Thomas Sailors v. Maxwell Hubka

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 10, 2022
• Docket: 21-2602
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 21-2602 ___________________________

Thomas D. Sailors

lllllllllllllllllllllPlaintiff - Appellant

v.

Maxwell Hubka, City of Lincoln Police Ofc. #1655, in his individual capacity; Cole Jennings, City of Lincoln Police Ofc. #1650, in his individual capacity; Daniel Keyes, Special Administrator of the Estate of Paul Keyes, US Marshal #3483, in his individual capacity; United States of America; United States Marshal Service

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the District of Nebraska - Omaha ____________

Submitted: March 7, 2022 Filed: March 10, 2022 [Unpublished] ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges. ____________

PER CURIAM. Nebraska resident Thomas Sailors appeals the district court’s1 adverse grant of summary judgment on his excessive-force and Federal Tort Claims Act (FTCA) claims. We affirm the grant of summary judgment. See Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001). As to the excessive-force claim, we agree with the district court that Marshal Keyes’s use of force was not objectively unreasonable. See Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Tatum v. Robinson, 858 F.3d 544, 547 (8th Cir. 2017); Molina-Gomes v. Welinski, 676 F.3d 1149 (8th Cir. 2012). As to the FTCA claims, we agree with the district court that the United States was not liable on the battery claim, as Marshal Keyes’s use of force was justified under Nebraska law. See Millbrook v. United States, 569 U.S. 50, 52-53 (2013); Eubank v. Kan. City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010); see also Neb. Rev. Stat. §§ 28-1410, 28-1412. We also agree with the district court that the negligent supervision and training claim was derivative of the battery claim, see Schieffer v. Catholic Archdiocese, 508 N.W.2d 907, 913 (Neb. 1993), and conclude that the record does not support a negligence claim based on Marshal Keyes’s discharge of his personal firearm, see Zeller v. County of Howard, 419 N.W.2d 654, 657 (Neb. 1988).

Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________

1 The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.

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