                United States Court of Appeals
                     FOR THE EIGHTH CIRCUIT
                         ___________

                         No. 96-3125
                         ___________

Robert Miller, III,        *
                           *
         Appellant,        *
                           *
    v.                     *
                           *
Pat Compton, individually and as                   *
Deputy Prosecuting Attorney for Union              *
County, Arkansas; Caren Harp,                      *
individually and as Deputy Prosecuting             *
Attorney for Union County, Arkansas,               *
                           * Appeal from the United
States
         Defendants,       * District Court for the
                           * Western      District   of
Arkansas.
Cathleen Compton, individually and as              *
agent for the Union County Prosecuting             *
Attorney; Lieutenant Byron Sartor,                 *
individually and in his official capacity          *
as a Police Officer of the El Dorado               *
Police Department; Jackie R. Wiley, in             *
his official capacity as Chief of Police,          *
                           *
         Appellees,        *
                           *
Tom Wynne, Prosecuting Attorney for                *
the Thirteenth Judicial District,                  *
                           *
         Defendant,        *
                           *


City of El Dorado,             *
                                      *
            Appellee.                 *
                                 ___________

                      Submitted:        April 14, 1997
                                                    Filed: August 12,
1997
                                 ___________

Before LOKEN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                       ___________

MAGILL, Circuit Judge.

    Robert Miller III brought suit under 42 U.S.C. § 1983
against the city of El Dorado, Arkansas, El Dorado police
officer Byron Sartor, El Dorado police chief Jackie
Wiley, and private attorney Cathleen Compton for
allegedly violating Miller's constitutional rights. The
district court1 granted the defendants' motions for
summary judgment, and Miller now appeals. We affirm.

                                        I.

    Robert and Deneen Miller did not have an ideal
relationship.   The couple married in 1988 and had one
child together. Miller and Deneen divorced in 1990, but
had a second child out of wedlock in 1992.       Miller
initially refused to acknowledge his paternity of this
second child.

    Deneen has, at various times, accused Miller of
physically assaulting her, including an episode when

       1
        The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

                                        -2-
Miller allegedly choked Deneen.   Miller denies that he
ever




                          -3-
physically assaulted Deneen.     Despite her version of
their history together, Deneen allowed Miller to move
into her apartment when Deneen moved to El Dorado in June
1992.

    During Thanksgiving of 1992, Deneen and Miller
argued, and Miller threatened to move out of the
apartment. Deneen contacted the El Dorado police because
she believed that Miller was going to remove appliances
and furniture from the apartment. Miller did not move
out and did not remove anything from the apartment.
Within the next six weeks, Deneen and Miller continued to
argue, and Deneen asked Miller to leave the apartment.

    The El Dorado apartment, which was managed by Moore
Realty and leased on a month-to-month basis, was
originally leased in both Deneen's and Miller's names.
On January 8, 1993, Deneen spoke with the manager of the
property and entered into a new lease in her name only.
Deneen took this action because she did not believe that
Miller, who was then unemployed, was contributing
sufficient financial support for the rent and household
expenses. Deneen did not tell Miller that his name was
no longer on the lease.

    On January 11, 1993, Deneen spoke with private
attorney Cathleen Compton regarding Miller's failure to
pay child support, Miller's failure to pay certain
medical expenses, and Miller's unacknowledged paternity
of Deneen's and Miller's second child. Compton filed a
paternity petition and a citation for contempt against
Miller, but was unable to serve the petition or citation
against him.     Subsequently, Miller acknowledged his

                           -4-
paternity of the second child, and Deneen instructed
Compton to drop all actions against Miller.

    During her January 11 meeting with Deneen, Compton
learned that Deneen and Miller had a history of domestic
violence. Deneen also told Compton that Deneen




                           -5-
wanted Miller to leave her home. Compton recommended
that Deneen contact the Union County Victim/Witness
Assistance Program for help.

    Deneen acted on this recommendation, and on January
11 spoke with Judy Hughes in the Victim/Witness
Assistance Program. Deneen told Hughes that Deneen and
Miller were divorced, that Miller had been physically
abusive and verbally abusive towards Deneen, that Miller
was not listed on the apartment lease, and that Deneen
wished Miller to leave the apartment.      Hughes called
Moore Realty and confirmed that Miller was not listed on
the apartment lease. Hughes then contacted Captain Ellis
of the El Dorado police, and explained that there was an
unwanted person staying at Deneen's apartment, and that
Deneen wanted the person removed.

    Officers Blake and Stigall of the El Dorado police
met Deneen at Deneen's apartment shortly before noon on
January 11.     Deneen invited the officers into the
apartment, and the officers spoke with Miller. Miller
showed the officers a lease which contained his name, and
Officer Stigall spoke with someone from Moore Realty on
the phone.    The Moore Realty representative explained
that "at first she had told Ms. Miller that the lease
could be changed over to her name only but after talking
to someone else in the office that lease couldn't be
changed over only into Ms. Miller's name."      Report by
Officer Blake (Jan. 11, 1993) at 2, reprinted in
Appellant's App. at 20. The officers left the apartment,
telling Deneen that they could not force Miller to leave.
Officer Blake reported that Deneen and Miller "were
agitated at each other," id., and that Deneen stated

                           -6-
"that she was afraid of Mr. Miller."   Id.   Deneen denies
that she made this statement.

    Deneen then spoke with Caren Harp at the Union County
Prosecutor's office. Deneen repeated her allegations of
abuse and showed Harp a copy of the apartment lease that
listed only Deneen's name. Deneen was extremely upset
and was crying during the meeting with Harp.         Harp
contacted Jim Moore of Moore Realty and confirmed that
Miller was not on the current lease to the apartment.
Harp also




                           -7-
contacted   Compton   to   get   additional   background
information on Deneen's and Miller's situation.     Harp
then contacted Captain Ellis of the El Dorado police and
informed him that Miller was not on the current lease to
the apartment.2

    Captain Ellis sent El Dorado police officers Ward and
Sartor to Deneen's apartment at 4:30 on the afternoon of
January 11.     Although Deneen was at the apartment
complex, she did not enter the apartment with the
officers.     Miller invited the officers into the
apartment. While Officer Sartor contends that he merely
asked Miller to leave the apartment and Miller complied,
Miller contends that Officer Sartor ordered him to leave.
Miller alleges that Officer Sartor did not give him a
chance to explain that Miller's name was listed on the
lease, and that Officer Sartor threatened to arrest him
if Miller did not leave. Miller left the apartment.3

    Miller spent several days away from El Dorado. After
three days, Deneen allowed Miller to return to the
apartment. Deneen and Miller were remarried on July 3,
1993.
    Miller brought this lawsuit on January 24, 1994,
against several Union County prosecutors, Officer Sartor,


      2
       At approximately this same time, Miller was in the Union County Prosecutor's
office completing a complaint against Deneen for giving a real estate agent false
information. See Appellant's App. at 113-15 (Robert Miller Aff. for Criminal
Summons). Miller contends that the Union County Prosecutor's office did not act on
his complaint.
      3
       Miller returned to the Union County Prosecutor's office and attempted to speak
with a prosecutor. No prosecutor spoke with Miller, and he eventually left the office.

                                         -8-
El Dorado police chief Jackie Wiley, the city of El
Dorado, and Compton. In his suit, Miller sought relief
for alleged violations of the First, Fourth, Fifth, and
Fourteenth Amendments under 42 U.S.C. §§ 1983, 1985, and
1988, as well as Arkansas state tort claims for false
arrest, false imprisonment, seizure of pension, tortious
interference with a contractual relationship, slander,
invasion of privacy, public




                           -9-
disclosure of private facts, infliction of emotional
distress, and unlawful ejection. Miller did not bring
suit against Deneen, and Deneen has not been joined as a
party in this action.

    During discovery, Compton sought admissions from
Miller. When Miller failed to respond to the request for
admissions within the thirty-day time limit prescribed by
Federal Rule of Civil Procedure 36, Compton moved the
district court to deem the requested admissions admitted.
The district court denied this motion, and set a later
deadline for Miller to respond to the request for
admissions. Miller failed to meet this second deadline.
Miller responded to the request for admissions several
days after the expiration of the second deadline.
Compton had also served Miller with interrogatories at
the same time that she had requested admissions, and
Miller never responded to the interrogatories.

    Following discovery, the district court granted
summary judgment to all defendants. The district court
held that the prosecutors were absolutely immune from
Miller's civil rights claims against them. See Mem. Op.
at 13, reprinted in Appellant's Add. at 14. The district
court dismissed Miller's civil rights complaint against
Compton both because she was not a state actor, see id.
at 11, reprinted in Appellant's Add. at 12, and because
Miller, who failed to respond in a timely manner to
Compton's request for admissions, was deemed to have
admitted that he had no valid cause of action against
Compton. Id. at 11-12, reprinted in Appellant's Add. at
12-13. Finally, the district court dismissed Miller's
civil rights claims against Chief Wiley, Officer Sartor,

                           -10-
and the city of El Dorado. The district court held that
Officer Sartor was entitled to qualified immunity from
Miller's suit, see id. at 14-15, reprinted in Appellant's
Add. at 15-16, and that the city of El Dorado and Chief
Wiley had not established an unconstitutional policy and
could not be liable under a theory of respondeat
superior. See id. at 15, reprinted in Appellant's Add.
at 16.




                           -11-
    The district court held that Miller's claims in tort
were barred either by Arkansas's one-year statute of
limitations, see Mem. Op. at 15, reprinted in Appellant's
Add. at 16 (citing Ark. Code Ann. 16-56-104), or by
Miller's failure to allege sufficient facts to sustain
these actions in tort. See id. at 15-18, reprinted in
Appellant's Add. at 16-19.

    Miller now appeals.    During the pendency of this
appeal, Miller dismissed the prosecutors from this
action.   Accordingly, we need only consider Miller's
claims against Compton, Officer Sartor, Chief Wiley, and
the city of El Dorado.

                          II.

    We review the district court's grant of summary
judgment de novo, viewing the evidence in the light most
favorable to the nonmoving party. McCormack v. Citibank,
N.A., 100 F.3d 532, 537 (8th Cir. 1997).         Summary
judgment is proper where the record presents no genuine
issue of material fact and the moving party is entitled
to judgment as a matter of law. Id.

    In this case, the vast majority of Miller's claims
are frivolous. Even on appeal, Miller does not clarify
how his First or Fifth Amendment rights have been
violated, and Miller was never seized in violation of the
Fourth Amendment. Miller's state tort claims are either
factually baseless, time-barred, or both. Accordingly,
we summarily affirm the district court's grant of summary
judgment to the defendants on these claims. See 8th Cir.
R. 47B.

                           -12-
    We conclude that the district court also properly
granted summary judgment to the defendants on Miller's §
1983 claims for violations of the Fourteenth Amendment,
although these claims warrant somewhat greater analysis.




                          -13-
A. Cathleen Compton.

     Miller's § 1983 claim against Compton, a private
attorney, arises from Compton's recommendation to Deneen
that    Deneen  seek   help   from   the    Union   County
Victim/Witness   Program,    and   Compton's    subsequent
conversation with Harp regarding Deneen and Miller.
Based on this, Miller alleges that Compton conspired with
Union    County   prosecutors    to    violate    Miller's
constitutional rights.4

    Compton, a private actor, may be liable under § 1983
only if she “is a willing participant in joint action
with the State or its agents.” Mershon v. Beasley, 994
F.2d 449, 451 (8th Cir. 1993) (quotations and citations
omitted). In

      construing that test in terms of the allegations
      necessary to survive a motion to dismiss, this
      circuit has held that a plaintiff seeking to
      hold a private party liable under § 1983 must
      allege, at the very least, that there was a
      mutual understanding, or a meeting of the minds,
      between the private party and the state actor.
      In order to survive a motion for summary


      4
        Miller, noting that Compton’s sister-in-law Patricia Jackson Compton was a
Union County deputy prosecutor, also argues that Compton used family and political
ties to obtain action against Miller. Patricia Compton testified that on January 11,
1993, she was preparing for a capital murder trial and had no involvement in the
Deneen-Miller affair beyond asking Judy Hughes to speak with another prosecutor
about the matter. See Dep. of Patricia Jackson Compton (June 2, 1995) at 3-4, 30.
Upon combing the record, we conclude that there is not a shred of evidence to support
Miller's allegation that Compton used her relationship with Patricia Compton to further
a plot against Miller.

                                         -14-
    judgment or for a directed verdict, evidence
    must be produced from which reasonable jurors
    could conclude that such an agreement was come
    to.

Id. (citations omitted).




                           -15-
    In this case, there is no evidence that Compton had
a "meeting of minds" with any government official that
could have transformed Compton into a state actor.
Compton's recommendation to Deneen that she seek legal
assistance from a government agency certainly did not
have this effect; the Supreme Court has rejected the
argument "that a private party’s mere invocation of state
legal procedures constitutes joint participation or
conspiracy with state officials satisfying the § 1983
requirement of action under color of law.”       Lugar v.
Edmonson Oil Co., 457 U.S. 922, 939 n.21 (1982)
(quotations and citation omitted). When Compton spoke
with Harp regarding Deneen's and Miller's situation, she
did no more than provide information to a government
agency. See Dep. of Caren Harp (June 2, 1995) at 7. To
impose § 1983 liability on a private actor for merely
answering   a   law  enforcement   official's   questions
regarding a case would have obvious and unfortunate
consequences and has no support in precedent or common
sense.    Considering the record in the light most
favorable to Miller, we conclude that Compton was not a
state actor, and § 1983 liability could therefore not
attach.5

B. Officer Sartor.

    Miller contends that he had a Fourteenth Amendment
property interest in remaining in his apartment, and that
Officer Sartor should be liable for violating Miller's

      5
        Because we affirm the district court's grant of summary judgment to Compton
on the ground that Compton was not a state actor, we need not consider its alternative
grant of summary judgment based on Miller's deemed admission that he had no valid
cause of action against Compton.

                                        -16-
right to due process by summarily depriving Miller of
that interest. We disagree.

    In Greiner v. City of Champlin, 27 F.3d 1346 (8th
Cir. 1994), we explained that the rationale for the
qualified immunity doctrine




                         -17-
    is to allow public officers to carry out their
    duties as they think right, rather than acting
    out of fear for their own personal fortunes.
    Toward this end, the rule has evolved that an
    official performing discretionary functions will
    generally be immune from liability unless a
    reasonable person in his position would have
    known   that   his  actions   violated   clearly
    established law.

Id. at 1351 (citations omitted).      Officer Sartor is
therefore immune from Miller's suit unless, "first, the
law he violated was clearly established at the time of
the violation, and second, the applicability of the law
to his particular action was evident." Id.

    When Officer Sartor entered Deneen's apartment, he
had information that: (1) Deneen was the only person on
the current lease; (2) Deneen wished Miller to leave; and
(3) Deneen had accused Miller of prior serious physical
abuse. For purposes of this summary judgment motion, we
must assume that Officer Sartor did not politely request
that Miller leave Deneen's apartment, but rather that
Office Sartor ordered Miller to leave under threat of
arrest.

    To the extent that Miller was merely a houseguest at
Deneen's apartment, it is clear that Officer Sartor did
not violate any of Miller's well-established rights by
requesting Miller to leave the apartment. In Greiner,
police officers encountered a loud party at a private
home.   The officers ordered houseguests, who had been
invited to spend the night at the private home, to leave.
See 27 F.3d at 1350.       The houseguests brought suit
against the officers, alleging that their rights were

                           -18-
violated when the police told them to leave.     Id. at
1352. This Court disagreed, stating:

        We grant that police could not have
    interfered   with    the   houseguest   relation
    arbitrarily, without some valid governmental
    interest in doing so. However, the facts do not
    fairly present that situation. The record shows
    there were two complaints, that the police had
    already delivered a warning, that an outside
    party was going on around 2:00 a.m., and that it
    involved some level of noise (even granting a
    dispute about how much




                          -19-
    noise).     These facts give rise to some
    governmental interest in dispersing the crowd in
    order to restore order and quiet during hours
    most citizens devote to sleep. We emphatically
    do not consider how we would resolve the
    relative interests of the city and the guests on
    the merits, if that issue were before us. We
    do, however, hold that plaintiffs have not shown
    that it was clearly established on the night of
    their party that their rights were paramount
    over the governmental interest in dispersing
    them. Therefore, the defendants are entitled to
    qualified immunity on this claim.

Id. at 1352-53 (footnote omitted).

    The facts presented in this case are far more
compelling than those in Greiner, and demonstrate that
Miller's interest in remaining in the apartment was far
outweighed by "the governmental interest in dispersing"
him. Id. at 1353. Here, Deneen, the sole holder of the
current lease, wished Miller to leave.       In addition,
based on the alleged history of domestic violence between
Deneen and Miller that had been recounted by Deneen,
Officer Sartor had a reasonable concern for Deneen's
safety if Miller were to stay in the apartment with her.
See Dep. of Byron Sartor (June 2, 1995) at 8 (testifying
that "in my past experience, 13 years, going on 14 years,
you get a man and wife or girlfriend, or something like
that, and they start fighting like that, there's always
that great possibility that maybe someone could get hurt
real badly; maybe even possibly killed").

    Miller contends that he was not a mere houseguest,
but rather that he was a cotenant. As a cotenant, or


                           -20-
even a hold-over tenant, Miller argues that he had the
right to judicial process prior to his eviction. See,
e.g., Williams v. City of Pine Bluff, 683 S.W.2d 923,
924-26 (Ark. 1985) (holding that hold-over tenants are
not trespassers under Arkansas law).      Assuming that
Miller is correct in his analysis, this does not answer
whether Officer Sartor can be held liable for allegedly
violating Miller's right to an eviction proceeding.




                          -21-
    Under this Court's precedent, Officer Sartor can only
be liable if "a reasonable person in his position would
have known that his actions violated clearly established
law" because "the applicability of the law to his
particular action was evident."     Grenier, 27 F.3d at
1351.   In this case, Miller's status as a tenant was
anything but "evident"; indeed, a reasonable person would
almost certainly have perceived Miller as a mere
houseguest. Deneen had presented a signed lease, dated
only a few days earlier, which showed that she was the
sole tenant.     Moore Realty, while sending confused
messages to the police, had ultimately confirmed that the
lease presented by Deneen was valid. The Union County
Prosecutor's office had investigated the matter, and
concluded that Deneen was the sole legal tenant of the
apartment. In light of Deneen's proof that she had the
sole right to occupy the apartment, as well as the
potential danger that Officer Sartor believed was
presented by the threat of domestic violence, we conclude
that a reasonable officer would not have known that
asking Miller to leave the apartment violated well-
established law. Accordingly, Officer Sartor is entitled
to qualified immunity for Miller's claims.

C. Chief Wiley and the City of El Dorado.

    Finally, Miller contends that the district court
erred in granting summary judgment to Chief Wiley and the
city of El Dorado. We disagree.

    “Municipal liability under 42 U.S.C. § 1983 arises if
injury results from action pursuant to official municipal
policy of some nature.” McGautha v. Jackson County, Mo.

                           -22-
Col. Dep't, 36 F.3d 53, 55-56 (8th Cir. 1994) (quotations
and citation omitted), cert. denied, 115 S. Ct. 2561
(1995).   This “liability for violating constitutional
rights may arise from a single act of a policy maker . .
. .” Id. at 56. However, “that act must come from one
in an authoritative policy making position and represent
the official policy of the municipality.” Id.




                           -23-
    Under Arkansas law it is the police chief of a
municipality who is given authority to suppress breaches
of the peace, an arguably policy-making position. See
Ark. Code Ann. § 14-52-202(c). Under Arkansas Code § 14-
52-202(b)(1), the police chief may appoint deputies, and
the police chief is responsible for the acts of the
deputies. See Ark. Code Ann. § 14-52-202(b)(1). In this
case, Chief Wiley appointed Captain Ellis. Captain Ellis
dispatched Officer Sartor to Deneen's apartment, and
Officer Sartor asked Miller to leave his apartment under
orders from Captain Ellis.      Because Chief Wiley is
statutorily responsible for Captain Ellis’s decisions,
Miller argues that Captain Ellis’s orders to Officer
Sartor should be imputed to Chief Wiley. Because Chief
Wiley is therefore ultimately responsible for Officer
Sartor's alleged constitutional violation, Miller argues
that the city of El Dorado should be liable for the
policy decision to ask Miller to leave his apartment.

    Miller’s argument is simply that a superior should be
made liable for a subordinate’s decision.        Although
clothed in Arkansas statutory terms, this is no more than
an attempt to impose liability under a theory of
respondeat superior.      This theory of recovery is
precluded under § 1983. See Canton v. Harris, 489 U.S.
378, 385 (1989) ("Respondeat Superior or vicarious
liability will not attach under § 1983."). Accordingly,
we affirm the district court's grant of summary judgment
to Chief Wiley and the city of El Dorado.




                           -24-
    For the foregoing reasons, we affirm the judgment of
the district court.6




      6
        Miller has also moved to supplement the record on appeal with the full text of
his deposition and with the policies of the El Dorado police department. These
documents were not before the district court, and the defendants have objected to their
admission on appeal. Miller’s only explanation for not presenting them to the district
court is his first retained counsel’s incompetence, which we conclude does not justify
the late admission of documents not before the district court. Accordingly, Miller's
motion is denied.

                                         -25-
A true copy.


    Attest:


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




                      -26-
