                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2588
                                   ___________

Kevin L. Chambers,                        *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
St. Louis Cty., Missouri; St. Louis Cty., *
Drug Task Force; Penny Cook, Agent, * [UNPUBLISHED]
St. Louis County Drug Task Force;         *
Unknown Kelling, Officer; Andria Van *
Mierlo,                                   *
                                          *
             Appellees.                   *
                                    ___________

                             Submitted: July 6, 2007
                                Filed: August 6, 2007
                                 ___________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Kevin Chambers appeals the district court’s Federal Rule of Civil Procedure
12(b)(6) dismissal of his 42 U.S.C. § 1983 action claiming excessive use of force by
law enforcement officers. The district court dismissed with prejudice his claims
against St. Louis County, Missouri (County) and the St. Louis County Drug Task
Force (DTF). The court dismissed without prejudice his claims against DTF agents
Kelling, Penny Cook (actually Pennycook), and Van Mierlo. For reversal, Chambers
argues that the district court erred in (1) dismissing his complaint, (2) denying his
post-dismissal motion for leave to amend his complaint, and (3) denying him
appointed counsel. For the reasons stated below, we affirm in part, reverse in part,
and remand the case to the district court.

       Reviewing the dismissal de novo, see Frey v. City of Herculaneum, 44 F.3d
667, 671 (8th Cir. 1995), we hold that the district court did not err in dismissing the
claims against the County and the DTF because Chambers’s speculative allegations
about an apparent policy to condone and conceal police brutality were merely
conclusory, see id. (complaint must be viewed in light most favorable to non-moving
party; but it also must contain facts stating claim as matter of law, and must not be
merely conclusory), and because respondeat superior cannot be a basis of liability
under section 1983, see Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990).
However, we conclude that the court erred in dismissing the claims against
Van Mierlo, Pennycook, and Kelling, who were substituted for “Jane Doe #1,” “John
Doe #1,” and “John Doe #2,” respectively, in the original complaint. As to each of
them, we hold that the complaint sufficiently stated an excessive-force claim to
survive a motion to dismiss. See Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir.
1997) (in evaluating claim of excessive force during and in relation to arrest, test is
whether force allegedly used was objectively reasonable under particular
circumstances); Frey, 44 F.3d at 671 (in reviewing dismissal for failure to state claim,
complaint is viewed in light most favorable to non-moving party). Construed
liberally, the pro se complaint alleges that at the scene of the arrest, all three
defendants “commenced stomping [Chambers] on his back brutally” because they did
not like his answers, (R. Doc. 2, at 6A, ¶ 10), and that when John Doe #1 and Jane
Doe later took Chambers to the hospital, they pulled “his wrist up behind his back so
the pain was unbearable,” (id. ¶ 19), “commenc[ed] brutalizing” Chambers in a
vehicle by braking suddenly and slamming knees into Chambers’s back, (id. ¶ 20),
pulled Chambers’s arm “severely all the way back up in the back causing severe
pain,” (id. ¶¶ 22), and placed handcuffs on his right wrist so tightly that “the pain was

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unbearable” and Chambers’s “hand became numb,” while the defendants allegedly
made jokes and laughed. (Id. ¶ 24). Because Chambers’s state law claims against the
agents were dismissed under 28 U.S.C. § 1367(c)(3), we reverse the dismissal of those
claims as well.

        We next consider whether the district court abused its discretion in denying
Chambers’s post-dismissal request for leave to amend the complaint. See Doe v.
Cassel, 403 F.3d 986, 990 (8th Cir. 2005) (per curiam) (standard of review). Leave
to amend a pleading “shall be freely given when justice so requires.” Fed. R. Civ. P.
15(a). “However, there is no absolute right to amend and a finding of ‘undue delay,
bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the non-moving party, or futility of the
amendment’ may be grounds to deny a motion to amend.” Doe, 403 F.3d at 990-91.
Because we reverse the dismissal of the claims against the agents, we find it
unnecessary to review the district court’s denial of Chambers’s post-dismissal motion
to amend vis-a-vis his claims against them. However, as to his proposed amendments
related to the County, we hold, upon de novo review of the underlying legal question,
that the amendments would have been futile. See In re Senior Cottages of America,
LLC, 482 F.3d 997, 1001 (8th Cir. 2007) (although ordinarily decision of whether to
allow plaintiff to amend complaint is within trial court’s discretion, when court denies
leave to amend on ground of futility, it means court reached legal conclusion that
amended complaint could not withstand Rule 12 motion; appellate review of that legal
conclusion is de novo). While Chambers alleged that the County “appeared” to have
a “preplanned policy” of giving law enforcement officers “unlimited authority to
inflict . . . pain,” nothing in the original complaint or in the proposed amendments
indicated that this alleged “policy” was the product of deliberate or conscious choice
by County policymakers. Cf. Szabla v. City of Brooklyn Park, 486 F.3d 385, 390 (8th
Cir. 2007) (en banc) (where plaintiff asserts that municipality should have done more
to prevent constitutional violations by its employees, plaintiff must establish existence



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of a “policy” by demonstrating that inadequacies were product of deliberate or
conscious choice by policymakers).

       Finally, upon consideration of factors such as the legal and factual complexity
of this case and Chambers’s demonstrated threshold ability to present his claims and
represent himself, we cannot say that the district court abused its discretion in denying
him appointed counsel. See McCall v. Benson,114 F.3d 754, 756 (8th Cir. 1997)
(holding that district court did not abuse its discretion in denying appointed counsel
where factual and legal issues were not so complex and numerous that appointment
of counsel would have benefitted court or litigant, and litigant had clearly
demonstrated threshold ability to articulate his claims and represent himself).

      In sum, we affirm the district court’s dismissal of Chambers’s claims against
the County and the DTF; we reverse the dismissal of the claims against Van Mierlo,
Pennycook, and Kelling; and we remand the case to the district court for further
proceedings.
                  _____________________________________




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