                          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 Haberthur sued the City of Raymore and one of its police officers, Steve
Untrif, for violations of her constitutional rights under 42 U.S.C. § 1983 and for
battery and infliction of emotional distress. The district court dismissed her substantive
due process and equal protection claims for failure to state a claim and granted
summary judgment on her other allegations under section 1983. Some tort claims were
dismissed for failure to state a claim, the rest for lack of subject matter jurisdiction. On
appeal Haberthur contests the dismissal of her substantive due process claims.1 We
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. Haberthur
alleged that Untrif had followed her home in his marked police car as she was returning
from work in late February 1994. When they arrived at her house, Untrif pulled his
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 thereafter in early March,
Untrif went in uniform2 to the store where Haberthur worked and approached her. He
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 again on March 16, while on duty and in uniform.
He went up to Haberthur and placed his hand under her sweatshirt and fondled her
breast and 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 because Untrif was a police officer in uniform. After that incident, Untrif
repeatedly drove slowly past Haberthur's house in both his marked police car and his
own car. She alleged these acts made her afraid for her safety and humiliated and
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



       1
        The notice of appeal lists all of her constitutional claims, but in her brief and at
oral argument she indicated she had narrowed her issues on appeal to the one area.
       2
       At oral argument Untrif's counsel indicated that Untrif carried a gun and police
badge as part of his uniform.

                                            -2-
that Untrif treated women differently than men in violation of her equal protection
rights. She alleged the City was also liable because of a custom or practice of
indifference to sexual assault and harassment by its employees and its failure to
"instruct, supervise, control, or discipline" Untrif. She also alleged state torts of
battery, negligent infliction of emotional distress, and intentional infliction of emotional
distress against Untrif, and claimed the City was responsible for battery and the
negligent infliction of emotional distress under a theory of respondeat superior.

       Untrif and the City moved to dismiss and for summary judgment, 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 42
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 dismissed 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) (per
curiam). Because it believed the allegations did not make out a due process claim, it
did not need 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 state 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 have
jurisdiction to consider whether Haberthur stated a claim for violation of her due
process rights because her notice of appeal did not specify that she was appealing that
part of the district court's decision. The City and Untrif contend that the notice of
appeal was deficient because it stated she was appealing from an order granting
summary judgment and the due process claims had been dismissed for failure to state
a claim.

                                            -3-
       Rule 3(c) of the Federal Rules of Appellate Procedure states that a notice of
appeal "must designate the judgment, order, or part thereof appealed from." Fed. R.
App. P. 3(c). The rules are 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 instances create a jurisdictional bar. Klaudt v. United States Dep't of
Interior, 990 F.2d 409, 411 (8th Cir. 1993) (failure to designate which order was being
appealed where multiple orders had been entered on different dates). The focus of the
appeal must be apparent from the notice so that there is not prejudice to the adverse
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 of
September, 1996." That order contained both the district court's decision on the
motions to dismiss, including its decision to dismiss the substantive due process claims,
and 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 was
sufficient compliance with Rule 3(c), and Untrif and the City have shown no prejudice
by any deficiency. We therefore have jurisdiction to consider the merits of the appeal.
       Haberthur argues that the district court committed reversible err in dismissing her
due process claims. She asserts that Untrif's acts violated Missouri criminal law3and


          3
          The Missouri criminal statute, Mo. Rev. Stat. § 566.090, which Haberthur cites,
states:

               A person commits the crime of sexual misconduct in the first
               degree if he . . . purposely subjects another person to sexual
               contact or engages in conduct which would constitute sexual
               contact except that the touching occurs through the clothing
               without that person's consent.


                                            -4-
were so egregious as to "shock the conscience" and to inflict a constitutional injury.
She claims Untrif was acting under color of state law since he was on duty and in
uniform during 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 acting
under color of law and within the scope of his duties when the incidents occurred.

        A complaint should only be dismissed under Fed. R. Civ. P. 12(b)(6) if,
construed most favorably to the nonmoving party, "it is clear that no relief could be
granted under 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 the
complaint must be accepted as true. Leatherman v. Tarrant County Narcotics
Intelligence & 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 claim against Untrif under section 1983, Haberthur's complaint must
allege that his acts caused a constitutional injury and were done under color of state
law. 42 U.S.C. § 1983; Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
In order 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. at




Id. "Sexual contact" is defined as "any touching of . . . the breast of a female person,
for the purpose of arousing or gratifying sexual desire of any person." Mo. Rev. Stat.
§ 566.010 (3).

                                          -5-
123-24.4 Section 1983 is intended to remedy egregious conduct, and not every assault
or battery which violates state law will create liability under it. Burton v. Livingston,
791 F.2d 97, 99 (8th Cir. 1986).

       The district court considered the conduct Haberthur complained about to be
similar to that in Reeve v. Oliver and therefore dismissed her due process claims as not
alleging a constitutional injury. The facts alleged by Haberthur are considerably more
serious 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 barking
dogs. Untrif is alleged to have done far more than the single incident described in
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 would "wait down the road for her." On another occasion
he showed up again at the store in uniform, walked up to her and reached his hand
underneath her shirt, and fondled her breast and chest. He moved his hands up and
down her sides and made sexually suggestive remarks. 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 ticket. Haberthur reported fearing for her safety and
feeling humiliated as a result of what he did.

      A sexual 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 1983
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


      4
        The Supreme Court has recently discussed what is needed to establish a policy,
practice, or custom and the necessary causal link between municipal action and the
interference with constitutional rights. See Board of the County Comm'rs of Bryan
County v. Brown, 117 S. Ct. 1382 (1997).

                                          -6-
violated by sexual fondling and touching or other egregious 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 Supervisors, 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 sexually
fondled); Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (parole officer
not entitled to qualified immunity for depriving woman of clearly established due
process right to bodily privacy 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 fondled a private erogenous area and moved his hands along
and caressed her body while making sexually suggestive remarks, was intrusive,
demeaning, and violative of her personal integrity. The implication for further sexual
contact was in the larger context of threatening adverse official action by way of a
ticket and following her in his police car. He was in uniform and on duty throughout.
This is not a case alleging that a state actor failed to prevent a sexual assault, cf. Davis
v. Fulton County, 90 F.3d 1346 (8th Cir. 1996), but one where the state actor is the
alleged perpetrator. Taking the allegations in Haberthur's complaint as true, as we must
in determining whether her complaint stated a claim, they sufficiently allege deprivation
of her substantive due process rights. It was therefore error for the district court to
dismiss the section 1983 claims for failure to allege a constitutional injury, and
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 and the conduct did not
take place in the context of an arrest or other official police work. They claim there can
be no constitutional violation or section 1983 liability without these elements.

                                            -7-
       Haberthur has alleged sufficient facts to raise a colorable claim that Untrif's
actions were entwined with an abuse of his police authority. Haberthur's complaint
asserts that Untrif used the City's police cruiser to follow her home and that he
threatened her with tickets on two occasions. On these occasions and when he sexually
assaulted her, Untrif was on duty in uniform. A substantive due process right to bodily
integrity can be violated without proof of an arrest, apprehension, or "special
relationship." Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (sexual assault
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 Untrif to make out a constitutional claim. It remains to be seen whether she can
prove the allegations and whether there is merit to the remaining defenses.

       The judgment is affirmed except for the dismissal of the substantive due process
claims. 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.




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