                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-1870
                                    ___________

Eric E. Bell, Sr.,                      *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Kansas City Police Department;          *
Kansas City Police Commissioner;        * [PUBLISHED]
Kansas City Police Chief; Dain T.       *
Apple, Officer; Eric Stucker, Officer; *
Aaron L. Bryant, Officer,               *
                                        *
            Appellees.                  *
                                   ___________

                              Submitted: March 7, 2011
                                 Filed: March 22, 2011 (Corrected: 03/23/11)
                                  ___________

Before MURPHY, MELLOY, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Inmate Eric E. Bell, Sr., appeals the district court’s (1) preservice dismissal of
claims against the Kansas City Police Department (KCPD) chief and individual
commissioners, (2) denial of leave to amend his complaint, (3) adverse grant of
summary judgment as to the remaining defendants, (4) failure to hold defendants in
contempt for discovery violations, and (5) denial of appointed counsel. For the
following reasons, we affirm in part and reverse in part.
       We affirm the preservice dismissal of the claims against the KCPD chief and
individual commissioners, see Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996)
(per curiam) (standard of review), because respondeat superior is inapplicable to
claims under 42 U.S.C. § 1983, see Vaughn v. Greene Cnty., 438 F.3d 845, 851 (8th
Cir. 2006), and Bell’s allegations did not state claims of supervisory liability, see Pool
v. Mo. Dep’t of Corr. & Human Res., 883 F.2d 640, 645 (8th Cir. 1989) (discussing
supervisory liability). We also find no abuse of discretion in the denial of leave to
amend given Bell’s failure to show good cause for modifying the pretrial scheduling
order to allow the untimely amendment of his complaint. See Fed. R. Civ. P.
16(b)(4); Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).

       As to the grant of summary judgment, which we review de novo considering
the evidence in the light most favorable to Bell, see Cook v. City of Bella Villa, 582
F.3d 840, 848 (8th Cir. 2009), we conclude that summary judgment was proper as to
Officer Erick Stucker who was not involved in the tasering incident, see Ellis v.
Norris, 179 F.3d 1078, 1079 (8th Cir. 1999), and was also proper as to the claim that
the officers conspired to violate Bell’s constitutional rights by failing to follow KCPD
policy in reporting the incident, see White v. McKinley, 519 F.3d 806, 814 (8th Cir.
2008); Neal v. St. Louis Cnty. Bd. Of Police Comm’rs, 217 F.3d 955, 959 (8th Cir.
2000).

       We find, however, that there is a genuine issue of fact on whether Bell was
complying with the orders of Officers Dain Apple and Aaron Bryant just before he
was tasered. Apple and Bryant attested that Bell was disobeying orders to show his
hands or get out of the truck, whereas Bell maintained in his notarized opposition to
summary judgment, that before he was tasered, he had complied with orders to place
his truck in park, turn off the truck’s engine, and place his hands in the air, and that
the tasering continued even after he was handcuffed and subdued. The dispute was
material, because it bears on whether the use of force was objectively reasonable
under the circumstances. See Brown v. City of Golden Valley, 574 F.3d 491, 496-98

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(8th Cir. 2009) (court “not convinced” that officer’s use of taser on passenger in
vehicle stopped after police chase was objectively reasonable; passenger posed
minimal security threat and was not resisting arrest or attempting to flee, officer was
not faced with split-second decision, and circumstances did not constitute tense,
uncertain, and rapidly evolving situation); Nyari v. Napolitano, 562 F.3d 916, 922 (8th
Cir. 2009) (courts should neither weigh evidence nor make credibility determinations
when ruling on motion for summary judgment); Henderson v. Munn, 439 F.3d 497,
503 (8th Cir. 2006) (police use of pepper spray on subdued arrestee was excessive
force). Bell’s overnight hospitalization for an irregular heartbeat and chest pain
immediately following the tasering created a jury question on whether the tasering
caused Bell injury that would suggest the force was unreasonable, see Cook, 582 F.3d
at 850-51; and the right to be free from excessive force in the context of an arrest was
clearly established at the time of the incident, see Brown, 574 F.3d at 499-500.
Accordingly, we find that Bell established a triable case of excessive force against
Officer Apple, and against Officer Bryant for not intervening during the incident. See
Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009) (duty to intervene).

       We instruct the district court on remand to address whether defendants violated
discovery orders by failing to produce certain videotapes, and to craft a remedy if
appropriate. See Fed. R. Civ. P. 37(b)(2)(A). We also direct the court to reconsider
its denial of appointed counsel. See Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794
(8th Cir. 2006) (relevant criteria).

      Accordingly, we affirm the dismissal of the KCPD chief and individual
commissioners; the denial of leave to amend; and the grant of summary judgment as
to Officer Stucker, and as to the claim that defendants conspired to violate police
policy on reporting the tasering. We reverse the grant of summary judgment to
Officers Apple and Bryant on the excessive-force and failure-to-intervene claims, and
remand for further proceedings consistent with this opinion.
                       ______________________________

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