                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-3153
                                  ___________

Elsie Alexander, Individually               *
and as Guardian of Larry                    *
Alexander, An Incompetent                   *
Person,                                     *
                                            *
            Appellant,                      *
                                            *
      v.                                    *
                                            *
Pathfinder, Inc.; Colleen Black,            *
Executive Director of Pathfinder, Inc.,     *
Individually and in Her Official            *
Capacity; Cindy Crook, Administrator        *
of Pathfinder Home, Individually and        *
in Her Official Capacity; Tom Dalton,       *
Director of the Arkansas Department         * Appeal from the United States
of Human Services, in His Official          * District Court for the Eastern
Capacity; Sheri Simon, Psychological        * District of Arkansas.
Consultant to Pathfinder, Individually      *
and in Her Official Capacity; Marilyn       *
Martin, Licensed Social Worker              *
Consultant for Pathfinder, Individually     *
and in Her Official Capacity; and Colonel   *
McLyle G. Zumwalt, Joan R. Zumwalt,         *
Alton Johnston, Senator Max Howell,         *
T. P. White, Robert Bamburg, Robert         *
Ferguson, Jr., Senator Bill Gwatney,        *
and Martha Lawhon, All Individually,        *
d/b/a Pathfinder, Inc., and Pathfinder      *
Schools, Inc.,                              *
                                            *
             Appellees.                     *
                                    ___________

                              Submitted: June 14, 1999

                                   Filed: August 31, 1999
                                    ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER,1
      District Judge.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Elsie Alexander brought this action against Pathfinder Schools, Inc., doing
business as Pathfinder, Inc., an intermediate care facility for the mentally retarded
(ICF/MR), its board of directors and several individuals employed by or providing
services to the facility (Pathfinder defendants), and Tom Dalton as director of the
Arkansas Department of Human Services (DHS). Ms. Alexander sought relief for
damages that she and her son, Larry Alexander, an incompetent person, allegedly
suffered in the period leading up to and following his discharge from a group home
operated by Pathfinder. (Although both Ms. Alexander and her son are plaintiffs, for
the sake of simplicity we frame the discussion in her name only.)

       Ms. Alexander made claims under 42 U.S.C. § 1983 for violation of the first
amendment and of the constitutional guarantees of due process and equal protection,
under the Americans with Disabilities Act (ADA), see 42 U.S.C. §§ 12101-12213, and


      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.

                                         -2-
under § 504, see 29 U.S.C. § 794, of the Rehabilitation Act of 1973, see 29 U.S.C.
§§ 701-796l; she also asserted state-law tort claims for invasion of privacy, assault,
battery, negligence, and intentional infliction of emotional distress. The district court2
granted the defendants' motions to dismiss and for summary judgment. Ms. Alexander
appeals and we affirm.

                                           I.
       Ms. Alexander's son was a resident of a group home operated by Pathfinder.
When Pathfinder informed Ms. Alexander that her son would be discharged from the
home because his medical problems had become so severe that Pathfinder could no
longer care for him, she requested a hearing before a state administrative hearing
officer. The hearing officer upheld the discharge and gave the Alexanders thirty days
to find placement at another facility.

       Ms. Alexander took no steps to find another placement for her son but sued
instead. The district court dismissed all of the claims on the grounds that they were
precluded by the administrative hearing. See Alexander v. Pathfinder, Inc., 906
F. Supp. 502, 506-07 (E.D. Ark. 1995) (Alexander I). Ms. Alexander appealed and we
affirmed in part and reversed in part. See Alexander v. Pathfinder, Inc., 91 F.3d 59
(8th Cir. 1996) (Alexander II). All matters that were or could have been considered at
the administrative hearing were precluded, we said, id. at 62-63, but we remanded for
consideration of a due process claim and state-law claims of invasion of privacy,
assault, battery, and negligence, id. at 63.

     More than a year after our decision in Alexander II, Ms. Alexander filed an
amended complaint that included additional claims based on events that occurred after
the hearing officer's decision.    Ms. Alexander maintained, first, that Pathfinder


      2
        The Honorable Henry Woods, United States District Judge for the Eastern
District of Arkansas.

                                           -3-
unlawfully discharged Mr. Alexander from the workshop day treatment program, which
provides daily living training, social skills training, and paid work for persons with
developmental disabilities. Second, she asserted that Pathfinder and DHS wrongfully
denied Mr. Alexander access to the Medicaid waiver program, which provides home
and community-based services to a limited number of individuals with developmental
disabilities who would otherwise require an ICF/MR level of care. Ms. Alexander
complained that the defendants refused to add Mr. Alexander's name to the list of
persons qualified to participate in the program although they had allegedly told
Ms. Alexander previously that he was qualified. Finally, Ms. Alexander contended that
on two occasions when she tried to return Mr. Alexander to the group home after a
weekend visit, she found the facility locked and deserted and representatives of
Pathfinder refused to give Mr. Alexander additional medication. (After each incident,
Ms. Alexander obtained a temporary restraining order directing Pathfinder to readmit
Mr. Alexander.)

       Ms. Alexander contended that Pathfinder violated the first amendment when it
denied Mr. Alexander the services of the workshop and of the Medicaid waiver
program and when it locked Mr. Alexander out of the facility, because these acts were
in retaliation for her original lawsuit. She contended that the actions of DHS, in
denying Mr. Alexander access to the Medicaid waiver program, violated the first
amendment for the same reason. Ms. Alexander added a new federal claim against
DHS for failure to promulgate rules for administrative hearing procedures and reiterated
her original claims that DHS failed to provide a competent hearing officer, interfered
with the hearing officer's duties, and failed to monitor Pathfinder adequately for
compliance with applicable regulations, in violation of the constitutional guarantee of
due process.

       In addition, Ms. Alexander reasserted various state-law claims from her original
complaint that we held were not precluded, namely, invasion of privacy, assault,
battery, and negligence. She added a claim for intentional infliction of emotional

                                          -4-
distress that dealt with conduct different from that in her original complaint. This new
claim was based, evidently, on the incidents in which Mr. Alexander was allegedly
locked out of the Pathfinder facility and was denied additional medication.

       The amended complaint added several new defendants, namely, Sheri Simon
and Marilyn Martin, respectively a psychological consultant and a social worker
consultant for Pathfinder, and the members of the board of Pathfinder. All deny that
they are proper defendants in this case. DHS, Ms. Simon, and Ms. Martin moved to
dismiss, and the Pathfinder defendants and the members of the Pathfinder board moved
for summary judgment. The district court granted all of the defendants' motions.

                                            II.
       We first consider Ms. Alexander's claims arising from the fact that Pathfinder
discharged Mr. Alexander from the workshop day treatment program. Ms. Alexander
stated in an affidavit that various Pathfinder employees assured her that Mr. Alexander
could continue to participate in the workshop even after he ceased to be a resident at
the Pathfinder facility. After Ms. Alexander sued, however, and after Mr. Alexander
was definitely discharged from the Pathfinder group home, he was denied admission
to the workshop. No reason for the denial was given.

       Ms. Alexander contends that the defendants acted in retaliation for her
complaints against them, in violation of her rights under the first amendment, the
constitutional guarantee of due process, the ADA, and § 504 of the Rehabilitation Act.
Alternatively, or in addition, Ms. Alexander avers that the defendants excluded her son
because of his condition and thereby denied him the equal protection of the law. The
defendants, on the other hand, reply that Mr. Alexander was discharged because
Pathfinder no longer received Medicaid funds for Mr. Alexander's participation in the
workshop once he left the group home.




                                          -5-
        These facts, viewed in the light most favorable to Ms. Alexander as the
nonmoving party, do not support either her claim under the first amendment or her due
process and equal protection claims against Pathfinder, because these rights can be
asserted only against state actors. Pathfinder is a private corporation and the fact that
it receives Medicaid funds does not convert it into a state actor. See Blum v. Yaretsky,
457 U.S. 991, 1002-12 (1982) (private nursing home not state actor despite extensive
regulation and payments from state); see also Hoyt v. St. Mary's Rehabilitation Center,
711 F.2d 864, 865-67 (8th Cir. 1983). Similarly, the Pathfinder board and Sheri Simon
and Marilyn Martin, consultants to Pathfinder, are not state actors and may not be sued
under 42 U.S.C. § 1983.

        The ADA and § 504 claims that were related to Mr. Alexander's discharge from
the workshop were not adverted to in the amended complaint. Ms. Alexander first
mentioned them, very generally, in her response to the defendants' motion for summary
judgment. Only on appeal does Ms. Alexander state her theory that when the
defendants excluded Mr. Alexander from the workshop, they violated her rights and
those of Mr. Alexander under not only the first and fourteenth amendments but also the
ADA and § 504. We do not consider claims that were not raised below. Dorothy J.
v. Little Rock School District, 7 F.3d 729, 734 (8th Cir. 1993).

                                           III.
       DHS instituted a developmental disabilities alternative community services
program (the Medicaid waiver program), see 42 U.S.C. § 1396n(c), to provide home
and community-based services to a limited number of individuals who would otherwise
require an ICF/MR level of care. See Arkansas Department of Human Services v.
Kistler, 898 S.W.2d 32, 33 (Ark. 1995). Ms. Alexander contended that Mr. Alexander
was qualified by DHS as an eligible candidate for the program before she originally
sued but that Pathfinder and DHS denied him eligibility after that challenge and refused
to add him to the list of qualified applicants. She argued that this sequence of events


                                          -6-
is evidence that Pathfinder and DHS were acting in retaliation, in violation of the first
amendment.

        It is not clear from either the amended complaint or the briefs whether
Ms. Alexander was contending that her son was denied any or all Medicaid benefits,
including the minimal payments from the Medicaid waiver program, or whether her
claim was that despite Mr. Alexander's eligibility for Medicaid, he was excluded from
the waiver program because DHS decided that he should be in a facility that provided
an ICF/MR level of care. It seems to us that the latter alternative is somewhat more
likely, namely, that Ms. Alexander did not want her son to be institutionalized and was
seeking to enroll him in the program so that she could care for him at home.

       Ms. Alexander did not produce any evidence, however, that the Medicaid waiver
program is suitable for Mr. Alexander in his present condition. Ms. Alexander's
amended complaint stated only that she was assured of waiver services before she
sued, but she did not say who gave this assurance or when it was made; in particular,
she did not state whether this assurance was given before Mr. Alexander's health
deteriorated. In short, Ms. Alexander did not present sufficient facts to survive a
motion for summary judgment. "While a party moving for summary judgment carries
the burden of demonstrating the absence of any genuine issue of material fact, a
nonmoving party may not rest upon mere denials or allegations, but must instead set
forth specific facts sufficient to raise a genuine issue for trial." Young v.
Warner-Jenkinson Company, Inc., 152 F.3d 1018, 1021 (8th Cir. 1998).

        Ms. Alexander further contended that DHS refused to provide her with
information about possible funding or alternative placements for Mr. Alexander, again
in retaliation for her legal action against Pathfinder. She did not specify the services
to which she believes she was entitled, though, nor did she say who refused to provide
her with the relevant information and under what circumstances. This claim therefore
fails for lack of specificity.

                                          -7-
                                          IV.
        Ms. Alexander raises a number of due process claims against DHS with respect
to the administrative hearing. First, Ms. Alexander claims that she and her son were
deprived of due process by the department's failure to promulgate rules and regulations
for its administrative hearing procedures as required by Ark. Code Ann. § 25-15-203.
In particular, Ms. Alexander contends that she could not conduct adequate discovery
before the hearing and thus was unable to anticipate or rebut the evidence presented
against her.

       The record of the administrative hearing, however, demonstrates that
Ms. Alexander had considerable opportunity for discovery and she does not say that
she asked the hearing officer for more. She has not shown, therefore, that she was
harmed by the absence of rules governing discovery. We note, moreover, that due
process requires only that an administrative hearing be fundamentally fair. We have
never held that there is a constitutional right to pretrial discovery in all such
proceedings. See Beef Nebraska, Inc. v. United States, 807 F.2d 712, 719 (8th Cir.
1986).

       Second, Ms. Alexander alleged that DHS failed to provide a fair and impartial
state administrative hearing officer to preside over the hearing, but she did not offer any
evidence or even any specific allegations of bias or partiality as she was required to do
to survive summary judgment. See Miller v. Schoenen, 75 F.3d 1305, 1309-11 (8th
Cir. 1996). On appeal, she offers for the first time as evidence of the hearing officer's
incompetence a passage in his opinion that, she argues, indicates that he applied the
wrong burden of proof. This argument comes entirely too late. As stated above, we
will not consider arguments raised for the first time on appeal. See Dorothy J., 7 F.3d
at 734.

      Ms. Alexander contends in addition that DHS interfered with the hearing officer's
performance of his duties by making unreasonable demands on his time. As evidence

                                           -8-
of this interference, she offers a remark by the hearing officer to the effect that he could
perhaps have written a more thorough opinion if he had had more time. The time
constraints on the hearing officer were imposed by Ark. Code Ann.
§ 20-10-1005(a)(2)(C), however, and not by DHS. DHS and all parties agreed,
moreover, to give the hearing officer an extra nine days to prepare his opinion.
Ms. Alexander has presented no evidence that DHS exerted any untoward influence
upon the hearing officer, and summary judgment was therefore correctly granted on this
part of her complaint.

        Finally, Ms. Alexander contends that DHS failed to monitor Pathfinder for
compliance with nursing home regulations regarding behavior modification programs
and patient discharge. She suggests on appeal that Mr. Alexander was ultimately
discharged from Pathfinder because DHS failed properly to monitor the facility. This
claim is barred by claim and issue preclusion. The hearing officer found that
Mr. Alexander was discharged for good cause and not because the Pathfinder
defendants tried to harass or bully Ms. Alexander into removing him. Even if DHS did
fail to monitor for compliance with regulations concerning behavior modification or
patient discharge, therefore, this failure did not harm Ms. Alexander and she has no
claim for damages on that account.

                                           V.
        We turn now to the state-law tort claims that we held in Alexander II were not
precluded by the administrative hearing, beginning with the claim for invasion of
privacy. The amended complaint states that the Pathfinder defendants instructed their
staff to audiotape all conversations in which Ms. Alexander took part, including those
with her son in his own room. The state administrative hearing officer found that
Ms. Alexander initially agreed to the taping in order to prove her allegations that the
Pathfinder staff used abusive language, but that she later objected to the practice.
Pathfinder employees continued to tape her conversations anyway. Ms. Alexander


                                            -9-
contended that this constituted an invasion of privacy in the form of intrusion. See
Restatement (Second) of Torts § 652B, at 378-80 (1977).

       The district court held that the audiotaping did not amount to an invasion of
privacy under Arkansas law, and we agree. Arkansas courts have had few occasions
to deal with the tort of invasion of privacy in the form of intrusion, but when they have
done so they have generally drawn upon the relevant discussion in the Restatement.
See, e.g., Dunlap v. McCarty, 678 S.W.2d 361, 364 (Ark. 1984). The Restatement, see
§ 652B, comment a, at 378, defines intrusion as "an intentional interference with [a
person's] interest in solitude or seclusion ... of a kind that would be highly offensive to
a reasonable man." Under § 652B, comment d, id. at 380, there is no liability unless
the interference is "the result of conduct to which [a] reasonable man would strongly
object."

       We note first that Ms. Alexander testified at the administrative hearing that she
did not object when the Pathfinder employees entered Mr. Alexander's room to
audiotape her conversations with her son. Since the employees carried tape recorders
in their hands and it was therefore clear what they intended to do, we hold that this
failure to object is fatal to that part of Ms. Alexander's claim that rests on the recording
of her private conversations with her son.

       Ms. Alexander similarly failed to state a claim for invasion of privacy based on
the audiotaping of conversations between her and Pathfinder employees, especially in
light of the facts that Pathfinder had a legitimate reason for making the recordings and
that Ms. Alexander knew she was being recorded. Ms. Alexander did not point to any
case law suggesting that one party's audiotaping his or her own conversations with
another amounts to an invasion of the other's privacy. Indeed, we note that Arkansas
law explicitly permits one party to a cordless or cellular telephone communication to
record that communication, even without the knowledge of the other. See Ark. Code
Ann. § 5-60-120(a).

                                           -10-
                                            VI.
       Ms. Alexander brought assault and battery claims against the Pathfinder
defendants because on one of Mr. Alexander's visits home she discovered bruises on
his back that she believed were the result of abuse. She offered no proof, however, that
Mr. Alexander's bruises were even caused by a member of the Pathfinder staff. The
assault and battery claims therefore cannot survive a motion for summary judgment.

       Ms. Alexander also asserted that the defendants were negligent in their
investigation of the alleged abuse, but the defendants offered evidence to the district
court that they conducted a thorough investigation of the incident. Ms. Alexander did
not contest any of this evidence, nor did she suggest what additional steps the
defendants should have taken. In order to make out a claim for negligence, a plaintiff
must offer proof of "a failure to exercise proper care in the performance of a legal duty
which the defendant owe[s] the plaintiff." Shannon v. Wilson, 947 S.W.2d 349, 356
(Ark. 1997). Since Ms. Alexander did not offer evidence of how the Pathfinder
defendants failed to perform a legal duty that was owed to her and her son, summary
judgment was correctly granted.

        Summary judgment was also correctly granted on Ms. Alexander's claim that the
Pathfinder defendants negligently hired and negligently supervised staff members.
Ms. Alexander failed to provide proof that Pathfinder was negligent in hiring or
supervising the alleged abuser, even assuming that the guilty person was a member of
the Pathfinder staff. In short, she has not shown that there was the genuine issue for
trial that Fed. R. Civ. P. 56(e) requires.

                                          VII.
       Ms. Alexander's original claim for intentional infliction of emotional distress was
based on a behavior modification plan devised by Pathfinder; this claim, although
reiterated in the amended complaint, is now precluded by the administrative hearing.
See Alexander I. An additional claim for intentional infliction of emotional distress, in

                                          -11-
the amended complaint but not in the original complaint, was apparently based
primarily on three events that occurred after the thirty-day grace period that she was
given to find a new placement for Mr. Alexander.

       On one occasion, the Alexanders returned to the facility after a visit home by
Mr. Alexander, only to find the place deserted and the doors locked. Mr. Alexander
had with him only enough medication for his visit home and was denied additional
medicine by Pathfinder staff. The administrator of the Pathfinder facility told
Ms. Alexander that her son had been discharged, but Ms. Alexander obtained a
temporary restraining order (TRO) to have him readmitted. The second event was
when the Alexanders returned to the group home after obtaining the TRO and found
that many of Mr. Alexander's things were packed in boxes. This is said to have caused
them "further emotional distress." Finally, after another visit home by Mr. Alexander,
with sufficient medication only for the weekend, the Alexanders again found the facility
locked and were denied additional medicine by Pathfinder staff. Again, Ms. Alexander
had to obtain a TRO to have her son readmitted.

       On appeal, Ms. Alexander argues that the defendants' acts of locking
Mr. Alexander out of the group home without notice and without additional medication
comprised all of the elements required to support a claim of intentional infliction of
emotional distress in Arkansas. See Tandy Corp. v. Bone, 678 S.W.2d 312, 314-17
(Ark. 1984). Ms. Alexander's proof, however, failed to raise an inference that the
alleged lockouts were willful or wanton, see id. at 314. Ms. Alexander's claims for
intentional infliction of emotional distress relative to the alleged lockouts, therefore,
cannot survive a motion for summary judgment.

       Ms. Alexander's amended complaint included only one other event that she cited
specifically as causing emotional distress, namely, finding Mr. Alexander's possessions
packed in boxes, as described above. The fact that Pathfinder staff packed
Mr. Alexander's things in boxes, however, can hardly be said to have been "extreme

                                          -12-
and outrageous" and "beyond all possible bounds of decency," which is an element of
a claim for intentional infliction of emotional distress, see Shepherd v. Washington
County, 962 S.W.2d 779, 791-92 (Ark. 1998). This claim for intentional infliction of
emotional distress, therefore, cannot escape summary judgment.

                                          VIII.
       Finally, Ms. Alexander mentions at several points in her appeal brief that the
district court erred in entering summary judgment for the defendants without allowing
her adequate time for discovery. It is not clear to us whether she raises this as an issue
on appeal. There is in any case no indication in the docket or in Ms. Alexander's brief
that she requested discovery or that she argued to the district court that summary
judgment should not be entered because of the lack of time to conduct discovery,
although more than six months passed between her response to the motion for summary
judgment and the district court's final order.

       Fed. R. Civ. P. 56(b) permits a motion for summary judgment by the defendants
at any time. If the opposing party has a good reason for being unable to present facts
essential to its response, it may request a continuance to permit discovery under Fed. R.
Civ. P. 56(f). The rules do not automatically provide for discovery absent such a
request. We have held, moreover, that it is not an abuse of discretion for a district
court to grant summary judgment before the opposing party has conducted any
discovery at all, even if that party has requested a continuance, if that party does not
demonstrate how discovery will provide rebuttal to the movant's claims. See Dulany
v. Carnahan, 132 F.3d 1234, 1238-39 (8th Cir. 1997). We therefore find no error here.

                                          IX.
       For the reasons stated, we affirm the district court's grant of dismissal to DHS
and the grant of summary judgment to the Pathfinder defendants and the members of
the Pathfinder board. We need not, therefore, consider the Pathfinder board members'
argument that they are not proper defendants in this case. Ms. Alexander does not

                                          -13-
explicitly ask us to reverse the district court's grant of dismissal to Ms. Simon and
Ms. Martin and we deem her claims against them abandoned.

      A true copy.

             Attest:

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




                                        -14-
