Patton v. Blum et al

Filing 60

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that, for the reasons discussed above, defendants' motions for summary judgment [#38 & #48] are GRANTED. IT IS FURTHER ORDERED that defendants' motion for judgment on the pleadings [#34] is DENIED as moot. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on May 14, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEPHANIE PATTON,
Plaintiff,
vs.
CASSIE BLUM, et al.,
Defendants.

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Case No. 4:13 CV 2376 CDP

MEMORANDUM AND ORDER
Plaintiff Stephanie Patton operated a state-licensed adult day care facility in
St. Louis called Peace of Mind Adult Day Care Center (POM). In October 2008,
inspectors from the Missouri Department of Health and Senior Services (DHSS)
arrived at the POM facility to conduct an inspection, which quickly went south.
After a subsequent series of escalating incidents involving POM, DHSS, and the
Missouri Department of Social Services (DSS), POM eventually closed. In this
case, Patton has alleged six claims against four DHSS employees. In Counts I, II,
III, and V, pursuant to 42 U.S.C. § 1983, Patton has alleged violations of her due
process, equal protection, and free speech and petition rights. In Count IV she
alleges defendants promulgated an agency rule without proper notice in violation
of Missouri statutory law. In Count VI, Patton alleges defendants interfered with

her intangible property rights in her adult day care license in violation of
Missouri’s malicious trespass law.
Defendants have moved for summary judgment as to all of the claims. After
careful consideration and a thorough review of the entire record, I find that
defendants are entitled to qualified immunity as to Count I, Patton’s first due
process claim. As to the remainder of the claims, I conclude that there is no
evidence from which a reasonable jury could find the defendants violated Patton’s
constitutional rights or Missouri statute. Because there are no genuine disputes of
material fact and defendants are entitled to judgment as a matter of law, I will grant
summary judgment.
I.

Standards Governing Summary Judgment
“Summary judgment is proper where the evidence, when viewed in a light

most favorable to the non-moving party, indicates that no genuine issue of material
fact exists and that the moving party is entitled to judgment as a matter of law.”
Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.
R. Civ. P. 56(a). Summary judgment is not appropriate if there are factual disputes
that may affect the outcome of the case under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material
fact is genuine if the evidence would allow a reasonable jury to return a verdict for
the non-moving party. Id. “The basic inquiry is whether it is so one-sided that one
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party must prevail as a matter of law.” Diesel Machinery, Inc. v. B.R. Lee
Industries, Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and
citation omitted). The moving party has the initial burden of demonstrating the
absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (citation omitted). If the movant does so, “[t]he
nonmovant must do more than simply show that there is some metaphysical doubt
as to the material facts, and must come forward with specific facts showing that
there is a genuine issue for trial.” Id. (internal quotation marks and citation
omitted).
II.

Background
The general facts of this case are as follows.1 Patton’s license to operate an

adult day care was due to expire on December 20, 2008. In October 2008,
defendant Cassie Blum and another DHSS inspector arrived at POM for an
unannounced inspection. Patton claims that the manner of the inspectors was
disrespectful to begin with and quickly deteriorated until Blum slapped Patton’s
hand and called her a “nigger” and illiterate.
Because the Blum inspection ended before it could be completed, a
subsequent inspection was performed in early December 2008 by defendants Tracy

1

The facts set out in this section are either undisputed or, to the extent not addressed by the
parties on summary judgment, are based on Patton’s allegations. Additional facts are included
with the discussion of each claim, as necessary.

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Niekamp and Michelle Williamson. After their inspection, a letter dated December
19, 2008, was sent to Patton from defendant Tracy Cleeton, then the Program
Manager for DHSS’s Adult Day Care Program, informing her that DHSS had
received her application to renew her adult day care license. The letter stated that
because of deficiencies found during Niekamp and Williamson’s inspection, she
would be issued a provisional license instead of a regular license until the
deficiencies could be remedied. (Def. Ex. B). It further stated that because POM
did not employ a nurse, the provisional license would indicate the facility was a
“social model” program instead of a “medical model” program.
In January 2009, Patton received a list of deficiencies found during the
December inspection, which she quickly remedied. Thereafter, on February 11,
DHSS conducted a revisit of POM; and on February 17, DHSS issued POM a
regular, non-provisional license. The new license indicated that the facility once
again qualified as a medical model program.
In February, before Patton received her new, non-provisional, “medical
model” license, DSS notified her that because her medical license had been
canceled by DHSS, her participation in the MO HealthNet (Medicaid) program
was also canceled, retroactive to close of business December 20, 2008. (Pl. Ex. 7).
DSS also conducted an audit of POM in early 2009. Pursuant to the audit,
Patton was required to produce patient service records from prior years, which she
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refused to do, claiming that many of the records had been lost. Although POM’s
participation in the Medicaid program was briefly reinstated, DSS ultimately
terminated POM’s participation in April 2009 after POM failed to produce the
requested records. Because of POM’s exclusion from the Medicaid program,
Patton was unable to obtain reimbursement from DSS for services rendered from
December 2008 to April 2009. All of this led to insufficient funding for POM’s
operation, loss of clients, and the facility’s eventual closure later in 2009.
In a letter dated July 7, 2009, DHSS informed Patton that more than a month
before, its staff had been to her facility and found it locked and empty. The letter
stated that because DHSS had received no response to a previous request to Patton,
dated June 2009, to confirm the status of her business, POM’s adult day care
license was being revoked.
Patton appealed six decisions2 by DHSS and DSS to the Missouri
Administrative Hearing Commission, which found in her favor. The agencies
appealed to circuit court and eventually the Missouri Court of Appeals. The
appellate court largely affirmed the AHC’s determinations, with the exception of
its conclusion that DHSS had acted with a racially discriminatory animus toward

2

Those decisions were: (1) DHSS’s conversion of POM’s license from a medical model to a
social model; (2) DSS’s first termination of POM’s participation in the Medicaid program, for
failure to have a medical model license; (3) DSS’s second termination of POM’s participation in
the Medicaid program, for failure to produce requested records; (4) DSS’s assessment of an
overpayment; (5) DHSS’s termination of its participation agreement with POM; and (6) DHSS’s
revocation of POM’s license. See Dep’t of Soc. Servs. v. Peace of Mind Adult Day Care Cntr.,
377 S.W.3d 631, 636–37 (Mo. Ct. App. 2012).

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Patton. As a result, Patton was reimbursed for services provided by POM from
December 20, 2008 to February 20, 2009.
III.

Discussion
A.

Count I: Due Process

In Count I, Patton alleges that the defendants intentionally deprived her of
her property interest3 in her adult day care license and Medicaid provider
agreement in violation of her due process rights. Specifically, she claims
defendants Niekamp, Williamson, and Cleeton converted POM’s adult day care
license to a “social model” without notifying the facility of its right to appeal that
decision or giving Patton notice of the deficiencies and an opportunity to correct
them. She further claims they failed to conduct an exit interview with her upon
completion of the December 2008 inspection and that they failed to timely provide
her with a statement of deficiencies. Patton alleges that her due process rights
were violated when DSS terminated her Medicaid provider agreement based on
POM’s failure to maintain a medical model license. Finally, she asserts that
defendant Cleeton improperly revoked her license in June and July 2009 without
notifying Patton of her right to appeal.

3

Patton’s complaint asserts her liberty interests were also violated, but she has not argued this in
her opposition to summary judgment, therefore I will assume her claim was limited to property
interests.

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In their motion, defendants argue that because DHSS possesses sufficient
discretion in its regulation of adult day care facilities, Patton had no
constitutionally protected property interest in any of these matters. They argue
Patton’s assertion that her license was “converted” from a medical model to a
social model license is inaccurate. They claim her previous medical-model license
expired and was not renewed, and because under Missouri law there is no
protected property interest in the renewal of a license, Patton’s claim must fail.
Finally, they assert, in any case, that they are protected from these claims by
qualified immunity.
In response, Patton argues that Missouri statute created a “justifiable
expectation” in an existing adult day care license, and defendants had no discretion
to “convert” plaintiff’s license without a hearing before the Administrative Hearing
Commission. Patton claims that this “conversion” was equivalent to the revocation
of a current license. She claims she had a justifiable expectation in maintaining her
current license status without conversion, and this expectation rose to the level of a
protectable property interest. Patton also relies largely on the doctrine of collateral
estoppel, claiming that issues in question surrounding this claim were decided by
the AHC and the AHC’s decision is binding on this court.

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Patton’s Adult Day Care License
The first question is whether Patton’s medical model license was revoked or
simply not renewed. Despite Patton’s insistence that what occurred was the
“conversion” of an existing license (tantamount to a license revocation), she
presented and argued essentially no facts to support this. The undisputed evidence
demonstrates that one day before Patton’s existing 2008 license was due scheduled
to expire, Cleeton sent her a letter notifying her that DHSS had received her license
renewal application, and she was being issued a new, provisional, non-medical
model license. There is no indication that her 2008 medical model license was
canceled, revoked, or converted before its expiration date. This is supported by the
fact that when DSS informed Patton it would not be reimbursing her for services
provided without a medical model license, the first date on which it indicated
reimbursement would be withheld was after the close of business on December 20,
2008. This was the expiration date of Patton’s previous, medical model license. In
the absence of any facts contradicting these, I conclude that Patton’s license was
never converted or revoked. Rather, DHSS refused to renew it with the same
status it had previously held.
In light of this, and in light of the legal and factual similarity of this case to
Austell v. Sprenger, 690 F.3d 929, 935 (8th Cir. 2012), I conclude that the
defendants are protected by qualified immunity because they could reasonably
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have concluded that Patton had no constitutionally protected property interest in
the renewal of her license.
A qualified-immunity analysis involves a 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. Pearson v. Callahan, 555 U.S. 223, 231 (2009);
Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir. 2014). Lower courts
may decide which of the two prongs of the qualified immunity analysis to tackle
first. Pearson, 555 U.S. at 236. Here, the “clearly established” prong is
dispositive, so I will address that prong first. “A right is clearly established if its
contours are sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Smith, 754 F.3d at 546 (internal citation and
quotation marks omitted). A case directly on point is not required, but “existing
precedent must have placed the statutory or constitutional question beyond
debate.” Id. citing Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011).
In Austell, the Eighth Circuit examined whether employees of DHSS were
protected by qualified immunity from plaintiffs’ claim that they unconstitutionally
interfered with plaintiffs’ property interest in a childcare facility license and license
renewal proceedings. 690 F.3d at 935.

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“To have a constitutionally cognizable property interest in a right or a
benefit, a person must have a ‘legitimate claim of entitlement to it.’” Austell v.
Sprenger, 690 F.3d 929, 935 (8th Cir. 2012) (quoting Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972)). Property interests are not created by
the Constitution but rather stem from an independent source such as state law.
Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir. 2000). A property
interest arises when state law creates “expectations that are ‘justifiable.’” Austell,
690 F.3d at 935, (quoting O'Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773, 796
(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
(1976)).
In Austell, the Eighth Circuit first determined that the plaintiffs, a Missouri
childcare facility and its owner, had failed to demonstrate that they had a “clearly
established property interest in renewal of [the] license.” 690 F.3d at 935. In
support of this, the Court found, first, that there was no Missouri law establishing
that licensed facilities have a property interest in a license renewal. Id. Next, it
found that existing Eighth Circuit law on this issue from other jurisdictions was
highly case specific and depended in large part on how much discretion a licensing
agency held in determining whether to renew a license. Id. at 935-36.

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The Court then examined the statutes and regulations governing DHSS’s
licensing determinations as to childcare facilities, and determined they were
“broad, subjective, and [gave] the department substantial discretion....” Id. at 936.
The Court noted that DHSS was permitted to deny, suspend, or revoke the license
of any party that failed to obey the statutory provisions or the regulations
governing childcare facilities. The regulations permitted DHSS to govern
“everything from fire safety and disaster preparedness to nutrition and food
service, health care, and medical examination reporting requirements.” Id.
(internal citation omitted). Some of the regulations were entirely subjective. In
light of all of these considerations, the Austell court held the defendants were
entitled to qualified immunity because they reasonably could have concluded that
plaintiffs had no constitutionally protected property interest in the renewal of their
license.
Here, as in Austell, DHSS has the authority to determine whether adult day
care programs and applicants are in compliance with licensure laws and regulations
before issuing a license. Mo. Rev. Stat. § 192.2250; 19 Mo. Code Regs. 3090.020(6), (7). As in Austell, here the statutes and regulations governing adult day
care center licensing are broad, subjective, and give DHSS substantial discretion.
They permit DHSS to govern nearly everything, including fire safety, daily

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programming, health care, and staffing. The regulations include such discretionary
requirements as:


Each participant of the adult day care program shall be assured
of the following rights:
(A) To be treated as an adult, with respect and dignity
regardless of race, color, sex or creed;
(B) To participate in a program of services and activities which
promote positive attitudes regarding one's usefulness and
capabilities;…
19 Mo. Code Regs. 30-90.050(9).



Direct care paid staff shall be at least eighteen (18) years of age
and qualified by education, training, experience or
demonstrated competence in order to perform the duties
required by the written job description.
19 Mo. Code Regs. 30-90.040(4).



The adult day care program building shall be safe and suitable
for participants.
19 Mo. Code Regs. Ann. 30-90.070(1)(A).



Furniture shall be of a size and design so that it is easily used
by persons with limited agility.
19 Mo. Code Regs. Ann. 30-90.070(1)(D).

I have not found, and the parties have not presented, any new Missouri or
Eighth Circuit case holding that license holders have a constitutionally protected
property interest in a license renewal, or otherwise contradicting Austell. Because
of this, and because of the close similarity between the laws considered in Austell

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and those in question here, I will follow the holding in Austell. I conclude that
defendants are protected by qualified immunity as to this claim because they could
reasonably have concluded that Patton had no constitutionally protected property
interest in the renewal of her license.
Failure to Conduct Exit Interview and Provide Statement of Deficiencies
Patton’s complaint also asserts her due process rights were violated when
defendants Niekamp and Williamson failed to conduct an exit interview with her
upon completion of their December 2008 inspection and then failed to timely
provide her with a statement of deficiencies. See Mo. Rev. Stat. § 192.2210.1.4
An exit interview is required by Missouri law whenever an agent of DHSS finds,
upon inspection, that a facility is not in compliance with licensure requirements.
Mo. Rev. Stat. § 192.2210.1. DHSS is required to send a statement of deficiencies
within ten (10) working days of the date of inspection. Id. If Patton is claiming
an interview and deficiency statement were part of the process she was entitled to
before DHSS refused to renew her medical model license, her claims fail because
defendants are protected by qualified immunity, as discussed above.
If Patton is alleging that she had an independent, constitutionally protected
property interest in an interview and deficiency statement, then her claims also fail.

4

Plaintiff in her opposition to summary judgment and the AHC in its opinion reference Mo. Rev.
Stat. § 198.026 for this requirement, but that statute currently appears to regulate convalescent,
nursing, and boarding homes. In any case, the statutes both mandate exit interviews, and there is
no difference in outcome of the argument for purposes of this case.

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The Eighth Circuit has noted that if a state statute gives someone “the right to a
certain outcome in the event of the occurrence of certain facts” then that person has
“a right, by virtue of the Fourteenth Amendment, to whatever process is due in
connection with the determination of whether those facts exist.” Bagley v.
Rogerson, 5 F.3d 325, 328 (8th Cir. 1993). However, a state statute that is a
“direct command” that a certain action be taken does not create a right or
entitlement subject to specific factual findings, and therefore, does not create a
question of procedural due process. Id. at 328-29. It is “emphatically not the law”
that every state statute that imposes a mandatory duty, or creates a legal right, is
constitutional in nature, or that any violation of state law constitutes a violation of
due process. Id. “A violation of state law, without more, is not the equivalent of a
violation of the Fourteenth Amendment.” Id.
In Austell, the Eighth Circuit followed its reasoning in Bagley in concluding
that a Missouri statute requiring a settlement offer to be made in conjunction with
the denial of a childcare facility license renewal did not create a due process right.
It held that the mandatory settlement offer was simply a “state conferred
procedural safeguard” not enforceable under the Due Process Clause of the Federal
Constitution. The same reasoning applies here. The mandate contained in Mo.
Rev. Stat. § 192.2210.1 that an exit interview be conducted and a statement of
deficiencies be provided does not create “right[s] subject to particular factual
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findings.” As a result, an exit interview and deficiency statement are merely state
conferred procedural safeguards, and the defendants’ failure to provide them did
not deprive Patton of any constitutionally protected property interest. See Bagley,
5 F.3d at 328-29.
Remaining Due Process Allegations
Patton has alleged that her due process rights were violated when DSS
terminated her Medicaid provider agreement and because Cleeton revoked her
license in June and July 2009 without notifying Patton of her right to appeal.
With respect to the former, Patton has asserted no fact or argument
indicating what process she claims she was due or denied with respect to her
Medicaid provider agreement. Additionally, the undisputed facts show that none
of the defendants, all of whom were DHSS employees, were personally involved in
or directly responsible for DSS’s decision to terminate Patton’s Medicaid provider
agreement.
“Liability under § 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208
(8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985)
(claim not cognizable under § 1983 where plaintiff failed to allege defendant was
personally involved in or directly responsible for incidents that injured plaintiff);
Cross v. MHM Corr. Servs., Inc., No. 4:11CV1544 TIA, 2014 WL 5093298, at *5- 15  

*7 (E.D. Mo. Oct. 10, 2014) (defendants not liable where plaintiff failed to
establish direct responsibility for alleged constitutional violations). All of the
defendants have submitted affidavits stating they did not terminate Patton’s
Medicaid provider agreement. Blum, Williamson, and Cleeton have submitted
affidavits stating they did not make any statements to government officials that
plaintiff had received Medicaid overpayments. Although Patton has submitted
evidence that Niekamp sent an email to DSS communicating her concerns that
POM was operating without a licensed nurse (Pl. Ex. E), Niekamp testified that she
had no authority over what DSS did with that information (Def. Ex.G; Def
Response to Plaintiff’s Statement of Facts, Ex.A., p.107). Plaintiff has provided no
evidence contradicting this sworn testimony.
With respect to the revocation of Patton’s day care license, Patton’s
complaint alleges her license was revoked by letters from Cleeton and “Mr.
Younger” on June 4, 2009 and July 7, 2009. She claims her due process rights
were violated because neither letter notified her of her right to appeal the
revocation decision. The July 7, 2009 letter is signed by Matt Younger and states
that Patton’s license was first revoked on July 1, 2009. (Def. Ex. D). Younger’s
letter clearly informs Patton of her right to appeal DHSS’s revocation decision;
therefore, Patton’s claim as to the July 1 letter will be dismissed. Patton has
submitted no evidence rebutting defendants’ contention (as evidenced by the
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Younger letter) that her license was not revoked until July 1, 2009. If her license
was not revoked until July 1, Patton was not entitled to notice of her right to appeal
the revocation prior to that date and her claim as to the alleged June letter also
fails.5
Finally, Patton has argued that her due process claim should not be
dismissed because certain issues relevant to the claim were decided by the AHC,
and the AHC’s decision is binding on this court. Specifically, Patton claims that
the AHC determined the following factual issues, which she argues are dispositive
to her due process claim: (1) Patton should have had a medical model license from
December 20, 2008 to February 20, 2009; (2) DHSS failed to comply with
Missouri statute by refusing to issue POM a medical model license; (3) POM had a
nurse on duty and, as such, there was no reason not to continue its license as a
medical model; and (3) Section 198.026.1 requires an exit interview and DHSS’s
failure to conduct one indicates its agents were not acting in good faith.
“[U]nder collateral estoppel, or issue preclusion, once a court has decided an
issue of fact or law necessary to its judgment, that decision precludes relitigation of
the issue in a suit on a different cause of action involving the same parties or
privities.” Kinsky v. 154 Land Co., LLC, 371 S.W.3d 108, 112 (Mo. Ct. App.

5

Neither party actually submitted the June letter as evidence.

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2012).6 Assuming, without deciding, that collateral estoppel applies in this case as
to the above issues, this does not affect my conclusions as to Patton’s due process
claim. Although the AHC did find that DHSS had violated Missouri statutory law,
it did not make a due process determination, and it did not form any conclusions as
to whether Patton had a constitutionally protected property interest in the renewal
of her license. Additionally, the defendants’ bad faith in failing to conduct an exit
interview does not mean they forfeit their qualified immunity as to her
constitutional claims. See Davis v. Scherer, 468 U.S. 183, 194 (1984) (officials
sued for constitutional violations do not lose their qualified immunity merely
because their conduct violates a state statutory or administrative provision); Elder
v. Holloway, 510 U.S. 510, 515 (1994). In light of this, I conclude that Patton’s
collateral estoppel argument fails to save her due process claim.
B.

Count II: Equal Protection

In Count II, Patton alleges that the defendants violated her right to equal
protection by treating her differently than similarly situated Caucasian adult day
care providers. She alleges that defendants Cleeton, Niekamp, and Williamson
intentionally furthered defendant Blum’s demonstrated racial animus toward
Patton by arbitrarily and selectively enforcing licensure standards and Medicaid
program participation requirements.

6

Missouri law on collateral estoppel applies. See Simmons v. O’Brien, 77 F.3d 1093, 1096 (8th
Cir. 1996).

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The equal protection clause is applicable to discriminatory governmental
action in the administration and enforcement of the law. Britton v. Rogers, 631
F.2d 572, 577 (8th Cir. 1980). A plaintiff claiming unequal enforcement of a
facially neutral statute is required to show both that the enforcement had a
discriminatory effect, and that enforcement was motivated by a discriminatory
purpose. United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996).7 “To establish
discriminatory effect in a race case, the claimant must show people of another race
violated the law and the law was not enforced against them.” Id.
Patton has presented no evidence that these defendants have enforced
Missouri’s adult day care licensing statutes and regulations in a discriminatory
manner or that their enforcement of the laws has had a discriminatory effect.
Although her complaint alleges the licensure laws are applied differently to
Caucasian providers, Patton has failed to provide any evidence tending to show
this. In fact, defendants have submitted affidavits stating they treated Patton no
differently than any other adult day care provider.

7

There is Eighth Circuit case law addressing claims related to police investigation and arrest,
which indicates that a § 1983 equal protection claim may be sustained where a plaintiff has direct
evidence of racial animus. See, e.g., Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003);
United States v. Frazier, 408 F.3d 1102, 1108 (8th Cir. 2005); Rodgers v. Knight, 781 F.3d 932,
946 (8th Cir. 2015). Assuming direct evidence would be sufficient in a state licensing case,
Patton’s claim still fails. Patton has arguably presented direct evidence of racial animus on the
part of defendant Blum; however, Patton’s equal protection claim is based on events that took
place after Blum’s inspection, and Patton has presented no direct evidence of racial animus on
the part of any of the remaining defendants. She has also submitted no evidence indicating Blum
was involved in any of the events relevant to her equal protection claim.

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In her opposition to summary judgment, Patton argues that she is alleging
her equal protection claim as a “class of one.” See Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). A class of one claimant prevails by showing
“she has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” See Costello v.
Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 921 (8th Cir. 2001) citing Olech, 528
U.S. at 564. “Identifying the disparity in treatment is especially important in classof-one cases.” Barstad v. Murray Cnty., 420 F.3d 880, 884 (8th Cir. 2005). As
discussed above, the only evidence presented by the parties on summary judgment
indicates that defendants treated Patton the same as they would treat any other
adult day care provider. Therefore, I conclude Patton’s equal protection claim fails
as a matter of law, and I will grant defendants’ motion for summary judgment as to
Count II.
C.

Count III: First Amendment

In Count III, Patton claims Cleeton, Niekamp, and Williamson wrongfully
accused, or permitted others to wrongfully accuse, her of receiving Medicaid
overpayments. She asserts these accusations were made for the purposes of
suppressing her “right to speak out” and dissuading state officials from intervening
on her behalf. She also claims that in retaliation for her exercise of her First

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Amendment rights in reporting Blum’s behavior, defendants worked in concert to
shut down POM.
To the extent Patton claims her First Amendment rights were violated
because she was unable to petition the government for redress of her grievances,
see U.S. Const. amend. I, she has failed to oppose defendants’ motion for summary
judgment. Furthermore, Patton’s deposition testimony indicated she was able to
vigorously petition her government, having spoken with multiple state
representatives, the Missouri Governor’s Office, and the Missouri Attorney
General regarding her grievances. Plaintiff asserts that the state officials she met
with did not help her, but as defendants point out, the First Amendment does not
impose an obligation on the government to help. See Smith v. Arkansas State
Highway Emp., Local 1315, 441 U.S. 463, 465 (1979) (the First Amendment
imposes no obligation on the government to listen or respond). In light of this,
Patton’s First Amendment claim related to her alleged inability to petition the
government for redress of grievances will be dismissed.
To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, a
plaintiff must show that “[she] engaged in protected activity, that the defendants'
actions caused an injury to the [plaintiff] that would chill a person of ordinary
firmness from continuing to engage in the activity, and that a causal connection
exists between the retaliatory animus and the injury.” Small v. McCrystal, 708
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F.3d 997, 1008 (8th Cir. 2013); see also Revels v. Vincenz, 382 F.3d 870, 876 (8th
Cir. 2004).
Plaintiff’s opposition to summary judgment argues that she engaged in
protected activity primarily in October 2008 when she called defendant Cleeton on
the day of Blum’s inspection to report Blum’s behavior, called Mary Collier on
October 20 to complain about Blum’s behavior, and sent a letter to Collier on
October 21 to further report Blum’s behavior. She argues that defendants
retaliated against her by: (1) causing DHSS’s counsel to write a “threatening” letter
admonishing her to cooperate with future inspections; (2) failing to act in good
faith or to protect clients, but instead engaging in behavior to undermine Plaintiff’s
business; (3) communicating false information to third parties and not correcting it;
and (4) providing false communications that led directly to DSS’s decision to
terminate Patton’s provider’s agreement and conduct an unplanned audit of her
business, effectively shutting her down.
Two of Patton’s assertions of retaliation fail because there is no evidence the
defendants were personally involved in or directly responsible for the activity
alleged. The threatening letter Patton claims was sent to her was signed by Nina
Hazelton, who is not a defendant to this action. (Pl. Ex. 15). Patton has provided
no evidence indicating defendants had any direct responsibility for the letter.

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Patton has also failed to support her claim that defendants communicated
false information to DSS and failed to correct it. Her only evidence supporting this
allegation is a February 2009 letter to her from DSS in which DSS states that
DHSS notified it that Patton’s medical license was canceled effective December
20, 2008. Although the letter does suggest DHSS communicated information
about Patton to DSS, Patton has provided no evidence that any of the defendants
were directly responsible for the communication.8 Furthermore, Patton’s only
evidence that defendants failed to correct the false information is Niekamp’s
deposition testimony that she does not recall whether she notified anyone at DSS
that their information was false. None of this is sufficient to create an issue of
material fact regarding defendants’ involvement in the provision of false
information to DSS.
Patton also claims defendants provided false communications that led
directly to DSS’s termination of her Medicaid provider agreement and its decision
to conduct an audit of POM. Plaintiff has submitted evidence showing that
Niekamp sent an email to employees of DSS expressing concern that POM had not
employed a nurse for several years. However, the email alone is not an action that
would “chill a person of ordinary firmness from continuing in the activity.” See

8

Patton’s brief does not make clear which part of this letter she is claiming was false, but
presumably it is the information DSS claims it was given by DHSS – namely, that Patton’s
medical model license was “canceled.”

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Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002) (holding that the
public scolding and name-calling of plaintiff and the public posting of a picture of
plaintiff’s home with an unflattering caption, among other things, would be
insufficient to deter a person of ordinary firmness from continuing to speak out).
To the extent Patton is attempting to claim Niekamp has § 1983 liability for DSS’s
termination of Patton’s provider agreement, I have already determined she does not
because she was not directly responsible for or personally involved in that
decision.
Finally, Patton claims that defendants retaliated against her by “failing to act
in good faith or to protect clients, but instead engaging in behavior to undermine
Plaintiff’s business.” In support of this allegation, Patton cites to the entire AHC
decision. This is insufficient. Patton cannot overcome summary judgment and
create a triable issue of fact by making vague, conclusory statements about the
behavior of defendants. See, e.g., Dunavant v. Moore, 907 F.2d 77, 80 (8th Cir.
1990) (conclusory statements that a witness is not credible are insufficient to
preclude summary judgment).
D.

Count IV: Violation of Mo. Rev. Stat. § 536.021

In Count IV, Patton alleges that the defendants improperly barred her from
participating in the Medicaid program while she had a “social model” adult day
care license. She claims Missouri law does not distinguish between “medical
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model” and “social model” licenses, and that a “medical model” license is not a
requirement under state law to participate in the Medicaid program. Patton alleges
that to the extent that the defendants treated it as a requirement, their actions
constituted an unpromulgated rule in violation of Mo. Rev. Stat. § 536.021.
Defendants argue Patton’s claim fails because they are not responsible for
DSS’s decision not to permit Patton to participate in the Medicaid program, and I
agree. Patton has failed to rebut the affidavits submitted by defendants stating they
did not terminate her Medicaid provider agreement. Furthermore, the letter
informing Patton that her Medicaid provider agreement was terminated came from
DSS, not from DHSS or any of the individuals who are defendants. No genuine
dispute of material fact exists as to whether defendants barred Patton from
participating in the Medicaid program or promulgated a rule making a medical
model license a prerequisite for participation in the Medicaid program. I will
therefore grant defendants’ motion for summary judgement on this claim.
E.

Count V: Due Process

In Count V, Patton claims defendants caused her to be listed on the “Family
Care Safety Registry” and/or “state employees disqualification lists” without
providing her with notice and an opportunity to be heard either before or after the
listing.

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The Employee Disqualification List is a statutorily mandated list maintained
by DHSS of individuals who are disqualified to work for or at its regulated
agencies. See Mo. Rev. Stat. § 192.2490. The Family Care Safety Registry is a
division of DHSS that performs background screenings for employment purposes.
See Mo. Rev. Stat. § 210.900, et seq. The background screenings are performed by
retrieving information from a number of sources, including criminal history
information from the Missouri State Highway Patrol, child abuse/neglect
information from DSS and information from the Employee Disqualification List
maintained by DHSS. (Aff. Melanie Madore, ECF Doc. #47-1).
Patton’s opposition to summary judgment makes it clear that this claim is
based on a response she received from the Family Care Safety Registry after
requesting a background screening report on herself. The letter, which was
submitted by Patton as evidence, states that the Family Care Safety Registry’s
background screening performed on January 25, 2011 indicated the following:
“Criminal history information is on file with the Missouri State Highway Patrol.”
In response, defendants have submitted an affidavit from Melanie Madore,
the Chief of the Family Care Safety Registry. According to Madore, the letter
Patton received indicates only that the background screening report showed that a
criminal history was on file for Patton with the Missouri State Highway Patrol.

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The letter does not indicate that Patton’s name had been put on DHSS’s Employee
Disqualification List.
Each of the defendants has submitted sworn affidavits stating that they did
not place Patton on the Employee Disqualification List and that they provided no
information regarding her criminal history to the Missouri State Highway Patrol.
In light of the above, I conclude that no genuine issue of material fact exists as to
whether defendants caused Patton to be listed on the Employee Disqualification
List, and I will grant defendants’ motion for summary judgment as to Count V.
F.

Count VI: Malicious Trespass

In Count VI, Patton claims that the defendants “maliciously or wantonly
damaged or destroyed” her “real property and intangible property rights” in
violation of Mo. Rev. Stat. § 537.330.9
Mo. Rev. Stat. § 537.330 provides:
If any person shall maliciously or wantonly damage or destroy any
personal property, goods, chattels, furniture or livestock, the person so
offending shall pay to the party injured double the value of the things
so damaged or destroyed; and upon an affidavit that said damage or
destruction was wantonly or maliciously done, it shall be a good
ground for an attachment to issue, as in other cases by attachment.
Defendants argue that a license is not considered personal property under Missouri
law. See State v. Seebold, 91 S.W. 491, 493 (Mo. 1905). Patton responded by
arguing that a Missouri appellate court has held that this statute applies to

9

Plaintiff’s claim to the extent it pertains to real property has already been dismissed.

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intangible personal property, see Weicht v. Suburban Newspapers of Greater St.
Louis, Inc., 32 S.W.3d 592, 599-600 (Mo. Ct. App. 2000), and claiming her license
qualifies as intangible personal property because it is an “intangible right subject to
ownership.”
Regardless of whether Patton’s day care license qualifies as intangible
personal property for purposes of this statute, I conclude that there is no evidence
defendants “maliciously or wantonly damaged or destroyed” it. The Missouri
Court of Appeals has defined “maliciously” for purposes of this statute as “the
intentional doing of a wrongful act without just cause or excuse.” Bean v.
Branson, 266 S.W. 743, 744 (Mo. Ct. App. 1924). Black’s Law Dictionary defines
“wanton” as “[u]nreasonably or maliciously risking harm while being utterly
indifferent to the consequences.” WANTON, Black's Law Dictionary (10th ed.
2014).
Patton’s opposition to summary judgment does not provide much
clarification regarding the exact actions she thinks defendants took to damage or
destroy her license. However, as discussed above, the evidence indicates that
Patton’s 2008 license was not terminated; rather, it expired and was renewed on a
provisional basis. Defendants did not expedite or otherwise affect the expiration of
Patton’s 2008 license and therefore cannot be held liable for “destroying” or
“damaging” it. To the extent Patton is alleging her 2009 license was destroyed or
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damaged, the evidence does not indicate defendants were involved in the decision
to revoke it. The letter sent to Patton in July 2009 informing her that her 2009
license was being terminated was signed by Matt Younger, who is not a party to
this case.
Furthermore, Younger’s letter does not indicate that Patton’s license was
being “maliciously or wantonly” destroyed. Rather, it states, reasonably, that
DHSS staff had found POM locked and apparently not in operation. It states
DHSS tried to confirm the status of POM’s operation a month previously but had
received no response, and as a result, DHSS was revoking POM’s license.
Because there is no disputed issue of material fact that POM’s license was
not “maliciously or wantonly” damaged or destroyed, I will grant defendants’
motion for summary judgment as to Count VI.
Accordingly,
IT IS HEREBY ORDERED that, for the reasons discussed above,
defendants’ motions for summary judgment [#38 & #48] are GRANTED.
IT IS FURTHER ORDERED that defendants’ motion for judgment on the
pleadings [#34] is DENIED as moot.

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A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 14th day of May, 2015.

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