1 The Honorable Ralph R. Erickson , United States D istrict Jud

ge for the District of North D akota, si tting by designation

. 

## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 03-29 50

___________ Mildred C lark, * * Plaintiff/Appellee, * * v. * * Kansas C ity Mis souri Schoo l Distric t, * * Appeal from the United States Defenda nt/Appella

nt, * District

Court for the * Wester

n Distric t of Missour

i. Linda Lollis; Benjamin Demps; Kansas * City M issouri Sc hool Board; Helen J. * Rag sda le; Lee B arn es, J r.; D uan e Kel ly; * Harriett Ann Plowm an; Patricia Kurtz; * Michelle S. Hen sley; Albert Mau ro, Sr.; * Elm a War

rick; Fif i Wiedm an, *

* Defenda nts. *

___________ Subm

itted: Ma

rch 10, 200 4 F iled: July 13, 2004

___________ Before RILEY and MELLOY, Circ uit Judg es, and ERICKSON, 1 District Judge.

___________ RILEY, Circuit Judge.-2-

MildredClark (Clark), a teacher in the Ka nsas City, Missouri, School District (District), brought a se ction 1983 action against the District, alleging the District had deprivedClark of property without d ue process in violation of the Four teenth Amendment

. A jury

returned a verdict in Clark’ s favor. The Dis trict subse quently moved for judg ment a s amatt er of law

and for a new trial. Thedistrict court denied the District’s motions, entere d judgment in Clark’s favor, and awarded Clark attorney fees. The D istri ct app eals. Concl udin g the record does not s uppo rt the Distr ict’s employees deprived C lark of pr operty by fol lowing an e sta

blish ed procedu

re, and Missouri law provi des Clark with the adequate pos tdeprivati on rem edy of reple vin,
we reverse

the judgm

ent, rem and, and vacate t he distric t court’ s attorney fees aw ard.

I. BACKGROUND The Distric t empl oyed C lark as a science teacher

at Southea st Middle S chool (Southeast). Due to Southea st’s re organizat ion, the Distric t transferre d Clark to J .A. Rogers Middle Sch ool (Roge rs). After b eing transfer red, Cla rk secure d permission from Southeast ’s prin cipal , Linda Lollis (L ollis), to rem ove her pe rsonal prop erty from her form er classr oom. Unable to pack and retriev e all of her personal property due to high sum

mer temperatures t

hat day and the fol lowing day , Clark returned to Southeast on August 29, 1996, two days a fte r initiall y secu ring perm

ission from Lol lis , to r emove her p erso nal pro per ty.

On August 29, L ollis escor ted Clark to her for

mer classroom . Whe n Lollis began removing materials from the boxes Clark had packed , Clark le ft the cla ssroom to call the Distr

ict’s su perintendent. Unab le to contact th e Distri ct’s sup erintendent, Cl ark discussed th e situation with the D istrict’ s attorney , who told Clark to ha

ve Lollis call him . Upon

ret urn in g t o t he c las sro om, two secur ity gua rds were present. Clark delivered the attorney’s m essage and informed Lollis that Clar k owne d the materials in the box es. At Lollis’ s request, a securi ty guar d rem oved Clar

k from the building.-3-

After being escorted out of the building, Clark drove to the Distri c t supe rint enden t’s office. After discussing w ith Assista nt Superin

tendent Dr. Id a Love (Dr. Love) w

hat had occurred, D r. Love returned to Southea st with Cl ark. D r. Love and Clark sor

ted throu g h the m aterials , and disc ussed who ow ned the var

ious materials, with Clark showing Dr. Love “things that [ Clark] knew did not belong to Southeas t.” Clark packed five boxes of materials into her vehicle, leaving other materials a t Southeas t. Later in the day, Clark received a call informing her that boxes with some of her m aterials were on the sidew alk out sid e Southeast. Clark called the police

and asked the policeto me et her at Southeast . Clark

returned to Southeast, mee ting the polic e she sum moned. Notwiths tanding that Clark recognized the materials in the

boxes on the s idewalk a s her pers onal proper ty , Clark di d not collectthe boxes, because the police advised her not to touch the boxes. The boxes
were subsequentl

y deliv ered to Cl ark at Rog ers. Cl ark belie ved Southea st still retained more of her m aterials

. Approximat ely

on e month later , Clark receiv ed an e -mail fro m Rogers ’s principal, Sally

Newel l (New ell). N ewell’ s e-m ail state d:

I was notified today by D r. Love that the materials that

were be ing held from [Southea st] were goi

ng [to be] returned

to the schoo l at the end of the wee k unless some verificati on can be made as t o ownershi p. .
. . Verifi cation

needs to be in

the form of the prod

uction of [ a] re ceipt for any materials in

question, or a state ment f rom t he com pany st ating that they w ere com

pensation f

or work.
The e-mail required Clark to deliver the verifica tion to Dr. Love in three days. C lark did not produce recei pts or

a statem ent from a com pany verify ing her ow

nership. Instead, Clark informed

Newell she would have difficulty producing such evidence. Clark did n ot request

additional time to procure the neces sary documents.2 We need not dis cuss the rem aining steps in the grieva nce proce ss because

the district court’ s instructi ons only allow us to infer that Clar k filed a gr

ievance with Newell

. The distr

ict court i nstructed the jury

that it m ust find in Clark’ s favor if

: (1) Clark pur chased m aterials for her c lassroom ; (2) theDistric t took the materials; (3 ) “[C lark] filed a grievan ce aski ng that the i tems be return ed to her; a nd [(4) the District ] failed to provide [C lark] with a hear ing on said

grievance.” We infer

from the jury ’s verd

ict that C lark file d a writt en grieva nce with t

he principa

l, and the principal did not provid e her wi th a heari ng. Dra wing any further inferenc es would require us t o speculate about the jury’s assessm ent of Clark’s credibility. C lark testifiedshe attempted

to inv oke all fiv e st eps in t he g riev anc e pro ces s. Co nve rsel y, District witnesses testified no record exists indicating Clark filed a grievance.
-4- Clark also attem

pted to invoke

the grieva

nce proce dure outline d in the Distr ict’s emplo yee ha

ndbook (Ha

ndbook). T

he Handboo k outlin es a five-step process to address an em ployee ’s grie vance. T o inv oke the pr ocess, the employe e must first orally pres ent the g rieva nce wi thin three days to the empl oyee’s principal—

in Clar k’s case, N ewell. The prin cipal m ust orally

respond to t

he employee’s oral grie vance wi thin three days. If the grievanc e is not re solved, the next step requires the employe e to file a written grievance with the principal within three days of receivin g the princ ipal’s o ral decis ion. Upon receipt o f the written grievance, the principal

must ho lda hearing

within three day s and

issue a w ritten dec ision within three days of

the heari ng. If th e em

ployee is not satisf

ied with th e outcome, the employee may subsequentl

y appe al the dec ision through the Distr ict’s a dminis trative structure (steps three through five ), culm inating wi th an appeal to the District’s Board of Educa tion. 2

On the day of the August 29 incident, Clark discussed what had occurred at Southeast with Newell. Day s later, Clark com posed a let

ter to Newell desc ribing the incident and reque sting relief. After waiting to deliver the letter personally, Clark left itin a box in Newell’s office. C lark neverreceive d a hearin g or a deci sion from Newell

.3 All other def endants exc ept the Di strict w ere dism issed by the last da

y of tr ial.
-5- On March 11, 2001, Clark sued the District , various Distric t empl oyees , and the Distric t’s Boa

rd of Educ ation m embe rs, 3 alleging sh e had been deprived of personal property witho ut due pro cess in vi olation of the Fourt eenth Am en dment

. After a trial on the merits, the jury retu rned a verdi ct in Clark’s fa vor.
The District moved for post-verdict judgment as a matter of law a nd a new tr

ial. The dist rict c ourt deni ed th e Dist rict’s motion s, summari ly dismis sing the Di stric t’s contentions

. The distr

ict court entered j udgmen t in Clark’ s favor an dawarded Clark attorney fees. The Dis trict appe als, cont ending (1) the evidenc e was insu fficient to support a denial of

due proce ss and the D istrict is entitled to judgm ent as a m atter of law on Cl ark’s due process claim; (2) Clark’s claim is bar red by a prior state court lawsuit against L ollis; (3) the distric t court inc orrectly inst ructed the

jury ; (4) the distric t co urt’s qu estioning of witnesse s and its sta

tements during the

trial unf airly prejudiced

the Distr ict; and (5 ) the distr

ict court a

bused its disc retion in a

warding attorney fees. Because Clark ’s due proces s claim fails as a matter o f law, we decl ine to address the remaining issue s.

II. DISCUSSION A. Due Pr ocess “We review de novo the d istrict c ourt’s d enial of [ a] post- verdict m otion for judgm ent as a matter

of law.” Children’ s Broadca sting Corp. v. Walt Disney Co. , 357 F.3d 860, 863 (8t

h Cir. 200 4) (alte ration in or iginal; cit ation o mitted). We m ust determ ine whether

sufficient evide n ce exists t o suppo rt the jury’s verdict

. Id. We
examine “theevidencein the light most favorable to [Clark] and view all inferences in [her] favor.” Id. “Judgm ent as a m atter of law is appropriate

only w hen all of the evidence points one way and is susceptible of no reasonable inferen ce s ustaining [Clark’ s] position.” Id. “‘A mere scintilla of e vidence is inadequate to support a verdict,’ and judgm

ent as a matter of law is proper w

hen the re cord contains no proof-6-

beyond speculation to support the verdict.” Larson v. Miller , 76 F.3d

1446, 1452 ( 8th Cir. 1996) (en banc) (citation omitted).

To establi sh a violation of procedural due process, Clark must prove (1) t h e District depriv e d Clark of “life, liberty , or property”; and (2) the District deprived Clark of t hat “ interest without

sufficient‘process.’” Krentz v . Robert son Fire P rot. Dist. , 228 F.3d 897 , 902 (8th C ir. 2000) . Beca use the Di strict con cedes, for t he purposes of this appe al, the D istrict de prived Cla

rk of a propert y interest, we proceed to determ ine if the District

afforde d Clark suf

ficient pr ocess.

Due process is a flexible

concept, requiring

only “such procedural

protectio ns as the particular situation demands.” Mathews v. Eldri dge , 424 U.S. 319, 334 (19 76) (qu oting Morrissey v. Brewer , 408 U.S. 471, 481 (1972)). The fundamental requirem ent of due proc ess “ is th e op po rtu ni ty t o b e he ard ‘at a mea ni ng ful time and in a meaningful m anner. ’” Id. at 333 (quoting Armstrong v. Manzo , 380 U. S. 545, 552 (1965)). When a

state em ployee ’s unauth orized, random acts depr ive a person of pro per ty, the state em

ployee ’s acts do not violate “theprocedural requiremen ts of the Due Pro ces s Cl aus e of th e Fo urt een th Amen dmen t if a me aningf

ul postdepriva

tionrem edy fo r the loss i s available .” Hudson v. Palmer , 468 U. S. 517, 533 (1984). See Parrat

t v. Tay lor , 451 U.S. 5 27, 543-44 ( 1981). This rule is premised on “the states’ action

. . . no t [being] compl ete until a nd unless it provides
or refuses to provide a suitable postdeprivation remedy.” Hudson , 468 U.S. at533. However, when an e stablished s tate proc edure or a foresee able consequence of such
aprocedure

causes the

loss, an a dequate pos tdeprivati on r emed yis of no consequence, and w e focus solely on the process afforded by the established procedure. Logan v. Zim merm an Brush C o. , 455 U. S. 422, 4 35-36 (1982) ; Putman
v. Unknown S mith , 98 F.3d 1093 , 1095-96 ( 8th Cir. 1 996) (involving police and St. Louis County).-7-

The unauthoriz ed, random ac ts of the D istrict’ s empl oyees , not an established procedure, deprived Clark of property. Clark does not challenge the su fficienc y of any process offered by any

established District procedure, but challenges Lollis’s, Dr. Love’ s, and New ell’s a cts de priving Clark of property . As pre sented by Clark, Lolli s’s acts were unauthorized and random. L ollis had Clark removed fr om Southeast, and att empte d to prevent Clark fr om re moving h er m aterials from Southeast by si ftin g through the

boxed m aterials and rem oving ma terials f rom t he boxes. Clark presented no evidenceLollis ac ted pursuan t to any established District procedure

.
Dr. Love’ s acts were unauthor ized and random. Dr. Love accompanied Clark back to Southeast after

Lollis had

Clark re moved from

Southeast . Dr. Love and Clark sortedthrough

the materials in the

classroom , apparently se

parating C lark’s materials from District material s. A month later, Dr. L ov e affor ded Clark the opportun ity to establish ownership of the materials held at Southeast, but only provided Clarka twoday window in

which to v er ify ow

nership. Clark pro duced no evi dence Dr . Love followed an establi shed Dis trict proc edure in carrying out any of these c hallenged acts.
Newell ’s failure to adhere to the grievance proced ure was an unauthor ized, random act. Clark orally lodged and filed a grievance with Newel l pursuant t o the Handb ook’s grievance procedure. Newell never granted Clark

a hearing as required by the Handbook, and never provided Clark with a written decision. Clark presented
no evidence the District had an establi shed proce dure of not following

the Handb ook. Quite the opposite

is a pparent. The District adopted the grievance procedure anticipating the District ’s em ployee s would adhere stric tly to t he outlined p rocedure s. Newell ’s disreg ard for t he policy clearly evidences her actswere una uthorized a

nd
ran do m.-8-

Havingdeterm

ined Lolli s, Dr. Love, and New ell com mitte d unauthoriz ed and random acts, we next c onsider w hether Mi ssouri provi des an ade quate postdepriva

tionremed y. Missouri la

w provides Clark w ith the postde privation st ate law rem edy of

replevin. Mo. R. Civ. P. 99.01; see Allen v. City of Kinloch , 763 F.2 d 335, 336-37 (8th Cir. 1985) (concluding Missouri replevin law was an adequ ate postdepriva

tionrem edy to r

ecover pr operty , and expl aining “wh e re a ran dom an d unauthorized act by

a state e mployee result s inator tio us t aki ng o f pri vat e pro per ty, due process issatisfie d if statetort law provides a

mea ningful post- depriv at ion remedy ”). Missouri law recogniz es replev in as a re medy for a per son claim

ing to be the lawful ow

ner of per son al pr operty

held by another. Mo. R. Civ. P. 99.01. In a replevin action, the clai mant m ay obtain imm ediate possession of the personal property upon fil ing an affi davit and a bond with the court. Mo. R. C iv. P. 99 .03 & 99.06. Alternativ ely, a

claim ant ma

y requ est in

writing a “hea ring [wit hin ten day s] to determ ine the [c laima

nt’s] right to possession

of the prop erty

pending trial.” Mo. R. Civ. P. 99.09. After

a trial, if the cour

t or jury determ ines the claimant is entitled to possession, the claim

ant can ha ve the property returned or have the claim reduced to a monetary

judgment. Mo. R. Civ. P. 99.12. Missouri law also allows the recovery of damages for i njur y, taking, or detentio n of the pro perty. Id. “Although the sta te remedies may

not provide [Clark] with all the relief which may

have been available if [she] could have proceeded under § 1983, [suchas recovery of attorney fees,] that does not mean that

the state remedies are not adequate to satisfy the requir

emen ts of due process.” Parrat

t , 451 U. S. at 544.

Because the unaut horized, ran dom acts of Lolli s, Dr. Love, and Newe l l deprivedClark of her

materials and Missour

i provides t

he adequat e postdeprivation
reme dy of reple vin, Clar

k’s Four teenth Am

endment due proce ss claim fails as a matter of law.-9-

B. Attorney Fees A court may aw ard the prevailing pa rty a ttorney fees in a section 1983 action. 42 U.S.C. § 1988(b) (2000). Because w e reverse the d istrict c ourt’s j udgmen t in Clark ’s favor, Clark is no longer the pre vailing par ty. T herefore, we v acate the district c ourt’s a

ttorney fees aw ard.

III. CONCLUSION For the foreg oing reaso ns, we r evers e the d istri ct cou rt’s judgmen t in Cl ark’s favor, rem and to the di strict cou rt to enter j udgmen

tin the Dis trict’ s favor, and vacat e the distric t court’ s attorney fees aw ard.

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