# Robison v. Department of Insurance, Finanical Institutions and Professional Registration

> District Court, E.D. Missouri · February 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10232454

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** February 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRYAN TRAVIS ROBISON, )
)
Plaintiff, )
)
v. ) Case No. 4:18 CV 1527 CDP
)
DEPARTMENT OF INSURANCE, )
FINANCIAL INSTITUTIONS AND )
PROFESSIONAL REGISTRATION, )
et al., )
)
Defendants. )

MEMORANDUM AND ORDER

Plaintiff Bryan Travis Robison brings this action under 42 U.S.C. § 1983
against the Missouri Department of Insurance, Financial Institutions and
Professional Registration (DIFP), and several of its current and former employees,
alleging that their revocation of and failure to renew his license as a general bail
bond agent in Missouri violated his constitutional rights to due process and to
equal protection under the law.
I will grant summary judgment to DIFP because it is immune from suit on
Robison’s claims. For the same reason, I will grant summary judgment to the
individual defendants in their official capacities. The individual defendants are
also entitled to summary judgment on Robison’s claim that they, in their individual
capacities, violated his right to equal protection. To the extent Robison claims that
the individual defendants’ failure to renew his license violated his right to due
process, defendants are entitled to qualified immunity.

I will deny summary judgment on Robison’s claim that the individual
defendants’ revocation of his license violated his right to due process, however,
because genuine issues of material facts remain on that claim. I will set that claim

for trial by separate order.
Background
Robison was a Missouri licensed general bail bond agent who employed
several bail bond agents in the State. Because his license was set to expire on

August 8, 2016, Robison submitted his application for renewal to the DIFP in July
2016. On July 29, 2016, John Huff, the Director of DIFP at that time, entered an
Order Refusing to Renew. On that same date, July 29, 2016, Kevin Davidson, an

investigator with DIFP, sent letters to Robison’s agent-employees and possibly
others stating that “effective immediately,” Robison was no longer authorized to
conduct general bail bond business in the State of Missouri. Believing this letter
effectively revoked his license, Robison stopped conducting bail bond business in

Missouri on July 29, 2016.
Robison unsuccessfully challenged the nonrenewal of his license in Missouri
state court, with the Missouri Supreme Court rendering final disposition in June

2018. Robison then filed this four-count action in this Court raising constitutional
challenges to both the nonrenewal and the revocation of his license. He names the
DIFP and several of its current and former employees as defendants, namely John

Huff, Former Director of DIFP; Chlora Lindley-Myers, Current Director of DIFP;
Carrie Couch, Director of Consumer Affairs; Mary Johnson, Manager of
Investigations; Kevin Davidson, Investigator; John F. Rehagen, Former Acting

Director of DIFP; and Jane Doe, Agent. All individual defendants are sued in their
official and individual capacities.
In Count 1 of his complaint, Robison claims that defendants Huff, Lindley-
Myers, Couch, Davidson, and Doe’s revocation of and failure to renew his general

bail bond agent’s license violated his constitutional right to procedural due process.
Robison brings this same due process claim against the DIFP in Count 2. Robison
brings Count 3 against all defendants, claiming that their revocation of and failure

to renew his license violated his constitutional right to equal protection under the
law. Finally, Robison claims in Count 4 that the DIFP is liable for the individual
defendants’ conduct under the theory of respondeat superior. Robison seeks both
monetary and injunctive relief.

Defendants move for summary judgment on all of Robison’s claims.
Legal Standard
Summary judgment must be granted when the pleadings and proffer of

evidence demonstrate that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). I must view the
evidence in the light most favorable to the nonmoving party and accord it the
benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 379 (2007).

Discussion
A. Sovereign Immunity: DIFP and Official-Capacity Claims
Except for statutory and common-law exceptions, sovereign immunity bars
all suits against state agencies, including suits for prospective equitable relief.

Church v. Missouri, 913 F.3d 736, 743 (8th Cir. 2019); Monroe v. Arkansas State
Univ., 495 F.3d 591, 594 (8th Cir. 2007). Robison does not identify any statutory
or common-law exception here. Nor am I aware of any. Accordingly, sovereign

immunity bars Robison’s claims against DIFP.
Robison’s claim for respondeat superior liability against DIFP also fails.
See Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (no vicarious liability
under § 1983 because government officials are liable for only their own

misconduct). To the extent Robison attempts to impose liability under a custom,
policy, or practice theory (see ECF 1 at p. 4), he fails to identify any DIFP policy
that allegedly led to his injury and, further, fails to allege how such policy violated
his constitutional rights.1 Robison therefore fails to state a claim against DIFP
under this theory as a matter of law. See Rodgers v. Univ. of Missouri Bd. of

Curators, 56 F. Supp. 3d 1037, 1048, 1054 (E.D. Mo. 2014).
To the extent Robison names the individual defendants in their official
capacities, the State’s sovereign immunity bars his claim for money damages

against them. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (official-capacity
suits are actions against the state agency of which the officer is an agent); Serna v.
Goodno, 567 F.3d 944, 952 (8th Cir. 2009) (Eleventh Amendment bars damages
claims against the states); Rodgers, 56 F. Supp. 3d at 1049-50 (official-capacity

suits barred by sovereign immunity). Although actions for prospective injunctive
relief are permissible against individual state officers in their official capacities,
see Graham, 473 U.S. at 169 n.18; Church, 913 F.3d at 744; Thrivent Fin. for

Lutherans v. Lakin, 322 F. Supp. 2d 1017, 1020 (W.D. Mo. 2004), Robison seeks
injunctive relief against only the DIFP. Accordingly, the individual defendants are
entitled to summary judgment to the extent Robison’s claims are brought against
them in their official capacities.

B. Equal Protection
Robison does not claim membership in a protected class or group, so his

1 Indeed, elsewhere in his complaint, Robison avers that there was no such policy or practice to
revoke or refuse renewal of a bond agent’s license on the basis claimed here, that is, “premature”
unsatisfied forfeitures or judgments. (ECF at ¶ 49.)
equal protection claim arises under the “class of one” theory, which requires him to
establish that he was intentionally treated differently from others similarly situated

and that there was no rational basis for the difference in treatment. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Robbins v. Becker,
794 F.3d 988, 995 (8th Cir. 2015).

The “threshold inquiry” in a class-of-one equal protection claim is whether
the plaintiff is similarly situated to others who allegedly received preferential
treatment. Robbins, 794 F.3d at 996; Domina v. Van Pelt, 235 F.3d 1091, 1099
(8th Cir. 2000). Absent this threshold showing, a plaintiff does not have a viable

equal protection claim. Robbins, 794 F.3d at 996; Klinger v. Department of Corr.,
31 F.3d 727, 731 (8th Cir. 1994). “To be similarly situated for purposes of a class-
of-one equal-protection claim, the persons alleged to have been treated more

favorably must be identical or directly comparable to the plaintiff in all material
respects.” Robbins, 794 F.3d at 996 (internal quotation marks and citations
omitted).
If a class-of-one plaintiff shows that he was similarly situated to another and

that a state officer’s unlawful administration of a state statute resulted in its
unequal application between them, he must also show that “‘an element of
intentional or purposeful discrimination’” was present in the unequal treatment.

Batra v. Board of Regents of Univ. of Nebraska, 79 F.3d 717, 721 (8th Cir. 1996)
(quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)). Without this element of
intentional discrimination, there is no denial of equal protection. Id.

Robison claims that the manner by which DIFP pursued an internal
complaint, revoked his license, and refused his professional license differed from
treatment given to three other bond agents, namely David Everingham, Stewart

Stillman, and Kristen Goodwin; and that such different treatment was “irrational,
arbitrar[y], capricious, and otherwise unreasonable.” (ECF 1 at ¶ 54.)
With respect to Stillman and Goodwin, Robison alleges that defendants did
not revoke their licenses despite their having criminal convictions. Defendants

have produced evidence that neither Stillman nor Goodwin held licenses as general
bond agents, which is Robison’s license at issue here, and that the basis for
nonrenewal of Robison’s license (forfeiture judgments) differed from the

allegations Robison makes against Stillman and Goodwin (criminal convictions).
Similar to having an unsatisfied forfeiture judgment, a criminal conviction is
a disqualifying event to holding a bond agent license under Mo. Rev. Stat. §
374.755.1(6) given that it constitutes a violation of the laws of Missouri. And,

while Missouri Supreme Court Rule 33.17(f) states that a person cannot be
accepted as surety on a bail bond if that person has outstanding forfeitures or
unsatisfied judgments thereon, Rule 33.17(c) imposes the same bar on persons who

have a felony criminal conviction within the past fifteen (15) years or any other
conviction involving moral turpitude. Notably, there is no evidence before the
Court showing whether either Stillman or Goodwin has any convictions or whether

such convictions are disqualifying under the rule. With Robison’s unrebutted
allegations of such convictions, it appears from the face of his complaint that he
has adequately alleged being similarly situated to Stillman and Goodwin in that

they all had a disqualifying event to holding a license.
Regardless, as argued by defendants, even if Robison was similarly situated
to Stillman and Goodman, he nevertheless does not allege in his complaint or
present any evidence in response to the summary judgment motion that defendants

intentionally treated him differently. Without such allegation, “virtually every
negligent governmental action could be converted into an equal protection
violation.” Batra, 79 F.3d at 721. “Thus, courts have consistently required equal

protection plaintiffs to allege and prove something more than different treatment
by government officials.” Id. Robison makes no such allegation here. Therefore,
to the extent Robison claims that defendants violated his right to equal protection
on the basis of unequal treatment accorded Stillman and Goodwin, the claim fails.

As to different treatment allegedly given Everingham, defendant Davidson
attests that, as an investigator at DIFP, he was not aware of any unresolved bail
bond forfeiture judgments against Everingham as a licensed general bail bond

agent, and he was not aware of any instance where a general bail bond agent was
granted renewal of his/her general bail bond agent license if that agent had
unresolved bail bond forfeiture judgments of which DIFP was aware. (ECF 23-

17.) Although Robison makes no argument against Davidson’s attestation, he
submits three letters from Davidson to Everingham – all dated October 23, 2019 –
informing Everingham of three bond forfeitures arising out of the Sunset Hills
municipal court.2 (ECF 31-1.) Notably, these letters address only bond forfeitures

and not bond forfeiture judgments. There is a difference. State v. Michael R.
Thomas Bail Bond Co., 367 S.W.3d 632 (Mo. Ct. App. 2012).
Other than Davidson’s letters to Everingham dated more than three years

after the incidents alleged in the complaint, Robison presents no argument or
evidence showing that Everingham was similarly situated to him when his license
was allegedly revoked and not renewed in 2016, that is, that Everingham sought

renewal of his general bail bond agent license, had outstanding bond forfeiture
judgments (and not just bond forfeitures), and had his license renewed and not
revoked despite such outstanding judgments. Regardless, I am aware of no
authority, and Robison provides none, that permits an individual’s discrete equal

protection claim to proceed only on conduct that occurred years after the alleged
occurrences that gave rise to that individual’s claim asserted in the complaint. Cf.
EEOC v. Riss Int’l Corp., 525 F. Supp. 1094, 1100-01 (W.D. Mo. 1981) (post-

2 Davidson’s affidavit is dated October 9, 2019 – two weeks before these letters.
complaint conduct has little relevance to complainant’s individual claim of
mistreatment). Further, as with his claims regarding Stillman and Goodwin,

Robison makes no allegation of intentional discrimination here.
The individual defendants are entitled to judgment as a matter of law on
Robison’s claim that the internal complaint, revocation, and refusal to license that
occurred in July and August 2016 violated his right to equal protection.3

C. Due Process – Failure to Renew License
Qualified Immunity
The individual defendants contend that they are entitled to qualified

immunity on Robison’s claim that they are liable in their individual capacities for
violating his right to due process as to the nonrenewal of his license. I agree.
A qualified-immunity analysis involves a two-step inquiry: (1) whether the

facts shown by the plaintiff make out a violation of a constitutional or statutory
right, and (2) whether that right was clearly established at the time of the
defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 231 (2009);
Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th Cir. 2014). Either prong may

be addressed first. Pearson, 555 U.S. at 236. Here, the “clearly established” prong
is dispositive.
“A right is clearly established if its contours are sufficiently clear that a

3 Because Robison names defendant Rehagen in only this equal protection claim, judgment for
defendants on this claim results in Rehagen being dismissed from this action.
reasonable official would understand that what he is doing violates that right.”
Smith, 754 F.3d at 546 (internal citation and quotation marks omitted). A case

directly on point is not required, but “existing precedent must have placed the
statutory or constitutional question beyond debate.” Id. (citing Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)).

In Austell v. Sprenger, 690 F.3d 929 (8th Cir. 2012), the Eighth Circuit
recognized that a licensed entity may have a property interest in an existing valid
license, “which may not ‘be impaired, suspended, or revoked’ without due
process.” Id. at 935 (quoting Missouri Real Estate Comm’n v. Rayford, 307

S.W.3d 686, 692 (Mo. Ct. App. 2010)). The Eighth Circuit noted, however, that
the law was less clear as to license renewal proceedings. Id.
Property interests are not created by the Constitution but rather stem from an

independent source such as state law. Stauch v. City of Columbia Heights, 212
F.3d 425, 429 (8th Cir. 2000). A property interest arises when state law creates
“expectations that are ‘justifiable,’” Austell, 690 F.3d at 935 (quoting O’Bannon v.
Town Ct. Nursing Ctr., 447 U.S. 773, 796 (1980)), such as by establishing

procedural requirements that impose substantive limitations on the exercise of
official discretion. Stauch, 212 F.3d at 429; Movers Warehouse, Inc. v. City of
Little Canada, 71 F.3d 716, 719 (8th Cir. 1995). But no property interest arises

where the statutory claim to a benefit is “too ephemeral and insubstantial.” Austell,
690 F.3d at 935 (internal quotation marks and citations omitted). Accordingly, to
establish a property interest in the renewal of his general bail bond license,

Robison must show more than a unilateral expectation of it – he must possess a
legitimate claim of entitlement to it. Id.
By statute, the DIFP enjoys substantial discretion in determining whether to

grant or deny renewal of a general bail bond agent’s license. See Mo. Rev. Stat. §§
374.750, 374.755; see also State ex rel. Robison v. Lindley-Myers, 551 S.W.3d
468, 472 (Mo. banc 2018). Cf. Stauch, 212 F.3d at 430 (property interest in license
renewal existed where applicant needed only to meet three objective criteria and

city code gave no indication that city could still use discretion to deny renewal).
With such discretion granted to the DIFP, Robison had nothing more than a
unilateral expectation that his license would be renewed, rather than a legitimate

claim of entitlement. See Movers Warehouse, Inc., 71 F.3d at 718-19; see also
Austell, 690 F.3d at 935-36. And because Robison does not cite to any state
authority clearly establishing that licensed general bail bond agents have a property
interest in license renewal, it cannot be said that Robison had a constitutionally

cognizable property interest in the renewal of his general bail bond agent license.
In view of the less-than-clear law governing whether a licensee has a
property interest in license renewal as stated in Austell, and the discretionary

authority granted by state law to the DIFP regarding license renewal, the individual
defendants here reasonably could have concluded that Robison had no
constitutionally protected property interest in the renewal of his general bail bond

license. Robison has not presented any new Missouri or Eighth Circuit case, and I
am aware of none, holding that licensees have a constitutionally protected property
interest in license renewal where the licensor retains substantial discretion in

refusing renewal. The individual defendants are therefore protected by qualified
immunity to the extent Robison claims that the manner by which they failed to
renew his license denied him his right to due process.
D. Due Process – Revocation of License

“Professional licenses are ‘property’ for the purposes of the Fourteenth
Amendment to the United States Constitution; consequently, procedural due
process is required before the government may deprive anyone of his or her

professional license.” Garozzo v. Missouri Dep’t of Ins., Fin. Insts. & Prof’l
Registration, Div. of Fin., 389 S.W.3d 660, 667 (Mo. banc 2013). Accordingly, an
existing valid license may not “be impaired, suspended, or revoked” without due
process. Rayford, 307 S.W.3d at 692. See also Kloch v. Kohl, 545 F.3d 603, 607

(8th Cir. 2008) (where a state has established a licensing system for regulation of
professionals, a license may not be revoked without affording the accused
procedural due process) (citing Marler v. Missouri State Bd. of Optometry, 102

F.3d 1453, 1456 (8th Cir. 1996)); ARO Sys. v. Supervisor of Liquor Control, 684
S.W.2d 504, 507 (Mo. Ct. App. 1984) (sanctions impairing the licensed entity’s
use of a valid liquor license implicate due process protections); Crum v. Missouri

Dir. of Revenue, 455 F. Supp. 2d 978, 986 (W.D. Mo. 2006) (revocation of a
physician’s license implicated due process protections).
Before depriving a citizen of a property right, the property owner must be

given notice and an appropriate opportunity to be heard. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985); Logan v. Zimmerman Brush Co., 455 U.S.
422, 434 (1982) (“To put it as plainly as possible, the State may not finally destroy
a property interest without first giving the putative owner an opportunity to present

his claim of entitlement.”). The right to notice and an opportunity to be heard
“must be granted at a meaningful time and in a meaningful manner.” Fuentes v.
Shevin, 407 U.S. 67, 80 (1972).

The parties do not dispute that due process requires notice and opportunity
to be heard before revocation of a general bail bond license. And there is no
dispute that neither the DIFP nor its employees gave Robison notice before issuing
Davidson’s July 29, 2016, letter or an opportunity to be heard on the substance of

the letter. Defendants argue that notice and hearing were not required because the
letter did not revoke Robison’s license. Robison contends that the letter’s
affirmative statement that he lacked authority to conduct bail bond business

“effective immediately” operated as a revocation given that his license was not set
to expire until August 8. For the following reasons, this is a plausible construction
of the letter.

Davidson’s July 29 letter to Robison’s bond agent-employees states:
Effectively immediately, Bryan Robison is no longer authorized to
conduct general bail bond business in the State of Missouri.
Therefore, you are no longer able to write a power of attorney under
the authority of Bryan Robison.

. . . You may not write bail bonds until you have notified this office of
the name of your new general bail bond agent.

(ECF 30-2.) While the letter did not use any derivative of the word “revoke,” the
“effective immediately” language could lead a reasonable person to believe that
Robison could not conduct business under his license as of that date, July 29, 2016.
While Robison did not directly receive the letter himself, his father and several of
his agent-employees did and informed him of its contents. Robison understood
from the letter’s language that his license was revoked, and he stopped writing
bonds as of July 29, 2016, which was ten days before his license was set to expire.
(ECF 30-3, B. Robison Affid.)
Although defendant Davidson’s signature appears on the July 29 letter, he
attests in his October 9, 2019, affidavit that he was not involved in any way with
Robison’s license renewal:
Because I began my tenure as a Special Investigator with the
Department on July 16, 2016, and because the Director of the
Department issued the “Order Refusing to Renew General Bail Bond
Agent License” as to Robison on July 29, 2016, thirteen days after I
became employed as a Special Investigator, I was not assigned to
investigate Robison or his case. I had no involvement in the review of
Robison’s application to renew his bail bond license, any investigation
pertaining to that application, or any decision as to whether or not said
license should or should not be renewed.

(ECF 23-17, Davidson 10/9/19 Affid.) However, upon being presented with his
July 29 letter, Davidson attests in a later affidavit, dated November 19, 2019, that:
on July 29, 2016, I sent letters to each of the twenty-three (23) bail
bond agents who indicated to the Department that Bryan Travis
Robison was their general bail bond agent under whose authority they
were writing bonds. . . . These letters explained that since the Director
did not renew Robison’s general bail bond license, these bail bond
agents could no longer write under the authority of Bryan Travis
Robison, because Bryan Travis Robison no longer had that authority.

(ECF 36-2, Davidson 11/19/19 Affid.) A review of the letter, however, shows that
there is no “explanation” that Robison’s license was not or would not be renewed.
And it clearly states that Robison’s lack of authority in the bail bond business was
“effectively immediately,” despite Robison holding an existing valid license that
was not set to expire until August 8, 2016.
Accordingly, there remain genuine issues of material fact as to whether the
DIFP letter signed by Davidson on July 29, 2016, revoked Robison’s license and
thus whether Robison was entitled to notice and an opportunity to be heard prior to
issuance of the letter. Defendants’ motion for summary judgment on this claim is
denied.
E. Jane Doe
In their motion for summary judgment, defendants request in a footnote that

Jane Doe “be removed as a named Defendant” since Robison has failed to identify
her and the time to amend pleadings has passed. (ECF 23-1 at p.1 n.1.) Jane Doe
answered Robison’s complaint, however, and counsel entered on her behalf. (ECF

12, 17.) I will therefore deny defendants’ footnoted request to simply “remove”
Doe at this time, but without prejudice to renewing their request at trial. However,
because my summary judgment rulings in this memorandum are determined as a
matter of law, they apply with equal force to defendant Doe.

Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that defendants’ Motion for Summary
Judgment [23] is GRANTED in part and DENIED in part as follows:

• Defendant Department of Insurance, Financial Institutions and Professional
Registration, shall have judgment against plaintiff on Counts 2, 3, and 4 of
the complaint, and defendant Department of Insurance, Financial Institutions
and Professional Registration, is dismissed from this action with prejudice;

• Defendants John Huff, Chlora Lindley-Myers, Carrie Couch, Mary Johnson,
Kevin Davidson, John F. Rehagen, and Jane Doe shall have judgment
against plaintiff on Count 3 of the complaint, and Count 3 of the complaint
is hereby dismissed with prejudice. As a result of this dismissal, defendant
John F. Rehagen is dismissed from this action with prejudice;

• Defendants John Huff, Chlora Lindley-Myers, Carrie Couch, Mary Johnson,
Kevin Davidson, and Jane Doe shall have judgment against plaintiff on
Count 1 of the complaint to the extent the claims are brought against these
defendants in their official capacities;
e Defendants John Huff, Chlora Lindley-Myers, Carrie Couch, Mary Johnson,
Kevin Davidson, and Jane Doe are entitled to qualified immunity on
plaintiff's claim in Count 1 of the complaint that their failure to renew his
license violated his right to due process, and said claim is dismissed with
prejudice;

e Defendants John Huff, Chlora Lindley-Myers, Carrie Couch, Mary Johnson,
Kevin Davidson, and Jane Doe are denied summary judgment on plaintiff's
claim in Count | of the complaint that their revocation of his license violated
his right to due process. This claim is all that remains for trial.

IT IS FURTHER ORDERED that this action is set for JURY trial on
Monday, April 6, 2020 on plaintiffs claim that defendants John Huff, Chlora
Lindley-Myers, Carrie Couch, Mary Johnson, Kevin Davidson, and Jane Doe
denied him due process in the revocation of his general bail bond agent’s license.
A separate Amended Order Relating to Trial is entered herewith.

Pettus, 0 Lou
CATHERINE D. PERRY /
UNITED STATES DISTRICT JUDGE
Dated this 4th day of February, 2020.

-18-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232454. Public record. Not legal advice.