Robbins v. Becker
| Decision Date | 27 July 2015 |
| Docket Number | No. 14–1435.,14–1435. |
| Citation | 794 F.3d 988 |
| Parties | Mark ROBBINS; Gail Robbins; I–44 Truck Center and Wrecker Service, LLC; I–44 Wrecker Service, LLC, Plaintiffs–Appellants v. Randy BECKER, Sr.; James Cox; Ryan A. Burckhardt; Daniel E. Dicus; Travis Inman; Ronald Johnson; Jeremie Keathely; Lee A. Kenley; Keith Lichay; Justin McCullough; Brent Moore; John Oliveras; Duane L. Robinson; Rhonda Shanika; John Does, Police Officers; John Does, Dispatchers; Jane Does, Dispatchers ; each in their individual capacities, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Brandy B. Barth, Pleban & Petruska Law, LLC, St. Louis, MO, argued, for appellants.
Emily A. Dodge, Asst. Atty. Gen., Jefferson City, MO, argued , for appellees.
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
Mark and Gail Robbins, the owners and operators of I–44 Truck Center and Wrecker Service, LLC and I-44 Wrecker Service, LLC (collectively, the Robbinses), appeal the district court's1 adverse grant of summary judgment to fourteen individual officers and supervisors (officers) of the Missouri State Highway Patrol (MSHP) on the Robbinses' claim that the officers conspired to interfere with the Robbinses' towing and wrecker business in violation of federal law.2 With jurisdiction under 28 U.S.C. § 1291 in tow, we affirm.
For years, the Robbinses have provided towing and wrecker services along the Interstate 44 corridor in eastern Missouri and the surrounding areas. Before June 2006, MSHP Troop C and Troop I, pursuant to MSHP policy, each used a “rotation list” of approved towing and wrecking companies to determine which company the officer at the scene of a disabled vehicle would call if the vehicle owner had no preference. The Robbinses were on both lists until Troop C removed them, reportedly in part because Mark Robbins had been criminally charged with shooting at a competitor's truck in 1999. The Robbinses were later removed from Troop I's list as well.
Relying on an anonymous phone call Mark purportedly received from someone claiming to work for the Robbinses' competitor, the Robbinses allege the criminal charge against Mark resulted from a “sham investigation.” According to the Robbinses, their competitor used a personal friendship with defendant John Oliveras, an MSHP officer with whom Mark had a confrontation in the past, to drive the investigation in an effort to harm the Robbinses' business. A jury acquitted Mark in 2003, but the Robbinses were never reinstated to either list.
In November 2005, the Robbinses sued the MSHP in Missouri state court, seeking reinstatement to the lists. On June 20, 2006, the state court instead determined the MSHP lacked statutory authority to create a rotation list at all. The court permanently enjoined the MSHP “from creating, maintaining, or enforcing a rotation list of towing or wrecking operators for determining which towing operator or wrecker service will remove a disabled vehicle from the roadways or shoulders of roadways” and “further enjoined [the MSHP] from using such a list to interfere with the [Robbinses'] business operations.”
The officers assert they have complied with the state court order, using the Robbinses' services as well as those of other companies “in the exercise of their discretionary authority controlling and clearing accident scenes.” According to the officers, absent mitigating circumstances, the officers leave the choice of towing and wrecker services to the vehicle owner. If the owner has no preference, the officer at the scene determines which company to call “based primarily on location of the accident and towing service availability.” The officers aver they also consider other factors, including the need for expedited removal or specialized equipment, reputation and prior interactions with tow personnel, road conditions, and other situation-specific concerns.
Convinced the officers are not following MSHP policy, the Robbinses allege the officers conspired to deny them work, disparage their company, and interfere with the Robbinses' relationships with potential and existing customers. In the Robbinses' view, the officers' actions toward the Robbinses and their customers “show a real and tangible conspiracy by the individual [officers] to drive” the Robbinses out of business.
On August 20, 2010, the Robbinses sued the officers in their individual capacities in federal district court, alleging (1) violations of due process and equal protection under the Fourteenth Amendment asserted under 42 U.S.C. § 1983 ; (2) conspiracy to violate the Robbinses' constitutional rights; (3) violations of the Sherman Act, 15 U.S.C. §§ 1, 2 ; and (4) various related state law claims. On March 2, 2012, the officers moved for summary judgment, claiming the Robbinses did not state actionable claims and the officers were entitled to qualified immunity. The district court summarily denied the motion.
On remand after the officers' successful interlocutory appeal, see Robbins v. Becker, 715 F.3d 691, 695 (8th Cir.2013) (), the district court granted judgment to the officers on their federal claims and declined to exercise supplemental jurisdiction over the Robbinses' state law claims. The Robbinses appeal the judgment on their federal claims.
“We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.” Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir.2011). We may affirm “for any reason supported by the record, even if different from the reasons given by the district court.” Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir.2013).
Summary judgment is required “if the movant shows that 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). In opposing summary judgment, a plaintiff may not “simply point to allegations” in the complaint, Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir.2004), or “rest on the hope of discrediting the movant's evidence at trial,” In re Citizens Loan & Sav. Co., 621 F.2d 911, 913 (8th Cir.1980), “but must identify and provide evidence of ‘specific facts creating a triable controversy.’ ” Howard, 363 F.3d at 800 (quoting Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir.1999) ).
The Robbinses argue the district court erred in granting summary judgment on their constitutional claims based on qualified immunity. “Qualified immunity shields a government official from liability and the burdens of litigation in a § 1983 action for damages unless the official's conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.”Chambers, 641 F.3d at 904 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). “Liability for damages for a federal constitutional tort is personal, so each defendant's conduct must be independently assessed.” Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir.2006). To survive summary judgment, the Robbinses must present sufficient facts, viewed in their favor, to show each “officer's conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Robbinses have not done that.
The Robbinses claim the officers' conduct violated their Fourteenth Amendment substantive due process rights. “To breach the shield of qualified immunity by establishing a ‘violation of substantive due process rights by an ... official, [the Robbinses] must show (1) that the official violated one or more fundamental constitutional rights, and (2) that the conduct of the ... official was shocking to the contemporary conscience.’ ” Winslow v. Smith, 696 F.3d 716, 731 (8th Cir.2012) () (quoting Flowers v. City of Minneapolis, Minn., 478 F.3d 869, 873 (8th Cir.2007) ).
The Robbinses propose to meet the first part of this test by asserting the officers interfered with the Robbinses' “constitutionally protected property interest in their business expectancy in the towing and wrecker business” and deprived the Robbinses of their “fundamental constitutional right to make a living and engage in their chosen occupation.” In large measure, the Robbinses' substantive due process claims track those raised in Habhab v. Hon, 536 F.3d 963, 966 (8th Cir.2008), but without Habhab's serious allegations of ethnic discrimination. In Habhab, we decided a towing company operator, who alleged state law enforcement officers “interfered with his right to earn a living” by (1) encouraging potential towing customers to use other companies; (2) ordering him to leave a towing site; and (3) disparaging his business, did not have a constitutionally protected property or liberty interest to support his due process claims. Id. at 966–68.
In rejecting Habhab's proposed property interest, we observed, “ ‘Property interests protected by due process are not created by the Constitution but, rather, are created and their dimensions are defined, by existing rules or understandings that stem from an independent source such as state law.’ ” Id. at 968 (quoting Forrester v. Bass, 397 F.3d 1047, 1054 (8th Cir.2005) ). Reiterating that discretionary policies do not create a protected property interest, we concluded “[t]he inclusion of Habhab's name on a list of towing companies used by dispatchers does not give Habhab a property interest in obtaining any particular work, because...
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