question is addressed
first. Id. at 738–39. If the answer to either question is no, the official is entitled to
qualified immunity. Id. at 738.

                                   IV. Discussion

                                A. Qualified Immunity

       The outcome of this case is controlled by our decision in Singleton v. Cecil,
133 F.3d 631 (8th Cir. 1998), rev’d on other grounds, 155 F.3d 983 (8th Cir. 1998),
aff’d en banc, 176 F.3d 419 (8th Cir. 1999), cert. denied, 528 U.S. 966 (1999). In
Singleton, we considered whether the City of Advance, Missouri, violated a police
officer’s right to intimate association when it terminated him “because his wife and
daughter had plotted to frame the police chief.” Id. at 632. We recognized that the
right to intimate association protects “the formation and preservation of certain kinds

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of highly personal relationships,” including marriage. Id. at 635 (quoting Roberts v.
United States Jaycees, 468 U.S. 609, 618 (1984)). We further acknowledged that the
right to marriage has “been cast as a substantive due process right, and as an
associational right,” but we noted that “[t]he nominal source of th[e] right . . . does
not alter [our] analysis.” Id. (citation omitted). Indeed, we determined that when
reviewing an intimate association, right-to-marry claim, the key question is whether
the government “directly and substantially interfere[d] with the . . . right to enter and
maintain [a] marital relationship.” Id. In other words, the right to marry “does not
invalidate every state action that has some impact on marriage.” Id. at 634. Rather,
there must be evidence that the government “significantly discouraged” a marriage,
made a marriage “practically impossible,” or “acted with the goal of poisoning” a
marriage. Id. at 635 (citation omitted). We concluded in Singleton that the City of
Advance’s decision to terminate the police officer “on the basis of his wife’s conduct”
did not violate his right to intimate association. Id.

       In light of our decision in Singleton, we conclude that Boswell’s termination
of Tamela did not amount to a constitutional violation. The fact that Tamela and
Bert’s marriage was a motivating factor in Boswell’s decision to terminate Tamela
does not mean that Boswell directly and substantially interfered with their marriage.
Indeed, Boswell did not significantly discourage their marriage, make their marriage
practically impossible, or act with the goal of poisoning their marriage. Singleton,
133 F.3d at 635. Miller advised Boswell to put Tamela on administrative leave,
which he did. While Tamela was on leave, Boswell decided that her return would
create a hostile work environment due to her loyalty to Bert. He then documented
this concern in her termination letter. Ultimately, “action having only a collateral
effect on family decisions typically does not violate [the right to marry],” and there
is no suggestion that Tamela’s termination had anything more than a collateral effect
on her marriage to Bert. Id. at 635; cf. Tyler v. City of Mountain Home, 72 F.3d 568,
570 (8th Cir. 1995) (“Because police departments function as paramilitary
organizations charged with maintaining public safety and order, they are given more

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latitude in their decisions regarding discipline and personnel regulations than an
ordinary government employer.” (citation omitted)). But see Gaspers v. Ohio Dep’t
of Youth Servs., 648 F.3d 400, 413 (6th Cir. 2011) (stating that in “cases challenging
purported acts of retaliation that affect the right of marriage . . . the loss of a job
because of a protected marital relationship ‘constitutes undue intrusion by the state
in that relationship’” (citations omitted)).

                               B. Municipal Liability

      We have jurisdiction over the municipal liability issue because we conclude
Boswell committed no unconstitutional act, and that conclusion “necessarily
resolves” the municipal liability issue. Shannon, 616 F.3d at 866. As we held in
Webb v. City of Maplewood, “‘there must be an unconstitutional act by a municipal
employee’ before a municipality can be held liable.” 889 F.3d 483, 487 (8th Cir.
2018) (citation omitted). Thus, because Boswell committed no unconstitutional act,
no municipal liability can attach to Decatur County.

                                   V. Conclusion

      For the foregoing reasons, we reverse the judgment of the district court.
                      ______________________________




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