Ward v. Anderson

F I L E D
United States Court of Appeals
Tenth Circuit

July 24, 2007
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

BETH W ARD; BRYAN W ARD; and
TIM BER LIN E R EC REA TIO N AL
CA M P, INC., d/b/a KIDS’
C ON N EC TIO N ,

Plaintiffs-Appellants,
No. 06-8014
v.

LESLIE AN D ER SO N ; SU SA N
M cKELLA R; BEVERLY
CA M PBELL,

Defendants-Appellees.

Appeal from the United States District Court
for the District of W yoming
(D.C. No. 04-CV-248-ABJ)

Timothy C. Kingston of Graves, M iller & Kingston, P.C., Cheyenne, W yoming,
for Plaintiffs-Appellants.

John D. Rossetti, W yoming Senior Assistant Attorney General (Patrick J. Crank,
Attorney General; John W . Renneisen, Deputy Attorney General, with him on the
brief), Cheyenne, W yoming, for Defendants-Appellees.

Before BRISCO E, EBEL and G O RSU CH , Circuit Judges.

EBEL, Circuit Judge.
 Plaintiffs-Appellants Beth and Bryan W ard ow n a child care facility, Kids’

Connection, that was the subject of an investigation by the W yoming Department

of Family Services (“DFS”). DFS notified the W ards that several allegations of

child care licensing rule violations had been substantiated during the

investigation. The W ards disputed these allegations, claiming that the DFS

investigator lied to them during the investigation and misrepresented the results

of her investigation to DFS. After the W ards complained to various DFS

employees up to and including the Director, DFS w ithdrew the allegations

without having initiated any action against Kids’ Connection’s license or taken

any other disciplinary steps.

The W ards sued several DFS employees involved in the investigation,

claiming two violations of the Due Process Clause: first, that the DFS employees

violated their procedural due process rights by refusing to grant them a full

hearing regarding the disputed allegations; and second, that the DFS investigation

was itself improper and inadequate and thus violated their substantive due process

rights. The district court granted summary judgment for the defendants, holding

that the W ards failed to demonstrate a “clearly established” constitutional

violation to overcome the qualified immunity held by defendants as employees of

a state agency.

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 Taking jurisdiction pursuant to 28 U .S.C. § 1291, we agree that the W ards’

due process claims are without merit and therefore A FFIRM the grant of summary

judgment to the DFS employees on grounds of qualified immunity.

I. Background

A. Factual H istory

The W ards are the owners, officers and directors of Kids’ Connection, a

child care center in Laramie, W yoming. In M ay 2002, the W ards terminated a

Kids’ Connection employee for misconduct. The employee threatened to “ruin”

Kids’ Connection by complaining to DFS, a state administrative agency which

licenses and regulates child care facilities. The employee followed through on

this threat, and DFS initiated an investigation into Kids’ Connection in summer

2002. Defendant Leslie Anderson, a licensor at DFS, conducted the investigation;

defendants Susan M cKellar and Beverly Campbell w ere Anderson’s supervisors.

Rodger M cDaniel was Director of DFS. 1

According to the W ards, Anderson’s investigation was improperly

conducted. They claim that Anderson “made deliberate misrepresentations in her

investigative reports regarding what her investigation showed, that she lied in

those reports, and that she made false verbal representations . . . about what she

had found.”

1
Director M cDaniel was named as a defendant in the original lawsuit.
However, prior to the district court’s grant of summary judgment, the W ards
agreed to dismiss their claims against M cDaniel.

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 DFS issued a “Notice of Conclusions” to the W ards in August 2002, which

listed eleven allegations substantiated 2 by Anderson’s investigation, including

allegations that Kids’ Connection staff were not caring for infants properly; that

staff failed to stay in the room with children during nap time; that the W ards

failed to maintain confidentiality when discussing staff members with parents and

other staff members; that the W ards made false statements to the DFS investigator

and instructed staff members to give similarly false and m isleading statements;

that paperwork regarding medication was not properly collected or maintained;

and that the W ards failed to report allegations of suspected child abuse or neglect

to DFS.

The W ards immediately contacted Susan M cK ellar, Anderson’s supervisor,

to dispute these substantiated allegations and to request a hearing. M cKellar

denied their request for a hearing, however, explaining that DFS w as not taking

any action against K ids’ C onnection’s child care license and DFS regulations only

require a hearing when action against a license is involved.

In September 2002, DFS issued a second “N otice of Conclusions”

containing substantiated allegations very similar to the first. After receiving this

2
“Substantiated allegations” are not defined under D FS regulations.
How ever, “substantiated reports” are defined in the regulations as “any report[s]
of child abuse or neglect or child care rules violation made to the Department in
which it is determined, after an investigation, that a preponderance of evidence of
the alleged abuse or neglect or violation exists.” 049-185-002 W yo. Code R. §
1(mm) (2002).

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second notice, the W ards met in person with Anderson and M cKellar to dispute

the allegations and again requested a hearing. M cKellar again denied the request

because no DFS action against Kids’ Connection’s child care license was

pending.

The W ards’ attorney sent a letter to Director of DFS Rodger M cDaniel in

January 2003, again disputing the substantiated allegations and describing “in

great detail the deficiencies, falsehoods, untruths, and all of the problems w ith

[the DFS] investigation of Kids’ Connection” and requesting a hearing. The

W ards claim they received no response to this letter.

Finally, in M ay 2003, the W ards met with Beverly Campbell and Director

M cDaniel to discuss the investigation and the substantiated allegations. The

W ards allege that, at this meeting, Campbell admitted that DFS had had problems

with Anderson and that she no longer w orked for D FS. At the conclusion of this

meeting, the W ards were told that all the allegations previously substantiated

against Kids’ Connection were withdrawn. After the meeting, Director M cDaniel

sent a letter to the W ards indicating that no action against Kids’ Connection’s

child care license would be forthcoming.

B. Procedural H istory

The W ards’ O ctober 2004 complaint asserted three causes of action: first,

that under 42 U.S.C. § 1983, Anderson’s “w holly inadequate and improper”

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investigation violated their Fifth Amendment right to due process 3 ; second, also

under § 1983, that DFS’s failure to provide a hearing violated their Fifth

Amendment right to due process; and third, that Anderson and DFS’s actions

were malicious, reckless, or wantonly disregarded the W ards’ rights and therefore

merited punitive damages. 4

The complaint alleged that Anderson’s investigation was inadequate; that

Anderson misrepresented her findings and made false allegations, “whether

intentionally or negligently,” in the Notices of Conclusions; that M cKellar

participated in the faulty investigation and failed to properly supervise or train

Anderson; and that Campbell failed to adequately train or supervise M cKellar and

Anderson. The complaint also alleged, “on information and belief,” that DFS

employees allowed the substantiated allegations to become public knowledge in

3
Both parties and the district court refer to the Fifth Amendment as the
source of the due process requirements discussed in this case. The Fifth
Amendment, however, is technically not the source of the constitutional
guarantees invoked by the W ards; only the Fourteenth Amendment imposes a due
process requirement on state officials. See U.S. Const. Amend. XIV § 1 (“. . . nor
shall any State deprive any person of life, liberty, or property, without due
process of law . . . .”). This error, however, does not affect our decision. See
16B Am. Jur. 2d Con. Law § 890 (“[T]he Due Process Clause of the Fourteenth
Amendment imposes no more stringent requirements upon state officials than
does the Due Process Clause of the Fifth Amendment upon their federal
counterparts.”).
4
The W ards’ First Amended Complaint named the defendants “in their
Official and Individual Capacities.” In responding to the motion for sum mary
judgment, the W ards agreed to dismiss all claims against the defendants in their
official capacities, leaving only claims against Campbell, M cKellar and Anderson
in their individual capacities.

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violation of DFS policy. As a result, the complaint alleged that the W ards

suffered monetary losses and loss of standing and reputation.

The defendant DFS employees moved for summary judgment, contending

that they were entitled to qualified immunity and that the W ards had failed to

allege any “clearly established” constitutional violation. They argued that the

W ards were not constitutionally entitled to an adequate investigation and,

therefore, that the lack of such an investigation was not a violation of due

process; that the W ards could not establish actual property damages from the

alleged violations, but only damage to their reputation or future employment

prospects; and that W yoming state law did not require a hearing where DFS did

not take any action against the W ards’ child care license.

The district court granted the D FS employees’ motion for sum mary

judgment, holding that they were entitled to qualified immunity and that the

W ards failed to provide evidence of any clearly established constitutional or

statutory violation to overcome this immunity. The court construed the W ards’

first claim as alleging a procedural due process violation based on the allegedly

inadequate DFS investigation, but concluded that no constitutional right to an

adequate investigation exists under the circumstances. The court also held that

the W ards failed to establish that the DFS employees’ actions deprived them of

any property interest protected by due process, stating that “[n]o tangible

consequences detrimental to the W ards in the actual operation of their business

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ever flowed from the Notices of Conclusion . . . .” Finally, the court held that the

W ards received sufficient opportunities to dispute the allegations substantiated by

the DFS investigation and were not entitled to any more formal hearing

procedures, since their license to operate was never in jeopardy. The court

concluded that, since the W ards failed to raise a genuine issue of material fact as

to the existence of any of the constitutional violations they alleged, the DFS

employees as state officials were entitled to qualified immunity; thus, the court

granted the DFS employees’ motion for summary judgment. Appellants filed a

timely notice of appeal.

II. Discussion

On appeal, the W ards advance two arguments that they contend were

erroneously resolved by the district court on summary judgment: first, that the

DFS employees violated their procedural due process rights by failing to provide

them w ith a formal hearing; and second, that the DFS investigation was conducted

so improperly as to “shock the conscience” and violate their substantive due

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process rights. 5 After addressing the proper standard of review, we consider each

argum ent in turn below .

A. Standard of Review

“Because of the underlying purposes of qualified immunity, we review

summary judgment orders deciding qualified immunity questions differently from

other summary judgment decisions.” Cortez v. M cCauley, 478 F.3d 1108, 1114

(10th Cir. 2007) (en banc) (quoting M edina v. Cram, 252 F.3d 1124, 1128 (10th

Cir. 2001)).

W hen a defendant asserts a qualified immunity defense,
the burden shifts to the plaintiff, who must first establish
that the defendant violated a constitutional right. If no
constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity. If, on the other
hand, a violation has been show n, the plaintiff must then
show that the constitutional right was clearly established.

5
We treat the W ards’ argument that the DFS investigation was improper and
abusive as invoking substantive due process guarantees. Neither the parties’
briefs nor the district court’s judgment denominated this argument as such;
however, the “shocks the conscience” test relied upon by the W ards is the test for
a substantive due process violation. See M oore v. Guthrie, 438 F.3d 1036, 1040
(10th Cir. 2006) (“The ‘ultimate’ standard for determining whether there has been
a substantive due process violation is ‘whether the challenged government action
shocks the conscience of federal judges.’”); Ruiz v. M cDonnell, 299 F.3d 1173,
1183 (10th Cir. 2002) (same); see also County of Sacramento v. Lewis, 523 U.S.
833, 847 (1998) (“[T]he substantive component of the Due Process Clause is
violated by executive action only when it ‘can properly be characterized as
arbitrary, or conscience shocking in a constitutional sense.’”). At oral argument,
counsel for the W ards agreed that they intended to bring both procedural and
substantive due process claims. W e therefore construe their argument that
Anderson’s “egregious” behavior shocks the conscience as a substantive due
process challenge.

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 . . . The relevant, dispositive inquiry in determining
w hether a right is clearly established is whether it w ould
be clear to a reasonable officer that his conduct was
unlawful in the situation . . . .

Id. (quotations, citations omitted). “If the plaintiff indeed demonstrates that the

official violated a clearly established constitutional or statutory right, then the

burden shifts back to the defendant” to demonstrate that no material facts remain

in dispute. Olsen v. Layton Hills M all, 312 F.3d 1304, 1312 (10th Cir. 2002).

“On appeal, we review the award of summary judgment based on qualified

immunity de novo, considering all evidence in the light most favorable to the non-

moving party. Summary judgment is appropriate if the record shows there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law .” Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir.

2006) (quotation, citation omitted).

B. T he W ards’ Procedural Due Process Claim

In resolving a procedural due process claim, we generally “engage in a two-

step inquiry: (1) Did the individual possess a protected interest to which due

process protection was applicable? (2) W as the individual afforded an

appropriate level of process?” Kirkland v. St. Vrain Valley Sch. Dist., 464 F.3d

1182, 1189 (10th Cir. 2006) (quoting Brown v. N.M . State Pers. Office, 399 F.3d

1248, 1254 (10th Cir. 2005)). W e find it unnecessary to address the first step of

this inquiry here, however, because regardless of the injury claimed it is clear that

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the W ards received sufficient process during and immediately following the DFS

investigation. 6

For reasons that are opaque to us, both parties focus their procedural due

process arguments on the provisions of the W yoming statutes and the DFS

regulations that provide for hearings. They disagree whether the statutes and

regulations require a hearing when, as in the instant case, the DFS does not plan

to revoke or suspend a child care provider’s license. 7 However, these arguments

6
The property interest invoked by the W ards — injury to existing business
relationships — is generally sufficient to support a claim under procedural due
process, contrary to the conclusion of the district court. See Corbitt v. Andersen,
778 F.2d 1471, 1475 (10th Cir. 1985) (holding that the plaintiff’s burden to show
a procedural due process injury was met with sufficient evidence from which the
jury “could reasonably conclude that [defendant]’s actions weakened and
devalued” his business); cf. Phelps v. W ichita Eagle-Beacon, 886 F.2d 1262, 1268
(10th Cir. 1989) (distinguishing Corbitt as applying only where “the plaintiff has
alleged and presented evidence of present harm to his established business
relationships,” rather than “merely . . . alleg[ing] speculative future harm to
prospective relationships as a result of generalized damage to his reputation”).
However, we agree with the district court’s doubt as to whether the W ards
presented sufficient evidence that the DFS investigation actually caused any
injury to their relationships with day-care clients, especially given that counsel
for the W ards conceded at oral argument that they had no concrete evidence
beyond the W ards’ ow n self-serving affidavits that any of their clients were aw are
of the DFS investigation or its conclusions. In any event, we need not decide this
evidentiary question here as we hold that the W ards received adequate process
even if a legitimate injury to a protected property interest w as shown.
7
In our reading, the statutes and regulations at issue here do not require the
DFS to provide a hearing unless it intends to suspend, revoke or reject renewal of
a child care provider’s license. See W yo. Stat. Ann. § 14-4-108 (“Thirty (30)
days prior to initiating suspension, revocation or nonrenew al of any [child care
facility certification], the certifying authority shall . . . provide the certified
agency an opportunity to request a hearing with the board of review . . . .”); 049-
(continued...)

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are a red herring; the question raised in a procedural due process challenge is

whether the level of process afforded to the W ards passed constitutional muster,

not whether DFS followed statutes or regulations. “[A] failure to comply with

state or local procedural requirements does not necessarily constitute a denial of

due process; the alleged violation must result in a procedure which itself falls

short of standards derived from the Due Process Clause.” Hennigh v. City of

Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998) (quotation omitted); see Hulen v.

Yates, 322 F.3d 1229, 1247 (10th Cir. 2003) (“[O]nce the property right is

established, it is purely a matter of federal constitutional law whether the

procedure afforded was adequate.”); see also Levitt v. Univ. of Tex. at El Paso,

759 F.2d 1224, 1230 (5th Cir. 1985) (“[N]ot every violation by an agency of [its

own] rules rises to the level of a due process claim.” (quotation omitted)).

W hen assessing a procedural due process claim, this court looks to the

three-factor balancing test articulated by the Supreme Court in M athews v.

7
(...continued)
185-005 W yo. Code R. § 2(d)(iii)(A) (2002) (“A hearing may be denied if the
request for a hearing does not meet the definition of a contested case or if no
adverse action has been taken by the Department against a person requesting the
hearing.”); 049-185-002 W yo. Code R. § 1(o) (2002) (“‘Contested case’ means a
proceeding, in which legal rights, duties or privileges of a party are required by
law or regulation to be determined by the Department after an opportunity for
hearing.”). Thus, the regulations do not appear to require a hearing in this case,
since D FS had not moved to suspend, revoke, or reject renewal of the W ards’
license.

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Eldridge, 424 U.S. 319, 334-35 (1976). See Kirkland, 464 F.3d at 1192; Stanko

v. M aher, 419 F.3d 1107, 1115-16 (10th Cir. 2005). The three factors are:

First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the G overnment’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.

Stanko, 419 F.3d at 1115-16. W e have repeatedly emphasized the Supreme

Court’s admonition that the procedural due process analysis is “not a technical

conception with a fixed content unrelated to time, place and circumstances,” but

rather “is flexible and calls for such procedural protections as the particular

situation demands.” Kirkland, 464 F.3d at 1192 (quoting Gilbert v. Homar, 520

U.S. 924, 930 (1997)); United States v. W eed, 389 F.3d 1060, 1067 (10th Cir.

2004); United States v. Jones, 160 F.3d 641, 646 (10th Cir. 1998).

As to the first factor – impairment of the W ards’ private interest – it seems

self-evident that they have a significant interest in the health and success of their

child-care business. However, in this case, they were not deprived of their right

to operate Kids’ Connection; instead, they were only subject to the temporary

anxiety and potential stigma of the substantiated allegations in the Notices of

Conclusions, which were eventually withdrawn by DFS w ithout any action having

been taken against their license. “[I]n determining what process is due, account

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must be taken of the length and finality of the deprivation.” Kirkland, 464 F.3d

at 1192 (quoting Gilbert, 520 U.S. at 932). In Kirkland, we held that a suspended

employee who was provided with prompt post-suspension review had a

diminished interest in the damage to his employment because he had the

opportunity to rectify the damage quickly. Id. at 1192-93 (“[A]lthough Kirkland

has a private interest that will be affected by a suspension, that effect is

attenuated by the relatively prompt post-suspension hearing that is provided.”).

Here, the W ards were similarly affected only for a relatively short period before

the allegations against them w ere withdrawn. Although the W ards were under the

cloud of the substantiated allegations for a longer period than Kirkland —

approximately nine months, from the date of the first Notice of Conclusions

through the W ards’ final meeting with Director M cDaniel where the allegations

w ere officially w ithdraw n — this period was nonetheless temporary and, unlike

Kirkland, their ability to run their business and earn income was never suspended.

Thus, their private interest, though significant, is attenuated.

The second M athews factor — the risk of error in the procedure provided

— is minimized here by the fact that the W ards took advantage of ample

opportunities to alert DFS employees of their concerns before any action was

taken against their license. The W ards freely admit that their complaints about

DFS’s allegedly improper investigation were heard by several DFS employees, up

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to and including the Director of DFS. 8 The availability of such review by

additional employees reduces the likelihood of an erroneous deprivation of a

property interest by the government. Kirkland, 464 F.3d at 1193. The fact that

DFS employees concluded that the allegations should not have been substantiated

and agreed to withdraw them is strong evidence that the system, in this case,

worked as it was supposed to in preventing the erroneous suspension or

revocation of a child care provider’s license. 9

8
There is some indication in the record that the W ards also met with the
Governor of W yoming for approximately one hour on February 20, 2003,
regarding the DFS investigation. However, the record is unclear as to what
transpired at this meeting and what the Governor’s response was, if any.
9
Indeed, a strong argument can be made that the W ards actually received
hearings from DFS at several points. On October 18, 2002, the W ards met with
DFS employees M cKellar and A nderson to dispute the investigation’s findings,
presenting their allegations that the investigation was improper and abusive. O n
January 20, 2003, the W ards’ attorney sent a letter to the Director of DFS w hich
“described in great detail the deficiencies, inaccuracies, and problems w ith
[DFS’s] investigation of Kids’ Connection.” Then, on M ay 5, 2003, the W ards
again met with DFS employees – this time including the Director of DFS, Rodger
M cDaniel – to “discuss all of the problems with the DFS investigation of K ids’
Connection.” This meeting apparently produced the desired result: “At the
conclusion of this meeting, [the W ards] were told that all the allegations that had
previously been substantiated against Kids’ Connection were withdrawn.”
These meetings and letters complied with “[t]he essential requirements of
due process,” which the Supreme Court has described as “notice and an
opportunity to respond. The opportunity to present reasons, either in person or in
writing, why proposed action should not be taken is a fundamental due process
requirement.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985);
see also Jones, 160 F.3d at 645 (“The fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful manner.”
(quotation omitted)). The W ards received notice of the results of the
investigation and responded to the DFS on m ultiple occasions, comm unicating
(continued...)

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 Finally, the third factor – the strength of the government’s interest –

supports the process utilized in this case. The government has a strong interest in

acting quickly and efficiently to investigate w here public health and safety are

concerned, even if doing so creates a greater risk of mistakes. See Camuglia v.

City of Albuquerque, 448 F.3d 1214, 1220 (10th Cir. 2006) (“In matters of public

health and safety, the Supreme Court has long recognized that the government

must act quickly. Quick action may turn out to be wrongful action, but due

process requires only a postdeprivation opportunity to establish the error.”). In

particular, we have recognized that the government has a “compelling interest” in

the “safety and welfare of its children.” J.B. v. W ashington County, 127 F.3d

919, 925 (10th Cir. 1997) (“[C]onsiderable deference should be given to the

judgment of responsible government officials in acting to protect children from

perceived imminent danger or abuse.”). DFS in this case investigated Kids’

Connection for the purpose of protecting children. See 049-185-001 W yo. Code

R. § 2 (2002) (describing the purpose of DFS regulations as being “for the

protection of children in child care facilities”). Requiring DFS to conduct a full-

scale formal hearing prior even to notifying a provider that allegations from a

complaint have been substantiated would clearly interfere with DFS’s ability to

9
(...continued)
their dissatisfaction and achieving a resolution which prevented any action being
taken against their license, a procedure which satisfies the requirements of due
process.

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act quickly to protect the public from facilities that endanger the health or welfare

of children.

In sum, the M athews factors counsel against finding a procedural due

process violation based on the DFS employees’ refusal to provide a formal

hearing, especially given that the W ards did, in fact, take advantage of ample

opportunities to contest the allegations against them. Having failed to establish a

constitutional violation, the W ards’ procedural due process claim founders on the

first step of the qualified immunity analysis. As a result, we affirm the district

court’s grant of summary judgment to the DFS employees on procedural due

process grounds and proceed to consider the W ards’ remaining claim of a

substantive due process violation.

C. The W ards’ Substantive Due Process Claim

The “ultimate standard” for assessing an alleged violation of substantive

due process is “whether the challenged government action shocks the conscience

of federal judges.” 10 M oore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)

(quotation omitted); see also Camuglia, 448 F.3d at 1222; Clark v. City of D raper,

168 F.3d 1185, 1190 (10th Cir. 1999); Uhlrig v. Harder, 64 F.3d 567, 573 (10th

Cir. 1995). This standard is not an easy one for a plaintiff to satisfy:

10
Once again, we need not address whether the W ards have alleged the type
of interest that triggers a substantive due process claim because, regardless of the
interest at issue, we hold that the DFS investigation does not “shock the
conscience” and therefore cannot support a substantive due process violation.

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 It is well settled that negligence is not sufficient to shock
the conscience. In addition, a plaintiff must do more than
show that the government actor intentionally or recklessly
caused injury to the plaintiff by abusing or misusing
government power. The plaintiff must demonstrate a
degree of outrageousness and a magnitude of potential or
actual harm that is truly conscience shocking. This is a
high level of outrageousness.

Camuglia, 448 F.3d at 1222-23 (quotations, citations, alterations omitted).

The W ards here allege the follow ing as demonstrating the D FS employees’

“improper, reckless, and intentional bad acts”:

A. Defendant Anderson never interview ed Plaintiffs Beth
and Bryan W ard about the allegations that she was
assigned to investigate by Defendant DFS.
B. Defendant Anderson interviewed employees of K ids’
Connection, but later misrepresented what those employees
stated to her in the course of her “investigation” and
interviews.
C. Defendant Anderson made false allegations, whether
intentionally or negligently, in the Notices of Conclusion
....
D. Anderson falsely stated to the Plaintiffs, whether
intentionally or negligently, numerous significant and
material facts about her “investigation”; and what she
ostensibly learned in her “investigation” about Kids’
Connection, Plaintiffs Beth and Bryan W ard, and the
employees of Kids’ Connection.

In addition, the W ards allege that Defendants M cKellar and Campbell “directly

participated” in the investigation, but failed to supervise and train Anderson or to

correct the improper investigation. Thus, the W ards’ substantive due process

claim rests on allegations that Anderson failed to interview them and

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misrepresented w hat she learned from the investigation, and that her supervisors

failed to correct these problems.

It is well established that substantive due process protections extend only to

“deliberately wrongful government decisions rather than merely negligent

government conduct.” Uhlrig, 64 F.3d at 573; see M oore, 438 F.3d at 1040

(“[N]egligence is not sufficient to shock the conscience.”). The W ards, however,

make clear in their opening brief that they are uncertain as to whether the

improper conduct they attribute to the DFS employees w as intentional or merely

negligent. This ambivalence as to the DFS employees’ m otivations is reflected in

the evidence, which contains no proof, or even grounds for a reasonable

inference, that Anderson, M cKellar or Campbell intended to cause the W ards

harm or to place them unreasonably at risk of harm. See Uhlrig, 64 F.3d at 573

(holding that a § 1983 violation based on substantive due process “must be

predicated on a state action manifesting one of two traditional forms of wrongful

intent — that is, either (1) an intent to harm; or (2) an intent to place a person

unreasonably at risk of harm”).

Instead, viewed in a light most favorable to the W ards, the evidence

establishes only that Anderson investigated Kids’ Connection as a result of a

complaint to DFS from a disgruntled former employee; that Anderson made

statements to the W ards and reported violations of child care regulations to DFS,

some of which may have been inaccurate; that these substantiated allegations

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were described in Notices of Conclusions, which were sent to the W ards and may

have been available to interested members of the public; and that DFS, after

repeated protests and receipt of evidence and argument from the W ards, dropped

the investigation and withdrew the allegations against them.

These facts simply do not allege conduct that shocks the conscience. W e

recently had occasion to consider similar allegations by a restaurant ow ner against

a state health inspector, alleging that the inspector’s decision to temporarily close

the restaurant due to reported health code violations was “intentional, wilful and

wanton and meant to deprive [the owner] of property rights.” Camuglia, 448 F.3d

at 1217. W e held that these allegations were insufficient to allow a substantive

due process claim to survive summary judgment without actual evidence of

malicious intent or extreme arbitrariness that is “truly conscience shocking,”

noting that “the Due Process Clause ‘is not a guarantee against incorrect or ill-

advised [government] decisions.’” Id. at 1222-23 (quoting Uhlrig, 64 F.3d at 573,

574).

W e find no principled basis for distinguishing the evidence in this case

from that which we rejected in Camuglia. The W ards allege that DFS conducted

an improper and inadequate investigation, but provide no evidence that this

conduct was so intentional or reckless as to “demonstrate a degree of

outrageousness and a magnitude of potential or actual harm that is truly

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conscience shocking.” 11 Id. Thus, we hold that the W ards have not carried their

burden to allege a constitutional violation of substantive due process, causing

their second claim to fail at the first step of the qualified immunity analysis. W e

therefore affirm the district court’s grant of summary judgment to the DFS

employees as to this claim as w ell.

III. Conclusion

For the foregoing reasons, we hold that the W ards failed to demonstrate a

violation of either procedural or substantive due process and that the DFS

employees are entitled to qualified immunity. W e therefore AFFIRM the district

court’s grant of summary judgment in favor of the DFS employees.

11
W e noted in Camuglia that public disclosure of damaging information
from an investigation does not provide evidence of conscience-shocking conduct
where such disclosure is required by a local ordinance and is therefore “a routine
part” of the investigator’s job. 448 F.3d at 1223. The same observation applies
here, since the public availability of information regarding a DFS complaint
investigation is mandated by regulation. 049-185-006 W yo. Code R. § 10(c)
(2002) (“Any person who files a request . . . may review complaint investigations
dealing with non-child protection issues completed by the Department of Family
Services.”).

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