Lee Van Brown, Originally named as Levan Brown v. City of Dermott Arkansas

United States Court of Appeals
For the Eighth Circuit
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No. 23-3073
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Lee Van Brown, Originally named as Levan Brown
Plaintiff - Appellant
v.
City of Dermott Arkansas; Cobe Heard, Individually; Eric Evans, In his individual
and official capacity as Chief of Police for the City of Dermott
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Delta
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Submitted: April 16, 2025
Filed: August 20, 2025
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Before SMITH, SHEPHERD, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Lee Van Brown claims he was forced to resign from his job at the Dermott,
Arkansas Police Department in retaliation for reporting then-Officer Coby Heard’s
use of excessive force. Brown sued Police Chief Eric Evans, Officer Heard, and the
City of Dermott, alleging federal claims under 42 U.S.C. § 1983 for violations of his

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First and Fourth Amendment rights and various state law claims. The district court1
granted the defendants’ motion for summary judgment. We affirm.
I.
Heard grabbed an arrestee by the neck in November 2019 while he was
chained to a pole at the police department. Brown saw it but another officer reported
it to Evans. The Dermott mayor and the city council learned of the incident, though
it is disputed how.
A month later, Heard told Evans that Brown took money from a parolee and
did not turn it in to the police department. Heard also claimed that Brown tried to
give him some of the money and that he overheard a phone conversation where
Brown told his brother and supervisor, Sergeant Lee Edward Brown, that he had
taken more than $300 from the parolee. Brown testified that Heard was the one who
took $150 from the parolee, but the parolee filed a statement that it was Brown. In
early January 2020, Evans referred the incident to a local prosecutor, who referred
it to the Arkansas State Police for investigation.
On January 31, 2020, Brown called Sergeant Brown and said that he could
not come to work because he was sick. Despite Sergeant Brown’s lack of authority
to do so, he said that Brown was fired for being a “no-call, no-show.” Neither Evans
nor anyone else from the department ever told Brown that he was fired, and Evans
testified that a police officer cannot be fired without approval of the mayor and city
council. Brown testified that the mayor told him Evans could not fire Brown, but
that Brown could resign.
The Lake Village, Arkansas Police Department hired Brown and gave him a
start date in mid-February. But on February 4, Lake Village rescinded the offer and
1 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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told Brown that they would not hire him because of the state police investigation.
Brown resigned from the Dermott Police Department without explanation the next
day. The investigation also prevented Brown from receiving a job offer from the
Eudora, Arkansas Police Department.
Brown was charged with abuse of office and witness bribery in March 2021.
He was not arrested but was summoned to appear in court. The case was eventually
dismissed because the prosecutor could not locate the parolee.
II. Federal Claims
We review the district court’s grant of summary judgment de novo. Hayek v.
City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007). “Summary judgment is proper
if, after viewing the evidence and drawing all reasonable inferences in the light most
favorable to the nonmovant,” id., “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).
A. First Amendment
Brown argues that he was fired in retaliation for exercising his First
Amendment rights by reporting Heard’s excessive use of force and sexual
harassment.2 “To establish a prima facie case of retaliation, a plaintiff must allege
and prove that,” as relevant here, “the defendant took an adverse employment action
against [him].” Davison v. City of Minneapolis, 490 F.3d 648, 654–55 (8th Cir.
2007) (citing Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977)). Brown
claims that his “employment was terminated by Appellees, and that obviously
constitutes an adverse employment action.” But he admits that he resigned from the
Dermott Police Department. There is no claim of constructive discharge, see
2 Because Brown failed to explain in his brief how the district court erred by
granting summary judgment on the sexual harassment-related retaliation claim, we
will not consider the claim on appeal. Rotskoff v. Cooley, 438 F.3d 852, 854 (8th
Cir. 2006).

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Wagner v. Campbell, 779 F.3d 761, 766 n.4 (8th Cir. 2015), and a voluntary
resignation is not an adverse employment action, see Fenney v. Dakota, Minn. &
E.R.R. Co., 327 F.3d 707, 717 (8th Cir. 2003) (except for circumstances that give
rise to a constructive discharge, “a plaintiff cannot state an adverse employment
action if he voluntarily resigned”). Brown also argues a cat’s paw theory of
liability—in other words, the technical decisionmaker (the mayor) was motivated by
the discriminatory animus of another (Heard or Evans). But that still requires an
adverse employment action. See Staub v. Proctor Hosp., 562 U.S. 411, 418 (2011).
B. Fourth Amendment
Brown also claims that Evans and Heard violated his Fourth Amendment right
to be free from malicious prosecution, which requires “the wrongful initiation of
charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022).
“Because this claim is housed in the Fourth Amendment, the plaintiff also has to
prove that the malicious prosecution resulted in a seizure of the plaintiff.” Id. at 43
n.2. So for a pretrial restraint on liberty to be actionable under the Fourth
Amendment, there must be “either ‘physical force,’ or, as relevant here, ‘submission
to the assertion of authority.’” United States v. Finley, 56 F.4th 1159, 1166 (8th Cir.
2023) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)); see also Manuel
v. Joliet, 580 U.S. 357, 365–366 (2017).
Brown has not shown that he was seized within the meaning of the Fourth
Amendment. Although Brown claims that the summons required him to submit to
the state’s assertion of authority, “[n]o court has held that a summons alone
constitutes a seizure.” Bielanski v. Cnty. of Kane, 550 F.3d 632, 642 (7th Cir. 2008);
Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2010); DiBella v. Borough of Beachwood,
407 F.3d 599, 603 (3d Cir. 2005); Britton v. Maloney, 196 F.3d 24, 29–30 (1st Cir.
1999); see also Becker v. Kroll, 494 F.3d 904, 914–16 (10th Cir. 2007) (no seizure
when plaintiff subject to subpoena of records, threats of criminal prosecution if she
did not pay settlement); Martinez v. Carr, 479 F. 3d 1292, 1295–96 (10th Cir. 2007)
(Gorsuch, J.) (no seizure when suspect given a citation and told he could either sign

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the citation or be arrested); Kingsland v. City of Miami, 382 F.3d 1220, 1235–36
(11th Cir. 2004) (no seizure when plaintiff required to post bond, appear at
arraignment, and travel out-of-state to attend court).3
Brown maintains that a summons “certainly restricts a criminal defendant’s
freedom of movement, since failure to appear in court is a crime and will likely result
in the court issuing a warrant for the defendant’s arrest.” Even if Brown’s summons
stated that he would be arrested if he failed to appear in court at a certain date and
time, “such an arrest might well constitute a new and qualitatively different seizure,
but that is not our case and a question we need not face, as nothing of the sort took
place here.” Martinez, 479 F.3d at 1296 (internal citation omitted).4
3 Some courts have concluded that pre-trial proceedings can rise to the level of
Fourth Amendment seizures if the court places pretrial restrictions on the plaintiff’s
liberty. See Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (plaintiff
seized under the Fourth Amendment where subject to more severe pre-trial
restrictions for eight months before acquittal, such as being prohibited from leaving
New Jersey or Pennsylvania and required to contact pre-trial weekly); Evans v. Ball,
168 F.3d 856, 860–1 (5th Cir. 1999) (plaintiff seized under the Fourth Amendment
where summoned to court and subject to pretrial restrictions including travel
restrictions and monthly reporting requirement to pretrial services, but constitutional
violation not clearly established), abrogated on other grounds by Castellano v.
Fragozo, 352 F.3d 939 (5th Cir. 2003). Brown has not alleged any pretrial
restriction, and even if he had, they were not imposed by Evans or Heard. See
Bielanski, 550 F.3d at 642–43.
4 Brown points to our decision in Stewart v. Wagner, 836 F.3d 978 (8th Cir.
2016), in support of his claim, but there we did not analyze whether the plaintiff was
seized—we held only that the defendant’s claim for malicious prosecution “must be
judged” under the Fourth Amendment, not the Fourteenth. Id. at 983–84. He also
suggests the Supreme Court’s holding in Justices of Boston Municipal Court v.
Lydon, 466 U.S. 294 (1984), that release on personal recognizance satisfies the “in
custody” requirements for habeas corpus purposes, means he was seized when he
had to attend state court proceedings, but this statutory holding does not bind us here.
See id. at 300–01.

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C. Claims Against the City
Since his First or Fourth Amendment rights were not violated, Brown cannot
maintain a § 1983 claim against the City. Torgerson v. Roberts Cnty. of S.D., 139
F.4th 638, 646 (8th Cir. 2025).
III. State Law Claims
There is some disagreement as to whether the operative complaint properly
alleges all Brown’s state law claims. The district court reached the merits of the
claims and defendants have not argued waiver, so we consider the merits, too.
First, it was “within the district court’s discretion to exercise supplemental
jurisdiction [on Brown’s state law claims] after dismissal of the federal claim”
because they “derive from a common nucleus of operative fact, and if considered
without regard to their federal or state character, are such that they ordinarily would
be expected to be adjudicated in one judicial proceeding.” Quinn v. Ocwen Fed.
Bank FSB, 470 F.3d 1240, 1249, 1248 (8th Cir. 2006) (per curiam). “[J]udicial
economy, convenience, [and] fairness” supported the court’s decision because
Brown’s federal and state claims overlap and discovery in this case revealed
Brown’s state law claims necessarily fail. See Brown v. Mortg. Elec. Registration
Sys., Inc., 738 F.3d 926, 933 (8th Cir. 2013). Brown argues that the district court
abused its discretion because comity interests disfavored the district court’s exercise
of supplemental jurisdiction, but “[t]he causes of action are not novel, and there is
little basis for dispute as to the resolution of Brown’s state-law claims as they
involved well-understood and settled principles of Arkansas law,” id.
Turning to the merits, Brown’s Arkansas Whistle Blower Act claim fails
because, as noted above, he didn’t suffer an adverse employment action. See Ark.
Code Ann. § 21-1-603(a)(1) (requiring “adverse action against a public employee”);
Barrows v. City of Fort Smith, 360 S.W.3d 117, 124 (Ark. 2010) (“Pursuant to
section 21-1-602(1), an ‘adverse action’ means to discharge, threaten, or otherwise

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discriminate or retaliate against a public employee in any manner that affects the
employee's employment, including compensation.”).
Brown’s Arkansas malicious prosecution claim does no better because there
was probable cause to charge him with abuse of office and bribery. See Harold
McLaughlin Reliable Truck Brokers, Inc. v. Cox, 922 S.W.2d 327, 331 (Ark. 1996)
(“Absence of probable cause is an essential element in a claim for malicious
prosecution.”). There is no dispute that the parolee stated that Brown took his
money, which is probable cause for abuse of office. Ark. Code Ann. § 5-52-107(a)
(a public servant commits abuse of office if “with the purpose of benefiting in a
pecuniary fashion . . . [he] knowingly (1) [c]ommits an unauthorized act which
purports to be an act of his or her office; or (2) [o]mits to perform a duty imposed
on him or her by law or clearly inherent in the nature of his or her office.”). And it
is undisputed that Heard stated that Brown took the parolee’s money and that Brown
tried to give Heard a cut of the proceeds, presumably to keep quiet, which is probable
cause for witness bribery. Id. § 5-53-108(a)(1) (a person is guilty of witness bribery
if he “[o]ffers . . . any benefit upon . . . a person he [] believes may be called as a
witness with the purpose of [] influencing the testimony of that person”).
Brown’s abuse of process claim also fails because he never claimed that Heard
or Evans abused a legal process after it was set in motion. See S. Ark. Petroleum
Co. v. Schiesser, 36 S.W.3d 317, 323 (Ark. 2001). There is no dispute that Heard
told Evans about the alleged theft and that Evans in turn referred the matter to the
prosecutor for investigation. Brown argues that these allegations were false, but
because his claim is that “the process was originally issued with malice and without
probable cause,” the proper claim would be for malicious prosecution, not abuse of
process. See Union Nat’l Bank of Little Rock v. Kutait, 846 S.W.2d 652, 654 (Ark.
1993).
And Brown’s defamation claim fails because there is no genuine dispute that
Evans’s statements to the police departments that Brown was under investigation

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were truthful. Sawada v. Walmart Stores, Inc., 473 S.W.3d 60, 67 (Ark. Ct. App.
2015) (a defamatory statement must be false).
IV.
Affirmed.
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