                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3244
                                    ___________

Kenneth Harold Swipies,                  *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Northern
                                         * District of Iowa.
Frank Kofka,                             *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 11, 2005
                                 Filed: August 12, 2005
                                  ___________

Before MORRIS SHEPPARD ARNOLD, MURPHY, and BENTON, Circuit Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Kenneth Swipies sued Woodbury County, Iowa, Deputy Sheriff Frank Kofka
under 42 U.S.C. § 1983 for violating his fourteenth amendment rights to substantive
and procedural due process. The jury found in favor of Deputy Kofka with respect
to the substantive due process claim. As to the procedural due process claim,
however, it found for Mr. Swipies and awarded him $1 in nominal damages and
$30,000 in punitive damages. Deputy Kofka appeals. He argues that the district
court should have entered judgment as a matter of law in his favor with respect to the
existence of a liberty interest, the sufficiency of the process afforded to Mr. Swipies,
and the propriety of the punitive damages award. In the alternative, Deputy Kofka
argues that the district court should have granted his motion for a new trial because
it erroneously failed to give a jury instruction that he requested. We conclude that
Mr. Swipies had a protected liberty interest that was violated, and that Deputy
Kofka's jury instruction was properly refused. We also hold, however, that
Mr. Swipies is not entitled to punitive damages.

                                            I
       Deputy Kofka was serving warrants when he saw Kendra Swipies,
Mr. Swipies's twelve-year-old daughter, with Tina Swipies, Mr. Swipies's wife at the
time (not Kendra's mother), and James Stark, a man whom Deputy Kofka knew to be
facing sexual abuse charges, near Mr. Swipies's house. Deputy Kofka knew Kendra
and Mr. Swipies because he was a friend of Kendra's mother, Mr. Swipies's ex-wife,
Dawn Ebert. Shortly before Deputy Kofka spotted Kendra, she had come to her
father's house for the start of a two-week, court-ordered visitation. Seeing Kendra in
Mr. Stark's presence prompted Deputy Kofka to telephone a county attorney and ask
him if he (Deputy Kofka) could perform an emergency removal of Kendra. The
attorney responded that Deputy Kofka could remove Kendra from her father's custody
if Deputy Kofka could articulate the bases for his decision to do so. Following this
conversation, Deputy Kofka drove to Mr. Swipies's house and, in Mr. Swipies's
presence, removed Kendra. After taking Kendra from Mr. Swipies's residence,
Deputy Kofka phoned his supervisor and asked him to call the county attorney's
office and the Iowa Department of Human Services to tell them that he had removed
Kendra. Deputy Kofka did not call the juvenile court or ask his supervisor to do so.
And he returned Kendra to her mother, the custodial parent, without informing
Mr. Swipies that he had done so.

                                          II.
       Deputy Kofka argues that the district court should have entered judgment as
a matter of law in his favor with regard to the due process claim because he did not
infringe on a constitutionally protected liberty interest. The heart of Mr. Swipies's

                                         -2-
procedural due process claim is that he was deprived of a post-removal hearing
because Deputy Kofka did not follow the procedures outlined in Iowa Code § 232.79.
That statute requires a police officer who removes a child to inform the juvenile court
of the emergency removal immediately so that the court can make arrangements for
the child's welfare. Deputy Kofka asserts that the Constitution did not guarantee
Mr. Swipies any procedure because it did not protect his right, as a non-custodial
parent, to visit with his daughter.

       Judgment as a matter of law is appropriate when "[t]here is no legally sufficient
evidentiary basis for a reasonable jury to find for [the non-moving] party on [an]
issue." Fed. R. Civ. P. 50. We review a district court's post-verdict denial of a
motion for judgment as a matter of law de novo, though we view the evidence in the
light most favorable to the jury's verdict. Voeltz v. Arctic Cat, Inc., 406 F.3d 1047,
1050 (8th Cir. 2005). Here the parties agree upon the facts relevant to this appeal,
and those facts are supported by the evidence presented at trial.

       The due process clause of the fourteenth amendment says, in relevant part, that
no state shall "deprive any person of ... liberty ... without due process of law." U.S.
Const. amend. XIV, § 1. To establish a procedural due process violation under this
provision, a plaintiff must first show that the state infringed on a cognizable liberty
interest. Cf. Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 701 (8th Cir. 2004).
As a general matter, parents have a liberty interest in the "care, custody, and
management of their children." Manzano v. South Dakota Dep't of Soc. Svcs.,
60 F.3d 505, 509-10 (8th Cir. 1995). That said, in the past we have hedged on the
question of whether non-custodial parents possess such an interest, and we have
noted that the interest is subject to a de minimis exception: "Although we have
recognized the possibility that visitation and placement decisions may be subject to
due process scrutiny, as such decisions may infringe upon a parent's interest in the
'care, custody, and management of [his or her] child,' we have not yet found a case
where the right to visitation was infringed in a manner that rose to the level of a

                                          -3-
constitutional violation." Zakrzewski v. Fox, 87 F.3d 1011, 1014 (8th Cir. 1996)
(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)) (additional citation and
quotations omitted).

      Deputy Kofka draws on both strands of this statement from Zakrzewski. He
contends that the Constitution did not protect Mr. Swipies's right to visit his daughter
and that even if Mr. Swipies had a cognizable right to visitation, any infringement
was so brief as not to be actionable. To support this second point further, he
analogizes the present case to Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l
Planning Agency, 535 U.S. 302 (2002). The Supreme Court concluded in that case
that a temporary moratorium on real estate development did not constitute a
categorical taking under the fifth amendment's takings clause. Id. at 320-21.

       We reject Deputy Kofka's initial argument and conclude that Mr. Swipies had
a protected liberty interest. Though in Zakrzewski we did not rule on the question of
whether a non-custodial parent has a liberty interest in the care, custody, and
management of his or her child, we held in an earlier appeal in this case that
Mr. Swipies possessed such an interest. Swipies v. Kofka, 348 F.3d 701, 703-04 (8th
Cir. 2003). We are bound to follow this holding. It is not only the law of the case,
see, e.g., Popp Telecom, Inc. v. American Sharecom, Inc., 361 F.3d 482, 490 (8th Cir.
2004), but the law of the circuit, i.e., a decision of another panel which only the court
en banc may overturn, see United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir.
2005).

       Even if our decision were not controlled by our previous holding, we would
reach the same conclusion. If a state court affords a non-custodial parent visitation
rights, we believe that the parent possesses, at least in some form, the liberty interest
recognized in Manzano. A parent with visitation rights takes part in raising the child
by making decisions about care, custody, and management during the period of the



                                          -4-
visitation, and thus he or she has the sort of parental role that deserves to be protected
as a liberty interest.

       To the extent that a de minimis exception attaches to this liberty interest, it does
not apply to this case because Kendra was scheduled to be with Mr. Swipies for two
weeks, and not just a few days, as in Zakrzewski, 87 F.3d at 1012-13. Relatedly, we
are not persuaded by Deputy Kofka's analogy to Tahoe-Sierra Preservation Council.
That case did not create a generally applicable de minimis principle, but instead held
that a temporary moratorium on real estate development was not a certain kind of
taking. Tahoe-Sierra Preservation Council, 535 U.S. at 320-21. We do not see how
this holding translates into anything useful in the context of the due process clause,
for we know of no reason to think that a period of deprivation is too short to be
cognizable for purposes of the due process clause just because the same period is too
short to be cognizable for purposes of the takings clause.

                                           III.
       Deputy Kofka argues as well that the court erred in denying his motion for
judgment as a matter of law because Mr. Swipies received all of the process that he
was due at a hearing following the removal. Mr. Swipies filed a motion to hold his
wife in contempt in the state court that presided over the divorce proceedings and that
retained jurisdiction over related matters. The claim related to his wife's role in the
removal. The judge held a hearing on this claim seventeen days after Deputy Kofka
removed Kendra. Mr. Swipies, Deputy Kofka, and Ms. Ebert testified at this hearing,
and Mr. Swipies, who represented himself, had an opportunity to cross-examine
Deputy Kofka and Ms. Ebert. The judge decided not to hold Ms. Ebert in contempt
for her role in the removal.

       To establish a procedural due process violation, a plaintiff need not only show
a protected interest, but must also show that he or she was deprived of that interest
without sufficient process, i.e., without due process. Clark, 375 F.3d at 701. The due

                                           -5-
process clause ensures every individual subject to a deprivation "the opportunity to
be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
The circumstances of the deprivation dictate what procedures are necessary to satisfy
this guarantee. Mathews, 424 U.S. at 333-34. In the context of child removal cases,
the "meaningful time" and "meaningful manner" assurances impose a duty on the
state to hold a hearing promptly after the removal. See Whisman v. Rinehart,
119 F.3d 1303, 1310-11 (8th Cir. 1997).

       Deputy Kofka maintains that the contempt hearing satisfied the requirements
of the due process clause. He emphasizes that Mr. Swipies's interest was slight,
because he was not the custodial parent, and that Mr. Swipies had a chance to present
his side of the story and cross-examine Ms. Ebert and Deputy Kofka. Under the
circumstances, he argues, nothing more was required.

       We hold that Mr. Swipies did not receive all of the process to which he was
entitled. Mr. Swipies was deprived of the opportunity to be heard at a meaningful
time because the hearing occurred seventeen days after the removal. In Whisman, we
decided, based on the facts of the case, that a hearing held seventeen days after a
removal was not prompt enough for the purposes of the due process clause. Id. We
reach the same conclusion here. The relative tardiness of this hearing is evident when
one recognizes that it occurred after Mr. Swipies's two-week visitation period would
have ended had it not been cut short by the removal. We do not believe, moreover,
that the fact that Whisman involved a custodial parent's rights counsels a different
outcome. Allowing the state to hold the hearing at a later date would lessen its
administrative burden, but even a non-custodial parent's rights are sufficiently
important to justify the greater burden of an earlier hearing. See generally Mathews,
424 U.S. at 335. For, as the court said in Jordan v. Jackson, 15 F.3d 333, 343 (4th
Cir. 1994), "[t]he bonds between a parent and child are, in a word, sacrosanct." To
put the matter otherwise, if seven days is too long for a car owner to wait for a post-

                                         -6-
deprivation hearing after his or her car has been towed and impounded, Coleman v.
Watt, 40 F.3d 255, 260-61 (8th Cir. 1994), as a matter of law, a parent should not
have to wait seventeen days after his or her child has been removed for a hearing.

                                           IV.
        Deputy Kofka contends that the district court erred when it denied his motion
for a new trial, which was based on the court's refusal to give a jury instruction on
good faith as to the procedural due process claim. Deputy Kofka asked the court to
instruct the jury on the good-faith defense contained in Iowa Code § 232.79(3). This
subsection provides, "[a]ny person ... acting in good faith in the removal or keeping
of a child pursuant to this section ... shall have immunity from any civil or criminal
liability that might otherwise be incurred or imposed as the result of such removal or
keeping." The judge instructed the jury on good faith as to the substantive due
process claim (which focused on the propriety of the decision to remove Kendra), but
refused to instruct it on good faith as to the procedural due process claim.

        If a district court improperly instructs a jury, a new trial may be appropriate.
See McKay v. WilTel Communication Sys., Inc., 87 F.3d 970, 976 (8th Cir. 1996); see
Fed. R. Civ. P. 59. We review jury instructions for an abuse of discretion. Sanders
v. May Dep't Stores Co., 315 F.3d 940, 946 (8th Cir. 2003), cert. denied, 539 U.S.
942 (2003). The touchstone of our review is whether the instructions, "taken as a
whole, fairly and adequately represent the evidence and applicable law in light of the
issues presented to the jury in a particular case." Brown v. Sandals Resorts Int'l,
284 F.3d 949, 953 (8th Cir. 2002) (internal quotations omitted). Reversal for a new
trial is appropriate only if there was an error that affected a substantial right of the
moving party. Sanders, 315 F.3d at 946.

       Deputy Kofka insists that the Iowa statute provides a good-faith defense for
actions following removal, and not just for the removal itself. Thus, he asserts, by not
instructing the jury on good faith as to post-removal activities, the district court

                                          -7-
presented an inaccurate picture of the law relevant to the procedural due process
claim.

        The district court did not err by failing to give the good-faith instruction
because the supremacy clause prohibits § 232.79(3) from playing either of the two
possible roles that Deputy Kofka seeks to assign to it. See U.S. Const. art. VI, cl. 2.
One possibility is that Deputy Kofka sees the good-faith provision as, quite
straightforwardly, a defense to liability under § 1983. In other words, he might
believe that § 232.79(3) immunizes a good-faith defendant who would otherwise be
liable under § 1983 for depriving an individual of a purely federal right. See
42 U.S.C. § 1983. This argument is of course untenable. The Supreme Court has
concluded that the supremacy clause bars state laws from shielding defendants from
liability under § 1983. Martinez v. California, 444 U.S. 277, 284 & 284 n.8 (1980).
The other possibility, closely related to the first, is that Deputy Kofka thinks that
Mr. Swipies's procedural due process rights spring from the state statute so that the
federal claim will be defeated if the state law claim fails. This argument is also
unsupportable: a state statute cannot dictate what procedural protections must attend
a liberty interest – even a stated-created one – as this is the sole province of federal
law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540-41 (1985). (To be
clear, the state statute does not create the liberty interest here.) As the instruction
would have misrepresented the applicable law, the district court did not err by
refusing to give it.

       We think it appropriate at this point to note that while the jury instructions
were not defective for lack of the good-faith instruction, they were flawed for another
reason: they indicated that Mr. Swipies was entitled to judgment in his favor on the
procedural due process § 1983 claim if he proved that Deputy Kofka had violated
§ 232.79 of the Iowa Code. To prevail under § 1983, a plaintiff must show that one
of his or her federal rights has been violated. See, e.g., Scheeler v. City of St. Cloud,
402 F.3d 826, 830 (8th Cir. 2005). Violation of a state statutory provision necessarily

                                          -8-
establishes a procedural due process violation only if the statutory provision requires
the same process as federal law, and no more. Section 232.79 and the due process
clause, however, are not coextensive. For example, the due process clause does not
require a police officer to take a removed child to a place designated by court rules,
see § 232.79(2), as this is not necessary for providing a parent with notice and a
meaningful opportunity to be heard. Because the Iowa Code and the due process
clause are not coterminous, Deputy Kofka did not violate the due process clause (and
by extension, § 1983) simply by neglecting to follow the Iowa Code word for word,
and the jury should not have been instructed otherwise. To reiterate, as we have
repeatedly held, a defendant is liable under § 1983 only if he or she has deprived the
plaintiff of a federal right.

       All of this said, we will not correct the error because of our view of the proper
role of courts in an adversarial system. Deputy Kofka did not challenge the above-
described aspect of the jury instructions before the district court, thus triggering plain
error review, Fed. R. Civ. P. 52(d)(2); Littrell v. Franklin, 388 F.3d 578, 586-87 (8th
Cir. 2004); see United States v. Olano, 507 U.S. 725 (1983), and he did not raise the
matter on appeal. What is more, he did not adopt the argument when, at oral
argument, we pointed out that the case appeared to have been submitted to the jury
on an improper theory. He did little more than acknowledge that no one had noticed
this problem. Though we can correct plain errors sua sponte, see Silber v. United
States, 370 U.S. 717, 718 (1962), the amount of inaction in this case is too much for
us to brook. To correct the error, we would have to notice sua sponte that the district
court did not act sua sponte to provide a jury instruction that the defendant should
have provided, and then we would have to remedy the problem in the face of the
defendant's relative indifference to it. We have an adversarial system of justice, not
an inquisitorial one, and to proceed along the path described above would be to blur
the line between the two systems. We decline to do so.




                                           -9-
                                         V.
       Deputy Kofka finally argues that the district court erred when it denied his
motion for judgment as a matter of law as to the availability of punitive damages.
Deputy Kofka knowingly deviated from § 232.79(2). This subsection obligates an
officer who has removed a child to bring the child to a place designated by court
rules, make a reasonable effort to inform the parent or guardian (presumably from
whom the child was taken) of the whereabouts of the child, immediately orally inform
the juvenile court of the emergency removal and the circumstances surrounding it,
and provide a written version of the information orally conveyed to the court. Iowa
Stat. § 232.79(2). Deputy Kofka admits that he did not do any of these things.

      Punitive damages may be assessed in a § 1983 case when a "defendant's
conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others." Smith v.
Wade, 461 U.S. 30, 56 (1983). In Kolstad v. American Dental Ass'n, 527 U.S. 526,
534-539 (1999), the Court offered guidance on the meaning of this standard.
(Though Kolstad discusses the punitive damages provision for Title VII claims,
42 U.S.C. § 1981a(b)(1), we believe that the discussion applies to § 1983 because
Congress modeled § 1981a(b)(1) on Smith's discussion of punitive damages under
§ 1983. Kolstad, 527 U.S. at 535-36; Iacobucci v. Boulter, 193 F.3d 14, 25-26, 26
n.7 (1st Cir. 1999).) The Court pointed out that the standard is subjective and, to
prove reckless indifference, requires evidence that the defendant acted "in the face
of a perceived risk that [his or her] actions [would] violate federal law." Kolstad,
527 U.S. at 536.

       Deputy Kofka argues that punitive damages are not warranted in this case
because "[t]here was no evidence ... from which a jury could conclude that [he] knew
he may be violating federal law." Unsurprisingly, Mr. Swipies does not think that the
court erred in denying the motion for judgment as a matter of law. Mr. Swipies
asserts that Deputy Kofka's insouciance toward the requirements of state law and his

                                         -10-
friendship with Ms. Ebert establish that he was recklessly indifferent to Mr. Swipies's
due process rights.

       We hold that there was no legally sufficient evidentiary basis on which a
reasonable jury could have found for Mr. Swipies as to punitive damages. No
evidence adduced at trial showed that Deputy Kofka acted in the face of a perceived
risk that his post-removal actions violated federal law.

        The fact that Deputy Kofka recognized that he was violating state law has no
bearing on whether he knew that he was violating, or might be violating, federal law;
all state law is not coterminous with federal law – there would be little need for it if
it were. As for Deputy Kofka's friendship with Ms. Ebert, it is of no value to
Mr. Swipies. As we have said, a plaintiff can establish that punitive damages are
appropriate by proving either that the defendant acted with ill will or that the
defendant was recklessly indifferent to the plaintiff's federal rights. Smith, 461 U.S.
at 56. Mr. Swipies rested his argument entirely on the reckless indifference theory,
and the court instructed the jury on this theory, to the exclusion of ill will. To
establish that punitive damages were appropriate on the basis of reckless indifference,
Mr. Swipies needed to show that Deputy Kofka knew that he was violating
Mr. Swipies's federal rights or recognized that he might be doing so. See Kolstad,
527 U.S. at 536. The fact that Deputy Kofka had a friendship with Ms. Ebert
demonstrates nothing at all about Deputy Kofka's knowledge of Mr. Swipies's federal
rights. Deputy Kofka was entitled to judgment as a matter of law as to the availability
of punitive damages.

       Why would a jury, presumably composed of reasonable people, reach an
unreasonable result? The answer can be found in the jury instructions. One of the
instructions reads, "[i]f you find the conduct of the defendant was recklessly and
callously indifferent to the plaintiff's rights to have the Iowa Code followed when his
daughter was removed, you may award punitive damages." This is an incorrect

                                         -11-
statement of law because federal law is what counts, not the Iowa Code: as pointed
out earlier, the Iowa Code does not mimic federal law; it requires more in some
regards. But if it were a correct statement of law, the jury's verdict would be
reasonable in light of the evidence introduced at trial.

                                      VI.
      For the reasons given above, we affirm the jury's finding that Mr. Swipies's
procedural due process rights were violated, but vacate the award of punitive
damages.
                      ______________________________




                                      -12-
