                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2390
                                  ___________

Ricky Kearse, also known as Ricky        *
Taylor,                                  *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Arkansas.
James D. Moffett, Jr., Investigator,     *
Marion County Sheriff’s Office; Carl *
McBee, Sheriff, Marion County,           * [PUBLISHED]
Arkansas; Frank DePriest, Chief of       *
Police, Flippin, Arkansas; Ed House,     *
Presentence Officer for Marion County, *
Arkansas,                                *
                                         *
             Appellees.                  *
                                    ___________

                         Submitted: April 17, 2002
                             Filed: November 22, 2002
                                  ___________

Before HANSEN, Chief Judge, BRIGHT, and FAGG, Circuit Judges.
                              ___________

PER CURIAM.

      Ricky Kearse, an African American, appeals the district court’s orders
dismissing and granting adverse summary judgment on his 42 U.S.C. § 1983 claims
that defendants violated his federal constitutional rights by repeatedly detaining,
searching, and arresting him on a variety of false charges in predominantly white
Marion County, and that they conspired to do so. We affirm in part and reverse and
remand in part.

      Kearse alleged that in August 1997, Flippin (Arkansas) Police Chief Frank
DePriest requested a warrant for his arrest on charges of falsely registering a vehicle.
The district court granted summary judgment to DePriest. After de novo review, we
agree with the district court that Kearse had not shown DePriest procured the warrant,
and conclude summary judgment was proper.

       Kearse also alleged that, on the basis of a false affidavit sworn by Marion
County Investigator James D. Moffett, Jr., he was arrested in February 1997 for being
a felon in possession of a firearm; that Marion County Sheriff Carl McBee was
personally involved in the arrest; and that Marion County Presentence Officer Carl
House contributed to the arrest by knowingly submitting a false criminal history
worksheet on Kearse. The district court dismissed House, concluding that, as a state
employee, House was protected by the state’s sovereign immunity, and that, at any
rate, House had submitted the worksheet after Kearse was charged, so that it played
no part in the probable-cause determination. The court granted summary judgment
to Moffett and McBee, concluding that McBee could not be vicariously liable for
Moffett’s acts; that McBee’s alleged lowering of Kearse’s bail was not material to
Kearse’s claims; and that Moffett was entitled to qualified immunity because he had
arguable probable cause to believe Kearse was a felon, based on information Moffett
obtained from California authorities that Kearse had a felony arrest in that state.

      After de novo review, see Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.
1999) (per curiam) (dismissals); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir. 1999)
(summary judgment); Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001)
(determinations of qualified immunity), we conclude that the district court properly
dismissed House and granted summary judgment to McBee for the reasons given in
the court’s opinion. We additionally find that Kearse did not allege sufficient specific

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facts indicating a meeting of the minds to support a conspiracy claim. See Rouse, 193
F.3d at 943.

       We do not agree with the district court, however, that Moffett showed he
reasonably believed probable cause existed for Kearse’s arrest warrant to issue and,
thus, that he was entitled to qualified immunity. The record shows that at the time he
prepared his affidavit, Moffett had learned from California authorities that Kearse had
been arrested in that state, but had no information regarding whether Kearse had been
convicted. Moffett is responsible for knowing the difference between arrest and
conviction. See Malley v. Briggs, 475 U.S. 335, 345 (1986) (officer applying for
warrant must exercise reasonable professional judgment, and is not shielded by
magistrate’s approval of warrant; rejecting argument that applying for warrant is per
se objectively reasonable if officer believes all facts recited in affidavit are true);
Burk v. Beene, 948 F.2d 489, 494-95 (8th Cir. 1991) (officer who was aware affidavit
was untruthful “should have known [it] would violate the accused’s constitutional
rights”).

      Accordingly, we affirm the district court’s dismissal of Frank DePriest and Ed
House, and the grant of summary judgment to Carl McBee, but we reverse the court’s
grant of summary judgment to James D. Moffett, Jr., and remand for further
proceedings.

      A true copy.

             Attest:

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




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