Evan F. Zakrzewski v. Charles R. Fox , 87 F.3d 1011 ( 1996 )

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No. 95-3097
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Evan F. Zakrzewski, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Charles R. Fox; Allan Rowse; *
Thomas Herzog; Steve Fernau; *
County of Holt, State of *
Nebraska; Board of Supervisors, *
of the County, the board *
consisting of Gary Oberding, *
Robert Young, Mel Selting, *
Harold Melcher, Gene Schaff, *
Dean Funk and Fred Krugman; *
Forrest Peetz, *
*
Defendants-Appellees. *
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Submitted: February 23, 1996
Filed: July 2, 1996
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Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Evan F. Zakrzewski appeals the district court's1 grant of summary
judgment in favor of the defendants in this 42 U.S.C. § 1983 action.
Zakrzewski filed this action against the county and its board of
supervisors, the county sheriff (Charles R. Fox), two deputies sheriff
(Allan Rowse and Steve Fernau), the county
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The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
prosecuting attorney (Thomas Herzog), and Zakrzewski's ex-wife's private
attorney (Forrest Peetz), claiming that they violated his constitutional
rights to be free from unreasonable seizure and unreasonable interference
with his parent-child relationship. The district court concluded that the
events complained of did not amount to a constitutional violation. We
agree.
We review a district court's grant of summary judgment de novo, using
the same standards as the district court. See Disesa v. St. Louis
Community College, 79 F.3d 92, 94 (8th Cir. 1996). We will affirm the
decision if, viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Landreth v. First Nat'l Bank of Cleburne County, 45 F.3d 267, 268 (8th Cir.
1995). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
Central to this action is a dispute between Zakrzewski and his ex-
wife over Zakrzewski's court-decreed visitation rights with his son.
Pursuant to the divorce decree, Zakrzewski's ex-wife has legal custody of
the child and Zakrzewski has reasonable visitation, including a period of
Tuesday through Sunday once per month and every other holiday. The
particular Tuesday through Sunday period was left to the parties to work
out each month. While Zakrzewski was out of town with his work, his ex-
wife arranged to send the boy to Zakrzewski's parents' home for the May,
1993, Tuesday through Sunday period (which happened to include the holiday
of Memorial Day weekend). Zakrzewski is an over-the-road truck driver and
did not learn that his son was at his parents' home until Friday of that
week. He shortened his trip and returned home late Saturday night. Monday
was the Memorial Day holiday, and it was also his holiday to have the boy.
The next day was Tuesday, June 1.
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On Tuesday, June 1, 1993, Zakrzewski's ex-wife called, insisting that
his visitation had ended with the Memorial Day holiday and demanding that
he return the child to her. Zakrzewski protested, wanting to keep the
child that week for his June Tuesday through Sunday visitation period. The
same day, the ex-wife's attorney, Forrest Peetz, spoke with County Sheriff
Fox, accusing Zakrzewski of refusing to return the child in violation of
the divorce decree and requesting assistance in returning the child to the
mother. Sheriff Fox then called Zakrzewski with a warning to return the
child as the ex-wife demanded or face a felony charge with the potential
for a three- to five-year prison term. Zakrzewski went to the sheriff's
office to protest the sheriff's demand and was told to deliver his son by
4:00 p.m. that day to the designated third person who would then, in turn,
return the child to the mother. Sheriff Fox indicated that a state
district court judge had been consulted and advised them "to do anything
it took to get that son back to his mother." (Appellees' App. at 330
(Zakrzewski's Dep.)).
On his way home from the sheriff's office, Zakrzewski encountered
deputies Rowse and Fernau, who approached his vehicle from the opposite
direction. The deputies motioned for Zakrzewski to stop, but they did not
turn on their warning lights. He immediately stopped his vehicle and
walked over to the deputies, who remained in their car. Deputy Rowse told
Zakrzewski that they had orders to take the child and deliver him to the
designated third person. They threatened to arrest Zakrzewski if he
refused to comply. Zakrzewski then asked if he, rather than the deputies,
could be allowed to return the boy. The deputies consented, and Zakrzewski
returned his son without further incident.
Zakrzewski states that he believed he would have been restrained had
he refused to cooperate. Earlier in the day, County Attorney Herzog, who
had spoken with a Nebraska district court judge, advised the deputies to
return the child without arresting
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Zakrzewski. The judge issued no orders. Zakrzewski contends that other
less significant incidents and disputes with the defendant law enforcement
officials occurred as well, but we will not recount them here.
The district court determined that even accepting as true all of
Zakrzewski's evidence and giving him the benefit of every reasonable
inference, the events simply do not rise to the level of a constitutional
violation. Additionally, the court concluded that defendant Peetz is not
a state actor within the meaning of § 1983 and that the officers were
entitled to qualified immunity. Thus, the court granted summary judgment
to the defendants. Zakrzewski appeals.
To sustain a claim under § 1983, Zakrzewski must demonstrate that
persons acting under color of state law deprived him "of any rights,
privileges or immunities secured by the Constitution and laws" of the
United States. 42 U.S.C. § 1983. "The first inquiry in a § 1983 claim is
to determine ``[w]hether the plaintiff has been deprived of a right ``secured
by the Constitution and laws' of the United States." Doe v. Wright, 82
F.3d 265, 268 (8th Cir. 1996) (quoting Martinez v. California, 444 U.S.
277, 284 (1980)). "The answer to that inquiry disposes of this case."
Martinez, 444 U.S. at 284.
Zakrzewski contends that the defendants unreasonably interfered with
his liberty interest in parenting his son because his visitation was
unreasonably interrupted. It is beyond question that "``[p]arents have a
fundamental ``liberty interest' in the care, custody, and management of
their children.'" Fitzgerald v. Williamson, 787 F.2d 403, 407 (8th Cir.
1986) (quoting Ruffalo v. Civiletti, 702 F.2d 710, 715 (8th Cir. 1983),
citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)) (alteration in
original). This right, however, is not absolute. Manzano v. South Dakota
Dep't of Social Servs., 60 F.3d 505, 510 (8th Cir. 1995). Zakrzewski's
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liberty interest in the care, custody, and management of his son has been
substantially reduced by the terms of the divorce decree and Nebraska law.
Zakrzewski contends that his right to visitation under the decree is itself
a protected liberty interest that the defendants unreasonably infringed.
Although we have "recognize[d] 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 their child,'" Fitzgerald, 787 F.2d at 408 (quoting Santosky,
455 U.S. at 753), 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.
To the extent Zakrzewski claims a substantive due process violation
of his parenting liberty interest, he must demonstrate that the defendants
abused their official power in a manner that shocks the conscience,
regardless of whether state-law remedies are available. New v. City of
Minneapolis, 792 F.2d 724, 725-26 (8th Cir. 1986). "[T]he theory of
substantive due process is properly reserved for truly egregious and
extraordinary cases," Myers v. Scott County, 868 F.2d 1017, 1019 (8th Cir.
1989), and it "proscribes ``certain government actions regardless of the
fairness of the procedures used to implement them.'" Williams-El v.
Johnson, 872 F.2d 224, 228-29 (8th Cir.) (quoting Daniels v. Williams, 474
U.S. 327, 331 (1986)), cert. denied, 493 U.S. 871 and 493 U.S. 824 (1989).
We conclude that the facts of this case are insufficient to indicate
that the defendants intentionally infringed upon Zakrzewski's liberty
interest in a manner that shocks the conscience. Zakrzewski was not
deprived of his parental right of visitation. Rather, his visitation
period was temporarily cut short on one occasion when law enforcement
officials were confronted with a complaint that Zakrzewski had violated the
visitation terms of the decree. The sheriff contacted the county
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attorney who contacted a state district court judge. The deputies were
advised to seek the return of the child to his mother, who is the custodial
parent. The officials threatened arrest if Zakrzewski did not return the
child. Zakrzewski was not arrested, he was not subjected to unreasonable
force, and he consented to return the child himself. Even assuming the
officials deviated from proper procedure, the one-time interruption of
Zakrzewski's right to visitation in this case does not amount to a
deprivation of liberty. The official conduct in this case was within the
bounds of reasonableness and does not shock the conscience. Consequently,
Zakrzewski's substantive due process claim fails.
Zakrzewski also contends that he was denied procedural due process
because his visitation was interrupted absent any pre-deprivation due
process. The Supreme Court has held that a procedural due process claim
lacks merit where there exists an adequate state court remedy. Parratt v.
Taylor, 451 U.S. 527 (1981). This doctrine applies to deprivations of
property or liberty. Williams-El, 872 F.2d at 224 (citing Birkenholz v.
Sluyter, 857 F.2d 1214, 1217 (8th Cir. 1988)). Zakrzewski's procedural due
process claim fails both because he has failed to meet the fundamental
showing that he was deprived of his liberty interest and because he has not
shown that the state remedies are inadequate. Nebraska state law provides
remedies for enforcing visitation orders. See Neb. Rev. Stat. Ann. § 42-
364.15 (1988) (courts may modify a visitation order or hold the
noncomplying parent in contempt). Following the incident at issue in this
case, Zakrzewski invoked the available state court remedies, and there is
no allegation that law enforcement officers attempted to prevent him from
doing so. In fact, the Holt County District Court held Zakrzewski's ex-
wife in contempt for violating the divorce decree.
Our holding that this case presents no constitutional violation is
consistent with a similar Tenth Circuit case. See Wise v. Bravo, 666 F.2d
1328 (10th Cir. 1981). There as here, the
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mother had custody of the child, and a dispute arose over the father's
right to visitation. There as here, the police intervened, and the father
voluntarily surrendered the child, feeling threatened by the officers. The
Tenth Circuit concluded that no constitutional deprivation occurred, and
in any event noted that "[a]ny deprivation of Wise's visitation rights was
so insubstantial in duration and effect it failed to rise to a federal
constitutional level. This is so, particularly in light of the fact that
Wise surrendered the child without protest." Id. at 1333. The case before
us is, for the most part, indistinguishable from Wise, and we agree with
the reasoning set forth in that case.
Zakrzewski also contends that he suffered an unreasonable seizure
because the officers in effect forced him to use his child as bail. There
is no merit to this contention under the facts presented in this case.
Zakrzewski was neither arrested nor seized. Again we find no
constitutional deprivation.
In sum, even giving Zakrzewski the benefit of every inference in the
evidence, we find no facts that rise to the level of a constitutional
deprivation. Absent a constitutional deprivation, Zakrzewski's § 1983
claim against each defendant necessarily fails, and we need not consider
the issues of whether Peetz was a state actor or whether the officers were
entitled to qualified immunity. Accordingly, we affirm the judgment of the
district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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