United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3621

___________ Lisa Haberthur, * * Plaintiff/Appellant, * * Appeal from the United States
v. * District Court for the Western * District of Missouri. City of Raymore, Missouri; Steve * Untrif, * * Defendants/Appellees. *

___________ Submitted: May 21, 1997 Filed: July 11, 1997

___________ Before MURPHY, HEANEY, and MAGILL, Circuit Judges.

___________ MURPHY, Circuit Judge. Lisa Ha berthur sued the City of Raymore and one of its police officers, Stev e Untrif, f or violations of her constitutional rights under 42 U.S.C. § 1983 and fo r battery and infliction of emotional distress. The district cour t dismissed her substantive due proc ess and equal protection claims for failure to state a claim and grante d summary judgment on her other allegations under section 198 3. Some tort claims were dismissed for failure to state a claim, the rest for lack of sub ject matter jurisdiction. OnThe notice of appeal lists al l of her constitutional claims, but in her brief and at 1 oral argument she indicated she had narrowed her issues on appeal to the one area. At oral argument Untrif's c ounsel indicated that Untrif carried a gun and police 2 badge as part of his uniform.
-2- appeal Ha berthur contests the dismissal of her substantive due process claims. W e 1 affirm in part and reverse in part.
Since the challenged dismissal of Haberthur's due process claims was for failure to state a claim, we begin by reviewing the allegations in her complaint. Haberthu r alleged that Untrif had followed her home in his marked police ca r as she was returning fromwork in late February 1994. When they arrived at her house, Untrif pulled hi s squad car into her driveway and parked. He told her that he should give her a ticket for speeding, but drove away without giving her one. Shortly therea fter in early March, Untrif went in uniform to th e store where Haberthur worked and approached her. He 2 reminded her of their earlier encounter and said he would "wait down the road" for her when she left work and give her a ticket.
Untrif showed up at the store a gain on March 16, while on duty and in uniform. He went up to Haberthur and placed his hand under her sweatshirt and fondled he r breastand chest, then ran his hands down her sides, placed his arm around her neck, and invited her to go to a back room with him. Haberthur was afraid to scream or run away b ecause Untrif was a police officer in uniform. After that incident, Untri f rep eatedly drove slowly past Haberthur's house in both his marked police car and his
own ca r. She alleged these acts made her afraid for her safety and humiliated an d embarrassed her. Haberthur sued Untrif and

the City for violations of 42 U.S.C. § 1983 and state tort law. She asserted that Untrif had unlawfully detained her in violation of the fourth amendment, that Untrif sexually assaulted her in violation of her due process rights, and-3-

that U ntrif treated women differently than men in violation of her equal protectio n ri ghts. She alleged the City was also liable because of a custom or practice o f in difference to sexual assault and harassment by its employees and its failure t o "instruct, supervise, control, or discipline" Untrif. She also alleged state torts o f battery, negligent infliction of emotional distress, and intentional infliction of emotional distress a gainst Untrif, and claimed the City was responsible for battery and th e negligent infliction of emotional distress under a theory of respondeat superior.
Untrif and the City moved to dismiss and for summary ju dgment, and the district court issued an order on September 16, 1996, disposing of all of Haberthur's claims

. The district court dismissed some for failure to state a claim: the claims under 4 2 U.S.C. § 1983 for violations of substantive due process and equal protection and the claims for battery and negligent infliction of emotional distress against the City. The court dis missed the substantive due process claims because it believed that Untrif' s conduct was not so "brutal or demeaning" as to "shock the conscience" and amount to constitutional injury, citing Reeve v. Oliver . 41 F.3d 381, 383 (8th Cir. 1994) (pe r curiam). Because it believed the allegations did not make out a due process claim, it did not ne ed to reach issues relating to potential liability of the City. Summary judgment was granted to the defendants on the section 1983 claims alleging unlawful detention, and the remaining s tate claims were dismissed without prejudice for lack of subject matter jurisdiction.

Since Haberthur

now only appeals the dismissal of her substantive due process claims, we focus on that. The City and Untrif argue that this court does not hav e jurisdiction to consider whether Haberthur stated a claim for violation of her du e process rights because her notic e of appeal did not specify that she was appealing that part of th e district court's decision. The City and Untrif contend that the notice o f appeal was deficient because it stated she was appealing from an order grantin g summary jud gment and the due process claims had been dismissed for failure to state a claim.The Missouri criminal statute, Mo. Rev. Stat. § 566.090, whi ch Haberthur cites, 3 states: A person commits the crime of sexual misconduct i n the first

degree if he . . . purposely subjects another person to sexual contact or engages in conduct which would cons titute sexual contact except that the touching occurs through the clothing without that person's consent.

-4- Rule 3(c) of

the Federal Rules of Appellate Procedure states that a notice o f appeal "must designate the judgment, order, or part thereof appealed from." Fed. R. App. P. 3(c). The rules a

re to be construed liberally so that mere technicalities do not foreclose the consideration of a case on its merits, but failure to comply with Rule 3(c)
can in some i nstances create a jurisdictional bar. Klaudt v. United States Dep't o f Interior , 990 F.2d 409, 411 (8th Cir. 1993) (fa ilure to designate which order was being appealed where multiple orders had be en entered on different dates). The focus of the appeal must be apparent from the notice so that there is not prejudice to the advers e party. Burgess v. Suzuki Motor Co., Ltd. , 71 F.3d 304, 307 (8th Cir. 1995). Haberthur's notice of appeal designated the order from which she was appealing and named Untrif and the City as parties to the appeal. It stated that she was appealing "the Order granting Defendant's Motion for Summary Judgment on the 19th day o f September, 1996." That order contained both the district court's decision on th e motions to dismiss, including its decision to dismiss the substant ive due process claims,
an d the motions for summary judgment. With the notice, Haberthur filed Appellant's Form A which included in the statement of issues: "Defendant violated Plaintiff' s Fourteenth Amendment due process liberty rights when Defendant sexually assaulted Plaintiff." Both Untrif and the City have briefed the due process issues. There wa s sufficient compliance with Rule 3(c), a nd Untrif and the City have shown no prejudice by any deficiency. We therefore have jur isdiction to consider the merits of the appeal. Haberthur argues that the district court committed reversible err in di smissing her due process claims. She asserts that Untrif's acts violated Missouri criminal law and 3Id. "Sexual contact" is defined as "any touching of . . . the breast of a female person,

for the purpose of a

rousing or gratifying sexual desire of any person." Mo. Rev. Stat. § 566.010 (3). -5- were so egr egious as to "shock the conscience" and to inflict a constitutional injury

. She claims U ntrif was acting under color of state law since he was on duty and i n uniform d uring the incidents, carrying a gun, and driving his police vehicle. The City and Untrif respond that a violation of state law does not automatically create a constitutional violation, that Untrif's acts were not of a constitutional dimension, and that Haberthur failed to show an abuse of police authority or that Untrif was actin g under color of law and within the scope of his duties when the incidents occurred.

A comp laint should only be dismissed under Fed. R. Civ. P. 12(b)(6) if, constru ed most favorably to the nonmoving party, "it is clear that no relief could b e granted un der any set of facts that could be proved consistent with the allegations. " Hishon v. King & Spalding , 467 U.S. 69, 73 (1984). All factual allegations in th e complain t

must be accepted as true. Leatherman v. Tarrant County Narcotic s Intel ligence & Coord. Unit , 507 U.S. 163, 164 (1993). Whether a complaint states a claim is a question of law reviewed de novo. Alexander v. Peffer , 993 F.2d 1348, 1349 (8th Cir. 1993).

To state a c laim against Untrif under section 1983, Haberthur's complaint must allege th at his acts caused a constitutional injury and were done under color of stat e law. 42 U.S.C. § 1983; Collins v. City of Harker Heights , 503 U.S. 115, 120 (1992). Inorder for the City to be liable, the rule has been that there must be allegations that its policy, custom, or practice caused the constitutional injury. Collins , 503 U.S. atThe Supreme Court has recently discussed wha t is needed to establish a policy, 4 pra ctice, or custom and the necessary causal link between municipal action and th e interference with constitutional rights. See Board of the County Comm'rs of Brya n County v. Brown , 117 S. Ct. 1382 (1997).
-6- 123-24. Section 1983 is intended to remedy egregious conduct, and not every assault

4 or battery which violates state law will create liability under it. Burton v. Livingston , 791 F.2d 97, 99 (8th Cir. 1986).

The di strict court considered the conduct Haberthur complained about to b e similar to that in Reeve v. Oliver and therefore dismis sed her due process claims as not alleging a constitutional inj ury. The facts alleged by Haberthur are considerably more seri ous than those in Reeve , however. There an animal control officer had rubbed a
woman 's back and stared at her chest while investigating complaints about barkin g dogs

. Untrif is alleged to have done far more than the single incident described i n Reeve . He followed Haberthur home in his police cruiser and parked in her driveway. Later he went unexpectedly to the store in which she worked while he was in uniform and on duty and told her he woul d "wait down the road for her." On another occasion he sho wed up again at the store in uniform, walked up to her and reached his han d unde rneathher shirt, and fondled her breast and chest. He moved his hands up an d down her sides and made sexually suggestive re marks. He repeatedly drove slowly by Haberthur's home both in his police vehicle and his own private car. On two occasions he threatened he might give her a ti cket. Haberthur reported fearing for her safety and feeling humiliated as a result of what he did.

A sexu al assault can be a constitutional violation under section 1983. Harris v. City of Pagedale , 821 F.2d 499, 508 (8th Cir. 1987) (city liable under section 198 3 when police officer sexually fondled and raped a woman). This type of constitutional injury has been described as a violation of the substantive due process right to bodily integrity or privacy, and the courts of appeal have recognized that the right may be-7-

violated by sexual fondling and touching or other egregi ous sexual contact. See Lillard v. Shelby County Bd. of Educ. , 76 F.3d 716, 727 (6th Cir. 1996) (teacher's fondling a student's breast may violate the substantive due process right to bodily integrity) ; McWilliams v. Fairfax County Bd. of Supervis ors , 72 F.3d 1191, 1197 (4th Cir.), cert. denied , 117 S. Ct. (1996) (substantive due process right against unreasonable bodily intrusions violated when employee was forced to his knees, a finger was inserted in his mouth and a broomstick placed next to his clothed buttocks, and he was sexuall y fondled); Sepulveda v. Ramirez , 967 F.2d 1413, 1415-16 (9th Cir. 1992) (pa role officer not entitl ed to qualified immunity for depriving woman of clearly established du e process right to bodily pri vacy by entering a bathroom stall and watching her urinate).

The conduct that Haberthur alleged in her complaint, that Untrif reached his hand underneath her shirt and f

ondled a private erogenous area and moved his hands along
an d caressed her body while making sexually suggestive remarks, was intrusive , demeanin g, and violative of her personal integrity. The implication for further sexual
con tactwas in the larger context of threatening adverse official action by way of a ticket and fol lowing her in his police car. He was in uniform and on duty throughout. This is not a case alleging that a state ac tor failed to prevent a sexual assault, cf. Davis

v. Fulton Count y , 90 F.3d 1346 (8th Cir. 1996), but one where the state actor is th e alleged perpetrator. Taking the allegations in Haberthur 's complaint as true, as we must in determining whether her complaint stated a claim, they sufficient ly allege deprivation of her subst antive due process rights. It was therefore error for the district court t o dismiss the section 1983 claims for failure to allege a constitutional injury, an d Haberthur should be permitted to go forward with these claims.

The City and Untrif argue that Haberthur has not alleged an abuse of Untrif' s police authority because he had no special relationship with her an d the conduct did not take place in the context of an arrest or other official police work. Theyclaim there can be no constitutional violation or section 1983 liability without these elements.-8-

Haberthur has alleged sufficient facts to raise a colorable claim that Untrif' s actions w ere entwined with an abuse of his police authority. Haberthur's complain t
ass erts that Untrif used the City's police cruiser to follow her home and that h e threatened her with tickets on two occasions. On these occasions and whe n he sexually assaulted her, Untrif was on duty in uniform. A subs tantive due process right to bodily integrity can be violated without proof of an arrest, apprehension, or "specia l relationsh ip." Jones v. Wellham , 104 F.3d 620, 628 (4th Cir. 1997) (sexual assaul t which occurred when woman was not arrested or a suspect was a violation of the right to bodily integrity under the fourteenth amendment). Haberthur alleges that she was assaulted by a police officer acting under color of state law, and she has alleged acts by Un trif to make out a constitutional claim. It remains to be seen whether she ca n prove the allegations and whether there is merit to the remaining defenses.
The judgment is affirmed except for the dismiss al of the substantive due process cl aims. We reverse as to those claims and remand for further proceedings consistent with this opinion.

A true copy.

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