                    UNITED STATES COURT OF APPEALS

                             FOR THE EIGHTH CIRCUIT



No. 98-1810EMSL

Kendrick Lee Harris,                       *
                                           *
      Appellant,                           *    Appeal from the United States
                                           *    District Court for the
St. Louis Police Department; City          *    Eastern District of Missouri
of St. Louis,                              *
                                           *
      Appellee,                            *
                                           *
Officer Mack, #976                         *
                                           *
Officer Finan Kelly, #8657; Area           *
II Command; Officer Rice, #2204,           *
                                           *
      Defendants.                          *

      On the court’s own motion, the opinion of December 7, 1998, is vacated.
The clerk is directed to issue the attached corrected opinion.
      The court’s judgment of December 7, 1998, remains in effect, and the period for
filing a motion for rehearing or rehearing en banc will run from December 7, 1998.
                                                December 22, 1998




Order Entered at the Direction of the Court:


Clerk, U.S. Court of Appeals, Eighth Circuit
                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                  ___________


                                      No. 98-1810
                                  ___________


Kendrick Lee Harris,                       *
                                           *
             Appellant,                    *
                                           *
      v.                                   *
                                           *
St. Louis Police Department; City of       *
St. Louis,                                 *   Appeal from the United States
                                           *   District Court for the
             Defendants,                   *   Eastern District of Missouri
                                           *
Officer Mack, #976,                        *        [TO BE PUBLISHED]
                                           *
             Appellee,                     *
                                           *
Officer Finan Kelly, #8657; Area II        *
Command; Officer Rice, #2204,              *
                                           *
             Defendants.                   *
                              ___________


                    Submitted: September 8, 1998


                         Filed: December 22, 1998
                              ___________


Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD
    ARNOLD, Circuit Judges.
                              ___________


PER CURIAM.




                                  -3-
       Kendrick Lee Harris appeals from the final judgment entered in the District
Court for the Eastern District of Missouri dismissing his 42 U.S.C. § 1983 action with
prejudice. For reversal, Harris argues that the district court erred in (1) denying his
motion for a default judgment against defendant Derrick Mack, and (2) granting
Mack&s Fed. R. Civ. P. 12(b)(6) motion to dismiss Harris&s complaint. For the reasons
discussed below, we affirm in part and reverse and remand in part.

       Harris alleged the following against Mack. After two detectives from the St.
Louis, Missouri police department stopped Harris while he was walking down a street
with a beer in his hand, defendant Mack, who had been called as a back-up police
officer, threatened to mace, shoot, or beat Harris if he did not confess to a felony, and
failed to read Harris his Miranda1 rights. Mack later threatened to plant evidence on
Harris, “brushed up against” Harris, “used physical force,” and cut up Harris&s bus pass
after pulling his knife on Harris. Harris contended that he “felt his life was in danger”
when Mack threatened him with “lethal deadly weapons,” namely, mace, a gun, and
a knife.

       We review for abuse of discretion the district court&s denial of Harris&s motion
for a default judgment. See Swink v. City of Pagedale, 810 F.2d 791, 792 (8th Cir.)
(standard of review), cert. denied, 483 U.S. 1025 (1987). We cannot say that the
district court abused its discretion here, because Mack filed an answer to Harris&s
complaint after obtaining leave of court to file the answer out of time. Cf. Ackra
Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (district court
may grant default judgment against party who willfully, contumaciously, or
intentionally fails to defend).

      After de novo review of the district court&s Rule 12(b)(6) dismissal, see
Springdale Educ. Ass&n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998)


   1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -4-
(standard of review), we agree with the district court that Harris cannot assert a § 1983
claim based on the destruction of his bus pass, because Harris has an adequate
postdeprivation remedy in state court for conversion. See Reese v. Kennedy, 865 F.2d
186, 187 (8th Cir. 1989) (per curiam) (state tort remedies preclude § 1983 claim for
deprivation of property); Maples v. United Sav. & Loan Ass&n, 686 S.W.2d 525, 527
(Mo. Ct. App. 1985) (defining conversion as “unauthorized assumption of the right of
ownership over the personal property of another to the exclusion of the owner&s
rights”). We also agree that Mack&s failure to read Harris his constitutional rights is
not actionable because Harris did not allege that he was tried for a crime pursuant to
his arrest. See Davis v. City of Charleston, 827 F.2d 317, 322 (8th Cir. 1987) (if
statements obtained during custodial interrogation are not used against party during
criminal trial, party&s constitutional rights are not violated).

        We conclude, however, that Harris&s allegations concerning Mack&s threats to
use weapons against Harris and Mack&s use of physical force were sufficient to
withstand Mack&s motion to dismiss. See Fed. R. Civ. P. 8(a)(2) (federal pleading
rules require only short and plain statement of claim showing pleader is entitled to
relief); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 168 (1993) (under federal rules, there are no heightened pleading standards
for § 1983 claims); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam) (pro se complaints should be construed liberally). In particular, we believe the
facts pleaded were sufficient to call into question whether Mack&s conduct during his
arrest and search of Harris was objectively reasonable under the circumstances. See
Graham v. Connor, 490 U.S. 386, 394-95 (1989) (excessive force claims arising from
arrests are appropriately analyzed under Fourth Amendment&s reasonableness
standard); Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997) (explaining
reasonableness standard as whether police officer&s conduct was objectively reasonable
under circumstances; concluding slapping and punching restrained arrestee was
actionable).



                                          -5-
       Accordingly, we affirm both the district court&s refusal to enter a default
judgment against Mack, and the court&s dismissal of Harris&s § 1983 claims concerning
his bus pass and Mack&s failure to read Harris his Miranda rights. We reverse the
court&s dismissal of Harris&s § 1983 claim that Mack threatened him with various
weapons and used physical force against him, and we remand this matter for
proceedings consistent with this opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -6-
