Omni Behavioral v. Steven Miller

Omni Behavioral Health ("Omni") appeals the district court's1 order granting
Detective Steven Miller's ("Miller") motion for summary judgment based on qualified immunity, and dismissing Omni's Fair Housing Act and section 1983 claims. For the
reasons discussed below, we affirm.

I. BACKGROUND

Omni is a non-profit corporation that provides foster care services to wards of
the State of Nebraska. As part of this business, Omni operated the Woodlawn Group
Home located in Bellevue, Nebraska. Woodlawn provided housing and foster care
to children pursuant to a contract with the Nebraska Department of Health and
Human Services ("NDHHS"). The contract's cancellation section provided that,

[e]ither party hereto may cancel this contract for any reason upon thirty
(30) days written notice to the other party. If it is determined that the
Contractor's practices are harmful to the child/family, abusive, and/or
contrary to Department policy, the contract can be canceled immediately
upon written notice.

Detective Miller is a police officer with the Bellevue Police Department and
for the past several years has specialized in investigating child abuse cases. He has
extensive experience in this area. He developed the Child Abuse Unit at the Bellevue
Police Department and has completed approximately three hundred hours of training
regarding child abuse in the last nine years. From November 1997 to November
1998, Miller investigated eight allegations of abuse of residents at the Woodlawn
Group Home. In each instance, Miller investigated the allegations of abuse after
receiving reports from teachers, nurses, or Woodlawn residents.

During the course of his investigation, Miller arrested four African-American
Woodlawn staff members for various charges arising from physical altercations with
two different residents. Charges against three of the staff members were ultimately
dismissed and the fourth staff member was acquitted. The Woodlawn staff members
allege that they were harassed by Miller because of their race. Miller insists that he followed established protocol and acted in the best interests of the children. Shortly
after the arrests, the NDHHS provided Omni with thirty days advance written notice
that it was cancelling its contract with Woodlawn. Upon the cancellation of the
contract, Woodlawn ceased operations and shut down.

Omni argues that Miller's investigation and arrests were discriminatory,
unfounded, and resulted in the cancellation of its contract with the NDHHS. Omni
alleges that Miller's conduct violated Omni's rights under the Fair Housing Act, 42
U.S.C. § 3601 et seq.. Pursuant to 42 U.S.C. § 1983, Omni also alleges that Miller's
conduct deprived Omni of its right to equal protection and due process by engaging
in a discriminatory campaign to shut down the Woodlawn facility.

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Omni alleges that Miller misused his position as a detective to carry out a
campaign of harassment designed to close down the Woodlawn facility. Miller's
conduct, Omni argues, violated the Due Process Clause of the Fourteenth Amendment
and it now seeks to recover civil damages from Miller. Section 1983 affords redress
against a person who, under color of state law, deprives another person of any federal constitutional or statutory right. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985). But, public officials are entitled to qualified immunity and shielded from
liability when their conduct does not "violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).

"[T]o withstand a motion for summary judgment on qualified immunity
grounds, a civil rights plaintiff must (1) assert a violation of a constitutional right; (2)
demonstrate that the alleged right is clearly established; and (3) raise a genuine issue
of fact as to whether the official would have known that his alleged conduct would
have violated plaintiff's clearly established right." Habiger v. City of Fargo, 80 F.3d
289, 295 (8th Cir. 1996). Omni's claim fails all three prongs of this test.

In order to survive summary judgment on this claim, Omni must first establish
that its due process rights were violated. To do this, Omni must identify a protected
liberty or property interest of which it was deprived by Miller. In addition, the
Supreme Court has held that, "the Due Process clause is [substantively] violated by
executive action only when [the executive action] 'can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.'" County of Sacramento
v. Lewis, 523 U.S. 833, 847 (1998) (quoting Collins v. City of Harker Heights, 503
U.S. 115, 128 (1992)). Omni asserts that it was deprived of a liberty interest because
Miller interfered with Omni's right to operate a legitimate business without
unreasonable governmental interference. Omni cites Meyer v. Nebraska, 262 U.S.
390, 399 (1923) for the proposition that it has the right "to engage in any of the
common occupations of life." Omni claims that because Miller's investigation led the
NDHHS to cancel its contract with Omni its occupational liberty interest was
infringed upon. Miller responds to this contention by claiming that this court's en
banc decision in Singleton v. Cecil, 176 F.3d 419, 425 (8th Cir. 1999) forecloses
Omni's argument based on Meyer because Singleton held that there was no protected
liberty interest in an individual employee's at-will government job. Miller claims that Omni's contract with the NDHHS was terminable at will and, therefore, Singleton
requires the conclusion that Omni does not have a protected liberty interest.

Even if Meyer and Singleton can respectively and effectively be recruited for
duty in this conflict, which we doubt, the cases do not determine the outcome of this
litigation because we need not decide whether a protected liberty interest exists in an
at-will government contract. Omni needs to demonstrate that Miller's conduct was
"'arbitrary, or conscience shocking, in a constitutional sense.'" Lewis, 523 U.S. at
847 (quoting Collins, 503 U.S. at 128), and it has failed to do so.

The Supreme Court has cautioned that the Due Process Clause "does not entail
a body of constitutional law imposing liability whenever someone cloaked with state
authority causes harm." Lewis, 523 U.S. at 848. Lewis described the spectrum of
conduct that can give rise to different types of liability and reasoned that
constitutional liability requires egregious conduct on the part of a government
official:

We have . . . rejected the lowest common denominator of customary tort
liability as any mark of sufficiently shocking conduct, and have held that
the Constitution does not guarantee due care on the part of state
officials; liability for negligently inflicted harm is categorically beneath
the threshold of constitutional due process. It is, on the contrary,
behavior at the other end of the culpability spectrum that would most
probably support a substantive due process claim; conduct intended to
injure in some way unjustifiable by any government interest is the sort
of official action most likely to rise to the conscience-shocking level.

Id. at 848-49 (internal citations omitted).

Miller's conduct–investigating reports of child abuse at a foster care
facility–does not approach the unconstitutional end of the culpability spectrum.
Miller investigated the Woodlawn facility after reports of potential abuse were made to him by school officials or Woodlawn residents. It is clearly reasonable that a
detective specializing in child abuse investigations would investigate claims that
children were being abused at a group home facility. In addition, Diane Martig, a
Protection and Safety Worker with NDHHS for over twelve years, accompanied
Miller on virtually all of his investigations and attested that she thought Miller's
conduct was in line with standard investigative protocol. The only evidence Omni
presents regarding Miller's reasonableness is conclusory statements made by
Woodlawn employees who were convinced Miller was out to undermine the facility.
These allegations are not sufficient to raise a fact issue in the face of voluminous
evidence that Miller's investigations were conducted in a professional manner. If
there was viable support beyond bare allegations that Miller conducted his
investigation in order to harass Woodlawn employees because of their race, it is
possible, if not likely, that such conduct would meet the "shock the conscience" test.
Absent such evidence in this case, we refuse to turn the Fourteenth Amendment into
"a font of tort law to be superimposed upon whatever systems may already be
administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976).

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Click the case caption above for the full text of the Court's opinion.

For the reasons stated, the judgment of the district court is affirmed.

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