                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2395
                        ___________________________

                                   Miles LaCross

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

             City of Duluth; Officer Anton Mark; Lt. Dan Chicos;
            Unknown/Unnamed Police Officers of the City of Duluth

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                            Submitted: March 13, 2013
                               Filed: May 8, 2013
                                ____________

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

       Miles LaCross appeals from the district court’s1 grant of summary judgment
to officer Anton Mark on LaCross’s 42 U.S.C. § 1983 action alleging a Fourth


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
Amendment violation based on an excessive use of force claim. LaCross also
contends that the district court2 should have granted his motion to amend the
complaint. We affirm.

                                    I. Background

       According to police logs, Duluth, Minnesota, police officer Anton Mark came
into contact with LaCross during the early morning hours of September 17, 2006.
Mark suspected that LaCross, who appeared to be a minor and who was accompanied
by a young female companion, may have been drinking alcohol. Ultimately, LaCross
was handcuffed and seated in the back seat of a squad car. At least two other officers
were present at the scene with Mark and LaCross.

       The parties offer substantially differing accounts of what next occurred.
According to LaCross, one officer opened the driver’s side rear door, “grabbed onto
my shirt, ripped me into the seat and held me onto the back of the police car” while
another officer opened the passenger’s side rear door and “began tasering me from
behind.” According to the police report and the Taser-use report, Mark applied the
Taser once, in stun-drive mode, after LaCross had kicked at the car’s windows, spat,
and attempted to bite Mark.3

       On September 18, 2006, LaCross sought medical care for bruising on his wrists
related to the handcuffs. He testified that he “never thought about telling [the doctor]


      2
       The Honorable Leo I. Brisbois, United States Magistrate Judge for the District
of Minnesota, to whom pretrial matters were assigned pursuant to 28 U.S.C.
§ 636(b)(1)(A).
      3
       Mark’s Taser was discharged three times in the early morning hours of
September 17, 2006. LaCross challenges only the Taser application that occurred
while he was handcuffed and seated in the squad car.

                                          -2-
about the taser marks all over me or anything like that.” He did not seek any
treatment for injuries related to the Taser application, nor has he been diagnosed with
any injuries or conditions related thereto. LaCross testified that, at some point after
September 17 or 18, 2006, he began having episodes of anxiety. When asked to
describe his symptoms, he replied, “My heart just starts beating, gets scared. . . . [A]
weird feeling comes over me.”

       LaCross filed suit in September 2010, alleging federal civil rights claims and
state common law claims against a number of defendants. He thereafter sought to
amend the complaint to add a claim under Minnesota Statutes § 611A.79, entitled
Civil Damages for Bias Offenses. The magistrate judge applied the pleading standard
set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and denied the motion to amend as futile. Except for the
§ 1983 claim alleging that Mark’s application of the Taser constituted an
unconstitutional use of force, all claims against all defendants were eventually
dismissed from the suit.

       The district court granted Mark’s motion for summary judgment, holding that
he was entitled to qualified immunity. In doing so, the district court determined that
Mark had used a reasonable amount of force and that, even if the Taser application
constituted excessive force, it was not clearly established on September 17, 2006, that
the use of force resulting in only de minimis injuries might violate the Fourth
Amendment.

                                    II. Discussion

               A. Summary Judgment Based on Qualified Immunity

       We review de novo the district court’s grant of summary judgment based on
qualified immunity. Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011).

                                          -3-
Qualified immunity shields government officials from liability and the burdens of
litigation in a § 1983 action unless the official’s conduct violates a clearly established
constitutional or statutory right of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Brown v. City of Golden Valley, 574
F.3d 491, 495 (8th Cir. 2009). Determining the question of qualified immunity
involves a two-part inquiry: whether the facts shown by the plaintiff make out a
violation of a constitutional or statutory right, and whether that right was clearly
established at the time of the defendant’s alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001). We have discretion to decide which part should be addressed
first, Pearson v. Callahan, 555 U.S. 223, 236 (2009), and have decided to address the
latter.

       In Chambers v. Pennycook, we considered whether a plaintiff’s showing of
“only de minimis injury necessarily forecloses a claim of excessive force under the
Fourth Amendment[,]” and concluded that it did not. 641 F.3d at 906. We
determined that “[t]he appropriate inquiry is ‘whether the force used to effect a
particular seizure is “reasonable.”’” Id. (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)) (emphasis omitted). So although a de minimis use of force is insufficient
to support a claim, a de minimis injury does not necessarily foreclose a claim. See id.

       The distinction between de minimis force and de minimis injury, however, was
not clear until Chambers was decided. In September 2006, when Mark deployed his
Taser, “a reasonable officer could have believed that as long as he did not cause more
than de minimis injury to an arrestee, his actions would not run afoul of the Fourth
Amendment.” Chambers, 641 F.3d at 908. LaCross has not set forth sufficient
evidence to show that Mark’s application of the Taser caused more than de minimis
injury. Accordingly, Mark is entitled to qualified immunity because he did not
violate LaCross’s then clearly established constitutional rights.




                                           -4-
        LaCross contends that the Taser is different from other implements of force in
that it can cause excruciating pain without lasting physical effects. Because it is
different in kind, the argument goes, the Taser should not be judged by the physical
injury it causes. LaCross argues that our post-Chambers opinion in Shekleton v.
Eichenberger, 677 F.3d 361 (8th Cir. 2012), establishes that “de minimis injury is
effectively irrelevant where an officer uses a taser on a nonresistant misdemeanant
suspect.” Appellant’s Reply Br. 7. In other words, he argues that Chambers does not
apply to excessive force claims involving Tasers. We disagree. Shekleton did not
consider the extent of the plaintiff’s injuries, beyond noting that the plaintiff
sustained minor head injuries and was treated at a hospital. 677 F.3d at 365. The
decision thus did not address whether the plaintiff suffered only de minimis injury,
and if so, whether that injury is viewed differently because it was caused by a Taser.4

       While mention has been made of “the unique nature of this type of weapon[,]”
McKenney v. Harrison, 635 F.3d 354, 361 (8th Cir. 2011) (Murphy, J., concurring),
we have not categorized the Taser as an implement of force whose use establishes,
as a matter of law, more than de minimis injury. In Chambers, we said that “the
nature of the force applied cannot be correlated perfectly with the type of injury
inflicted.” 641 F.3d at 906. This observation may be of special relevance regarding
Taser-inflicted injuries, some of which are only minor in nature, but others sometimes
severe and unexpected. Compare Cook v. City of Bella Villa, 582 F.3d 840, 850 (8th
Cir. 2009) (Arrestee “sustained only minor scrapes and two taser puncture marks
which did not require medical treatment.”), with McKenney, 635 F.3d at 357-58
(Following Taser shock, arrestee fell from a second-story window and later died from
his injuries.), and Mahamad v. Anderson, 612 F.3d 1084, 1086 (8th Cir. 2010)
(Prisoner sought medical and psychiatric care for alleged injuries including


      4
       Likewise, our opinion in Brown v. City of Golden Valley, 574 F.3d 491 (8th
Cir. 2009), did not address the question whether de minimis injury can support a
claim for excessive force.

                                         -5-
incontinence, impotence, and nerve damage from Taser shock to his testicle and
hand.). Though it offers no aid to LaCross, the degree of injury is not dispositive
after Chambers, and it is now clearly established that an officer is not entitled to
qualified immunity if his use of force is excessive in the circumstances, even if the
injury inflicted was minor.

                     B. Denial of Motion to Amend Complaint

       LaCross argues that the district court erred in applying the pleading standard
set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal to deny as futile his
motion to amend the complaint to add a state-law claim. We find no error in the
application of the pleading standard set forth in those cases, for “[w]e apply federal
pleading standards . . . to the state substantive law to determine if a complaint makes
out a claim under state law.” Karnatcheva v. JPMorgan Chase Bank, N.A., 704 F.3d
545, 548 (8th Cir. 2013).

                                   III. Conclusion

      The judgment is affirmed.
                     ______________________________




                                         -6-
