Mark Robbins, et al v. Randy Becker, Sr., et al

Filing

OPINION FILED - THE COURT: William Jay Riley, James B. Loken and Bobby E. Shepherd AUTHORING JUDGE:William Jay Riley (PUBLISHED), CONCUR BY: James B. Loken [4299126] [14-1435]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1435
___________________________
Mark Robbins; Gail Robbins; I-44 Truck Center and
Wrecker Service, LLC; I-44 Wrecker Service, LLC
lllllllllllllllllllll 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
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 16, 2015
Filed: July 27, 2015
____________
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
____________
RILEY, Chief Judge.
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),

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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.
I.

BACKGROUND
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.

1

The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
2

The Robbinses do not appeal the district court’s decision to decline to exercise
supplemental jurisdiction over their five state law claims.
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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 situationspecific 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;
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(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) (remanding for additional analysis of
qualified immunity), 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.
II.

DISCUSSION
A.
Standard of Review
“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)).
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B.
Constitutional Claims—Qualified Immunity
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 (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 (2001), overruled in part on other grounds by
Pearson v. Callahan, 555 U.S. 223, 227 (2009). The Robbinses have not done that.
1.
Substantive Due Process
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) (first and third alterations in original) (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
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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 the dispatchers have
reasonable discretion in assigning the towing services to any of the towing companies
on the wrecker list.” Id.; accord Morley’s Auto Body, Inc. v. Hunter, 70 F.3d 1209,
1215 (11th Cir. 1995) (concluding, based on towing rotation list case law in other
circuits, that a towing company does not have a constitutionally protected property
interest in remaining on a rotation list unless the company “‘has alleged a claim of
entitlement supported by a formal and settled source such as a state statute or
regulatory scheme’” (quoting Blackburn v. Marshall, 42 F.3d 925, 938 (5th Cir.
1995))).
Here, the Missouri state court order abolishing the MSHP’s use of rotation lists
arguably gave the officers more discretion than the officers in Habhab. But the
Robbinses contend the state court order enjoining the MSHP—and not the individual
officers—from using a rotation list created a constitutionally protected property
interest in their towing and wrecker business. We are not persuaded. “To have a
property interest in a benefit, a person clearly must have more than an abstract need
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or desire for it. He must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 577 (1972). Nothing in the order’s language—which altered
MSHP policy to give the individual officers greater discretion to choose a towing
company when the customer has no preference—gave the Robbinses “a legitimate
claim of entitlement” to any particular towing work. Id.
With respect to the Robbinses’ asserted liberty interest, we explained in
Habhab that the Fourteenth Amendment protects “‘the liberty to pursue a particular
calling or occupation, . . . not the right to a specific job.’” Habhab, 536 F.3d at 968
(quoting Piecknick v. Com. of Pa., 36 F.3d 1250, 1259 (3d Cir. 1994)). Because none
of the officers in Habhab deprived the towing company operator of the “right to
pursue his chosen occupation,” his due process claims failed. Id. The same is true
here. At most, some of the individual officers’ alleged conduct interfered with the
Robbinses’ ability to perform certain towing jobs. The officers did not deprive the
Robbinses of their right to make a living or pursue their chosen occupation.
The Robbinses also have not shown the challenged conduct was “‘so egregious
or outrageous that it is conscience-shocking.’” Id. (quoting Forrester, 397 F.3d at
1058).
Only in the rare situation when the state action is truly egregious and
extraordinary will a substantive due process claim arise. Substantive
due process is concerned with violations of personal rights so severe so
disproportionate to the need presented, and so inspired by malice or
sadism rather than a merely careless or unwise excess of zeal that it
amounted to brutal and inhumane abuse of official power.
Winslow, 696 F.3d at 736 (internal marks and quotations omitted). The Robbinses’
allegations do not shock the conscience. See Habhab, 536 F.3d at 968 (concluding

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the plaintiff did not allege facts that shocked the conscience where the plaintiff
alleged the officers interfered with his towing business because of ethnic prejudice).
2.
Equal Protection
The Equal Protection Clause provides, “No State shall . . . deny to any persons
within its jurisdiction the equal protection of laws.” U.S. Const. amend. XIV, § 1.
“The purpose of the equal protection clause . . . is to secure every person within the
state’s jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution through duly
constituted agents.” Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352
(1918). Unequal treatment of “‘those who are entitled to be treated alike[] is not a
denial of equal protection unless there is shown to be present in it an element of
intentional or purposeful discrimination.’” Batra v. Bd. of Regents of Univ. of Neb.,
79 F.3d 717, 721 (8th Cir. 1996) (quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)).
“The good faith of [state] officers and the validity of their actions are presumed; when
assailed, the burden of proof is upon the complaining party.” Sunday Lake, 247 U.S.
at 353. Without more, “opprobrious epithets” like “‘willful’ and ‘malicious’” and
characterizations of an officer’s conduct “as an unequal, unjust, and oppressive
administration of the laws” are not enough. Snowden, 321 U.S. at 10.
The Robbinses allege the officers violated their equal protection rights by
treating them “differently than multiple other towing and wrecker services.” See, e.g.,
City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)
(explaining equal protection is “essentially a direction that all persons similarly
situated should be treated alike”). The Supreme Court recognizes such a “class of
one” equal protection claim—meaning “the plaintiff did not allege membership in a
class or group”—“where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(per curiam); accord Barstad v. Murray Cnty., 420 F.3d 880, 884 (8th Cir. 2005).
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This class-of-one theory does have limits. In light of the importance of “a
clear standard against which departures, even for a single plaintiff, [can] be readily
assessed,” the class-of-one theory may not apply to
forms of state action . . . which by their nature involve discretionary
decisionmaking based on a vast array of subjective, individualized
assessments. In such cases the rule that people should be “treated alike,
under like circumstances and conditions” is not violated when one
person is treated differently from others, because treating like
individuals differently is an accepted consequence of the discretion
granted.
Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602-04 (2008) (illustrating the point
with a hypothetical involving a traffic officer—on a busy highway frequented by
speeders—exercising the discretion inherent in deciding which vehicle operator to
issue a speeding ticket). Applying Engquist’s rationale to a “police officer’s
decisions regarding whom to investigate and how to investigate,” we held “that while
a police officer’s investigative decisions remain subject to traditional class-based
equal protection analysis, they may not be attacked in a class-of-one equal protection
claim” because investigative decisions “necessarily involve discretion.” Flowers v.
City of Minneapolis, Minn., 558 F.3d 794, 799-800 (8th Cir. 2009); cf. Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir. 2008) (extending
Engquist’s reasoning to circumstances “involving a government-contractor
relationship”). But cf. Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009) (“Engquist
does not support the officers’ argument that malicious police conduct is off-limits
from class-of-one claims.”).
The Robbinses and the officers dispute whether Engquist and Flowers preclude
the Robbinses’ class-of-one claim because the officers’ decisions to refer jobs to
particular towing companies involved discretion. We need not decide that thorny
issue today because, even if we assume the Robbinses’ claim is cognizable under
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Engquist and Flowers, the Robbinses have not provided sufficient “evidence of
‘specific facts creating a triable controversy,’” Howard, 363 F.3d at 800 (quoting
Jaurequi, 173 F.3d at 1085), as to whether they suffered “intentional and arbitrary
discrimination,” Sunday Lake, 247 U.S. at 352.
“The threshold inquiry in [the class-of-one] equal protection [claim the
Robbinses assert] is whether the [Robbinses are] similarly situated to others who
allegedly received preferential treatment.” Domina v. Van Pelt, 235 F.3d 1091, 1099
(8th Cir. 2000). “Absent [such] a threshold showing[,] . . . the [Robbinses do] not
have a viable equal protection claim.” Klinger v. Dep’t of Corr., 31 F.3d 727, 731
(8th Cir. 1994). “To be similarly situated for purposes of a class-of-one
equal-protection claim, the persons alleged to have been treated more favorably must
be identical or directly comparable to the plaintiff in all material respects.” Reget v.
City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010); accord Bills v. Dahm, 32 F.3d
333, 335 (8th Cir. 1994) (explaining equal protection comparators must be similarly
situated “in all relevant respects”).
“Identifying the disparity in treatment is especially important in class-of-one
cases.” Barstad, 420 F.3d at 884. “A class-of-one plaintiff must therefore ‘provide
a specific and detailed account of the nature of the preferred treatment of the favored
class,’ especially when the state actors exercise broad discretion to balance a number
of legitimate considerations.” Nolan v. Thompson, 521 F.3d 983, 990 (8th Cir. 2008)
(quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)).
The Robbinses do not meet this demanding standard. The Robbinses complain
the officers interfered with their business and treated them unfairly, but fail to allege
and prove facts showing they were similarly situated to other towing and wrecker
services, or that those companies were treated more favorably under similar
circumstances. Although the Robbinses nominally identify Chuck’s Towing, Miles
Towing, and C&C Towing as purported comparators, they do not provide any
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supporting details. Merely “saying the magic words is not enough,” Charleston v. Bd.
of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 775 (7th Cir. 2013), to state a viable
equal protection claim.3 See Habhab, 536 F.3d at 967.
3.
Conspiracy
The Robbinses’ failure to establish their substantive due process and equal
protection claims is also fatal to their claim that the officers conspired to violate their
constitutional rights. See 42 U.S.C. § 1985(3). “Absent a constitutional violation,
‘there is no actionable conspiracy claim.’” Slusarchuk v. Hoff, 346 F.3d 1178, 1183
(8th Cir. 2003) (quoting Cook v. Tadros, 312 F.3d 386, 388 (8th Cir. 2002)).
C.
Sherman Act
The Robbinses allege the officers and other tow companies conspired “to
restrain trade and monopolize trade in interstate commerce” in violation of the
Sherman Act, 15 U.S.C. §§ 1, 2. Section 1 of the Sherman Act prohibits “[e]very
contract, combination . . . or conspiracy, in restraint of trade or commerce among the
several States.” Id. § 1. By its terms, section 1 requires concerted action to establish
a violation. Id. Section 2 makes it unlawful to “monopolize, or attempt to
monopolize, or combine or conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States.” Id. § 2.
3

To the extent the Robbinses seek to assert an alternative claim of unequal
treatment based on spite, malice, personal animus, or other improper motive by
Oliveras or any other individual officer, we do not consider it. Even if cognizable
under the circumstances of this case, see Olech, 528 U.S. at 564-65 (declining to
consider the role “subjective ill will” plays in a class-of-one claim); Flowers, 558
F.3d at 797-98 (assuming “a claim of selective investigation or harassment may . . .
run afoul of the Constitution if it flows from [an] impermissible motive[],” but
concluding the target of a police investigation did not produce a submissible equal
protection claim), the Robbinses forfeited any such spite-and-malice claim by failing
to present the claim or any supporting evidence to the district court. See, e.g.,
ASARCO, LLC v. Union Pac. R.R., 762 F.3d 744, 753 (8th Cir. 2014).
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To prevail on their Sherman Act conspiracy claims, assuming such claims are
timely and cognizable, the Robbinses must prove “the conspirators had a unity of
purpose or a common design and understanding, or a meeting of minds” to engage in
prohibited conduct. Am. Tobacco Co. v. United States, 328 U.S. 781, 810 (1946).
The Robbinses must present “direct or circumstantial evidence that reasonably tends
to prove that the [alleged conspirators] had a conscious commitment to a common
scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 768 (1984). With respect to their § 2 conspiracy to
monopolize claim, the Robbinses also must show the alleged conspirators “shared [a]
specific intent to create a monopoly . . . or to unreasonably exclude [the Robbinses].”
SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1283 (8th Cir. 1981).
4

A careful review of the record and the parties’ submissions reveals the
Robbinses have failed to adduce any competent direct or circumstantial evidence to
support their conclusory allegations that the officers conspired with third parties to
restrain or monopolize trade in interstate commerce. See Fed. R. Civ. P. 56(c), (e).
“Although we view the facts in the light most favorable to the non-moving party, we
do not accept unreasonable inferences or sheer speculation as fact.” Howard, 363
F.3d at 800; cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007) (“[A] bare
assertion of conspiracy will not suffice. Without more, . . . a conclusory allegation
of agreement at some unidentified point does not supply facts adequate to show
illegality.”). The Robbinses’ unsubstantiated belief that the officers illegally
conspired against them is insufficient to sustain their Sherman Act claims. The
district court did not err in granting summary judgment on these claims.

4

Actions to enforce the Sherman Act must “commence[] within four years after
the cause of action accrued.” 15 U.S.C. § 15b. An action generally “accrues and the
statute begins to run when a defendant commits an act that injures a plaintiff’s
business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971).
The Robbinses’ allegations date as far back as 1999.
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III.

CONCLUSION
We affirm.

LOKEN, Circuit Judge, concurring.
I join the opinion of the court except the Equal Protection Clause analysis in
Part II.B.2. As to that Part, I concur in the judgment because plaintiffs failed to make
an adequate showing that any officer’s discretionary actions were the product of
intentional discrimination, malice, or other improper motive.
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