Lesa M. Primeaux, Formerly Known as Lesa M. Lamont, Formerly Known as Lisa M. Bad Wound v. United States
102 F.3d 1458
8th Cir.
1996
Check Treatment

*1 alleges disciplinary proceedings Marler that the Board’s treatment of good 1993 with a process him constituted a substantive due faith belief that it had the to do so. Specifically, violation. Marler bases his sub- approach type These actions do not (1) process stantive due claim on the Board’s outrageous official conduct that would shock him, alleged against bias the Board’s issu- one’s conscience. Marler’s substantive due probation in ance of his license process claim fails: settlement, the Board’s initiation reviewing light After evidence disciplinary proceedings against him in Marler, most favorable towards we conclude alleged probation. 1993for his violation of his that the infringe Board did not on Marler’s process prevents “Substantive due procedural process rights. or substantive due government engaging from in conduct Thus, unnecessary it is for us to address the conscience, that shocks the or interferes with defenses, Board’s alternative and we affirm rights implicit concept in the of ordered lib judgment of the district court. Salerno, erty.” United States v. 481 U.S. 739, 746, 107 2095, 2101, S.Ct. 95 L.Ed.2d 697

(1986) (internal quotations and citations omit

ted). theory “The process of substantive due properly truly egregious reserved for the cases, extraordinary proscribes and it government regardless

certain actions procedures implement

fairness used to Zakrzewski, them.” 87 F.3d at 1014. Mar PRIMEAUX, formerly M. Lesa known as ler maintains that the Board’s conduct is the formerly Lamont, Lesa M. known as Lisa egregious government kind of behavior that Wound, Plaintiff-Appellant, M. Bad aspect violates the substantive of the Due disagree. Process Clause.7 We After re record,

viewing the we conclude that America, UNITED STATES of way Board’s conduct in no violated Marler’s Defendant-Appellee. process rights. substantive due No. 96-1470. Regarding Marler’s claim that the Board him, against was biased already we have United Appeals, States Court of conclusion, opposite reached the and Marler’s Eighth Circuit. process substantive due claim cannot succeed Submitted Oct. 1996. on this foundation. Marler’s reference to his probation and to attempt the Board’s to en- Decided Dec. probation force the terms of that again once attempt constitute an to establish a constitu-

tional merely violation based on violation of earlier, explained

state law. As according to Appeals,

the Missouri Court of did Board

in fact subjected violate Missouri law when it probation

Marler’s new license to in 1991 and began

when it disciplinary proceedings to probation Marler,

enforce that in 1993. See However,

898 S.W.2d at 562. a violation of qualify

state law alone does not as a federal Bagley,

constitutional violation. See 5 F.3d Moreover,

at 328. Marler consented to all of probationary terms the 1991 settle- agreement, Board initiated the Therefore, argue right. 7. Marler does inquiry that his interest in his our is limited to wheth- practice optometry license to is a fundamental er the Board's conduct shocks one’s conscience. *2 SD, McGregor, Rapid City, Scott Duncan Pechota, brief), argued (Terry L. on the Plaintiff-Appellant. Ryan, Atty., Rapid City,

Diana Asst. U.S. SD, Defendant-Appellee. WOLLMAN, LAY, BRIGHT,

Before Judges. Circuit status,” continuing to draw his on “travel LAY, Judge. Circuit salary. BIA I. she was fearful Scott testified driving, drinking would arrest her for Primeaux seeks dam- Lesa appeal, In this threat- acknowledged he did not she Act, 28 *3 Federal Tort Claims the ages under her if she had been her ask en arrest (FTCA), 1346(a), seq. et §§ U.S.C. the drinking. a on Scott was officer assault Bureau arising a sexual from in Dakota. South Rosebud reservation (BIA) Kenneth police officer Affairs Indian mishap and the assault car Both Primeaux’s 9, 1991, at November Scott. On Michael tes- reservation. occurred outside the Scott a.m., Primeaux, then 1:00 approximately help merely “stopped to an individ- tified he old, driving on a years South twenty-one was ual”; in ca- in uniform or he “wasn’t trying to highway. she was Dakota While pacity.” was unarmed. Scott around, in a it became stuck turn her car attempt to After an unsuccessful snowbank. found that a sexual The district court vehicle, walking began toward she free her law, South Dakota assault under occurred Martin, Dakota. South town of the nearest the that within but Scott employment a BIA It scope of his as officer. Scott, government vehicle driving a white upon judgment in favor of the top, came therefore issued police light bar on with a government does anyone if Since the stopped to see United States. car and Primeaux’s one, finding cross-appeal on the sexual Finding he drove not no assistance. needed whether, assault, is sole issue before us then Primeaux the Martin. He saw toward law,2 road, actions stopped to ask under Dakota Scott’s along the walking employ accept- the of his BIA a ride. She were within she wanted her whether car. After ment. in front seat the got ed and the distance, pulled off driving very a short Scott II. go ostensibly to to the bath- highway,

the following made the room. urges to review the us subsequent factual'findings to the events: application of South Dakota district court’s vehicle, and Primeaux to exit the Scott asked employment law de novo. South then he He told her to do what said. clear, however, applica that an Dakota law her, jeans, pulled her grabbed unzipped her question a of fact. McKin tion of this test is hair, an act of sexual and committed the Co., ney v. Pioneer Ins. Life attempted oral inter- penetration. He also (S.D.1991). questions This court reviews course with Primeaux.1 standard, clearly of fact a erroneous under questions novo. Brazzell of law de assault, was wear- At time of the Scott the (8th States, 788 F.2d United reasonably could have ing clothing Primeaux Cir.1986) (“Although appro choice of the gov- police uniform. Scott’s for a mistaken priate ... is a matter of district a rule side, markings either no on car had ernment findings application of that rule court’s on the roof, police on the a police light a bar but had not are of fact and will be disturbed findings inside, plates. government license radio . erroneous.”) clearly unless Arizona, traveling back from Scott was training a session had attended where he III. government, as were paid that was court, addition, find- pursuant The to oral he did not district expenses. his travel given at ings of and conclusions of law but was fact use time to attend session leave trial, party disputes action government’s position in an Neither 1. At it was the consensual, FTCA, government brought testified Pri- was while Scott whether act under aggressor The in the encounter. employment meaux was the employee’s act is within credibility determination court made district and found that under governed by state For is a determination Scott States, Works, United rest Mach. Inc. v. That had assaulted Primeaux. (8th Cir.1992). n. 5 F.2d appealed. trial, primarily upon three distinct Dakota relied law to reach its decision. In Red points determining in of law this court affirmed an assessment of test to be used in this case. liability against government damages First, it recited the factors listed Restate- resulting rape from thirteen-year-old of a (Second) Agency 229 and girl by on-duty tribal officer. Id. at Supreme the South Dakota 1103-04, thorough analysis 1108. After a Ranch, Inc., Deuchar v. Foland employment cases, South Dakota “ (S.D.1987).3 this court determined first that ‘[f]oresee- ability’ analysis is central to the

Second, under the it discussed the test rule,” and second that it Leafgreen Family set out v. American (S.D.1986). foreseeable this officer Mut. Ins. 393 N.W.2d 275 would violate governing scope employment provided The rule of trust his *4 put Leafgreen, in and principal forth is that “a assault the victim. is Id. at 1107. by agent harm distinguished liable tortious caused an by Red Elk where a nexus presented here, sufficient make the harm that under the facts agent’s foreseeable exists between em- the Scott not on for ... “was enforcement outside, ployment activity actually purposes,” armed, and the which was not injury.” caused the Id. at jurisdiction, 280. Foreseeabil- picking and up was not Pri- ity governed by following the standard: any meaux of law. violation Trial Tr. at “[Tjhe employee’s conduct not must be so 259. The court thus concluded that Scott startling or unusual that it would be unfair to scope within the of his em injury among include the loss caused the ployment liability purposes. for vicarious Id. employer’s the costs of the business.” Id. at at 259. repeated 280-81. The district court here principles.

both of these Trial Tr. at 254-55. Elk, Deuchar, Leafgreen, Red Third, recognized applying the district court addition to other cases the South Dako States, importance agreement of Red Elk v. United 62 ta all seem to be in that (8th Cir.1995), foreseeability F.3d 1102 linchpin the closest ease is the of the South factually applying to the case at bar Dakota test.4 (h) quoted § instrumentality 3. The Deuchar court from 229 in rele- whether or the not part: vant which the harm is has done been furnished servant; by the master to the employment, To be within the the (i) departure the extent of from the normal general conduct must be of the same nature as accomplishing method of an authorized re- authorized, that or incidental to the conduct sult; and authorized. (j) seriously whether or not the act is crimi- conduct, determining whether or not the nal. authorized, although not is nevertheless so Deuchar, (quoting at 180 n. 2 N.W.2d Re- similar to or incidental to the conduct autho- (Second) 229). statement rized as to be within the following the matters of fact are to be consid- See, (" e.g., Red 62 F.3d at 1107 ‘Foresee- ered: ability’ analysis is central to the under the South (a) commonly whether or not the act is one Leafgreen."); Dakota rule stated in Davis v. Mer- servants; done (b) such Pierce, Smith, Lynch, rill Fenner & F.2d time, act; place purpose the (8th Cir.1990) (quoting 1222 n. 19 (c) previous relations between mas- holding "liability Dakota cases will be im- servant; ter and the posed upon principal when the nexus is suffi- (d) the extent which the business of the resulting cient to make the harm foreseeable” apportioned master is between ser- different applying principle); McKinney and then this vants; Co., (S.D. Pioneer Ins. Life (e) whether or not the act is outside the 1991) (articulating applying the foreseeabil- or, enterprise of the master if within the Bank, test); ity Tri-County Olson v. State enterprise, any not (S.D.1990) (same); Deuchar, has been entrusted to N.W.2d servant; ("[T]his 410 N.W.2d at 181 Court has (f) whether or not the determining master has reason to test for when a done; expect that such an act employ- will be servant's acts are within the ment.”); (g) similarity quality Leafgreen, (adopting of the act done to 393 N.W.2d at 280 authorized; reasoning Appeals the act of a California Court of (Second) 219(2)(d). § Agency IV. Restatement 265(1) gives Section the Restatement respon review of South Dakota Our general apparent authority, rule for which is us that the dis superior law convinces deat principal “[a] master other apply did not the South trict court liability for torts which result from reli- entirety. By failing recognize test in its in, upon, or ance belief statements or other under South principles of agent’s apparent conduct within an authori- applied in cases such as the Dakota law as (Second) ty.” Restatement bar, may court have been misled one at 265(1). consistently South Dakota cases criminal that Scott’s assault was respondeat superior articulate law as includ- being not within the ing principles apparent authority. appears district court The (“Under Leafgreen, gener- at 277 N.W.2d that since Scott was outside of his to hold principal may al rules of be jurisdiction serving in a law enforcement held liable for fraud and deceit committed capacity, government cannot lia be held authority, agent within his even liability principles. ble under vicarious The agent solely acts to benefit him- difficulty with the district court’s we have self.”); McKinney v. Pioneer Ins. determination is that it fails to take into Life (S.D.1991) (“Generally, account the doctrine of principal be liable for the fraud Here, held respondeat superior inherent in *5 agent acting and deceit within the duty driving the officer was on limited authority, police apparent of his actual or equipped ear with a radio and wearing clothing principal even government plates, and was was unaware of or lending appearance agent’s an of a officer in received no benefit from his con duct.”) Sittner, (citing uniform. The victim was concerned she Dahl v. 429 N.W.2d certainly BIA 458, 462 (S.D.1988)); would arrested. The has be Hy see also State v. Vee provided cloak Stores, (S.D. the officer with the of authori Inc., 147, Food 533 N.W.2d 149 ty person that a as 1995) so third such (discussing liability vicarious criminal reasonably could assume the officer was car noting, and princi “Well settled is the basic rying out his official duties. ple liability that criminal for certain offenses preme 393 the Restatement authority doing reads as follows: the torts of his N.W.2d A ‡ of their master is not as it relates to fraud. at 277. The Leafgreen, 261, applied Restatement relating servants which discusses :jt the South Dakota Su analogous to tortious acting Hí unless: to liability outside # Leafgreen, section (Second) wrong [*] Sullivan, win v. National (same). We find the Restatement to be con- erally); Federal Land Bank that the conduct is within the parent”); the unlawful acts of its (S.D.1995) (discussing may N.W.2d employee’s authority be (Second) 70, imputed Siemonsma v. David 73 (S.D.1988) to Agency College, corporate whether actual or ostensible 700, employees, provided (relying 537 N.W.2d 265(1)); defendants for Mfg. agency gen- on Restate- Omaha (S.D.1988) cf. of the 14, Bald- 434 ap- 18 v. (d) where, sistent with South Dakota purported the servant to act or to here, a speak impression, case is one of first principal on behalf of the guided by upon apparent part there was Dakota is reliance au- the Restatement. thority, Leafgreen, Therefore, accomplishing or at he was aided N.W.2d 277.5 the tort the existence of the we read law to hold the em- vicariously relation. ployer only liable not for foresee- prece- which articulated and refined the variance with the related South Dakota test). Where, however, dent.” 906 F.2d at n. 18. here, the Restatement is in accordance with Davis, pointed "Leafgreen 5. As this court out in principles guide we believe its does not mandate that Restatement of the South Dakota courts. rules be where the at Restatement is 1979) wrongs pursuant (finding committed employer liability able tortious for a authority, employee’s actual but also for officer’s sexual abuse of a woman in his those committed when custody, it “where is found that a employee “puts him in a where law enforcement officer ‘ap- has abused the harmful conduct would not be ‘so unusual his parent authority’ given persons such to act in startling that it would be unfair to include interest, public employers their have injury among the loss caused the costs required respond damages”). been It is ” employer’s business.’ Olson v. Tri likely equally this upon trust is relied Bank, 132, County State N.W.2d appear when officers exercising be their (S.D.1990) (quoting Leafgreen, at authority, especially because of the ‘on-call’ 280-81) added). (emphasis Foreseeability nature of their See Osborne v. necessarily only includes instances of use Lyles, 63 Ohio St.3d 587 N.E.2d authority, or abuse of actual but also of use (1992) (reversing summary judgment for the authority. or abuse of Under these city in a ease of force excessive used an governing principles, the district court’s find off-duty police officer at an accident scene in ing that Scott’s assault part because the officer was to “be consid- because he was not within the times, ered on at all purposes is, authority exercising actual law — that discipline”); Daigle Portsmouth, enforcement too duties — was narrow. (hold- 129 N.H. 534 A.2d In Red this court ing noted city off-duty police liable for an offi- uncommon, it while is unfortunate and sexual cer’s employment-related assault because the misconduct an officer is in some circum employees activities of who have “obli- reasonably stances foreseeable.6 62 F.3d at gation, or at option, perform least 1107. It is no less foreseeable that such an official duties whenever the need arise” abuse of could occur while the offi are considered within the of their em- technically duty, cer is not on but rather ployment). *6 possesses sufficient to Here, possible it is that Scott aided person rely cause a to on or fear that author his assault of Primeaux the existence of ity and to sexual succumb advances. Cases (Sec- relation. See Restatement holding employers liable for sexual assaults ond) 219(2)(d). of If Scott accom- by police or excessive use of force officers plished objective by using his status as a reason that such conduct is foreseeable be officer, police and if Primeaux relied on his unique position cause of the of trust held position succumbing advances, to his then Mary such officers. M. v. Los his conduct fall within the doctrine 99, Angeles, 54 Cal.Rptr. Cal.3d (Sec- apparent authority. See Restatement (1991) (holding P.2d police offi ond) 265. The district court cer liable for a sexual assault because he took possibility failed to make a as to this “advantage authority of his and control as a recognize apparent authority part aas officer”); law enforcement County White v. respondeat superior Ac- Orange, 566, 571, Cal.App.3d 212 Cal. cordingly, we remand to court the district Rptr. (Cal.Ct.App.1985) (holding findings reconsideration its factual with that a officer could have acted within application relating of South Dakota law he when apparent authority. stopped a motorist and assaulted her, that “the officer car WOLLMAN, dissenting. Judge, Circuit authority ries the him of law with into the community ... the officer’s method of found Ms-Primeaux [and] dealing authority certainly with this inci submitted to Scott’s demands out of fear and duties”); intimidation, Applewhite City arising apparent po- dental to his v. from Scott’s Rouge, (La.Ct.App. Baton So.2d sition of as a officer and as "[cjases 6. The Red Elk also court noted like errant officers.” 62 F.3d at 1107. That senti- stigmatize respected police this rendering officers who in repeating ment worth here. public surely vital work outnumber the carry power have appeared who one court’s The district find- his commands.

out that Scott

ing that it police officer to as a status use his

would time and did at the the acts that

commit he includes, my view at he did place that finding that Scott’s exercise

least, implicit circumstances of authority in the been within the not have

this case could What more

scope of his have found could and should court

district respect Scott’s

with repre- However not know.

authority, I do actions, I do not believe that

hensible Scott’s clearly findings are erro- court’s

the district judgment.

neous, affirm the I and thus would CORPORATION, Appellee,

EXCEL AND COMMERCIAL

UNITED FOOD UN-

WORKERS INTERNATIONAL 431, Appellant.

ION, LOCAL 95-3424.

No. Appeals,

United States

Eighth Circuit. 15, 1996. March

Submitted 26, 1996. Dec.

Decided