                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1048
                                  ___________

Margaret Vaughn ; Kevin L. Vaughn,        *
                                          *
              Plaintiffs-Appellants,      *
                                          *
       v.                                 *
                                          *
Sutton Ruoff, Individually and in her     *
official capacity as social service       *
worker for the Clinton County             *
Division of Family Services, et al.;      *
                                          * Appeal from the United States
              Defendant-Appellee,         * District Court for the Western
                                          * District of Missouri.
Sandra Utz, as an individual and in       *
her official capacity as social service   *
worker for the Clinton County             *
Division of Family Services; Patricia     *
Marceau, as an individual and in her      *
official capacity as a county director    *
for the Clinton County Division of        *
Family Services,                          *
                                          *
              Defendants.                 *
                                     ___________

                            Submitted: September 13, 2002

                                 Filed: September 19, 2002
                                  ___________

Before BOWMAN, BRIGHT, and FAGG, Circuit Judges.
                                   ___________

FAGG, Circuit Judge.

       Margaret Vaughn and her husband Kevin L. Vaughn sued their Department of
Family Services (DFS) caseworker, Sutton Ruoff (now Sutton McCrea but referred
to as Ruoff), and other DFS employees, claiming Ruoff coerced Margaret into having
a tubal ligation procedure. Ruoff began working with the Vaughns after DFS
received a report that their infant, Leta, was failing to thrive and not receiving
necessary medication. After investigation confirmed Leta was losing weight, the
Vaughns were not feeding Leta appropriate food or giving her medicine, and
unsanitary home conditions such as dog feces in the house threatened Leta’s health,
Leta was removed from the home. Margaret was given Depo Provera injections for
birth control at the local health clinic, but soon learned she was pregnant again.
Ruoff worked with the Vaughns throughout Margaret’s pregnancy. One week after
Margaret gave birth to Kevin, Junior, DFS removed Kevin from the home.

        Margaret claims that during her pregnancy with Kevin, Ruoff brought up the
subject of sterilization. After Kevin’s birth, Margaret claims Ruoff told her she
would get the children back in two to three weeks if she had her tubes tied. Ruoff
denies promising the Vaughn’s children would be returned if Margaret were
sterilized. Margaret decided to have a tubal ligation sterilization procedure. Ruoff
made the appointment and arranged for Margaret to stay at the Heartland House
before her procedure, without cost to the Vaughns. Before the procedure, Margaret
discussed the surgery with a doctor and signed consent forms. Margaret claims she
did not want to have the surgery and wanted to change her mind the night before the
procedure. Despite these reservations, Margaret had the tubal ligation. Several
weeks later, because the Vaughns were not making progress toward reunification, the
family planning team recommended the Vaughns’ parental rights be terminated.




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        The district court granted DFS defendants’ motion for summary judgment on
all claims except due process claims against Ruoff. Ruoff appealed, claiming she was
entitled to qualified immunity. We affirmed the district court, concluding that
viewing the facts in the light most favorable to the Vaughns, a jury could conclude
that Ruoff coerced Margaret into submitting to sterilization, Margaret was not given
procedural protection, and Margaret’s right to be free from compulsory sterilization
was clearly established. Vaughn v. Ruoff, 253 F.3d 1124, 1128-30 (8th Cir. 2001).
The Vaughns’ case against Ruoff proceeded to trial. The jury rendered a verdict for
the defense and Vaughns moved for a new trial, contesting the jury instructions. The
district court* denied the motion. The Vaughns appeal, claiming the district court
mistakenly submitted jury instructions describing a substantive due process claim,
rather than a procedural due process claim which reflects the Vaughns’ theory of the
case. Having carefully reviewed the record and applicable law, we affirm.

       The trial court has broad discretion in formulating jury instructions. Gasper v.
Wal-Mart Stores, Inc., 270 F.3d 1196, 1199 (8th Cir. 2001). We will not reverse the
district court’s denial of a motion for new trial unless the court abused its discretion
and the instructional error affected the substantive rights of the parties. Id. at 1199-
1200. Here, the district court did not abuse its discretion because the jury
instructions, taken as a whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the jury. Id. at 1200. While it can be
difficult at times to distinguish a procedural due process claim from a substantive due
process claim, the evidence presented at trial did not support a procedural due process
jury instruction. Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997). The
Vaughns’ complaint alleges a due process violation, without specifying whether the
violation was substantive or procedural. The Vaughns offered no evidence or
argument at any point during the trial describing what procedural protections were


      *
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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available or should have been used. Further, the Vaughns offered no verdict directors
describing procedures they were denied. The instructions proposed by the Vaughns
state:
       Your verdict must be for plaintiff [Margaret Vaughn or Kevin Vaughn]
       and against defendant if you believe: First, defendant intentionally
       coerced plaintiff Margaret Vaughn into agreeing to undergo a
       sterilization procedure by stating or implying that the Vaughn’s [sic]
       children would be returned to them if they agreed to sterilization; and
       Second, as a direct result, plaintiff Margaret Vaughn was damaged.

(J.A. at 342-43). Because these instructions do not include the necessary elements
of a procedural due process claim, they are insufficient as a matter of law. Hahn v.
Star Bank, 190 F.3d 708, 716 (6th Cir. 1999) (describing elements of procedural due
process claim including allegation the state did not afford adequate procedural
protections before depriving plaintiffs of protected interest). In addition, because the
instructions were not supported by evidence presented at trial, the Vaughns are not
entitled to have these instructions submitted. Aerotronics, Inc. v. Pneumo Abex
Corp., 62 F.3d 1053, 1062 (8th Cir. 1995) (holding plaintiff entitled to instruction if
legally correct and supported by evidence). The district court did not abuse its
discretion by declining to present the Vaughns’ proposed instructions in the jury
charge.

       The Vaughns claim this Court’s earlier opinion describing a possible
procedural due process violation is binding precedent and law of the case. We
disagree. A careful reading of our earlier opinion shows we considered procedural
due process to be a viable claim, giving all reasonable inferences to the Vaughns. We
were not presented with the need to determine whether the claim was substantive or
procedural, nor does our opinion foreclose a substantive due process claim. Our
earlier opinion focuses on procedural due process protections available when the
government seeks to sterilize a mentally handicapped person. At the time of the
earlier opinion, we relied on information that Margaret had been diagnosed with mild


                                          -4-
mental retardation, information that was unsupported at trial. (Margaret is not mildly
mentally retarded, but has a developmental reading disorder and a receptive language
disorder.) The allegation of Margaret’s mental retardation provided a factual link to
the existing body of case law implementing procedural due process protections for
involuntary sterilization of persons with mental disabilities. Vaughn, 253 F.3d at
1130. Our analysis of precedent requiring presterilization procedures did not
foreclose the possibility that, when all the evidence was in, a substantive due process
jury instruction would better explain the applicable law. Indeed, our concluding
observation that any reasonable social worker would have known that a sterilization
is not voluntary, and thus not constitutional, if it is consented to under the coercive
threat of losing one’s children speaks to a substantive due process issue. Vaughn,
253 F.3d at 1130.

       The submitted jury instructions fairly and adequately described the facts
alleged by the Vaughns–that Ruoff coerced Margaret into having a tubal ligation
procedure by offering to return her children and Margaret’s tubal ligation procedure
was not voluntary–and the elements of substantive due process law–that the action
was so egregious and outrageous that it shocks the conscience and was not justified
by governmental interest. (J.A. at 358-59); County of Sacramento v. Lewis, 523 U.S.
833, 845-47 (1998) (describing elements of substantive due process claim); see also
King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir. 1997) (describing § 1983
claims for verbal threats actionable if threat shocks the conscience or exerts coercive
pressure). Thus, the district court committed no abuse of discretion in crafting jury
instructions or in denying the Vaughns’ motion for new trial. Gasper, 270 F.3d at
1200. As the district court explained, the jury’s rejection of the Vaughns’ claim
reflects the finding that Margaret elected to have the tubal ligation procedure of her
own free will, and was not coerced by Ruoff.

      We affirm the denial of the Vaughns’ motion for new trial.



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A true copy.

      Attest:

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




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