The Ho norable Pasco M. Bowman became Chief Judge of the United State s 1 Court of Appeals for the Eighth Circuit on April 18, 1998.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2424

_____________ Sharon Riley, * * Appellant, * *
v. * * Appeal from the United States St. Louis County of Missouri; Ronald A. * District Court for the Eastern Battelle, St. Louis County Police Chief; * District of Missouri. Stygar and Sons Chapel, doing business * as Stygar Family of Funeral Services; * Robert Robinson, St. Louis County * Police Officer, * * Appellees.

_____________

Submitted: December 10, 1997 Filed: August 13, 1998

_____________ Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges. 1

_____________ FLOYD R. GIBSON, Circuit Judge.
Sharon Ri ley brought this suit against St. Louis County, Missouri; St. Loui s Coun ty Police Chief, Ronald A. Battelle; St. Louis County Police Officer, Rober t Robinson (collectively, "the Department"); and Stygar a nd Sons Chapel, doing businessThe HONORABLE FREDERICK R. BUCKLES, United States Magistrat e 2 Judge for the Eastern District of Missouri.
-2- as Stygar Family of Funeral Services ("Stygar," or collectively, "Appellees"). In count I, Riley sought relief under 42 U.S.C. § 1983 (1994) for Appellees' alleged violations of her Fou rth and Fourteenth Amendment rights. In counts II and III, Riley allege d pend ent state claims of negligence and breach of contract against Stygar. The district court d ismissed count I with prejudice based on Riley's failure to state a claim. Se e 2 Fe d. R. Civ. P. 12(b)(6). After declining to exercise its supplemental jurisdiction, the district court dismissed counts II and III without prej udice. See 28 U.S.C. § 1367(c)(3) (1994). For the reasons set forth below, we affirm.

I. BACKGROUND

When reviewing a Rule 12(b)(6) dismissal for failure to state a claim, we loo k only to the facts alleged in the complaint and construe those facts in the light mos t favorable t o the plaintiff. See Double D Spotting Serv., Inc. v. Supervalu, Inc. , 13 6 F.3d 554, 556 (8th Cir. 1998). In Riley's First Amended Complaint, Riley states that her son, Anthony Riley, committed suicide on Sept ember 6, 1995 at the age of eighteen years old. Riley contracted with Stygar for a funeral package for her son. Rile y contends that Stygar con spired with the St. Louis County Police Department to violate her Fourth and Fourteenth Amendment rights by allowing the Depart ment to photograph the deceased, without Riley's knowledge or permission, while the deceased remained in Stygar's lawful possession and control. Specifically , Riley claims that Officer Robert Robinson, acting under Chief Ronald Battel le's authority and control, photographed the deceased as he lay in his coffin after the funeral services ended. Riley further contends that the Department later displayed these photographs at a public gathering an d commented that the decedent's involvement in gang-related activities had caused hi s death.We note that, to the extent that Riley's complaint alleged that Ap pellees' actions 3 violated her deceased son's constitut ional rights, those claims were properly dismissed because section 1983 does not provide a cause of action on behalf of a deceased fo r events occurring after death. See , e.g. , Gu yton v. Phillips , 606 F.2d 248, 251 (9th Cir. 1979). As Riley h as not briefed any Fourth Amendment issues, we find that she ha s

4
a b andoned the Fourth Amendment claims on appeal. See Fed. R. App. P.28(a)(3) & (6); Pet Milk Co. v. Boland , 185 F.2d 298, 302 (8th Cir. 1950). -3- As a re sult, Riley filed a three-count complaint against Appellees. In count I , Riley claimed that the Appellees' ac tions violated section 1983 by denying her Fourth 3 4 and Fourteenth Amendment rights. In counts II and III, Riley raised state law claims of breach of contract and negligence against St ygar. Appellees moved to dismiss count I for failure to state a claim upon which reli ef can be granted pursuant to Rule 12(b)(6). The district court g ranted Appellees' motion and dismissed count I with prejudice and, after declining to exercise its supplemental jurisdiction, dismissed counts II-III without prejudice. Riley appeals the dismissal of her complaint.

I. DISCUSSION

We review de novo the district court's grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Double D Spotting Serv., Inc. , 136 F.3d at 557. Applying the same standard as the district court, we accept the complaint' s factual allegations as true and construe the complaint in the light most favorable to the plaintiff. See id. W e affirm a Rule 12(b)(6) dismissal if "it appears beyond doubt that the plaintiff can prove no set of facts in suppo rt of [her] claim which would entitle [her] to relief." Id. (internal quotation and citation omitted).
Riley first argues that Appellees' conduct violated her Missouri comm on law right of sepulchre and that the district court erred in failing to recognize the right of sepulchre as a constitutionally protected property interest. We disagree.The common law right of sepulchre is the "right of the next of kin to perform a 5
ceremon ious and decent burial of the nearest relative--and an action for the breach of that right." Galvin v McGilley Memorial Chapels , 746 S.W.2d 588, 5 91 (Mo. Ct. App. 1987).
-4- "Section 1983 relief is predicated on t he denial of a right or interest protected by t he Constitution." Dover Elevator Co. v. Arkansas State Unv. , 64 F.3d 442, 445 (8th Cir. 1995) (internal quotation and citation omitted). Riley alleges that Appellee s depr ived her of her property without due process of law in violation of the Fourteenth Amendmen t. "Analysis of either a procedural or substantive due process claim mus t begin wi th an examination of the interest allegedly violated." Id. at 445-46. Sectio n 1983 does not create substantive rights, see Wilson v. Garcia , 471 U.S. 261, 27 8 (1985); rather, state law establishes the property interest while feder al constitutional law determ ines whether the state law property interest rises to a constitutionally protected property interest. See Dover Elevator Co. , 64 F.3d at 446.
Riley urg es this court to recognize a constitutionally protected property interest base d upon Missouri's common law right of sepulchre. However, "Missouri court s 5 have abandoned the ear

ly fiction that the cause of action for interference with the right of sepulchre rested on the infringement of a quasi property r ight of the nearest kin to the body. " Lanigan v. Snowden , 938 S.W.2d 330, 332 (Mo. Ct. App. 1997) (interna l quotation and citation omitted). Instead, Missouri courts base the cause of action on the mental anguish of the person claiming the right of sepulchre. See id. Nonetheless, we need not consider whether Riley's right of sepulchre constitutes a constitutionall y protected property interest because Riley fails to allege facts sufficient to support her claim that Appellees violated her right to sepulchre. Our analysis of the Missour i
common law right of sepulchre reveals that the deprivation of this right typicall y involves a physical intrusion, mishandling, or manipulation of the deceased's body. See , e.g
. , Golston v. Lincoln Cemetery, Inc. , 573 S.W.2d 700, 703 (Mo. Ct. App. 1978) ; Crenshaw v. O'Connell , 150 S.W.2d 489, 493 (Mo. Ct. App. 1941); Wi lson v. St. Louis & S.F.R. Co. , 142 S.W. 775, 777 (Mo. Ct. App. 1912). In the instant case,-5-

Riley doe s not allege any physical insult to the deceased nor any interference with the visitation, funeral, o r burial. We therefore conclude that photographing the deceased's body after the visitation and later displaying the photograph at a public assembly did not deprive Riley of her right of sepulchre under Misso uri law. As such, Riley fails to state a claim upon which relief can be granted under section 1983. Se e Parratt v. Taylor , 451 U.S. 527, 535 (1981).
Riley next argues that Appellees' photographing the deceased, displaying th e picture at a public assembly, and making slanderous comments regarding the deceased's allegedgang activities violated her substantive due process rights as well as her right to privacy. We disagree.
"[S]ubstantive due process prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordere d liberty." United States v. Salerno , 481 U.S. 739, 746 (1986) (internal citations an d quotations omitted). A substantive due proces s claim can be stated two different ways. One, substantive due proces s is violated when the state infringes "fundamental" liberty in terests without narrowly tailoring that infringement to serve a compelling stat e interest. Se e Weiler v. Purkett , 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc). Two, substant ive due process is offended when the state's actions either "shock[] th e conscience" or "offend[] judicial notions of fairness . . . or . . . human dignity." Id

. (int ernal quotation and citation omitted). We are generally hesitant to exten d substantive due process into new arenas. See id.

In the present case, Riley has failed to allege either type of substantive du e process claim. First, no fundamental liberty interest of Riley has been infringed because Riley's right for the Department to r efrain from photographing the deceased, displaying his pic ture at a public assembly, and making slanderous comments regarding th e deceased's alleged gang activities is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Reno v. Flores , 507 U.S. 292, 303-6-

(1993) ( internal quotation and citation omitted). Second, we cannot conclude that the Department's action s, despite being insensitive and the result of poor judgment, rise to the l evel of sufficiently outrageous conduct that shocks the conscience. Therefore , Riley h as not alleged a violation of her constitutional right to substantive due process.

Tu rning to Riley's right to privacy claim, "[t]he Supreme Court has recognize d that notions of substantive due process contained within the Fourteenth Amendmen t safe guardindividuals from unwarranted governmental intrusions into their persona l lives." Eagle v. Morga

n , 88 F.3d 620, 625 (8th Cir. 1996). One aspect of this right to privacy encompasses an individual's interest in avoiding disclosure of personal matters and has been characterized as the right to confidentiality. See id. "This protectio n aga inst public dissemination of information is limited and extends only to highl y personal matters representing the m ost intimate aspects of human affairs." Id. (internal quotation and citation omitted). "To violate [Riley's] constitutional right of privacy the information disclosed must be either a shocking degradation o r an egregious humiliation of h er to further some specific state interest, or a flagrant breach of a pledge o f
con fidentiality which was instrumental in obtaining the personal information." Id

. (internal quotation and citation omitted).
Here, alth ough Appellees' behavior was inappropriate, we cannot conclude that these actions violated Riley's right to privacy. Riley allowed her son's remains to b e viewed a t the visitation; therefore, Riley had no legitimate expectation that thi s information would be kept confidential. See Eagle , 88 F.3d at 625. Moreover , regarding R iley's claim that the slanderous comments deprived her of her "right t o privacy in the memory of her son and her right to see that his remains are treated in a dignif iedand respectful manner," Appellant's Add. at 9, we find that Riley fails t o identify an y tangible liberty or property interest, and "it is well established tha t defamation or injury to reputation by itself does not state a constitutional deprivation." Brayman v. United States , 96 F.3d 1061, 1066 (8th Cir. 1996). As such, Riley ha s failed to allege a violation of her constitutional right to privacy.Riley argues that, one, the district court, by dismissing her claims against St

. 6 Louis County, has precluded her from seeking legal redress aga inst the County because Missouri's sovereign immunity ba rs Riley's claim against the County in state court and that t his violates her procedural due process rights. Second, Riley contends that th e distr ict court erred in finding that she failed to allege sufficient facts that Appellee s conspired to deprive Riley of her constitutional rights.
-7- III. CONCLUSION

After a tho rough review of the record and Riley's remaining arguments, we are 6 convincedthat they are without merit. Accordingly, for the reasons stated, we affirm the district court's dismissal of count I with prejudice for Riley's failure to state a claim under s ection 1983. We also affirm the district court's dismissal of counts II and II I without prejudice based on t he district court's decision not to exercise its supplemental jurisdiction.
A true copy.

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