Small Hearts Daycare II, LLC et al v. Quick
Filing
181
OPINION, MEMORANDUM AND ORDER--IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment [Doc. No. 147 ] is granted. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 01/16/2014. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SMALL HEARTS DAYCARE
CENTER II, LLC and WALTER
COLEMAN
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Plaintiffs,
vs.
KATHY QUICK,
Defendant.
Case No. 4:09CV2132 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgment, [Doc. No. 147]. Plaintiffs oppose the Motion. For the reasons set forth
below, the Motion is granted.
Introduction and Background
Plaintiff Walter Coleman is the owner and operator of Plaintiff Small Hearts
Daycare Center II, LLC, a child care center located in St. Louis, Missouri. Child
care facilities are regulated by the Missouri Department of Health and Senior
Services (DHSS) through its Section for Child Care Regulation (SCCR).
Defendant Quick is the Administrator of SCCR. In August 2009, Defendant
denied Plaintiffs’ application to renew their child-care license. They also directed
Plaintiffs to cease providing care to more than four unrelated children and
informed third-party agencies that Small Hearts was unlicensed. Plaintiffs assert
that they were entitled to administrative and judicial review of the agency’s
decision to deny renewal before Defendant took these actions. Plaintiffs claim
their due process rights pursuant to 42 U.S.C. § 1983 were violated; and state a
claim for tortious interference with a business expectancy.
On January 28, 2010, the Court entered a temporary restraining order that
barred Defendant from claiming that Plaintiffs were operating without a license or
On February 8, 2010, the parties agreed to the entry of consent preliminary
injunction that allowed Plaintiffs to operate their facility pending
administrative review. On June 6, 2010, Plaintiffs dismissed their claims for a
permanent injunction because Plaintiffs voluntarily relinquished their license on
November 5, 2010.
Standard for Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter
of law.”
The standard for summary judgment is well settled. In determining whether
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summary judgment should issue, the Court must view the facts and the inferences
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods v. DaimlerChrysler
Corp., 409 F.3d 918, 921 (8th Cir. 2005); Littrell v. City of Kansas City, Mo., 459
F.3d 918, 921 (8th Cir. 2006). The moving party has the burden to establish both
the absence of a genuine issue of material fact and show that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986);
Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the
moving party has met this burden, the nonmoving party may not rest on the
allegations in his pleadings but by affidavit or other evidence must adduce specific
facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e);
Anderson 477 U.S. at 256, Littrell, 459 F.3d at 921.
The nonmoving party must articulate and substantiate specific facts showing
a genuine dispute of material fact. “The party opposing summary judgment may
not rest on the allegations in its pleadings; it must ‘set forth specific facts showing
that there is a genuine issue for trial.’” United Life of Omaha Life Ins. Co. v.
Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed.R.Civ.P. 56(e)); “Only
disputes over facts that might affect the outcome of the suit under the governing
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law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc. 477 U.S. 242, 248 (1986); Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th
Cir. 2004). A disputed fact is genuine when “a reasonable jury could return a
verdict for the nonmoving party” on a factual issue. Anderson, 477 U.S. at 248;
Woods, 409 F.3d at 990. To survive a motion for summary judgment, the
“nonmoving party must ‘substantiate his allegations with sufficient probative
evidence [that] would permit a finding in [his] favor based on more than mere
speculation, conjecture, or fantasy.’” Wilson v. Int’l Bus. Machs. Corp., 62 F.3d
237, 241 (8th Cir. 1995)(quotation omitted);” Putnam v. Unity Health System, 348
F.3d 732, 733--34 (8th Cir. 2003). A plaintiff may not merely point to unsupported
self-serving allegations, but must substantiate allegations with sufficient probative
evidence that would permit a finding in the plaintiff’s favor. Wilson 62 F.3d at 241
(8th Cir. 1995); Smith v. International Paper Co., 523 F.3d 845,848 (8th Cir.
2008). “The mere scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. 242 at 252; Davidson & Assoc. v. Jung, 422 F.3d
630, 638 (8th Cir. 2005); Smith, 523 F.3d at 848.
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Material Facts1
On October 22, 2007, DHSS issued Small Hearts a license to operate a child
day care facility that was, by the terms of the license, to expire on August 31, 2009.
On July 7, 2008, Small Hearts was cited for caring for fourteen (14) children
over its licensed capacity.
On or about June 24, 2009, DHSS received multiple complaints regarding
Small Hearts. On June 29, 2009, DHSS investigated the June 24, 2009, complaint
allegations. On July 2, 6, 7 and 8, 2009, DHSS conducted further investigations
into the June 24 complaint.
On July 16, 2009, DHSS notified Small Hearts that the June 24 complaint
was substantiated.
On July 21, 2009, DHSS notified Small Hearts of an amended report
substantiating the June 24, 2009, complaints specifically finding that Small Hearts
submitted claims to the Department of Social Services, Child Care Subsidy
program for a child who did not attend Small Hearts and for submitting false
training certificates to DHSS.
On or about September 1, 2009, Small Hearts was issued a license that
1
The material facts are taken primarily from Defendant’s submission, to which Plaintiffs
responded. Plaintiffs’ objections to Defendant’s facts are primarily based on legal argument or
have no support in the record.
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expired October 31, 2009.
On or about October 8, 2009, DHSS notified Small Hearts of its decision to
deny its application to renew its child care license.
On November 1, 2009, DHSS issued Small Hearts a short term thirty day
license for November 1, 2009 through November 30, 2009 to allow the facility time
to wind down operations and/or to pursue applicable legal remedy.
On November 3, 2009, via letter, DHSS notified Small Hearts via letter to
confirm the receipt from Small Hearts of a request for a hearing.
On November 3, 2009, via letter, DHSS notified Small Hearts that if it
wished to continue providing child care after November 30, 2009, that it may seek
an injunction in a circuit court of proper venue while the issue is litigated. Small
Hearts failed to seek an injunction in state circuit court on or before November 30,
2009.
Small Hearts short-term thirty day license expired on November 30, 2009.
Small Hearts had requested a hearing before the AHC. Instead of proceeding to a
hearing before the Administrative Hearing Commission, Small Hearts and Walter
Coleman and the Missouri Department of Health and Senior Services, Section for
Child Care Regulation (DHSS) entered into a Settlement Agreement, styled Joint
Motion for Consent Order, Joint Stipulation of Facts and Conclusions of Law, Joint
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Disciplinary Order and Waiver of Hearing Before the Administrative Hearing
Commission. “Small Hearts stipulates that the factual allegations contained in this
Joint Stipulation are true and stipulates with the DHSS that Small Hearts’ license
for a day care center, no. 0001942536, is subject to disciplinary action by the
DHSS in accordance with the relevant provision of Chapter 210, RSMo.”
In the Joint Stipulation, Small Hearts stipulated to the following:
16. Nineteen CSR 30-62.105 (d) is a regulation established pursuant
to the authority of § 210.221.1(3), RSMo.
17. Nineteen CSR 30-62.105(D) states as follows:
Caregivers shall be of good character and intent and shall be
qualified to provide care conducive to the welfare of children.
18. On or about May 2009, Small Hearts billed the Department of
Social Services, for child-care related to Child A.
19. On or about May 2009, Child A was not enrolled with Small
Hearts.
20. On or about May 2009, Child A did not attend Small Hearts.
21. On or about May 2009, Small Hearts did not provide child-care
related services to Child A.
22. On or about May 2009, Small Hearts knew or should have known
that Child A did not attend its facility.
23. Under the circumstances described herein, Small Hearts violated
19 CSR 30-62.105 (D).
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24. Nineteen CSR 30-62.132(7)(E) is a regulation established
pursuant to the authority of § 219,221,1(3), RSMo.
25. Nineteen CSR 30-62.32(7)(E) states as follows:
Completion by the parent(s) of the following written information,
which shall be on file before the child is accepted for care;
instructions for action to be taken if the parent(s) cannot be reached in
an emergency and permission for emergency medical care.
26. Nineteen CSR 30-62.132(7)(E) 8 is a regulation established
pursuant to the authority of § 210.221.1(3), RSMo.
27. Nineteen CSR 30-62.132(7) (E)8 states as follows:
8. Acknowledgment [sic] by the parent(s) thatA. They have received a copy of the provider’s
policies pertaining to admission, care and discharge of
children;
B. They have been informed that the Licensing Rules
for Group Day Care Homes and Child Day Care centers in
Missouri are available in the facility for their review;
C. They and the provider have agreed on a plan for
continuing communication regarding the child’s
development, behavior and individual needs; and they
understand and agree that the child may not be accepted for
care when ill.
28. Nineteen CSR 30-62.222(1) is a regulation established pursuant
to the authority of § 210.221.1(3), RSMo.
29. Nineteen CSR 30-62.222(1) states as follows:
The child care provider shall maintain accurate records to
meet Administrative requirements and to ensure knowledge
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of the individual needs of children and their families.
30. Nineteen CSR 30-62.222 (2) is a regulation established pursuant
to the Authority of § 210.221.1(3), RSMo.
31. Nineteen CSR 30-62.222(2) states as follows:
An individual file shall be kept to identify each child and enable the
Provider to communicate with the parent(s), guardian or legal
Custodian of the child in an emergency. Records shall include:
(A) The child’s full name, address, birth date and the date care
Begins and ends;
(B) Full name of the parents(s), guardian or legal custodian,
home Address, employer’s name and address, work schedule,
and home And work telephone numbers;
(C) Name, address and telephone number of another individual
(friend or relative) who might be reached in an emergency
when the Parent(s), guardian or legal custodian cannot be
reached; Name and Phone number of the family physician,
hospital, or both, to be used In an emergency;
(D) Name of the individual(s) authorized to take the child from
the facility;
(E) Field Trip and transportation authorization.
32. On or about July 2, 2009, DHSS determined that seventy-five (75)
of the seventy-seven (77) enrollment records reviewed were
incomplete and missing some or all of the enrollment information
required.
33. Nineteen CSR 30-62.222(1) is a regulation established pursuant
to the authority of § 210.221.1(3), RSMo.
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34. Nineteen CSR 30-62.222(1) states as follows:
The child care provider shall maintain accurate records to
meet administrative requirements and to ensure knowledge
of the individual needs of children and their families.
35. Nineteen CSR 30-62.222(6) is a regulation established pursuant
to the Authority of § 210.221.1(3), RSMo.
36. Nineteen CSR 30-62.222(6) states as follows:
Daily child attendance records shall be maintained and kept on
file a minimum of one (1) year.
37. On or about June 29, 2009, DHSS determined that nine (9) of the
children that were present at Small Hearts were not signed in for the
day and there was no other form of attendance to show who was
present.
38. Nineteen CSR 30-62.222 (8) is a regulation established pursuant
to the Authority of § 210.221.1(3), RSMo.
39. Nineteen CSR 30-62.222(3) states as follows:
All enrollment records, medical examination records and
attendance records shall be filed in a place known to care
givers and shall not be in a locked area or removed from the
facility during the hours the facility is open and operating.
40. Nineteen CSR 30-62.222 (16) is a regulation established pursuant
to the Authority of § 210.221.1(3), RSMo.
41. Nineteen CSR 30-62.222 (16) states as follows:
All records shall be available in the facility for inspection
by the department upon request.
42. On or about July 7, 2009, Small Hearts failed to have requested
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records available for DHSS inspection.
43. Under the circumstances described herein, Small Hearts violated
19 CSR 30-62.132(7)(E ), 19 CSR 30-62.132(&) (E )8, A, B, and C,
19 CSR 30.62.222(1), 19 CSR 30-62.222(2)(A), (B),(C), (D), and €,
19 CSR 30-62.222(1), (6), (8), and (16).
44. Nineteen CSR 30-62.112(1) is a regulation established pursuant
to the authority of § 210.221.1(3), RSMo.
45. Nineteen 30-62.112(1) states as follows:
The following staff/child ratios shall be maintained on the
premises at all times: Mixed Age Groups Two (2) Years and
Up. Groups composed of mixed ages of children two (2)-years
of age and older shall have no less than one (1) adult to ten (10)
children with a maximum of four (4) two(2)-year olds. When
there are more than four (4) two (2)-year olds in a mixed group,
the staff/child ration shall be no less than one (1) adult to eight
(8) children.
46. On or about July 7, 2009, DHSS observed forty-nine (49) children
ages three (3) years to school-age being cared for by three (3)
caregivers.
47. Nineteen CSR 30-62.042(3)(W) is a regulation established
pursuant to the authority of § 210.221.1(3), RSMo.
48. Nineteen CSR 30-62.042(3)(W) states as follows:
The number and ages of children the facility is authorized to
have in care at any one (1) time shall be specified on the
license and shall not be exceeded except as permitted within
these rules.
49. On or about July 7, 2008, DHSS observed forty-nine (49) children
in care. The facility was licensed to care for thirty-five (35) children.
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50. Under the circumstances described herein, Small Hearts violated
19 CSR 30-62.112(1) and 19 CSR 30-62.042(3)(W).
51. The Department of Health and Senior Services (DHSS) is a state
agency under § 192.005 vested with authority to license and regulate
child-care facilities. Mo.Rev. Stat. §§ 210.201 through 210.259
RSMo.
52. Childcare facilities in Missouri may not operate without a license.
Mo. Rev. Stat. § 210.211.
53. DHSS licenses only those facilities that pass an inspection.
Mo.Rev.Stat. § 210.221(1).
Discussion
Due Process Claims
Defendant, in her individual capacity, argues that she is entitled to qualified
immunity on Plaintiffs’s due process claims. Government officials, who are
performing discretionary functions, are generally shielded from liability for civil
damages, unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known. See,
Wallingford v. Olson, 592 F.3d 888, 891 (8th Cir.2010); Wilson v. Layne, 526 U.S.
603, 609 (1999); Young v. Harrison, 284 F.3d 863, 866 (8th Cir.2002); Winters v.
Adams, 254 F.3d 758, 766 (8th Cir.2001).
“[W]hether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
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‘objective legal reasonableness' of the action, assessed in the light of the legal
rules that were ‘clearly established’ at the time it was taken.” Wilson, at 614. The
contours of the constitutional right at issue “must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right,” but
“[t]his is not to say that an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful; but it is to say that
in light of pre-existing law, the unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 641 (1987). As a consequence, "[t]he doctrine 'gives
ample room for mistaken judgments but does not protect the plainly incompetent
or those who knowingly violate the law.'" Bagby v. Brondhaver, 98 F.3d 1096,
1098 (8th Cir.1996).
In determining whether a public official has violated a clearly established
constitutional right, the reviewing Court has discretion to determine which prong
of the two-part test to address first. See, Heartland Academy Community Church
v. Waddle, 595 F.3d 798 (8th Cir. 2010), citing Pearson v. Callahan, --- U.S. ----,
129 S.Ct. 808, 818 (2009).
The party asserting immunity always has the burden to establish the relevant
predicate facts, and at the summary judgment stage, the nonmoving party is given
the benefit of all reasonable inferences. In determining whether an officer is
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entitled to qualified immunity, the Court asks: (1) whether, taking the facts in the
light most favorable to the injured party, the alleged facts demonstrate that the
official's conduct violated a constitutional right; and (2) whether the asserted
constitutional right is clearly established. The Court may address either question
first. If either question is answered in the negative, the public official is entitled to
qualified immunity. To determine whether a right is clearly established the Court
asks whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. Wallingford v. Olson, 592 F.3d at 892
(internal citations and quotations omitted).
The Eighth Circuit Court of Appeals has articulated the standard for
determining the question of qualified immunity. The question
involves the following two-step inquiry: (1) whether the facts shown
by the plaintiff make out a violation of a constitutional or statutory
right; and (2) whether that right was clearly established at the time of
the defendant's alleged misconduct. Saucier v. Katz, 533 U.S. 194,
201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by
Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d
565 (2009) (holding that Saucier's two-step sequence is not
mandatory). “Under the rule established in Pearson, we have the
discretion to decide ‘which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.’ ” Fields v. Abbott, 652
F.3d 886, 890 (8th Cir.2011) (quoting Pearson, 555 U.S. at 236, 129
S.Ct. 808).
Santiago v. Blair, 707 F.3d 984, 989-90 (8th Cir. 2013).
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The matter of whether Defendant is entitled to qualified immunity has been
addressed by the Eighth Circuit Court of Appeals in a very factually similar case,
and has determined that qualified immunity applies to Plaintiffs’ claims.
To have a constitutionally cognizable property interest in a
right or a benefit, a person must have “a legitimate claim of
entitlement to it.” See Bd. of Regents of State Colleges v. Roth, 408
U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Due
Process Clause does not create any property interest; it merely
protects property rights arising “from an independent source such as
state law.” Id. A property interest arises when state law creates
“expectations that are ‘justifiable.’ ” O'Bannon v. Town Ct. Nursing
Ctr., 447 U.S. 773, 796, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980)
(quoting Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 63
L.Ed.2d 552 (1980)). No property interest arises where the statutory
claim to a benefit is “too ephemeral and insubstantial.” Id. (quoting
Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 49 L.Ed.2d 451
(1976)) (internal quotation marks omitted).
[Plaintiff] has not demonstrated it had a clearly established
property interest in renewal of its license. Under Missouri law, a
licensed entity may have a property interest in an existing valid
license, which may not “be impaired, suspended, or revoked” without
due process. Mo. Real Estate Comm'n v. Rayford, 307 S.W.3d 686,
692 (Mo.App.2010); see ARO Sys. v. Supervisor of Liquor Control,
684 S.W.2d 504, 507 (Mo.App.1984) (recognizing sanctions
impairing the licensed entity's use of a valid liquor license implicate
due process protections); Crum v. Mo. Dir. of Revenue, 455
F.Supp.2d 978, 986 (W.D.Mo.2006) (determining revocation of a
physician's license implicated due process protections). Missouri law
is less clear when it comes to license renewal proceedings. See, e.g.,
Zenco Dev. Corp. v. City of Overland, 843 F.2d 1117, 1118–19 (8th
Cir.1988) (holding the district court did not err in determining a
licensed entity had no due process rights attendant to liquor license
renewal proceedings under Missouri law); State ex rel. Garrett v.
Randall, 527 S.W.2d 366, 373 (Mo.1975) (en banc); Vaughn v. Ems,
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744 S.W.2d 542, 547–48 (Mo.Ct.App.1988); State ex rel. Payton v.
City of Riverside, 640 S.W.2d 137, 142 (Mo.Ct.App.1982). [Plaintiff]
has not cited, nor have we found, any statutes or cases establishing
that licensed facilities have a property interest in a license renewal
under Missouri law.
The DHS defendants reasonably could have concluded [Plaintiff] had
no constitutionally protected property interest in the renewal of its
license, and such a conclusion entitles them to qualified immunity.
See Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir.2007)
(explaining, public officials are entitled to qualified immunity unless
their actions “violate clearly established statutory or constitutional
rights of which a reasonable person would have known”) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982)) (internal quotation marks omitted). “Officials are not
liable for bad guesses in gray areas; they are liable for transgressing
bright lines.” Id. (quoting Davis v. Hall, 375 F.3d 703, 712 (8th
Cir.2004)) (internal quotation marks omitted).
Qualified immunity is particularly appropriate in this instance
because the DHS defendants were operating under conflicting
statutory directives. DHS was required under Mo.Rev.Stat. §
210.245(2) to give [Plaintiff] notice and, upon [Plaintiff]'s request, a
hearing. However, [Plaintiff]'s license expired on July 31, 2007, and
Mo.Rev.Stat. § 210.211.1 explicitly prohibited [Plaintiff] from
operating a childcare facility without a license “in effect.” Once
[Plaintiff]'s license expired, DHS could not provide [Plaintiff] with
pre-deprivation notice—the license expired by operation of
law—while simultaneously enforcing the licensing requirement. We
cannot say the DHS defendants' attempt to resolve this foggy
statutory conflict was constitutionally unreasonable.
Austell v. Springer, 690 F.3d 929, 935 (8th Cir. 2012).
Under this clear directive from the Eighth Circuit regarding the same
challenges Plaintiffs herein make, Defendant is entitled to qualified immunity on
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Plaintiff’s property right claims.
With regard to Plaintiff’s challenge to Defendant’s failure to provide
Plaintiffs with a name clearing hearing before the Administrative Hearing
Commission, (AHC) to have the merits addressed, Plaintiffs’ own actions
foreclose any basis upon which to prevail. Rather than going before the AHC,
Plaintiffs voluntarily entered into the “Joint Motion for Consent Order Joint
Stipulation of Facts and Conclusions of Law, Joint Disciplinary Order and Waiver
of Hearing Before the Administrative Hearing Commission.” The Consent Order
entered by the AHC specifically provided that the parties had stipulated to certain
facts and waived their right to a hearing before the Commission. Accordingly, the
Commissioner ruled that Plaintiffs were subject to discipline under Section
210.221.1(2) of the Missouri Revised Statutes.
Plaintiffs allege they are entitled to an appeal of the non-renewal of the
license under Chapter 621, Rev.Stat.Mo. To the contrary, as Defendant correctly
argues, the specific procedure with regard to child care licenses is found in
Chapter 210. Section 210.245.2 provides the exclusive procedure by which DHSS
may deny a renewal application and by which Plaintiffs could seek administrative
review before the AHC. Austell, 690 F.3d at 936.
Moreover, even if Chapter 621 should have been followed, Plaintiffs have
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failed to establish that this failure gives rise to a constitutional violation, which is
essential to a Section 1983 claim of constitutional violations.
In her official capacity, Defendant correctly argues that the Eleventh
Amendment bars this action.
Tortious Interference
Once again, the Austell decision determines the insufficiency of Plaintiffs’
tortious interference claim:
[Plaintiff]'s tortious interference claim fails as a matter of law.
In Missouri,2 public officials exercising discretionary duties, as
opposed to ministerial duties, are entitled to official immunity from
suit for “all discretionary acts” unless the officials acted “in bad faith
or with malice,” which ordinarily requires “actual intent to cause
injury.” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446–47
(Mo.1986) (en banc).
[T]he decision as to whether a public official's acts are discretionary
or ministerial must be determined by the facts of each particular case
after weighing such factors as the nature of the official's duties, the
extent to which the acts involve policymaking or the exercise of
professional expertise and judgment, and the likely consequences of
withholding immunity. Kanagawa v. State by and through Freeman,
685 S.W.2d 831, 836 (Mo.1985) (en banc); see also Southers v. City
of Farmington, 263 S.W.3d 603, 610 (Mo.2008) (en banc)
(explaining discretionary duties are those that require the application
of reasoned decision-making, whereas ministerial functions are “of a
2
In its footnote, the Austell Court recognized the applicability of Missouri
law. “We apply Missouri law to [plaintiff]'s state-law claims,” which come under
our “supplemental jurisdiction.” Walker v. Barrett, 650 F.3d 1198, 1203 (8th
Cir.2011); see also 28 U.S.C. § 1367. Austell, 690 F.3d at 938, n. 4.
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clerical nature ... perform[ed] ... without regard to [the official's]
judgment or opinion concerning the propriety of the act to be
performed”) (quoting Kanagawa, 685 S.W.2d at 836).
In this case, [Defendant]'s actions were discretionary, not
ministerial. This is not a “clerical” task capable of being performed
“without regard to [Defendants] judgment or opinion.” Southers, 263
S.W.3d at 610. Decisions regarding how or when to enforce a
perceived license violation “involve policymaking [and] the exercise
of professional expertise and judgment,” and withholding official
immunity would likely hamper DHS's license enforcement actions in
the future. Kanagawa, 685 S.W.2d at 836.
On appeal, [Plaintiffs] ha[ve] made no effort to demonstrate
[Defendants] acted “in bad faith or with malice” and with “actual
intent to cause injury” required to overcome official immunity. See
Twiehaus, 706 S.W.2d at 446–47. Nor did [Defendant] make this
argument in opposing the DHS defendants' summary judgment
motions below. It is far from clear on this record that [[Plaintiff]’s
allegations and evidence would support a finding of bad faith or
malice, and particularly an actual intent to injure [Plaintiff]. The
Missouri Supreme Court has affirmed a claim's dismissal where the
plaintiff failed to demonstrate the public official's bad faith and
therefore the plaintiff could not overcome official immunity. See
Charron v. Thompson, 939 S.W.2d 885, 887 (Mo.1996) (en banc).
Austell, 690 F.3d at 938-39.
Conclusion
Based upon the foregoing, Defendant has established that there exist no
dispute as to any material fact, pursuant to Rule 56, and is therefore entitled to
judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
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Judgment [Doc. No. 147] is granted.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 16th day of January, 2014.
______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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