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Habhab v. Hon: 1983 - no Equal Protection or Due Process violation or ethnicity discrimination disliking how towing company sought business

United States Court of Appeals
No. 07-3386
Daniel L. Habhab; Mustiphie A. *
Habhab; William M. Habhab; *
Habhabs Towing, Auto & *
Truck Repair, *
Appellants, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
William Hon; Gary Niewsma; *
Rick Lampe; Randy Kunert; *
Robert Battles; Karl Kluender; *
Kirk Lundgren; Todd Aarhus; *
Ryan Aarhus; Michael Current; *
David Overton; Jon Borg; *
Glen Swanson; Jason Zoske; *
Sam Zoske; Heath Hove; *
Shane Antle, *
Appellees. *
Submitted: May 16, 2008
Filed: August 7, 2008
Before RILEY, HANSEN, and ARNOLD, Circuit Judges.
RILEY, Circuit Judge.
1The Honorable Thomas J. Shields, Chief Magistrate Judge for the Southern
District of Iowa, sitting by consent of the parties pursuant to 28 U.S.C. 636(c).
Daniel L. Habhab and members of his family (Habhab), who are of Lebanese
descent, operate a towing and car repair shop in Ames, Iowa. Habhab filed a lawsuit
against several Iowa state patrol troopers claiming violations of equal protection, as
well as violations of procedural and substantive due process. The state troopers
moved for summary judgment, and the district court1 granted the motion. Habhab
appeals. We affirm.
The relevant facts are undisputed. Habhab operates a towing and auto repair
shop and, in an effort to promote his business, Habhab drives a Sport Utility Vehicle
(SUV) to monitor Interstate 35 near Ames and Ankeny, Iowa. Habhab offers towing
and repair services to stranded motorists, regardless of whether or not state patrol
troopers requested Habhabs assistance.
Habhabs business practices have caused several state patrol troopers to express
concern. The troopers claim some of Habhabs business practices were unsafe. One
of the safety concerns expressed by the troopers is Habhabs vehicles sometimes cut
across the median. Habhab disagrees with the state troopers safety concerns and
states Habhabs patrolling of the highways provides a valuable service to motorists.
Pursuant to policy and practice, the state troopers ask a stranded motorist if the
motorist has any preference in a tow truck company. If the motorist does not have a
preference (as is usually the case), the troopers direct the dispatcher to select and call
a tow truck company. Dispatchers attempt to distribute the work evenly among the
tow truck companies on their list, which includes Habhabs business.
In April 2002, the sheriff in Story County (the county where Habhabs business
is located) wrote a letter to Habhab stating, in part:
I can appreciate ones efforts to generate business, however, responding
to accident scenes without being called creates an unsafe environment
for all involved.
I ask that your employees do not respond to accident scenes without first
being called or requested. Complying with this request will enhance
everyones safety and allow for deputies to investigate an undisturbed
accident scene.
In May 2002, there was an incident between state trooper Karl Kluender
(Officer Kluender) and Daniel Habhab. The problem arose when Officer Kluender
approached a vehicle stopped in the median and Habhabs SUV was already at the
scene offering services. Officer Kluender approached Daniel Habhab and asked,
You get called to come out here or you just drive by? When Daniel Habhab
acknowledged not being called, Officer Kluender told him to take off, and [w]ell
call when we need a tow truck. Daniel Habhab left the scene. After another tow
truck company operator arrived at the scene, Officer Kluender commented to the tow
operator that Habhab previously filed a complaint on [certain] officers . . . because
they didnt use him, and Officer Kluender stated, were racists toocause hes from
the Middle East, hes Arab, so . . . you got a throw that card into it too, you know.
Officer Glen Swanson (Officer Swanson) testified he heard a rumor on one
occasion probably from Officer Kluender that Habhab was possibly involved in
criminal activity and also heard Officer Kluender refer to Habhab and his employees
as Arabs. As a result of his comments, Officer Kluender received a letter of
reprimand in December 2002.
Habhab filed suit against the state troopers charging the troopers violated
Habhabs constitutional rights. Habhabs allegations included, among other things,
claims the state troopers encouraged potential customers to hire other tow truck
companies, ordered Habhab to leave a towing site despite having been retained, and
threatened Habhab with criminal charges if he continued to follow his business
practices. Claiming the state troopers actions interfered with Habhabs towing
business and were based on ethnicity and national origin, Habhab asserted violations
of (1) equal protection, (2) procedural due process, and (3) substantive due process.
We review de novo the district courts grant of summary judgment, viewing
all evidence and reasonable inferences in the light most favorable to the nonmoving
party. Reasonover v. St. Louis County, Mo., 447 F.3d 569, 578 (8th Cir. 2006)
(citation omitted). If there is no genuine issue of material fact [] and the moving
party is entitled to judgment as a matter of law[,] . . . . [w]e may affirm summary
judgment for any reason supported by the record, even if it differs from the rationale
of the district court. Id. at 578-79 (citations and internal quotation marks omitted).
Habhab claims that on several occasions state troopers asked stranded drivers
who were prospective customers, are you sure you want to use these people
[Habhab] or do you want me to call a service you want to use? Habhab contends
each question by the troopers implies that the driver should not choose the Habhabs
. . . or that the driver should change his or her mind if the Habhabs have already been
hired. Habhab claims these inquiries, plus the troopers requests that Habhab leave
the scene when he had not been called, together with Officer Kluenders comments
and the troopers calling other towing companies when Habhab was already at the
scene, constitute violations of equal protection and procedural and substantive due
process rights. We disagree.
A. Equal Protection Claim
With respect to Habhabs equal protection claim, Habhab argues the state
troopers treated him differently because of his ethnicity. Habhabs argument has no
merit. In general, the Equal Protection Clause requires that state actors treat similarly
situated people alike. Bogren v. Minnesota, 236 F.3d 399, 408 (8th Cir. 2000)
(citation omitted). State actors may, however, treat dissimilarly situated people
dissimilarly without running afoul of the protections afforded by the clause. Id.
Habhab must, as a threshold matter, demonstrate the state troopers treated Habhab less
favorably than similarly-situated owners of other towing companies based upon
Habhabs ethnicity. Id.
Habhab did not show similarly situated Caucasian or different ethnic tow truck
businesses were treated more favorably, thus, Habhabs claim must fail. The record
does not indicate any other owners of a towing company, whether Caucasian or of a
different race or ethnicity, were patrolling the highways as Habhab did, or that the
state troopers reacted differently to other towing companies by not objecting to them
conducting business with stranded motorists. Habhabs general and conclusory
allegations reflect nothing but tension between the state troopers and Habhab because
of Habhabs business practices. The troopers see Habhabs business practices as
dangerous neither race nor ethnicity was shown to be an issue on this record. Even
Officer Kluenders taped reference that Habhab was from the Middle East, hes
Arab does not amount to constitutional racial discrimination. Officer Kluenders
statement was not pervasive or severe enough to amount to racial harassment; thus,
it does not violate the Fourteenth Amendment. See Blades v. Schuetzle, 302 F.3d 801,
805 (8th Cir. 2002) (declaring, we believe that the use of racially derogatory
language, unless it is pervasive or severe enough to amount to racial harassment, will
not by itself violate the [F]ourteenth [A]mendment.).
The same explanation applies with respect to the troopers inquiries of stranded
motorists: are you sure you want to use these people or do you want me to call a
service you want to use? These questions alone do not demonstrate the troopers were
racially biased against Habhab, and do not violate the Fourteenth Amendment. These
inquiries reflect the troopers intention to communicate to the motorists they had other
2Habhab also claims the state troopers provided traffic controlservices to
other towing companies, but not to Habhab. This claim is unfounded because Habhab
does not specifically explain who received this service and what this service entailed.
options, because other towing services were available and the motorists did not have
to use Habhab simply because Habhab was the first at the scene. These statements
allowed motorists to choose from other available services. Motorists could contact
motorist clubs or their insurers to locate towing companies. Some motorists even
choose to leave their automobiles on the road because they cannot afford a tow.
Advising motorists they have options may be beneficial to the stranded motorists.2
The district court properly entered summary judgment in favor of the state troopers
on Habhabs equal protection claim.
B. Procedural Due Process Claim
With respect to Habhabs procedural due process claim, Habhab essentially
claims defendants interfered with his right to earn a living by providing towing
services. The Due Process Clause of the Fourteenth Amendment guarantees that no
state shall . . . deprive any person of life, liberty, or property, without due process of
law. Forrester v. Bass, 397 F.3d 1047, 1054 (8th Cir. 2005) (citing U.S. Const.
amend. XIV, 2) (internal quotation marks and alterations omitted). Property
interests protected by due process are not created by the Constitution but, rather, are
created and their dimensions are defined, by existing rules or understandings that stem
from an independent source such as state law. Id. (citation and internal quotation
marks omitted). Only if we find a protected interest do we examine whether the
deprivation of the protected interest was done in accordance with due process. Id.
(citation omitted).
Habhabs procedural due process argument fails for two reasons. First,
[d]iscretionary policies [] do not bestow upon individuals protected property
interests. Beggs v. Gilkey, 178 F.Appx. 593, 595 (8th Cir. 2006) (per curiam)
(unpublished) (citing Forrester, 397 F.3d at 1056). The inclusion of Habhabs name
on a list of towing companies used by dispatchers does not give Habhab a property
interest in obtaining any particular work, because the dispatchers have reasonable
discretion in assigning the towing services to any of the towing companies on the
wrecker list. See id. The district court did not err in determining Habhab did not have
a property interest.
Second, the district court properly noted Habhab had not been deprived of any
liberty interest. The Constitution only protects [the] liberty [to follow a chosen
profession free from unreasonable governmental interference] from state actions that
threaten to deprive persons of the right to pursue their chosen occupation. State
actions that exclude a person from one particular job are not actionable in suits . . . .
It is the liberty to pursue a particular calling or occupation, and not the right to a
specific job, that is secured by the Fourteenth Amendment. Piecknick v. Com. of Pa.,
36 F.3d 1250, 1259-60 (3d Cir. 1994) (citations and internal quotation marks omitted).
The troopers statements do not constitute a deprivation of Habhabs right to pursue
his chosen occupation.
Finding no protected interests, we need not decide what, if any, procedural
process was due. Forrester, 397 F.3d at 1057. Furthermore, Habhab does not seek
process, such as a hearing. Rather, Habhab seeks money. When claimants seek
money, not process, they must litigate in the proper forum, in state court, not in
federal court. Goros v. County of Cook, 489 F.3d 857, 860 (7th Cir. 2007).
C. Substantive Due Process Claim
Before official conduct or inaction rises to the level of a substantive due
process violation, it must be so egregious or outrageous that it is conscienceshocking.
Forrester, 397 F.3d at 1058 (citation, internal quotation marks and
alteration in the original omitted). Nothing in the record supports an allegation the
state troopers conduct was egregious or rose to the conscience-shocking level.
Habhabs claim that the state troopers actions interfered with contracts he already had
with motorists seeks only to vindicate a claim for tortious interference with the
3Habhab postulates a contradictory conspiracy exception, proposing the state
troopers acted outside the scope of their employment for personal reasons. Such a
theory is both baseless and inconsistent with Habhabs other allegations.
contracts. Habhab cannot avail himself of federal constitutional principles of
substantive due process to pursue such a claim. See Snow v. Ahne, 53 F.Appx. 799,
799 (8th Cir. 2003) (per curiam) (unpublished).
The district court also correctly found the state defendants were entitled to
qualified immunity. Section 1983 provides a cause of action against government
officials who deprive persons of rights, privileges, or immunities secured by the
Constitution. 42 U.S.C. 1983. Government officials are entitled to a dismissal if
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Sanders v. City of Minneapolis,
Minn., 474 F.3d 523, 526 (8th Cir. 2007) (citation and internal quotation marks
omitted). In addressing an officers claimed entitlement to qualified immunity, the
court must first determine whether the allegations amount to a constitutional violation,
and then, whether that right was clearly established. Id. (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)). If the allegations and undisputed facts do not amount to a
constitutional violation, there is no necessity for further inquiries concerning
qualified immunity. Saucier, 533 U.S. at 201. Having determined none of Habhabs
claims amount to a constitutional violation, defendants are entitled to qualified
The district court also correctly concluded Habhabs conspiracy claim failed
because, among other reasons, Habhab could not meet the first prong of this charge.
To establish conspiracy under 1985, Habhab must first prove defendants conspired.
See Barstad v. Murray County, 420 F.3d 880, 887 (8th Cir. 2005) (citation omitted).
Habhab pled the state troopers were at all times relevant . . . acting within the scope
of their employment, thus, they were acting as a single person in the eyes of the law.
However, a government entity or corporation cannot conspire with itself. See id.3 In
addition, [a] conspiracy claim requires evidence of specific facts that show a
meeting of minds among conspirators. Id. (citation omitted). Nothing in the record
manifests a meeting of the minds occurred among the state troopers to inflict a wrong
against or injury upon Habhab. Rotermund v. U.S. Steel Corp., 474 F.2d 1139, 1145
(8th Cir. 1973) (citation and internal quotation marks omitted). The record reflects
only isolated incidents of troopers reacting to Habhabs business practices. Habhabs
conspiracy claim fails as a matter of law.
We affirm the judgment of the district court in its entirety.


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