## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-3411

___________ Lisa Schmidt, *
* Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Des Moines Public Schools; Helen * Oliver, in his/her official and individual * capacity; James Mollison, in his/her * official and individual capacity; * Alexander Henna, in his/her official * and individual capacity; Diane Keum, in * his/her official and individual capacity; * Jane Dare, in his/her official and * individual capacity; City of Des Moines; * Officer M. Dahlen, Badge Number 4901,* in his/her official and individual * capacity; Officer M. Strausser, Badge * Number 4904, in his/her official and * individual capacity, *
* Appellees. *

___________ Submitted: May 10, 2011 Filed: September 14, 2011

___________ Before MURPHY, BEAM, and COLLOTON, Circuit Judges.

___________COLLOTON, Circuit Judge.

This case arises out of a contentious and long-running dispute between Lisa Schmidt and her ex-husband over the education and custody of their three minor children. Schmidt brought this action agains t two separate groups of defendants. The first is the City of Des Moines and police officers Michelle Strawser 1 and Matthieu Dahlen (the “City Defendants”); Schmidt alleges that they unlawfully impeded her access to the children. The second is the Des Moines Public Schools and five of its employees (the “School District Defendant s”); Schmidt asserts that they unlawfully denied her access to the children and their educational records. Schmidt argued that the defendants’ conduct violated her right s under the federal a nd Iowa constitutions. The district court 2dismissed Schmidt’s claims against the City Defendants for failure to state a claim and granted summary judgm ent for the School District Defendants. We affirm.

I.

Schmidt’s ex-husband, Michael Schmid t, filed for divorce in September 2005, and Schmidt moved from Iowa to the East Coast shortly ther eafter. At the time, the Schmidts had three minor children who we re enrolled in schools within the Des Moines Independent Community School Distri ct. In August 2006, an Iowa state court issued an order awarding the Schmidts join t legal custody of the children and granting Michael Schmidt primary physical custody and care of the children. The order also set forth a schedule granting Lisa Schmidt visitation periods with the children during certain holidays and school breaks. It provided for additiona l visitation only “as

1 Although the complaint identifies this of ficer’s last name as “Strausser,” we adopt the spelling used by the City Defendants and the district court.

2 The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.
-2-mutually agreed to by and between the partie s so as not to interfere with the health, education and welfare of the parties’ minor children.” A final divorce decree in February 2007 did not materially alte r the terms of the August 2006 order.

During a visit to Iowa on November 20, 2006, Schmidt obtained a state court order allowing her to exercise “special vi sitation” with the children. The order provided for three hours of visitation on each of the evenings of November 20 and November 21, and for four hours on the even ing of November 22. Schmidt exercised visitation with one of the children on Nove mber 20. When she arrived at her exhusband’s house on November 21, however, sh e encountered Officers Strawser and Dahlen of the Des Moines Police Depart ment. The officers prevented her from approaching the residence.

Schmidt alleged that these officers told Schmidt that they would not allow her to exercise her visitation because the children did not want to attend. Schmidt was therefore unable to enter her ex-husband’s property or speak with the children on the evening of November 21. Sc hmidt does not allege that sh e was unable to exercise the scheduled visitation with the children on the following day, November 22. All of Schmidt’s claims against the City Defendants arise out of the incident on November 21.

Schmidt’s claims against the School District Defendants arise out of a series of disputes between Schmidt and the childre n’s schools from late 2006 to approximately 2008. On several occasions, Schmidt unsucce ssfully attempted to visit the children at their schools during the school day. In so me cases, school officials told the children that Schmidt was at the school and wanted to visit with them. The children told the officials that they did not want to see Schmidt, and Schmidt was not granted access to the children. On one occasion, Schmid t attempted to visit one of the children during a school performance, and a school offi cial told her that the child was not at

-3-school. Schmidt believed, however, that an administrator escorted the children out the back door after Schmidt arrived so that she could not see them.

Schmidt testified that a swim coach re sponded to Schmidt’s inquiries about the children’s swimming activities by telling her to talk to her ex-husband or one of the children. According to Schmidt, when sh e asked an attendance clerk why one of the children had been absent from school, the clerk refused to give he r all the information she had requested. Schmidt also recalled that school officials refused to send her schoolwork and certain school projects comp leted by one of the children, and did not allow her to speak to one of the children on the telephone on his bi rthday. Schmidt’s ex-husband sent several letters and e-mails to school officials during this period. The correspondence informed them about the term s of the court orders and asked them not to permit Schmidt to visit the children during school hours or to withdraw them from school.

The School District’s written policy on th e rights of noncustodial parents states that, as a general matter, noncustodial parents may receive reports and other correspondence from the school upon written re quest, and “[p]arents . . . may be provided access to their students during sc hool hours or school-related activities only so long as this access does not cause or thre aten to cause material and substantial disruption to school or school-related activitie s.” The policy also provides that “[t]he district will obey all court orders relating to custody issues and parental rights,” and that therefore “the rights afforded pare nts under this policy may be limited in any individual situation.” The School Distri ct’s general counsel, Elizabeth Nigut, reviewed the relevant court orders to de velop a policy for school officials on how to deal with Schmidt’s visits. Nigut inform ed school officials that the divorce decree established that Schmidt could not “just appear at school and demand to see the children unless there has been prior appr oval by” Schmidt’s ex-husband. She also noted that Schmidt “is prone to become de monstrative in a negative way if she cannot see the kids,” and that the officials coul d advise Schmidt that the police would be

-4-contacted if she did not leave school pr emises and continued to conduct herself inappropriately.

Schmidt filed this action in November 2008. She alleged, pursuant to 42 U.S.C. § 1983, that each of the defendants violated her substantive due process and procedural due process rights under the Due Process Clause of the Fourteenth Amendment, and that each of the defendants violated her rights under the Equal Protection Clause of the Fourteenth Ame ndment by treating her differently than a married parent. She also alleged that eachof the defendants violated her rights to substantive due process, procedural due process, and equal pr otection under the Iowa Constitution. Schmidt sought compensatory and punitive damages and attorneys’ fees and costs.

The district court dismissed the claims against the City Defendants for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), conc luding that Schmidt’s allegations “do not rise to [the] level of a substan tive due process violation,” and that the remedies available to Schmidt under state law were sufficient to ensure that she was afforded procedural due process. The district court also determined that Schmidt failed to state an equal protection claim ag ainst the City Defendants, because she was not similarly situated to a typical marriedparent. The court later granted summary judgment for the School District Defendants. The court ruled that Schmidt failed to demonstrate that she was deprived of a c onstitutionally protected liberty interest, that the defendants’ conduct shocked the cons cience, or that sh e had been treated differently than a similarly situated marriedparent. The court also denied Schmidt’s motion for partial summary judgment agai nst the Des Moines Public Schools. Schmidt filed a timely notice of appeal.

-5-II. 3

We first consider Schmidt’s substan tive and procedural due process claims against the City Defendants; Schmidt does not challenge the district court’s dismissal of her equal protection claims. We review de novo a district court’s decision to grant a motion to dismiss, accepting as true th e facts alleged in the complaint. Carton v. Gen. Motor Acceptance Corp. , 611 F.3d 451, 454 (8th Cir. 2010). To survive a motion to dismiss, a complaint must allege sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reas onable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009).

A.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State . . . shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 4This provision contains a “substantive component” that “protects individual liberty against certain government actions regardless of the fairness of the pro cedures used to implement them.” Collins v. City of Harker Heights , 503 U.S. 115, 125 (1992) (internal quotation omitted). To establish a violation, a plaintiff “must demonstrate both that the official’s conduct was

3 With respect to Part II, Judge Beam concurs only in the result.

4 The Supreme Court of Iowa has “consider ed the federal and state due process clauses to be identical in scope, import, and purpose,” and has construed the two provisions as coextensive when the proponentof a due process claim “has not given us reason to interpret the federal and Io wa due process clau ses differently.” State v. Bower , 725 N.W.2d 435, 441 (Iowa 2006). Sc hmidt has given us no reason to construe the Iowa and federa l constitutions differently, so we analyze her state and federal due process claims under federal due process law.
-6-conscience-shocking, and that the official violated one or more fundamental rights that are deeply rooted in this Nation’s hist ory and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Norris v. Engles , 494 F.3d 634, 638 (8th Cir. 2007) (internal quotation omitted).

Parents have a fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer , 455 U.S. 745, 753 (1982); see also Troxel v. Granville , 530 U.S. 57, 65-66 (2000) (plurality opinion). But this right “is not absolute,” Manzano v. S.D. Dep’t of Soc. Servs. , 60 F.3d 505, 510 (8th Cir. 1995), as illustrated by our decision in Zakrzewski v. Fox , 87 F.3d 1011, 1014 (8th Cir. 1996).

Zakrzewskiinvolved a § 1983 action brought by a noncustodial parent, Zakrzewski, against several law enforcem ent officials who ordered Zakrzewski to return his child to his ex-wife following a dispute over whether Zakrzewski could exercise his monthly six-day visitati on period during a particular week. Id. at 1012- 13. He argued that the officers infringe d his substantive due process right to participate in the care, custody, and management of the child. Id. at 1013. This court concluded that no substantive due proce ss violation occurred, because “[e]ven assuming the officials deviated from properprocedure, the one-time interruption of Zakrzewski’s right to visitation in this case does not amount to a deprivation of liberty.” Id. at 1014. The court also determined that “[t]he official conduct in this case was within the bounds of reasonablen ess and does not shock the conscience.” Id.

Schmidt’s substantive due process claim is very similar to the claim in Zakrzewski . Schmidt alleges that sh e was deprived of only a short period of visitation with the children: one three-hour visit, as opposed to a visitation period of several days in Zakrzewski

. Zakrzewskiheld that a one-time, temporary interruption in

-7-visitation rights did not deprive a noncustodial parent of a liberty interest sufficient to support a substantive due process claim. Id. ; see also Brittain v. Hansen , 451 F.3d 982, 996 (9th Cir. 2006); Wise v. Bravo , 666 F.2d 1328, 1333 (10th Cir. 1981).

Schmidt asserts that the deprivation he re was more significant because she lives in a different State, and therefore has fewe r opportunities to see the children. Yet the fact remains that Schmidt alleges only a deprivation of one three-hour visitation period. There is no allegation that the C ity Defendants prevented her from seeing the children on the day before or after, or at any other time. That she lives in a different State does not suffice to convert the loss of a single three-hour visit into a deprivation of a fundamental right for purposes of substantive due process.

Schmidt attempts to distinguish Zakrzewskiby arguing that she is a joint legal custodian of the children, rather than a noncustodial parent, and that she therefore enjoys a greater liberty interest in paren ting the children. Schmidt’s custodial status gives her the right to equal participation in various matters a ffecting the children, including legal and educational decisions. See Iowa Code § 598.1(3). The divorce decree, however, gives Schmidt’s ex-husband primary physical custody of the children, and limits Schmidt to a set visitation schedule that can be amended only by mutual agreement of the parties. As in Zakrzewski , Schmidt’s parenting liberty interest has thus been “s ubstantially reduced by the terms of the divorce decree and [state] law.” Zakrzewski , 87 F.3d at 1014.

Schmidt also contends that Zakrzewskiis inapplicable because she was attempting to exercise a c ourt-ordered visitation period when she encountered the officers. But Zakrzewski hims elf was attempting to enforce what he considered to be his rights under a divorce decree, and was u ltimately vindicated when the state court held his ex-wife in contemptfor violating the decree. Id. This court nevertheless held that a temporary interruption in visitati on with the children, “[e]ven assuming the officials deviated from proper procedur e,” did not constitute a deprivation of

-8-Zakrzewski’s fundamental liberty interest inthe care, custody, and management of his child. Id. at 1013-14.

Even if Schmidt could show a deprivation of a fundamental liberty interest, moreover, the officers’ alle ged conduct would not shock the conscience. The officers were asked to intercede in a contentious custody dispute involving a court-ordered visitation that the children apparently were unwilling to atte nd. That the officers may have misinterpreted their obligations under a court order while addressing this difficult situation does not rise to the level of arbitrary government action and egregious misconduct necessary to state a substantive due process claim. See Brittain , 451 F.3d at 996; Gordon v. Hansen , 168 F.3d 1109, 1113 (8th Cir. 1999).

B.

Schmidt also argues that the district court erred in dismissing her procedural due process claim against the City Defendants. “To set forth a procedural due process violation, a plaintiff, first, must establish that his protected liberty or property interest is at stake. Second, the plaintiff must pr ove that the defendant deprived him of such an interest without dueprocess of law.” Gordon , 168 F.3d at 1114 (internal citation omitted). “Due process is a flexible concept, requiring only ‘such procedural protections as the particular situation demands.’” Clark v. Kan. City Mo. Sch. Dist. , 375 F.3d 698, 702 (8th Cir. 2004) (quoting Mathews v. Eldridge , 424 U.S. 319, 334 (1976)). “The fundamental requirement of due process ‘is the opportunity to be heard at a meaningful time and in a meaningful manner.’” Id. (quoting Mathews , 424 U.S. at 333).

After Zakrzewski , in an appeal involving only procedural due process, this court held that a noncustodial parent with visitation rights has, “at least in some form,” a liberty interest in the care, cust ody, and management of his child. Swipies v. Kofka , 419 F.3d 709, 714 (8th Cir. 2005). The c ourt left open the possibility that “a de

-9-minimis exception attaches to this liberty inte rest,” and did not address whether the analysis of liberty interest differs for claims of procedural and substantive due process. Id. ; cf. Brittain , 451 F.3d at 996, 1000 (holdi ng that single deprivation of one-week visitation did not deprive noncus todial parent of “fundamental” liberty interest for substantive due process analysis , but that “[p]rocedural due process claims should not be subject to de minimis analysis” and that parent had a “liberty interest” for that purpose). Assuming for the sake of analysis that Schmidt has alleged a deprivation of a protected liberty interest th at triggers procedural rights, we conclude that she failed to allege th at she was deprived of thatinterest without sufficient process.

In Zakrzewski , this court held that the plaintiff had failed to demonstrate a procedural due process violation by officer s who cut short his visitation with his children because there were adequate state-law remedies providing for the enforcement of visitation orders. Zakrzewski , 87 F.3d at 1014. The court noted that state law allowed a state court to modify a visitation order or hold a noncomplying parent in contempt, and that Zakrzewski had taken advantage of these remedies without any interference from law enforcement. Id.

Iowa law provides that an aggrieved pare nt can request that a state court hold a noncomplying parent in contempt, modify visitation to compensate the aggrieved parent for lost visitation time, transfer custody of the children, or impose other sanctions or requirements. See Iowa Code § 598.23. Schmid t availed herself of these procedures, filing a sixty-eight-count acti on for contempt against her ex-husband on the day after her encounter with the City De fendants. There is no indication that the City Defendants interfered withSchmidt’s use of these pro cedures, and the state court eventually held her ex-husband in contempt for willfully failing to comply with the court’s order concerning the visitation on November 21, 2006.

-10-Schmidt argues that procedural due proce ss entitled her to a hearing prior to the interruption of her visitation period. This court has he ld, however, that state postdeprivation proceedings are adequate to satisfy procedural due process when a visitation period is temporarily cut short. See Zakrzewski , 87 F.3d at 1014; see also Fitzgerald v. Williamson , 787 F.2d 403, 408 (8th Cir. 1986) (holding that due process did not require a hearing before visitation rights were reduced); Brittain , 451 F.3d at 1000-02.

Schmidt also contends that the post- deprivation proceedings offered by the State were insufficient, because the state court took fifty-one days to hold a hearing on her contempt moti on. She relies on Swipies , where this court held that a noncustodial father’s procedural due proce ss rights were violated when the state did not provide him with a hearing until seventeen days after an officer removed his child from his custody. 419 F.3d at 715. But Swipies involved a deprivation of a parent’s entire two-week visitation period, rath er than a single three-hour visit. See id. at 713- 14. “The circumstances of the deprivati on dictate what procedures are necessary to satisfy” procedural due process. Id. at 715. Given the relatively minimal deprivation alleged in this case, the hearing was adequate to protect Schmidt’s right to be heard at a meaningful time and in a meaningful manner. Schmidt has thus failed to state a procedural due process claim against the City Defendants.

III.

We next address Schmidt’s substantive and procedural due process and equal protection claims against the School District Defendants. We review de novo a district court’s decision to grant a motion for summary judgment, viewing all facts in the light most favorable to the nonmoving party and making all reasonable inferences in her favor. Cent. Platte Natural Res. Di st. v. U.S. Dep’t of Agric. , 643 F.3d 1142, 1146 (8th Cir. 2011). Summary judgment is appropriate when the movant shows that

-11-there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A.

Schmidt argues that the district court erred in rejecting her substantive due process claim, because the defendants’ polic y of restricting her access to the children during school hours violated her fundamental lib erty interest in th e care, custody, and management of her children. We disagree. It is not clear that a parent’s fundamental liberty interest in the care, custody, and management of her children includes unfettered access to the childre n during a school day. See Meadows v. Lake Travis Ind. Sch. Dist. , 397 F. App’x 1, 2 (5th Cir. 2010) (per curiam); Crowley v. McKinney , 400 F.3d 965, 969 (7th Cir. 2005); Bangura v. City of Phila. , No. 07-127, 2008 WL 934438, at *4 (E.D. Pa. Apr. 1, 2008). But whatev er the scope of that liberty interest, it can be “substantially reduced by the term s of [a] divorce decree and [state] law.” Zakrzewski , 87 F.3d at 1014. Schmidt’s liberty in terest was substantially reduced by the relevant divorce decrees, which restrict ed her visitation with the children to a specific schedule and allowed her to exercisevisitation outside that schedule only with her ex-husband’s assent. Schmidt thus had no fundamental liberty interest in contacting her children at their schools.

Schmidt argues that the School DistrictDefendants misconstrued the relevant state court orders, and that the restricti ons on her visitation with the children do not apply while the children are at school. Even if Schmidt is correct, the conduct of school officials was not the sort of arb itrary government action that might support a substantive due process claim. It was r easonable for the defendants to construe the court orders to prohibit Schmidt from in terrupting the children’s school day without the prior consent of her ex-husband, particular ly in light of the proviso that additional visitation with the children must be arranged “so as not to interfe re with the . . . education . . . of the parties’ minor childre n.” The doctrine of substantive due process

-12-is reserved for truly extraordinary and egregious cases; it does not forbid “reasonable, though possibly erroneous, le gal interpretation.” Brittain , 451 F.3d at 996.

We also reject Schmidt’s assertion that the defendants violated her substantive due process rights by failing to provide he r with schoolwork and information about her children’s attendance and athletic activities. It is ope n to question whether and to what extent the fundamental liberty intere st in the custody, care, and management of one’s children mandates parental access to school records. See, e.g. , Crowley , 400 F.3d at 969. But the deprivations that Schmidt alleges are so mi nor and sporadic that they would not rise to the level of a subs tantive due process violation in any event. The defendants fulfilled at least some of Sc hmidt’s requests for information about the children, and gave he r access to an online records system that displayed the children’s grades, assignments, and attendance information. See Pisacane v. Desjardins , 115 F. App’x 446, 451 (1st Cir. 2004) (concluding th at no substantive due process violation occurred when a school did not engage in an “unconditional refusal” to show a child’s records to his parents, but instead made th e records available on other occasions). We agree with the district court that an atte ndance clerk’s one-time refusal to tell Schmidt why one of the children had been absent from school, a coach’s referral of Schmidt to her ex-husband for information about the children’s swimming activities, and the schools’ refusal to send Sc hmidt all of the school projects she requested did not amount to a deprivation of a f undamental liberty interest. See Zakrzewski , 87 F.3d at 1014; cf. Pisacane , 115 F. App’x at 451.

B.

Schmidt asserts that she also demonstr ated that the defendants violated her procedural due process rights by infringing on her parenting liberty interest and leaving her “without recourse to a state law remedy.” Even a ssuming that Schmidt demonstrated an infringement on a protected liberty interest, the state-law procedures in place to remedy such violations were su fficient to provide her with due process.

-13-If Schmidt believed that th e defendants were misinterpreting the divorce decree’s visitation provisions, she could have sought modification of the decree in state court at any time. See In re Marriage of Brown , 778 N.W.2d 47, 51-52 (Iowa Ct. App. 2009). Schmidt could have submitted a form al written request to the school district for the educational records and informati on she sought about the children, pursuant to the school district’s policy concerning nonc ustodial parents. Schmidt also could have requested a contempt pr oceeding in which the state court could or der Schmidt’s ex-husband to permit the schools to provide any information that Schmidt requested. See Iowa Code § 598.23(2)(d). Schmidt eventu ally pursued the latter course, and the state court issued an order in Septembe r 2008 requiring Michael Schmidt to “execute any and all documents necessary to allow [Schmidt] acce ss . . . to any and all records or documents concerning the parties’ minor children including . . . school records.” Given the limited nature of any infringement on Schmidt’s protected liberty interest, these procedures were sufficient to protect Schmidt’s right to procedural due process. See Swipies , 419 F.3d at 715.

C.

Schmidt next contends that the district court erred in granting summary judgment to the defendants with respect to her equal protection claims. The Equal Protection Clause of the Fourteenth Amendmen t provides that “[n]o state . . . shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To establish a violation of this provision, a plaintiff must show that she “was treated differently th an other persons who were in all relevant respects similarly situated.” Flowers v. City of Minneapolis , 558 F.3d 794, 798 (8th Cir. 2009) (internal quotation omitted). A lthough the Supreme Court of Iowa has not always interpreted the equal protection cl ause of the Iowa Constitution consistently with its federal counterpart, a plaintiff bringing an equal protection claim under Iowa law still must show that she was treated differently than other similarly situated persons. See Hennings , 744 N.W.2d at 339.

-14-Schmidt asserts that the defendants treatedher differently than a married parent who has legal custody of her children, and that the defe ndants treated her differently than Michael Schmidt. But Schmidt is not similarly situated in all relevant respects to a typical married parent, who has full legal and physical custody of his or her children, or to Michael Sc hmidt, who has joint legal custody and primary physical custody of his children. Schmidt has join t legal custody of he r children but does not have primary physical custody of her children. Under such an arrangement, “the parent with primary physical care has the re sponsibility to maintain a residence for the child and has the sole right to make deci sions concerning the child’s routine care,” while “[t]he noncaretaker parent is relegate d to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child.” In re Marriage of Hynick , 727 N.W.2d 575, 579 (Iowa 2007). Schmidt’s rights under state law and her role in the children’s lives thus vary significantly from the rights and role afforded to Michael Schmidt or to a typical married parent. See Crowley , 400 F.3d at 972 (rejecting an equal protection claim alleging that a school district discriminated against noncustodial parents).

* * *

The judgment of the district court is affirmed.

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