Theresa Kirklin v. Rhonda Benton

Opinion

United States Court of Appeals For the Eighth Circuit

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No. 20-3166

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Theresa Kirklin

lllllllllllllllllllllPlaintiff - Appellant

v.

Rhonda Benton, in her official and individual capacity

lllllllllllllllllllllDefendant - Appellee

Michael Poore, in his official and individual capacity

lllllllllllllllllllllDefendant

Ron Self, in his official and individual capacity

lllllllllllllllllllllDefendant - Appellee

Johnny Key, in his official and individual capacity; Little Rock School District

lllllllllllllllllllllDefendants

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Appeal from United States District Court for the Eastern District of Arkansas - Central

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Submitted: May 20, 2021

Filed: May 25, 2021

[Unpublished]

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Before LOKEN, MELLOY, and KOBES, Circuit Judges.

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PER CURIAM.

Theresa Kirklin appeals the district court’s1 adverse grant of summary judgment in her 42 U.S.C. § 1983 action. Upon careful de novo review, see Morris v. Cradduck, 954 F.3d 1055, 1058 (8th Cir. 2020) (standard of review), we affirm. We agree with the district court that Kirklin was not seized under the Fourth Amendment, as a reasonable person in her circumstances at the time of the incident would have felt free to leave. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (person has been seized by show of authority if, in view of all circumstances surrounding incident, reasonable person would have believed that he was not free to leave); Clark v. Clark, 926 F.3d 972, 977-78 (8th Cir. 2019) (consensual encounter never ripened into seizure, as plaintiff never gave officers reason to believe he no longer wished to engage in contact, never asked whether he could leave, and did not point to any blocking action or other show of authority indicating he was not free to leave); see also Pennington v. Metro. Gov’t of Nashville & Davidson Cnty., 511 F.3d 647, 652 (6th Cir. 2008) (officer who agreed to breathalyzer test because he feared termination if he refused was not seized, as reasonable officer would not have feared detention if he refused; person is not seized simply because he believes he will lose his job).

The judgment is affirmed. See 8th Cir. R. 47B.

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1 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.