Hasenfus v. LaJeunesse

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2149



                ALFRED HASENFUS and GALE HASENFUS,

              INDIVIDUALLY and o/b/o JAMIE HASENFUS,



                     Plaintiffs, Appellants,



                                v.



                   L. ROGER LaJEUNESSE, ET AL.,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]


Before



                    Selya, Boudin and Stahl,

                                

                        Circuit Judges.


Tracie L. Adamson with whom Susan V. Wallace, Sumner H.

Lipman, Robert J. Stolt, and Lipman & Katz, P.A. were on brief for

appellants.

     Deirdre M. Smith with whom Melissa A. Hewey and Drummond

Woodsum & MacMahon were on brief for appellees L. Roger LaJeunesse,

Paul Knowles, Carlo Kempton and Winthrop Board of Education.

     Edward R. Benjamin, Jr. with whom Thompson & Bowie was on

brief for appellee Town of Winthrop.


April 29, 1999


BOUDIN, Circuit Judge.  This is an appeal from the

district court's dismissal of a complaint filed by Alfred and Gale

Hasenfus, on behalf of themselves and their minor child Jamie

Hasenfus, arising out of Jamie's attempted suicide at school.  The

complaint set forth claims under 42 U.S.C.  1983 and state law

against the Town of Winthrop, Maine, and others.  The facts alleged

in the complaint are as follows.

  In the spring of 1996, Jamie was a 14-year-old student in

the 8th grade of the Winthrop Middle School.  On May 2 of that

year, Jamie was reprimanded by her teacher, Carlo Kempton, for

misconduct during a physical education class on the school softball

field.  Kempton told Jamie to return to the locker room.  No one

from the school staff was supervising the locker room.  After

returning to the locker room, Jamie tried to hang herself. 

Classmates found Jamie and called for emergency help.  Jamie

survived but, at first in a coma, spent several weeks in the

hospital and was left with permanent impairments.  

  The complaint describes two other incidents as background

to the attempted suicide.  One was that Jamie had been raped when

she was 13 and later underwent the further trauma of testifying

against the rapist.  School officials were aware of the rape. 

Jamie had reported it to the school nurse, Jackie Kempton (wife of

the gym teacher, Carlo Kempton), and was later counseled by the

school nurse and school guidance counselor.  According to the

complaint, Carlo Kempton knew or should have known of the rape and

should not have sent Jamie "alone and unsupervised away from the

area he was monitoring when he knew or should reasonably have known

that she was despondent or distressed." 

  The other background event was that seven other students

in the Winthrop Middle School had also attempted suicide in the

three months prior to May 1996.  Several of those attempts had

occurred at school or school events, and Jamie apparently knew or

was associated with at least two of those students.  According to

the complaint, the school failed to take various possible measures

to cope with the epidemic, such as offering special counseling and

monitoring programs within the school and providing more

information to parents about the outbreak.

  On April 30, 1998, just short of two years after Jamie's

suicide attempt, the Hasenfus parents brought suit in the district

court on behalf of Jamie and themselves.  The defendants, in

addition to the town and its board of education, included three

individuals:  the superintendent of schools, the principal of

Jamie's school, and the gym teacher (Carlo Kempton).  The counts

with which we are centrally concerned were based upon section 1983;

they charged that specific  acts and omissions by defendants acting

under color of state law deprived Jamie of her Fourteenth Amendment

rights, including, inter alia, rights to life and physical safety. 

The parents alleged the infringement of their right to family

integrity.  

  The gist of the wrongful acts charged to the town, school

board, superintendent, and principal were the failure to take a

range of preventive actions listed in the complaint to cope with

the suicide epidemic and, specifically as to Jamie, three narrower

failures or mistakes discussed at the end of this opinion.  Carlo

Kempton's alleged wrongful acts were reprimanding Jamie in front of

her classmates and sending her alone to the locker room.  The same

facts were alleged as violations of the Maine Constitution and as

common law torts of negligence and negligent infliction of

emotional distress.

  The defendants moved to dismiss the section 1983 counts

for failure to state a claim, Fed. R. Civ. P. 12(b)(6), and asked

that the state claims then be dismissed for lack of federal

jurisdiction, Wagner v. Devine, 122 F.3d 53, 57-58 (1st Cir. 1997),

cert. denied, 118 S. Ct. 880 (1998).  The magistrate judge

recommended this course (with one variation irrelevant here), and

the district court thereafter approved the recommendation.  This

appeal followed.  On review, we take the factual allegations of the

complaint as true, drawing reasonable inferences in favor of the

plaintiffs.  Garita Hotel L.P. v. Ponce Fed. Bank, FSB, 958 F.2d

15, 17 (1st Cir. 1992).

  The central question for us on this appeal is whether the 

conduct attributed to the defendants violates the federal

Constitution so far as it protects against state action depriving

one of life or liberty without "due process of law."  The most

familiar dimension of due process is protection of procedural

rights, but the due process concept has been extended by the

Supreme Court to incorporate substantive protections.  See

Washington v. Glucksberg, 117 S. Ct. 2258, 2267 (1997).  These

include not only a selected set taken from the Bill of Rights but

also a generalized protection sometimes labeled "substantive due

process."  Nowak and Rotunda, Constitutional Law  11.3-11.4, at

374-93 (5th ed. 1995).

  In the district court and in their opening brief on

appeal, the Hasenfuses argued forcefully that--contrary to the

district court's view--the school had an affirmative duty to

protect Jamie as a student entrusted to its care.  In their reply

brief, the Hasenfuses suddenly purport to abandon reliance on this

theory, saying that they prefer to concentrate their appeal on

Kempton's alleged danger-creating conduct.  But elsewhere the reply

brief itself returns to the allegation that school officials acted

recklessly "by standing by throughout the suicide epidemic and

doing nothing to identify at-risk students or to train personnel to

effectively deal with these students at risk."

  In the complaint, the principal conduct charged against

the defendants--apart from Kempton--was their failure to take

measures to cope with the rash of attempted suicides at the school. 

Under common law, inaction rarely gives rise to liability unless

some special duty of care exists.  Restatement (Second) of Torts 

314 & cmt. a (1965).  In DeShaney v. Winnebago County, 489 U.S. 189

(1989), the Supreme Court took the same view of substantive due

process obligations, holding that ordinarily a state's failure to

intervene to prevent harm to an individual by a private actor is

not a constitutional violation.

  The main exceptions to this proposition are incarcerated

prisoners or involuntarily committed mental patients for whom a set

of unique rules has developed.  See Estelle v. Gamble, 429 U.S. 97

(1976); Youngberg v. Romeo, 457 U.S. 307 (1982).  In such cases,

failures to act--e.g., to provide medical care or to stop one

inmate from assaulting another--may comprise a due process or other

constitutional violation because the state-imposed circumstance of

confinement prevents such individuals from helping themselves. 

Liability then arises under section 1983 if the plaintiff shows

that the inaction was malicious or reflected the official's

"deliberate indifference" to the welfare of  the prisoner or

inmate.  Farmer v. Brennan, 511 U.S. 825, 837 (1994).

  The plaintiffs urge that Jamie is similar to the

prisoners and patients because school attendance is compulsory and

because in some measure the school authorities act in loco

parentis.  The circuits that have confronted this issue have

uniformly rejected this argument, holding that school children are

not captives of the school authorities and the basic responsibility

for their care remains with their parents.  The Hasenfuses'

position is especially difficult to accept outright since the

Supreme Court has come pretty close to rejecting it in a recent

dictum which specifically contrasted DeShaney:

    [W]e do not, of course, suggest that public

  schools as a general matter have such a degree

  of control over children as to give rise to a 

  constitutional "duty to protect."

  

Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995). See also

Wyke, 129 F.3d at 569.

  Nevertheless, we are loath to conclude now and forever

that inaction by a school toward a pupil could never give rise to

a due process violation.  From a commonsense vantage, Jamie is not

just like a prisoner in custody who may be owed broad (but far from

absolute) "duty to protect."  But neither is she just like the

young child in DeShaney who was at home in his father's custody and

merely subject to visits by busy social workers who neglected to

intervene.  For limited purposes and for a portion of the day,

students are entrusted by their parents to control and supervision

of teachers in situations where--at least as to very young

children--they are manifestly unable to look after themselves.

  Thus, when Vernonia says that the schools do not "as a

general matter" have a constitutional "duty to protect," perhaps in

narrow circumstances there might be a "specific" duty.  If Jamie

had suffered a heart attack in the classroom, and the teacher knew

of her peril, could the teacher merely leave her there to die

without summoning help?  If a six-year old child fell down an

elevator shaft, could the school principal ignore the matter?  Of

course, school officials might be held liable in tort for such

omissions, but common law liability aside, we hesitate to say for

certain that substantive due process plays no role.

  Yet even if we assume arguendo that in narrow

circumstances the Supreme Court might find a due process obligation

of the school or school employees to render aid to a student in

peril--and Vernonia invites some caution--it would require pungent

facts.  The basic due process constraint, where substance and not

procedure is involved, is against behavior so extreme as to "shock

the conscience."  County of Sacramento v. Lewis, 118 S. Ct. 1708,

1717-19 (1998); Rochin v. People of California, 342 U.S. 165, 172

(1952).  Outside of a few narrow categories, like the safeguarding

of prisoners who have been wholly disabled from self-protection,

this means conduct that is truly outrageous, uncivilized, and

intolerable.  Lewis, 118 S. Ct. at 1717.

  The Supreme Court has regularly cited Rochin's test with

approval, see Lewis, 118 S. Ct. at 1717 (citing cases), but has

almost never found it to be violated even where the state has

affirmatively caused the harm.  The few circuit cases that have

found or posited possible liability under a shock-the-conscience

rubric since Rochin have usually involved egregious facts.  E.g.,

Rogers v. City of Little Rock, 152 F.3d 790 (8th Cir. 1998) (rape

by police officer in connection with car stop); Armstrong v.

Squadrito, 152 F.3d 564 (7th Cir. 1998) (57-day unlawful detention

despite repeated requests).  The omissions charged against the

school authorities here are not even close to violating this

outrageousness standard.

  The outcome here would be no different under the more

plaintiff-friendly standard developed in prison cases.  Even under

this standard, courts have been very reluctant to find prison

guards liable for failing to prevent suicides unless confronted

with specific imminent threats.  E.g., Bowen v. City of Manchester,

966 F.2d 13, 16-18 (1st Cir. 1992); Manarite v. City of

Springfield, 957 F.2d 953 (1st Cir.), cert. denied, 506 U.S. 837

(1992).  The Supreme Court has recently equated "deliberate

indifference" in prison cases with criminal recklessness, Farmer,

511 U.S. at 837-39, which is certainly not present here.  Further,

in Lewis the court declined to employ a deliberate indifference

standard at all in a non-prison case where the situation involved

a complicated balancing of factors and choices rather than a clear

right or wrong answer.  Lewis, 118 S. Ct. at 1720.

  Attempted suicide by school-age children is no slight

matter; but it has no single cause and no infallible solution.  

See Governor's Task Force on Adolescent Suicide & Self-Destructive

Behaviors, Adolescent Suicide 42-61 (1996).  Different schools will

react differently, depending upon resources, available information,

and the judgment of school and public health authorities, who may

fear making a bad situation worse.  Absent a showing that the

school affirmatively caused a suicide, the primary responsibility

for safeguarding children from this danger, as from most others, is

that of their parents; and even they, with direct control and

intimate knowledge, are often helpless.  Possibly there was school

negligence here--one would need more information to make a

judgment--but negligence is not a due process violation.  Daniels

v. Williams, 474 U.S. 327, 332-33 (1986).

  We turn now from the charge of inaction made against the

town and other school officials to the claims against Carlo Kempton

that do charge him with affirmative acts, specifically, the public

reprimand of Jamie and her banishment to the unsupervised locker

room.  Here, DeShaney does not even arguably foreclose liability

which is presumably why this issue is stressed in the reply brief.

Where a state official acts so as to create or even markedly

increase a risk, due process constraints may exist, even if

inaction alone would raise no constitutional concern.  But once

again, the behavior must be conscience-shocking or outrageous.  See

Lewis, 118 S. Ct. at 1717-19.

  Kempton reprimanded a 14-year-old student for misbehavior

and sent her out of class, something that occurs pretty regularly

at schools across the country.  For the first time at oral

argument, plaintiffs' counsel described the circumstances of

Jamie's dismissal from the gym class.  Counsel said that several of

Jamie's classmates had been harassing Jamie about the rape she had

suffered and about her decision to testify against the perpetrator. 

In response to the harassment on this occasion, Jamie became highly

agitated, shouting obscenities and threatening unspecified acts of

violence against those around her.

  On appeal, the granting of a motion to dismiss is tested

against the factual allegations in the complaint.  Gooley v. Mobil

Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988).  Even if these

additional facts had been mentioned in the complaint--and they were

not--it is not alleged that Jamie threatened to kill herself then

or at any other time known to Kempton.  At most, he may have known

that she had suffered a rape a year before and that some other

students at the school had attempted suicide.  It would be hard to

wrest even a claim of negligence out of these facts.  To say that

Kempton acted maliciously to cause harm to Jamie, or otherwise

acted in a way that should shock the conscience, is not a remotely

plausible interpretation of the facts alleged in the complaint and

at oral argument.

  Only one circuit case cited to us has found a triable

issue on anything remotely like these facts and its own facts were

more aggravated.  In Armijo, 159 F.3d 1253, school officials sent

home a 16-year-old special education student for violent behavior

at school.  The student had earlier threatened to kill himself and,

contrary to school policy, the officials did not notify his parents

that he had been sent home, where the student had access to

firearms--a fact school officials were alleged to have known. 

Alone at home, the student shot himself.  His parents then sued,

alleging inter alia a substantive due process claim, and the case

went to the Tenth Circuit on an interlocutory appeal.   

  The Tenth Circuit held that DeShaney barred any

affirmative duty to protect based on a "custodial relationship"

between student and school.  Armijo, 159 F.3d at 1261-62.  But the

court also said liability might be based on the school's

affirmative act--sending the student home alone--if it increased

the danger to the child and also met the "shocks-the-conscience"

test.  Id. at 1262.  The court said that the latter test might be

met if at trial the school officials were also shown to have known

that the child in question had previously threatened suicide, was

now distraught, was a special education pupil not fully able to

care for himself, and had access at home to firearms.  Id. at 1263-

64.

  Whether or not one agrees with the Tenth Circuit that

such behavior would be conscience-shocking and not merely seriously

negligent, the assumed facts are at least very troubling,

especially as to any participating official who knew both of the

suicide threat and the available gun.  Even so, the facts in that

case go a step beyond the typical endangerment cases cited by the

Tenth Circuit, cases that involve manifestly outrageous behavior by

the authorities certain to cause harm.  See Dwares, 985 F.2d at 96

(police encourage skinheads to beat up flag-burning demonstrators);

Ross, 910 F.2d at 1429-34 (deliberate state interference with

private rescue attempt).  If sound, the Tenth Circuit decision is

at the outer limit, and does not come close to embracing Kempton's

actions.

  Three other alleged mistakes are all attributed to the

school authorities in the complaint apart from their failure to

prevent Jamie's suicide attempt.  Two of the three--the failure to

discover Jamie in timely fashion and the failure to act reasonably

and appropriately when she was discovered--are bare conclusions and

are not supported by any factual allegations in the complaint or

elsewhere in the district court.  DM Research v. College of

American Pathologists, 1999 WL 104446 *2-3, to be reported at 170

F.3d 53 (1st Cir. 1999).  The third claim, that the school told

other parents that Jamie had attempted suicide, is not a due

process violation.  Cf. Paul v. Davis, 424 U.S. 693, 711-12 (1976).

  In closing, we emphasize again that the due process

clause is not a surrogate for local tort law or state statutory and

administrative remedies. The federal courts have no general

authority to decide when school administrators should introduce

suicide prevention programs, or whether an unruly or upset school

child should be sent out of class, or what should be said to other

parents about a tragic incident at school.  Substantive due process

is not a license for judges to supersede the decisions of local

officials and elected legislators on such matters.  Cf. Collins v.

City of Harker Heights, 503 U.S. 115, 128-29 (1992).  

  In principle, Maine law does allow civil claims by

citizens for serious misconduct by state or local officials, and

the district court's dismissal in this case was without prejudice

to the assertion of the Hasenfuses' state claims in state court. 

As is quite common, Maine provides broad immunity protection for

its officials, Me. Rev. Stat. Ann. tit. 14,  8104-D, 8111, grants

governmental entities immunity from civil suit with certain

exceptions possibly not applicable here, id.  8103, 8104-A, and

places a monetary cap on the amount of damages available against

individual employees and the government itself, id.  8104-D,

8105.  Whether Maine should be more generous is a matter for its

citizens to decide.

  Affirmed.