Swipies v. Kofka, 04-3244.

• Decision Date: 12 August 2005
• Docket Number: No. 04-3244.,04-3244.
• Citation: 419 F.3d 709
• Parties: Kenneth Harold SWIPIES, Appellee, v. Frank KOFKA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.3d 709

Kenneth Harold SWIPIES, Appellee, v. Frank KOFKA, Appellant.

No. 04-3244.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2005.

Filed: August 12, 2005.

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James R. Villone, argued, Sioux City, IA, for appellant.

Patrick E. Ingram, argued, Iowa City, IA, for appellee.

Before MORRIS SHEPPARD ARNOLD, MURPHY, and BENTON, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Kenneth Swipies sued Woodbury County, Iowa, Deputy Sheriff Frank Kofka under 42 U.S.C. § 1983 for violating his fourteenth amendment rights to substantive and procedural due process. The jury found in favor of Deputy Kofka with respect to the substantive due process claim. As to the procedural due process claim, however, it found for Mr. Swipies and awarded him $1 in nominal damages and $30,000 in punitive damages. Deputy Kofka appeals. He argues that the district court should have entered judgment as a matter of law in his favor with respect to the existence of a liberty interest, the sufficiency of the process afforded to Mr. Swipies, and the propriety of the punitive damages award. In the alternative, Deputy Kofka argues that the district court should have granted his motion for a new trial because it erroneously failed to give a jury instruction that he requested. We conclude that Mr. Swipies had a protected liberty interest that was violated, and that Deputy Kofka's jury instruction was properly refused. We also hold, however, that Mr. Swipies is not entitled to punitive damages.

I

Deputy Kofka was serving warrants when he saw Kendra Swipies, Mr. Swipies's twelve-year-old daughter, with Tina Swipies, Mr. Swipies's wife at the time (not Kendra's mother), and James Stark, a man whom Deputy Kofka knew to be facing sexual abuse charges, near Mr. Swipies's house. Deputy Kofka knew Kendra and Mr. Swipies because he was a friend of Kendra's mother, Mr. Swipies's ex-wife, Dawn Ebert. Shortly before Deputy Kofka spotted Kendra, she had come to her father's house for the start of a two-week, court-ordered visitation. Seeing Kendra in Mr. Stark's presence prompted Deputy Kofka to telephone a county attorney and ask him if he (Deputy Kofka) could perform an emergency removal of Kendra. The attorney responded that Deputy Kofka could remove Kendra from her father's custody if Deputy Kofka could articulate the bases for his decision to do so. Following this conversation, Deputy Kofka drove to Mr. Swipies's house and, in Mr. Swipies's presence, removed Kendra. After taking Kendra from Mr. Swipies's residence, Deputy Kofka phoned his supervisor and asked him to call the county attorney's office and the Iowa Department of Human Services to tell them that he had removed Kendra. Deputy Kofka did not call the juvenile court or ask his supervisor to do so. And he returned Kendra to her mother, the custodial parent, without informing Mr. Swipies that he had done so.

II.

Deputy Kofka argues that the district court should have entered judgment as a matter of law in his favor with regard to the due process claim because he did not infringe on a constitutionally protected liberty interest. The heart of Mr. Swipies's procedural due process claim is that he was deprived of a post-removal hearing because Deputy Kofka did not follow the procedures outlined in Iowa Code § 232.79. That statute requires a police officer who removes a child to inform the juvenile court of the emergency removal immediately so that the court can make arrangements for the child's welfare. Deputy Kofka asserts that the Constitution did not guarantee Mr. Swipies any procedure because it did not protect his right, as a non-custodial parent, to visit with his daughter.

Judgment as a matter of law is appropriate when "[t]here is no legally sufficient evidentiary basis for a reasonable jury to find for [the non-moving] party on [an] issue." Fed.R.Civ.P. 50. We review a district court's post-verdict denial of a motion for judgment as a matter of law de novo, though we view the evidence in the light most favorable to the jury's verdict. Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1050 (8th Cir.2005). Here the parties agree upon the facts relevant to this appeal, and those facts are supported by the evidence presented at trial.

The due process clause of the fourteenth amendment says, in relevant part, that no state shall "deprive any person of ... liberty... without due process of law." U.S. Const. amend. XIV, § 1. To establish a procedural due process violation under this provision, a plaintiff must first show that the state infringed on a cognizable liberty interest. Cf. Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 701 (8th Cir.2004). As a general matter, parents have a liberty interest in the "care, custody, and management of their children." Manzano v. South Dakota Dep't of Soc. Svcs., 60 F.3d 505, 509-10 (8th Cir. 1995). That said, in the past we have hedged on the question of whether non-custodial parents possess such an interest, and we have noted that the interest is subject to a de minimis exception: "Although we have recognized the possibility that visitation and placement decisions may be subject to due process scrutiny, as such decisions may infringe upon a parent's interest in the `care, custody, and management of [his or her] child,' we have not yet found a case where the right to visitation was infringed in a manner that rose to the level of a constitutional violation." Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir.1996) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)) (additional citation and quotations omitted).

Deputy Kofka draws on both strands of this statement from Zakrzewski. He contends that the Constitution did not protect Mr. Swipies's right to visit his daughter and that even if Mr. Swipies had a cognizable right to visitation, any infringement was so brief as not to be actionable. To support this second point further, he analogizes the present case to Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). The Supreme Court concluded in that case that a temporary moratorium on real estate development did not constitute a categorical taking under the fifth amendment's takings clause. Id. at 320-21, 122 S.Ct. 1465.

We reject Deputy Kofka's initial argument and conclude that Mr. Swipies had a protected liberty interest. Though in Zakrzewski we did not rule on the question of whether a non-custodial parent has a liberty interest in the care, custody, and management of his or her child, we held in an earlier appeal in this case that Mr. Swipies possessed such an interest. Swipies v. Kofka, 348 F.3d 701, 703-04 (8th Cir.2003). We are bound to follow this holding. It is not only the law of the case, see, e.g., Popp Telecom, Inc. v. American Sharecom, Inc., 361 F.3d 482, 490 (8th Cir.2004), but the law of the circuit, i.e., a decision of another panel which only the court en banc may overturn, see United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir.2005).

Even if our decision were not controlled by our previous holding, we would reach the same conclusion. If a state court affords a non-custodial parent visitation rights, we believe that the parent possesses, at least in some form, the liberty interest recognized in Manzano. A parent with visitation rights takes part in raising the child by making decisions about care, custody, and management during the period of the visitation, and thus he or she has the sort of parental role that deserves to be protected as a liberty interest.

To the extent that a de minimis exception attaches to this liberty interest, it does not apply to this case because Kendra was scheduled to be with Mr. Swipies for two weeks, and not just a few days, as in Zakrzewski, 87 F.3d at 1012-13. Relatedly, we are not persuaded by Deputy Kofka's analogy to Tahoe-Sierra Preservation Council. That case did not create a generally applicable de minimis principle, but instead held that a temporary moratorium on real estate development was not a certain kind of taking. Tahoe-Sierra Preservation Council, 535 U.S. at 320-21, 122 S.Ct. 1465. We do not see how this holding translates into anything useful in the context of the due process clause, for we know of no reason to think that a period of deprivation is too short to be cognizable for purposes of the due process clause just because the same period is too short to be cognizable for purposes of the takings clause.

III.

Deputy Kofka argues as well that the court erred in denying his motion for judgment as a matter of law because Mr. Swipies received all of the process that he was due at a hearing following the removal. Mr. Swipies filed a motion to hold his wife in contempt in the state court that presided over the divorce proceedings and that retained jurisdiction over related matters. The claim related to his wife's role in the removal. The judge held a hearing on this claim seventeen days after Deputy Kofka removed Kendra. Mr. Swipies, Deputy Kofka, and Ms. Ebert testified at this hearing, and Mr. Swipies, who represented himself, had an opportunity to cross-examine Deputy Kofka and Ms. Ebert. The judge decided not to hold Ms. Ebert in contempt for her role in the removal.

To establish a procedural due process violation, a plaintiff need not only show a protected interest, but must also show that he or she was deprived of that interest without sufficient process, i.e., without due process. Clark, 375 F.3d at 701. The due process clause ensures every individual subject to a deprivation "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). The circumstances of the deprivation dictate what procedures are necessary to...