                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3787
                                  ___________

James M. Hayes,                            *
                                           *
              Appellee,                    *
                                           *
       v.                                  * Appeal from the United States
                                           * District Court for the Eastern
Faulkner County, Arkansas;                 * District of Arkansas.
Marty Montgomery, Sheriff                  *
of Faulkner County, Arkansas,              *
in his individual and official capacities; *
Kyle Kelley, Jail Administrator,           *
in his individual and official capacities, *
                                           *
              Appellants.                  *
                                    ___________

                            Submitted: September 17, 2004
                               Filed: October 29, 2004
                                ___________

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

BENTON, Circuit Judge.

      James M. Hayes sued Faulkner County and its sheriff and jail administrator
under 42 U.S.C. § 1983. The district court1 ruled that his 38-day pre-appearance
detention violated his right to due process, and entered judgment against Faulkner

      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
County and individually against jail administrator Kyle Kelley. Jurisdiction being
proper under 28 U.S.C. § 1291, this Court now affirms.

      In 1997, a police officer ticketed Hayes for not having automobile tags and
vehicle insurance. Hayes failed to appear at his municipal court hearing; bench
warrants issued. Stopped for a traffic violation on April 3, 1998, Hayes was arrested
on the warrants, given a court date of May 11, and jailed at the Faulkner County
Detention Center. He did not post the $593 cash-only bond. He remained in jail at
the Center until appearing before the court on May 11.

      While in jail, Hayes sent four grievances to Kelley, who had primary
responsibility to oversee the Center. The first three were on April 16 (requesting a
money order), April 18 (requesting medication), and April 19 (requesting
medication). On April 26, Hayes hand-wrote a grievance stating,

      I've been here for 23 days and have not been to court. According
      Prompt First Appearance Rule 8.1 I should seen a judge within 72 hrs.
      I have yet to be told when I will go to court. I also know that the
      arresting told booking to hold me back. I want to know when you plan
      to obay the law and allow me to go to court?

Kelley's written response: "I don't set people up for court. I hope you go to court &
are able to get out. Write the booking officer to find out about your court date."

       Kelley testified he would have followed the same course of conduct if Hayes
had been jailed for 99 days. He said he wanted to obey the court and was not trying
to be disobedient as a jailer or law enforcement officer. During the detention, the
court met on April 13 and April 29. Though an April 29 appearance date was entered
on Hayes's booking card, he did not have the opportunity to appear before a judge
until May 11.



                                         -2-
       The issue is a pretrial detainee's right to a prompt appearance in court, after
arrest by warrant. The Due Process Clause of the Fourteenth Amendment controls.
Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999), cert.
denied, 528 U.S. 1157 (2000). This Court reviews de novo questions of law arising
under the Constitution. Estate of Davis v. Delo, 115 F.3d 1388, 1394 (8th Cir. 1997).

       The Seventh Circuit decided similar cases in Coleman v. Frantz, 754 F.2d 719
(7th Cir. 1985) and Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998). In
Coleman, an 18-day detention after arrest by warrant, but before initial appearance,
violated Coleman's substantive due process rights. 754 F.2d at 723-24; cf. Davis v.
Hall, 375 F.3d 703, 713-14 (8th Cir. 2004). Citing the Fifth, Sixth, and Eighth
amendments, the Seventh Circuit stated, "Almost every element of a 'first appearance'
under state statutes or the Federal Rules of Criminal Procedure serves to enforce or
give meaning to important individual rights that are either expressly granted in the
Constitution or are set forth in Supreme Court precedent." Coleman, 754 F.2d at 724.
An extended pretrial detention without an initial appearance "substantially impinges
upon and threatens" all of those specific rights. Id. Thus, the "ultimate effect" of
Coleman's 18-day detention was a denial of substantive due process. Id.

       The Seventh Circuit followed Coleman in the Armstrong case, where a 57-day
detention on a (civil) body-attachment warrant without an initial appearance violated
substantive due process. The court looked to the totality of circumstances.
Armstrong, 152 F.3d at 570, citing County of Sacramento v. Lewis, 523 U.S. 833,
850 (1998). It considered three questions: (1) whether the Due Process Clause
prohibits an extended detention, without an initial appearance, following arrest by a
valid warrant; (2) whether the defendants' conduct offended the standards of
substantive due process; and (3) whether the totality of circumstances shocks the
conscience. Armstrong, 152 F.3d at 570. By that analysis, the 38-day detention here
violates substantive due process.


                                         -3-
       First, the Due Process Clause forbids an extended detention, without a first
appearance, following arrest by warrant. The Seventh Circuit so held in Coleman and
Armstrong, following two Fourth Amendment cases, Gerstein v. Pugh, 420 U.S. 103
(1975) and Baker v. McCollan, 443 U.S. 137 (1979). In Gerstein, invalidating an
extended warrantless detention, the Supreme Court wrote, "The consequences of
prolonged detention may be more serious than the interference occasioned by arrest.
Pretrial confinement may imperil the suspect's job, interrupt his source of income, and
impair his family relationships." 420 U.S. at 114. In Baker, the Supreme Court
reiterated its concern with "extended restraint of liberty following arrest" in the
context of a mistaken arrest under a valid warrant after a judge found probable cause.
See Coleman, 754 F.2d at 723, quoting Gerstein, 420 U.S. at 114. The Baker Court
wrote, "Obviously, one in respondent's position could not be detained indefinitely in
the face of repeated protests of innocence even though the warrant under which he
was arrested and detained met the standards of the Fourth Amendment." Baker, 443
U.S. at 144.

       Second, this Court considers whether the defendants' conduct offends the
standards of substantive due process. Deliberate indifference to prisoner welfare may
sufficiently shock the conscience to amount to a substantive due process violation.
County of Sacramento, 523 U.S. at 853. "[L]iability for deliberate indifference to
inmate welfare rests upon the luxury enjoyed by prison officials of having time to
make unhurried judgments, upon the chance for repeated reflection, largely
uncomplicated by the pulls of competing obligations." Id. at 853. This Court
considers the County's official policy separately from Kelley's individual conduct.

       As for the County, this Court examines the policy the district court found
deliberately indifferent. "A plaintiff may establish municipal liability under § 1983
by proving that his or her constitutional rights were violated by an 'action pursuant
to official municipal policy'. . . ." Ware v. Jackson County, 150 F.3d 873, 880 (8th
Cir. 1999), quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). A

                                         -4-
"policy" is a "deliberate choice to follow a course of action . . . made from among
various alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475
U.S. 469, 483-84 (1986). According to Kelley and the sheriff, the County adopted
a policy requiring that arrestees be taken before a court within 72 hours after arrest.
Also as policy, when a person is arrested, the sheriff's office notifies the court by
sending a jail roster to every court in the County. The sheriff's office then relies on
the court to schedule hearings, call the Center, and identify which detainees the court
will pick up for hearings. Hayes was subject to the same policy as other detainees at
the Center.

       The County's policy was to submit the names of confinees to the court and then
wait for the court to schedule a hearing. That policy attempts to delegate the
responsibility of taking arrestees promptly before a court. In Oviatt v. Pearce, 954
F.2d 1470 (9th Cir. 1992), a policy was deliberately indifferent where the jail had no
internal procedures to track whether inmates had been arraigned. Id. at 1478. "A
policy that ignores whether the jail has the authority for long-term confinement seems
to be a policy of deliberate indifference." Armstrong, 152 F.3d at 578-79. Because
the County's policy here attempts to delegate the responsibility of bringing detainees
to court for a first appearance and ignores the jail's authority for long-term
confinement, the policy is deliberately indifferent to detainees' due process rights.

       Next, the Court considers whether Kelley's individual acts violate the standards
of due process. Kelley helped promulgate and enforce the deliberately indifferent
policy. Receiving Hayes's specific appearance grievance, Kelley made a conscious
decision to do nothing. Kelley testified that he would have followed the same course
of conduct even if Hayes were held for 99 days. While Hayes sat in the Center for 38
days, Kelley consciously disregarded the violation of his constitutional rights. See
Armstrong, 152 F.3d at 577. That conscious disregard is deliberate indifference
violating the standards of due process.

                                           -5-
      The third and final step in this substantive due process analysis is determining
whether, in the totality of circumstances, the defendants' conduct in depriving Hayes
of a constitutional right shocks the conscience. Id. at 581. See County of
Sacramento, 523 U.S. at 846-47. This is a question of law. Armstrong, 152 F.3d at
581.

       In the totality of circumstances in this case, the key is Arkansas Rule of
Criminal Procedure 8.1, entitled "Prompt first appearance." The Rule requires: "An
arrested person who is not released by citation or by other lawful manner shall be
taken before a judicial officer without unnecessary delay." Ark. R. Crim. P. 8.1.
Rule 8.1 is mandatory. Bolden v. State, 561 S.W.2d 281, 284 (Ark. 1978).
Detentions of less than 38 days violate Rule 8.1. Duncan v. State, 726 S.W.2d 653,
656 (Ark. 1987) (3½ days); Cook v. State, 623 S.W.2d 820, 821 (Ark. 1981) (31
days); cf. Richardson v. State, 671 S.W.2d 164 (Ark. 1984) (56 days). Rule 8.1 is
designed to protect "basic and fundamental rights which our state and federal
constitutions secure to every arrestee." Bolden, 561 S.W.2d at 284 (emphasis added).
The County's and Kelley's failure to take Hayes before a judge for 38 days shocks the
conscience. See Coleman, 754 F.2d at 724.

       To hold Kelley liable as an individual under 42 U.S.C. § 1983, Hayes must
prove: (1) the official's conduct deprived him of constitutional rights, and (2) the
official's actions were taken under color of law. See Jennings v. Davis, 476 F.2d
1271, 1275 (8th Cir. 1973). As discussed, Kelley's conduct deprived Hayes of
substantive due process. And as jail administrator, Kelley was acting under color of
law. Thus, unless shielded by qualified immunity, Kelley is individually liable under
§ 1983.

      "Qualified immunity shields government officials from suit unless their
conduct violated a clearly established constitutional or statutory right of which a
reasonable person would have known." Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.

                                         -6-
1996), citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To be clearly
established, "the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right." Johnson-El v.
Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989), quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987). In other words, a constitutional right is clearly established
when "it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001).

       Rule 8.1 of the Arkansas Rules of Criminal Procedure requires a jailer to
ensure that a pretrial detainee appears before a judge "without unnecessary delay."
A reasonable officer knows that detentions of less than 38 days violate Rule 8.1. See,
e.g., Cook, 623 S.W.2d at 821. A reasonable officer knows that Rule 8.1 protects
"basic and fundamental rights which our state and federal constitutions secure to
every arrestee." See Bolden, 561 S.W.2d at 284 (emphasis added). A law
enforcement officer cannot reasonably believe that holding a person in jail for 38 days
without bringing him before a judicial officer for an initial appearance is
constitutional. Kelley is not entitled to qualified immunity.

        Kelley argues this lawsuit is time-barred because Hayes did not amend the
complaint to include him until the statute of limitations expired. But, the amended
complaint relates back to the date of the original complaint under Schiavone v.
Fortune, 477 U.S. 21 (1986) and Federal Rule of Civil Procedure 15. The allegations
against Kelley arose from the same conduct described in the original complaint.
Kelley is not prejudiced in maintaining his defense because after the complaint was
filed, Kelley gave Hayes's file to the County lawyer. He had notice of Hayes's lawsuit
within the limitations period. He should have known that, but for a legal mistake, he
would have been named in the original complaint. See Schiavone, 477 U.S. 21, 29;
Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 557, 560 (7th Cir. 1996). The
suit is not time-barred.


                                         -7-
      Under § 1983, a prevailing party may receive compensatory damages.
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986). Here, the district
court awarded $49,000 against Faulkner County and $1,000 against Kelley. This
award is not clearly erroneous. See Harmon v. City of Kansas City, 197 F.3d 321,
329 (8th Cir. 1999), cert. denied, 529 U.S. 1038 (2000).

       The district court may allow attorney's fees to the prevailing party in a § 1983
action. 42 U.S.C. § 1988. Attorney's fees are within the broad discretion of the
district court and will not be reversed absent an abuse of discretion. Harmon, 197
F.3d at 328-29. The fee award here of $46,929.50 is not an abuse of discretion.

      The judgment of the district court is affirmed.2
                      _____________________________




      2
       Hayes's motion to supplement the record is denied as moot.
                                         -8-
