Mary Louise Smith; Tiffany E. Smith v. Asa Hutchinson

United States Court of Appeals
For the Eighth Circuit
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No. 21-2904
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Mary Louise Smith; Tiffany E. Smith
Plaintiffs - Appellants
v.
Asa Hutchinson, in his official capacity as Governor of the State of Arkansas;
Arkansas Department of Human Services; Cindy Gillespie, in her official capacity
as Director of the Arkansas Department of Human Services; William J. Bryant, in
his official capacity as Director of the Arkansas State Police; Jeffrey Drew,
Individually and in his official capacity as the Commander of the Crimes Against
Children Division (CACD) of the Arkansas State Police; Katherine Chalpecka,
Individually and in her official capacity as Investigator of the Crimes Against
Children Division (CACD) of the Arkansas State Police; Ashley Hodges,
Individually as school nurse at Carroll Smith Elementary School; Dee Wallace,
Individually as Assistant Principal at Carroll Smith Elementary School; Tiffany
Smithey, Individually as Principal at Carroll Smith Elementary School; John Does,
Individually and in their official capacities as former Board members of the
Osceola School District; Michael Cox, former Superintendent of Osceola School
District; Alfred Hogan, Individually as Superintendent of the Osceola School
District; Terry Hodges, Lt., Individually and in his official capacity as an
Investigator for the Osceola Police Department
Defendants - Appellees
David Gladden, Individually and in his official capacity as Chief of Police for the
Osceola Police Department
Defendant

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City of Osceola, Arkansas
Defendant - Appellee
Dickie Kennemore, Individually and in his official capacity as Mayor of Osceola
Arkansas; Sam Pollock, Individually and in his official capacity as a Patrolman for
the Osceola Police Department
Defendants
Dunkin, Individually and in his official capacity as a Patrolman for the Osceola
Police Department (originally named as Duncan); Gonzalez, Individually and in
his official capacity as a Sergeant for the Osceola Police Department; Sandra
Landry, Individually and as Principal of North Elementary School; Pamela Smith,
faculty member of North Elementary School; Sylvia Wear, Individually and in her
official capacity as Supervisor of DHS; Families Inc.
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: December 14, 2022
Filed: March 1, 2023
[Unpublished]
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Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.
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PER CURIAM.
A child told a school nurse that his foster parents, Mary and Tiffany Smith,
hit him. When the dust settled, the Smiths filed a broad-ranging complaint against
an array of defendants, from school officials to the Governor of Arkansas. The

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district court1 dismissed some claims on the pleadings and the rest at summary
judgment. We affirm.
The claims fall into six broad categories. The first are against Arkansas itself.
Some target state employees in their official capacity, but sovereign immunity
prevents the recovery of damages against them. See Murphy v. Arkansas, 127 F.3d
750, 754 (8th Cir. 1997). Others are against a state agency, but those cannot be
brought in federal court regardless of the remedy sought. See Monroe v. Ark. State
Univ., 495 F.3d 591, 594 (8th Cir. 2007) (clarifying that state entities cannot be sued
under Ex parte Young).
The next group also includes official-capacity claims, except the local police
officers and school employees who investigated the alleged abuse are the focus.
Missing, however, is an allegation of an unconstitutional “policy or custom.”
Grayson v. Ross, 454 F.3d 802, 810–11 (8th Cir. 2006) (“Official-capacity liability
under 42 U.S.C. § 1983 occurs only when a constitutional injury is caused by a
‘government’s policy or custom . . . .’” (quoting Monell v. Dep’t of Soc. Servs. of
N.Y.C., 436 U.S. 658, 694 (1978)). No policy or custom means no liability. See id.
The Smiths made it to summary judgment on their individual-capacity claims,
but those ultimately fail too. School officials had reasonable suspicion to believe
that the Smiths were abusing their foster child, so qualified immunity shields them
from liability. See Stanley v. Hutchinson, 12 F.4th 834, 840 (8th Cir. 2021) (holding
that actions leading to the removal of children from the home violate the Constitution
only when there is no reasonable suspicion of abuse). The same goes for the state
official who investigated additional allegations of abuse and shared her findings with
the police. See id. And finally, the police investigator who had access to those
findings had arguable probable cause to launch his own investigation. See Schaffer
1 The Honorable D. P. Marshall, Jr., Chief Judge, United States District Court
for the Eastern District of Arkansas.

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v. Beringer, 842 F.3d 585, 592–93 (8th Cir. 2016) (explaining that officers receive
qualified immunity when arguable probable cause exists).
We reach a similar conclusion about the fourth group of claims, which arise
out of Mary’s arrest for allegedly violating a court order that prevented her from
interacting with children. The school employees who called the police thought the
order was still in effect when she visited her granddaughter, so at most they made a
reasonable mistake. Cf. Thurairajah v. City of Fort Smith, 925 F.3d 979, 983 (8th
Cir. 2019) (explaining how qualified immunity applies even when officers make a
reasonable mistake). The officers who later arrested Mary are immune because they
were acting under a valid arrest warrant. See Saterdalen v. Spencer, 725 F.3d 838,
841 (8th Cir. 2013) (“Where the alleged constitutional violation involves an arrest
pursuant to a warrant, ‘the fact that a neutral magistrate has issued a warrant is the
clearest indication that the officers acted in an objectively reasonable manner.’”
(brackets omitted) (quoting Messerschmidt v. Millender, 565 U.S. 535, 546–47
(2012)).
The Smiths also try to hold Families, Inc., a private party, liable for allegedly
withholding exculpatory medical records from investigators. It is true that private
parties can conspire with state actors to commit a constitutional violation. See
Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1426 n.4 (8th Cir.
1986). But here, there are no facts “plausibly suggesting” that such a conspiracy
existed. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Lastly, we address the state claims. The decision declining to exercise
supplemental jurisdiction over them was not an abuse of discretion. See In re
Canadian Import Antitrust Litig., 470 F.3d 785, 792 (8th Cir. 2006).
We accordingly affirm the judgment of the district court and deny all pending
motions.
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