                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1754
                                   ___________

Rickey Jones; Tammy Henderson;             *
Deona Griffo,                              *
                                           *
              Plaintiffs - Appellants,     *
                                           *
Brianna Henderson,                         *
                                           *
              Plaintiff,                   *
                                           *
Alonzo Henderson; Marlon Henderson; *
John Pitts; Maxine Pitts; Lesley Moore; *
Tami Moore,                                * Appeal from the United States
                                           * District Court for the District of
              Plaintiffs - Appellants,     * Minnesota.
                                           *
       v.                                  *
                                           *
City of Minneapolis, including but not * [UNPUBLISHED]
limited to its Police Department;          *
Richard Zimmerman; Steven Wuorinen, *
in his official and individual capacities; *
Kevin Lazarchic, in his official and       *
individual capacities; Scott Downing, *
in his official and individual capacities; *
Fine Associates,                           *
                                           *
              Defendants - Appellees.      *
                                     ___________

                             Submitted: February 12, 2009
                                Filed: July 13, 2009
                                 ___________
Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       This case arises out of a birthday party held at Marquette Place in Minneapolis,
Minnesota. Plaintiffs brought suit against Fine Associates, the management company
in charge of Marquette Place, the City of Minneapolis police department (MPD), and
four police officers: Richard Zimmerman, Steve Wuorinen, Kevin Lazarchic, and
Scott Downing, claiming violations of 1) 42 U.S.C. § 1983 (excessive force,
substantive due process, and equal protection), and 2) state law claims for malicious
prosecution, assault and battery, false imprisonment, intentional interference with
contract, and conversion. The district court1 dismissed all claims on summary
judgment, except the § 1983 excessive force claims and state law assault and battery
claims asserted by Rickey Jones against the MPD and officers Wuorinen, Lazarchic,
and Downing. Those claims proceeded to trial and a jury returned verdicts in favor
of the defendants. The district court denied Jones's motions for judgment as a matter
of law (JAML) and a new trial. The plaintiffs now appeal, and we affirm.

       On November 22, 2002, friends and family of Marlon Henderson held a
birthday celebration in his honor at Marquette Place's "party room" on the building's
thirty-fifth floor. At close to midnight, Maxine Pitts, one of the guests and an
employee of Marquette Place, contacted security and advised them the party room was
at capacity and police should be called to assist in clearing out the guests. After
further discussions, it was determined would-be guests were blocking the lobby on the
main floor and police should be called to control the crowd.




      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

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       Instead of calling the police, security had been instructed to contact Richard
Zimmerman whenever the need for a police presence arose. Zimmerman, a
Minneapolis police officer, worked part-time as a paid consultant for Fine Associates.
Security contacted Zimmerman, who called police and asked for a squad car to be sent
to the hotel. Zimmerman arrived at the hotel shortly thereafter. Upon entering the
lobby, Pitts met Zimmerman and advised him the party had ended because the room
reached capacity, and the crowd gathered in the lobby needed to be cleared.
Zimmerman reacted angrily, telling her she was fired. He then proceeded to the party
room. Plaintiffs allege Zimmerman ate, socialized, and carried two bottles of
champagne around the party room. When party organizers told Zimmerman the party
was over and they were cleaning up, he told them to leave and reiterated to Pitts she
was fired.

        According to the plaintiffs, Zimmerman's actions caused the situation to
deteriorate rapidly. Zimmerman called police via 911 and again requested police
officers be dispatched. He specifically requested multiple squads because of the
number of people involved. Minutes later, Zimmerman called 911 again. This time
he told the dispatcher there were drugs on the premises, and requested the call be
coded as a "help" call.2 Within minutes, dozens of officers arrived on the scene and
attempted to access the party room.3 When police arrived on the thirty-fifth floor, the
sheer number of people attempting to leave prevented them from getting off the
elevators. Officers sprayed mace into the crowd to disperse it, thereby gaining access
to the floor. In the ensuing confusion, plaintiffs claim they were exposed to mace and
suffered eye and lung irritation. Others contend they were made to wait on a balcony
for several minutes while police cleared party-goers from the room. Another plaintiff



      2
       A "help" call in police parlance signifies an urgent situation and frequently is
interpreted as one which presents an immediate danger to officers on the scene.
      3
       Plaintiffs allege fifty or more officers responded to the call.

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alleges she was karate chopped on the back of the neck when she attempted to assist
Jones as he was arrested and wrestled to the ground.

       As police were attempting to clear the floor, Jones, the videographer hired to
record the celebration, began videotaping the police. According to plaintiffs, the
police reacted angrily and ordered Jones to stop. The police claim they repeatedly
asked Jones to move out of the way so they could clear the crowds but he refused.
When Jones continued filming, he was arrested, wrestled to the ground, and his
equipment seized. There is no dispute Jones sustained a laceration to the face and
bruising during the arrest. Jones contends he was handcuffed and taken to a room
where he overheard the individual officers discuss the need to "get their stories
straight." Additionally, he claims he was marched down thirty-five flights of stairs
handcuffed and taken to the police station for booking. A nurse there refused to treat
Jones, and he was taken to the hospital emergency room for treatment of a facial
laceration and bruising. Thereafter, police returned him to the station and booked him
on charges of obstruction. A state court later dismissed the charges, finding a lack of
probable cause.

       The plaintiffs brought suit against Fine Associates under § 1983 alleging the
corporation acted under color of state law. They allege Zimmerman acted in a dual
capacity as an agent of Fine Associates and as a police officer, and his actions were
attributable to Fine Associates. The district court dismissed the claim, holding a
corporation – even one acting under color of law – is not vicariously liable under a
theory of respondeat superior. The district court also dismissed Jones's malicious
prosecution claim, finding there was no evidence Fine Associates was involved in the
decision to prosecute Jones.

       Next, the district court dismissed the remaining § 1983 excessive force claims
as to all plaintiffs (except Jones) finding the injuries alleged were de minimus and
insufficient to support a Fourth Amendment violation. The court also dismissed the

                                         -4-
§ 1983 substantive due process claims, finding they failed to allege the deprivation of
a protected liberty or property interest, and were more appropriately cast as excessive
force claims, which had been dismissed. Finally, the court dismissed Jones's § 1983
claim premised on equal protection, concluding his claim he was discriminated against
because he was operating a camera failed to state an equal protection claim.

      Finally, the court analyzed the plaintiffs' state law claims and dismissed all but
Jones's claims for assault and battery. The court concluded the individual officers
were immune from suit under state law unless their actions were willful or malicious.
According to the court, the claims failed for lack of any factual basis, e.g., there was
no evidence to support a claim of conversion premised on allegations the police
removed liquor from the party, and the officers were immune from suit because there
was no evidence they acted wilfully or maliciously. Because the court had previously
denied summary judgment on Jones's claims of excessive force, it denied summary
judgment on his state law assault and battery claims.4

       Jones's excessive force claims against Wuorinen, Downing, Lazarchic, and the
MPD proceeded to trial. The jury returned verdicts for the defendants, and Jones
moved for JAML and a new trial. The district court denied the motions, noting it
might have found differently but credibility determinations were the province of the
jury and there was sufficient evidence to support the verdicts. The plaintiffs appeal
the district court's summary judgment rulings and its denial of Jones's motions for
JAML and a new trial.

       "We review a grant of summary judgment de novo, applying the same standard
as the district court. Summary judgment is proper if there exists no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law.


      4
        At trial the excessive force claim and assault and battery claims were merged
and tried as an excessive force claim.

                                          -5-
When ruling on a summary judgment motion, a court must view the evidence in the
light most favorable to the nonmoving party." Sappington v. Skyjack, Inc., 512 F.3d
440, 445 (8th Cir. 2008) (internal quotations and citations omitted).

       We review the district court's denial of a motion for judgment as a matter of
law de novo using the same standards as the district court. Keenan v. Computer
Assocs. Intern., Inc., 13 F.3d 1266, 1268 (8th Cir. 1994). A motion for judgment as
a matter of law presents a legal question to the district court and this court on appeal:
"[W]hether there is sufficient evidence to support the jury's verdict." Id. (quoting
White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992)). We view the "evidence in the
light most favorable to the prevailing party and must not engage in a weighing or
evaluation of the evidence or consider questions of credibility." Id. A grant of
judgment as a matter of law is proper only if the evidence viewed according to these
standards would not permit "reasonable jurors to differ as to the conclusions that could
be drawn." Dace v. ACF Indus., Inc., 722 F.2d 374, 375 (8th Cir. 1983).

       "We review the denial of a motion for a new trial for a clear abuse of
discretion." Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 495 (8th Cir. 2002).
"The key question is whether a new trial should have been granted to avoid a
miscarriage of justice." Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000)
(quoting McKnight v. Johnson Controls, 36 F.3d 1396, 1400 (8th Cir. 1994)).

       After carefully reviewing the record on appeal, and applying these standards,
we affirm the judgment of the district court. Because an extended discussion would
add nothing to the well-reasoned orders of the district court, we affirm by virtue of 8th
Cir. R. 47B.
                        ______________________________




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