EVAN F. ZAKRZEWSKI v CHARLES R. FOX
_____________
No. 95-3097
_____________
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.*
_____________
Submitted: February 23, 1996
Filed: July 2, 1996
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Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
_____________
HANSEN, Circuit Judge.
Evan F. Zakrzewski appeals the district court's(1) grant of
summary judgment in favor of the defendants in this 42 U.S.C.
SS 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
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.
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
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 SS 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 SS 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. SS 1983. "The first inquiry
in a SS 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
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
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. SS 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
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 SS 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.
**FOOTNOTES**
(1)
The Honorable Thomas M. Shanahan, United States District Judge
for the District of Nebraska.