Marler v. Missouri State Board of Optometry

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No. 96-1336
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Robert E. Marler, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Missouri State Board of *
Optometry; Michael Pier; *
Lynette Lui; William F. Kiefer; *
Jerry W. Long; Melanie *
Crandall; James E. Bureman; *
V. E. Falkenhain, also known as *
Bud Falkenhain; Karen Rose; *
Sharlene Rimiller; Mary Jean *
Wilhite; Lloyd Dixon; Vickie *
Young; Gerald Birkmann, *
*
Defendants - Appellees. *

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Submitted: September 9, 1996

Filed: December 19, 1996
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Before WOLLMAN, HENLEY, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.

Robert E. Marler appeals the district court's1 grant of
summary judgment in favor of the defendants in this 42 U.S.C.
§ 1983 action. Marler filed this lawsuit against the Missouri
State Board of Optometry and several of its members in both their

1
The Honorable William A. Knox, United States Magistrate
Judge for the Western District of Missouri, to whom the case was
referred for final disposition by consent of the parties pursuant
to 28 U.S.C. § 636(c).
individual and official capacities,2 alleging that they violated
his procedural and substantive due process rights guaranteed under
the Fourteenth Amendment. The district court determined that the
Board's conduct did not violate Marler's constitutional rights. We
affirm.

I.

Marler's claims arise out of a series of disciplinary actions
taken by the Board against his license to practice optometry in the
state of Missouri. At some point prior to June 4, 1987, the Board
filed a complaint with the Missouri Administrative Hearing
Commission (AHC), alleging that Marler had engaged in conduct that
warranted disciplinary action against him. The Board filed this
complaint with the AHC in compliance with section 336.110 of the
Missouri Revised Statutes, a provision governing the operation of
the State Board of Optometry. On June 4, 1987, after a full trial-
type hearing, the AHC determined that Marler was subject to
discipline on several of the counts in the Board's complaint.3 On
August 6, 1987, pursuant to the AHC finding, the Board revoked
Marler's license to practice optometry. Both the Board and Marler
appealed the June 4 AHC determination to the Missouri Circuit Court
of Cole County, as provided for under Missouri law. See Mo. Rev.
Stat. § 621.145 (1988).

2
We refer to the defendants collectively as "the Board."
3
Specifically, the AHC found that Marler could be
disciplined for misleading advertising, gross negligence,
violating professional trust, and misrepresenting the
availability of financing. The AHC did not find cause for
discipline on the remaining counts in the Board's complaint.

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 While these appeals were pending, in January of 1990, Marler
asked the Board to reinstate his license to practice optometry.4
The Board denied Marler's request, and on June 18, 1991, Marler
appealed the Board's denial to the AHC, alleging that the Board
wrongfully refused to reinstate his license. Approximately one
month later, on July 31, 1991, Marler voluntarily entered into a
settlement agreement with the Board in which he agreed to dismiss
both his recent appeal to the AHC and his earlier appeal to the
Missouri Circuit Court of Cole County. In exchange, the Board
agreed to dismiss its earlier appeal to the Missouri Circuit Court
and to issue Marler a new license subject to several probationary
conditions. On August 1, 1991, the AHC adopted the terms of the
settlement agreement as its findings of fact and conclusions of
law.

Almost two years later, on May 19, 1993, the Board served
Marler with both a complaint alleging he had violated the terms of
his probation and a notice informing him of his opportunity to
challenge the validity of the charges at an upcoming hearing before
the Board. The Board did not file the complaint with the AHC,
because one provision of the 1991 settlement agreement empowered
the Board to pursue additional disciplinary action against Marler's
license solely upon its own determination that Marler had violated
his probation.

Marler sought a preliminary writ of prohibition from the
Circuit Court of Cole County preventing the Board from holding such
a hearing on the question of his alleged violation of his
probation. The court initially granted the writ finding that the

4
The Missouri Court of Appeals later determined that Marler
was actually applying for a new license at this time, not a
reinstatement, because his previous license had been effectively
terminated when the Board revoked it on August 6, 1987. State ex
rel. Marler v. State Bd. of Optometry, 898 S.W.2d 559, 563 (Mo.
Ct. App. 1994).

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Board must obtain a determination from the AHC that Marler is
subject to discipline before initiating disciplinary proceedings
against him. On March 30, 1994, however, the Circuit Court quashed
its preliminary writ. Marler appealed this decision to the
Missouri Court of Appeals.

During the pendency of the appeal, the Missouri Court of
Appeals did not prevent the Board from holding a hearing regarding
Marler's probation. Consequently, on October 6, 1994, the Board
held a hearing to determine whether Marler had in fact violated the
terms of his probation. Marler was present and was represented by
counsel. The Board held its determination in abeyance, however,
pending the decision of the Missouri Court of Appeals.

On November 29, 1994, the Missouri Court of Appeals decided
that under section 336.110 of the Missouri Revised Statutes, the
Board did not have authority to subject Marler's new license to the
probationary terms of the 1991 settlement agreement without first
having the AHC's independent determination that cause existed to
discipline his license. Marler, 898 S.W.2d at 562. Because the
Board lacked the authority to place Marler's license on probation
in the first place, the court then determined that the Board also
lacked the power to begin the disciplinary proceedings that were
based on Marler's alleged violations of that probation. Id.

In July of 1995, Marler filed this section 1983 claim alleging
that the Board's actions violated his procedural and substantive
due process rights guaranteed under the Fourteenth Amendment.
After reviewing the evidence in a light most favorable to Marler,
the district court determined that Marler received adequate notice
and had a meaningful opportunity to be heard both prior to and
after the deprivation of his property interest in his optometry
license. Consequently, the court found that the Board had not

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committed a constitutional violation and thus granted summary
judgment in its favor. Marler appeals.

II.

In a section 1983 action, a plaintiff must prove that persons
acting under color of state law deprived him "of any rights,
privileges, or immunities secured by the Constitution and laws" of
the United States. 42 U.S.C. § 1983 (1994). In part, the
Fourteenth Amendment prohibits states from depriving "any person of
life, liberty, or property, without due process of law." U.S.
Const. amend. XIV, § 1. Marler claims the district court erred in
concluding that he is not entitled to relief under section 1983
based on his allegations that the Board violated his Fourteenth
Amendment procedural and substantive due process rights.

We review the district court's grant of summary judgment de
novo. See Zakrzewski v. Fox, 87 F.3d 1011, 1012 (8th Cir. 1996).
Summary judgment is appropriate if the record, when viewed in the
light most favorable to the nonmoving party, reveals that there is
no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A.

To establish a procedural due process violation, a plaintiff
must first demonstrate that he has a protected liberty or property
interest at stake. Batra v. Board of Regents of Univ. of Neb., 79
F.3d 717, 720 (8th Cir. 1996). Secondly, a plaintiff must prove
that he was deprived of such an interest without due process of
law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Under Missouri
law, Marler had a property interest in his optometry license. See
Larocca v. State Bd. of Registration for Healing Arts, 897 S.W.2d

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37, 42 (Mo. Ct. App. 1995). While we recognize that he was, at
times, deprived of this interest, we do not believe he was deprived
of it without due process of law.

Due process requires adequate notice and an opportunity to be
heard "at a meaningful time and in a meaningful manner." Post v.
Harper, 980 F.2d 491, 493 (8th Cir. 1992) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). We agree with the district
court's conclusion that Marler received meaningful opportunities to
be heard both prior to and after the deprivation of his property
interest.5

Our previous recitation of the facts reveals the myriad
procedural protections afforded to Marler regarding his optometry
license. Missouri law provides for extensive administrative
hearings before, as well as judicial review of, the Board's
disciplinary determinations. See, e.g., Mo. Rev. Stat. § 336.110
(1989); id. § 536.100 (1988); id. § 621.145 (1988). The timing and
substance of these measures provided Marler with adequate
opportunities to be heard throughout his course of dealings with
the Board. Prior to the Board's initial revocation of Marler's

5
Because we believe that Marler received adequate pre-
deprivation opportunities to be heard, Marler's contentions in
his brief that the Parratt-Hudson doctrine does not apply are
immaterial. While the Due Process Clause typically requires
"that an individual be given an opportunity for a hearing before
he is deprived of any significant property interest," Boddie v.
Connecticut, 401 U.S. 371, 379 (1971), the Parratt-Hudson
doctrine generally excuses a state actor's failure to provide a
person with a pre-deprivation hearing where a state actor's
random and unauthorized conduct caused a deprivation of a
property or liberty interest, as long as the state provides
adequate post-deprivation remedies. Hudson v. Palmer, 468 U.S.
517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541-43 (1981).
Here, the Board did not fail to provide Marler with pre-
deprivation hearings so there is no need to rely on the Parratt-
Hudson doctrine in order to find that the plaintiff received due
process of law.

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license on August 6, 1987, Marler received a full trial-type
hearing in front of the AHC. After the Board revoked his license,
Marler appealed the decision to the Missouri Circuit Court, as
provided for under Missouri Law. See id. § 621.145.

With respect to the 1991 settlement agreement under which
Marler received an optometrist's license subject to probation,
Marler had notice of the probationary terms before they were
imposed, and he consented to those conditions. If he objected to
the probation, he could have rejected the settlement offer and
continued to pursue both his complaint with the AHC as well as his
appeal in the Missouri Circuit Court. These avenues afforded
Marler adequate procedural protection. The fact that Marler did
not actually utilize these procedures does not mean that he was
denied due process, because the Due Process Clause requires merely
a meaningful opportunity to be heard. See Boddie, 401 U.S. at
378.

Regarding the Board's initiation of disciplinary proceedings
against Marler in 1993 for allegedly violating his probation, once
again, Marler received notice of the charges and had an opportunity
to challenge them at the hearing on October 6, 1994. Moreover, the
Board did not actually deprive Marler of any property right in this
instance, because it never imposed any further discipline on Marler
due to the intervening decision of the Missouri Court of Appeals in
State ex. rel. Marler v. State Bd. of Optometry, 898 S.W.2d 559
(Mo. Ct. App. 1994).

Admittedly, the Missouri Court of Appeals determined that the
Board violated Missouri law by failing to get the AHC's approval
both before placing probationary conditions on Marler's new license
under the terms of the 1991 settlement agreement and before
instituting disciplinary action against Marler for his alleged
violations of his probation in 1993. Id. at 562. We have stated

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many times, however, that "a violation of state law, without more,
does not state a claim under the federal Constitution or 42 U.S.C.
§ 1983." Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir. 1993).
Although the Board failed to comply with some of the technical
requirements of Missouri administrative law, we find that its
conduct in this case does not amount to a federal procedural due
process violation. As detailed above, the State provided Marler
with numerous pre- and post-deprivation protections. Consequently,
Marler's procedural due process claim cannot succeed on this
ground. See Zinermon, 494 U.S. at 126; Zar v. South Dakota Bd. of
Exam'rs of Psychologists, 976 F.2d 459, 465 (8th Cir. 1992).

Marler also claims that he was denied due process on the basis
that certain members of the Board were biased against him. Marler
first contends that one of the Board members was biased because he
was in direct economic competition with Marler. While the Due
Process Clause requires a tribunal to be fair and impartial,
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980), the Supreme
Court has stated that an adjudicator's slight pecuniary interest in
the outcome of the proceedings does not in itself violate due
process. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825-26
(1986). We find that the economic interest of the Board member who
was an independent optometrist in the same town as Marler to be
minimal. The facts of this case reveal that Marler was an
optometrist at the Wal-Mart Vision Center. We believe that the
Wal-Mart Vision Center would continue to employ an optometrist and
remain in competition with the Board member, regardless of the
status of Marler's license. Under these circumstances, we believe
that the Board member had at most a slight pecuniary interest in
the outcome of the proceedings. This interest did not jeopardize
Marler's right to an impartial tribunal.

Marler also submits unsupported, blanket allegations that
three other Board members acted out of personal spite and

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animosity. We begin with a presumption that decision-makers are
honest and impartial. See Withrow v. Larkin, 421 U.S. 35, 47
(1975). Marler offers no evidence of vindictive behavior beyond
his mere statements of belief that the Board members acted in this
manner. His statements not only fail to overcome the presumption
of the tribunal's integrity, but also fail to meet the standards of
Rule 56(e).6 Consequently, Marler's beliefs have no effect and do
not create a genuine issue of material fact that would preclude
summary judgment. See Gibb v. World Book, Inc., 29 F.3d 411, 415
(8th Cir. 1994). Without any evidence to the contrary, we find
that Marler's right to a fair adjudicator was unimpaired.

B.

In addition to claiming that he did not receive adequate
procedural protections, Marler alleges that the Board's treatment
of him constituted a substantive due process violation.
Specifically, Marler bases his substantive due process claim on (1)
the Board's alleged bias against him, (2) the Board's issuance of
his license subject to probation in the 1991 settlement, and (3)
the Board's initiation of disciplinary proceedings against him in
1993 for his alleged violation of his probation.

"Substantive due process prevents the government from engaging
in conduct that shocks the conscience, or interferes with rights
implicit in the concept of ordered liberty." United States v.
Salerno, 481 U.S. 739, 746 (1986) (internal quotations and
citations omitted). "The theory of substantive due process is
properly reserved for the truly egregious and extraordinary cases,

6
"Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein."
Fed. R. Civ. P. 56(e).

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and it proscribes certain government actions regardless of the
fairness of the procedures used to implement them." Zakrzewski, 87
F.3d at 1014. Marler maintains that the Board's conduct is the
kind of egregious government behavior that violates the substantive
aspect of the Due Process Clause.7 We disagree. After reviewing
the record, we conclude that the Board's conduct in no way violated
Marler's substantive due process rights.

Regarding Marler's claim that the Board was biased against
him, we have already reached the opposite conclusion, and Marler's
substantive due process claim cannot succeed on this foundation.
Marler's reference to his probation and to the Board's attempt to
enforce the terms of that probation once again constitute an
attempt to establish a constitutional violation based merely on a
violation of state law. As explained earlier, according to the
Missouri Court of Appeals, the Board did in fact violate Missouri
law when it subjected Marler's new license to probation in 1991 and
when it began disciplinary proceedings to enforce that probation in
1993. See Marler, 898 S.W.2d at 562. However, a violation of
state law alone does not qualify as a federal constitutional
violation. See Bagley, 5 F.3d at 328. Moreover, Marler consented
to all of the probationary terms in the 1991 settlement agreement,
and the Board initiated the disciplinary proceedings in 1993 with
a good faith belief that it had the authority to do so. These
actions do not approach the type of outrageous official conduct
that would shock one's conscience. Marler's substantive due
process claim fails.

After reviewing the evidence in a light most favorable towards
Marler, we conclude that the Board did not infringe on Marler's

7
Marler does not argue that his interest in his license to
practice optometry is a fundamental right. Therefore, our
inquiry is limited to whether the Board's conduct shocks one's
conscience.

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procedural or substantive due process rights. Thus, it is
unnecessary for us to address the Board's alternative defenses, and
we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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