                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3216
                                   ___________

Morris Killingham,                       *
                                         *
             Plaintiff-Appellant,        *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
County of Hennepin; Patrick D.           *
McGowan, Sheriff; Michele Smolley, *          [UNPUBLISHED]
Chief Deputy; Thomas Merkel,             *
Inspector, Richard Esensten, Former      *
Inspector, officially and individually, *
                                         *
             Defendants-Appellees.       *
                                    ___________

                             Submitted: September 16, 2005
                                Filed: October 28, 2005
                                 ___________

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges
                              ___________

PER CURIAM.

      On Friday, May 25, 2001, Morris Killingham was arrested by police officers
in Minneapolis, Minnesota, for domestic assault. At approximately 5:45 p.m. that
evening, Killingham arrived at the Hennepin County Adult Detention Center (the
“ADC”). The next morning, a state district court judge reviewed Killingham’s arrest,
found probable cause to support it, and set bail. Killingham did not post bail. On
June 1, 2001, Killingham was transported to the Hennepin County District Court in
Ridgedale and, at 8:14 a.m., entered a plea of guilty. Later that afternoon, Killingham
received a sentence of ninety days, with credit for eight days already served, and the
remainder of his sentence was stayed. After sentencing, Killingham was taken back
to the ADC between 3:55 p.m and 4:20 p.m. Upon his arrival, Killingham entered a
holding cell for two and one-half to three hours. Finally, Killingham was returned
back to the ADC housing area where he awaited release. ADC records indicate
Killingham was released between 4:15 a.m. and 4:30 a.m on June 2. Killingham
contends, however, that his final, formal release did not occur until 10:10 a.m. on
June 2, 2001.

       Killingham subsequently filed claims against Hennepin County alleging, inter
alia, that his post-sentencing detention violated the Fourth and Fourteenth
Amendments, triggering liability under 42 U.S.C. § 1983. The district court granted
Hennepin County’s motion for summary judgment, finding no evidence of a
constitutional violation resulting from an official municipal policy, or municipal
custom or usage, adopted by Hennepin County. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978).

       A municipality may be held liable under § 1983 where a constitutional right is
violated pursuant to an official municipal policy. Kuha v. City of Minnetonka, 365
F.3d 590, 603 (8th Cir. 2003) (citing Monell). Official policy involves a deliberate
choice to follow a course of action made from various alternatives by an official who
maintains the final authority to establish governmental policy. Jane Doe A v. Special
Sch. Dist., 901 F.2d 642, 645 (8th Cir. 1990). Alternatively, to establish a claim
against a municipality under 42 U.S.C. § 1983 based on “custom or usage,” this court
requires a plaintiff to show: (1) the existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental entity’s employees; (2)
deliberate indifference to, or tacit authorization of, such conduct by the governmental
entity’s policymaking officials after notice to the officials of that misconduct; and (3)



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proof that the custom was the moving force behind the constitutional violation. Jane
Doe A, 901 F.2d at 646.

      Before a municipality can be held liable under either theory, however, there
must first be an unconstitutional act. Avalos v. City of Glenwood, 382 F.3d 792, 802
(8th Cir. 2004). Regarding Killingham’s Fourth and Fourteenth Amendment claims,
we find no evidence of any constitutional infraction.

       This court has noted that claims alleging the excessive detention of one who
has established the right to be released are typically analyzed under the Due Process
Clause.1 See Foucha v. Louisiana, 504 U.S. 71, 80 (1992). In Golberg v. Hennepin
County, 417 F.3d 808 (8th Cir. 2005), we recently held that the detention of an
individual for ten hours after bail was posted did not violate the plaintiff’s substantive
due process rights because there was no evidence of deliberate indifference by any
municipal employee to the plaintiff’s right to be released. Id. at 810-12.
Accordingly, although Killingham was detained for approximately eighteen hours
after the district court stayed the remainder of his sentence, we find no evidence in
the record that demonstrates deliberate indifference on the part of any ADC employee
or Hennepin County official to delay Killingham’s release. Therefore, given the
absence of any constitutional infraction, we affirm the district court’s order.
                         ______________________________




      1
        Previous decisions by this court suggest that the Fourth Amendment does not
provide the proper mode of analysis for claims alleging an unconstitutional detention
resulting from an initially lawful arrest. See Golberg, 417 F.3d at 811. Yet, even if
the Fourth Amendment does provide grounds to support Plaintiff’s claim, there still
must be a showing of deliberate indifference to survive a motion for summary
judgment. Id.

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