IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 96-8359
D. C. Docket No. CV195-128
BRUCE JAMES POWELL, SR., individually as Natural Father of BRUCE JAMES POWELL, JR., and as Administrator of the Estate of BRUCE JAMES POWELL, JR.,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF HUMAN RESOURCES, JAMES G. LEDBETTER, individually and as the Commissioner of the Department of Human Resources of the State of Georgia, DOUG GREENWELL, individually and as Director of the Department of Human Resources of the State of Georgia Division of Family and Children Services, PAT FITZGERALD, individually and as the Director of the County Department of Family and Children Services, MIGNON ROSEN, individually and as an employee of the Richmond County Department of Family and Children Services, JANE DOE, a DFCS Caseworker known and identified with the initials M.D.S., individually and as an employee of the Richmond County Department of Family and Children Services,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Georgia
(May 29, 1997)
Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges. ANDERSON, Circuit Judge:
Appellant Bruce James Powell, Sr., appeals the
district court's order dismissing his complaint for failure to state a claim upon which relief can be
granted. We affirm.
I. FACTS1 AND PROCEDURAL HISTORY
This case involves the tragic death of Powell's infant son. Powell's son, Bruce James Powell, Jr., was born on April 26, 1993. Approximately one
month after the baby's birth, Powell, age 18, and the baby's mother, age 15, ended their relationship. The mother retained primary physical custody of the
baby, with Powell exercising visitation rights. On
1 Because we are reviewing the district court's dismissal of Powell's complaint for failure to state a claim, we accept the factual allegations of the complaint as true, construe them in the light most favorable to Powell, and determine whether it appears beyond doubt that Powell can prove no facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957); Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995). 2 July 22, 1993, the mother married James Loren, age
20. On August 29, 1993, the baby's maternal
grandmother, Janice Newman, took the baby to the
home of the baby's maternal great aunt, Jeannette
Odum. Odum noticed bruises on the baby, became concerned, and took the baby to Powell's workplace
to show him the baby's bruises. At Powell's request, Odum called the Richmond County Department of Family and Children Services ("DFCS") and reported
that she suspected the baby was being abused. Appellee Mignon Rosen, a DFCS caseworker, met Powell and Odum at Powell's workplace and
examined the baby. Rosen noticed that the baby had a scrape across his forehead, discoloration over his
left ear with slight swelling, broken blood vessels in his right ear, and three bruises on the back of his
thigh. She noted these injuries in her initial report.
Rosen was informed that the baby's mother was very young and immature and that Loren, the baby's
stepfather, was a heavy drinker who handled the baby roughly.
3 Rosen contacted her supervisor at DFCS, who
advised Rosen that a doctor should examine the baby. Rosen did not follow this advice and did not
have the baby examined by a doctor. Rosen gave
Odum protective custody of the baby and promised
to speak with the mother and Loren the next day about the baby's situation.
Later that same night, Rosen received a telephone call from Odum. Odum reported that Newman was going to call the sheriff's department
and obtain custody of the baby. Rosen told Odum that the baby could be taken into protective custody. After her conversation with Odum, Rosen called
"Ask a Nurse" to inquire about the possible causes of the baby's injuries. Rosen was informed that
there was no medical condition that would cause the observed injuries. Rosen then called an emergency
shelter and was told that the shelter could house the
baby for the night. Rosen, however, took no action to place the baby in the shelter.
The mother and Newman arrived later that night at Odum's home with a deputy sheriff and demanded
4 the return of the baby. After learning of Rosen's
involvement with the baby's case, the deputy called Rosen to advise her of the situation. Rosen, acting
on the instructions of her supervisor, went to
Odum's home. Discussions occurred in which the
mother indicated that Loren had explained the baby's injuries by saying that the baby had fallen off the
bed. Rosen allowed the baby to be released into Newman's custody, although protective custody at the emergency shelter was available. Rosen
instructed Newman that Newman should not return the baby to the mother's custody. The next day, August 30, 1993, the baby's case
was assigned to appellee Jane Doe, an unknown DFCS caseworker with the initials M.D.S. No action
was taken that day on the baby's case. On August 31, 1993, Jane Doe called Newman, who told Jane
Doe that the baby had returned to the mother's
home, despite Rosen's instructions to the contrary. During this conversation, Jane Doe learned that the
mother and Loren lived with Loren's sister and her boyfriend in an environment of excessive drinking.
5 Newman, in another telephone conversation with
Jane Doe later that same day, also told Jane Doe that she believed that someone who lived in the baby's
home had dropped the baby. The mother and Loren
failed to meet with Jane Doe that day as scheduled
to discuss the baby's care. Jane Doe took no further action on the baby's
case. She made an entry in the baby's file on September 16, 1993 stating: "Another intake. Due to excessive # of intakes and [caseworker] trying to get
case load in order to be out on [leave] starting 9/17/93, [caseworker] unable to make another contact."
The baby, who was not yet five months old, died that day. The official cause of the baby's death was
"blunt force trauma to the head." For over two weeks prior to his death, the baby had been severely
abused and neglected. The baby's injuries included
innercranial bleeding, retinal bleeding, abrasions, and over 100 bruises on his body. The baby's
treating physicians described the baby's case as one of the worst instances of child abuse they had ever
6 seen. The mother and Loren were convicted of the
baby's murder. Powell sued the appellees under 42 U.S.C. §
1983, seeking monetary damages and claiming that
the appellees violated his son's substantive and
procedural due process rights and his son's Eighth Amendment rights. He also alleged a state law claim
against the appellees under the Georgia Tort Claims Act. The appellees moved to dismiss Powell's complaint. The district court held pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure that Powell failed to state a federal claim upon which relief can be granted. Consequently, the district
court dismissed Powell's federal claims and declined to exercise its jurisdiction over Powell's state law
claim.2 The only issue before us in this appeal is
whether Powell has stated a claim against the individual appellees in their individual capacities.
Powell asserts only two claims on appeal: a
2 The district court dismissed the state law claim without prejudice. 7 substantive due process claim and a procedural due
process claim.3
II. ANALYSIS
Before analyzing Powell's claims, we pause to note that the circumstances alleged by Powell are
troubling and tragic. However, Powell has elected to
sue in federal court and thus has undertaken to prove more than merely wrongful acts on the part of the appellees or a constitutional violation; rather, in
order to surmount the appellees' qualified immunity shield, Powell must prove that the appellees violated clearly established constitutional rights of which a
reasonable person would have known.
Qualified immunity shields government officials
performing discretionary duties from civil litigation
3 Powell has not appealed the district court's determination that the Department of Human Resources and the individual appellees in their official capacities are immune from suit under the Eleventh Amendment. Powell also has not appealed the district court's dismissal of his claim that the appellees violated his son's Eighth Amendment rights. 8 and liability if their conduct violates no "clearly
established statutory or constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 475 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). We readily conclude in this case that the appellees were performing discretionary
duties,4 and thus the burden shifts to Powell to demonstrate that the appellees violated clearly established constitutional rights of which a reasonable person would have known. McCoy v.
Webster, 47 F.3d 404, 407 (11th Cir. 1995). As the Supreme Court most recently stated in United States
v. Lanier, "[Q]ualified immunity seeks to ensure that defendants 'reasonably can anticipate when their
conduct may give rise to liability' . . . by attaching liability only if '[t]he contours of the right [violated
are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.'"
4 The appellees' actions in the instant case are indistinguishable from those which we held in McCoy v. Webster, 47 F.3d 404 (11th Cir. 1995), to be discretionary. We summarily reject Powell's argument to the contrary.
9 ___ U.S. ___, ___, 117 S. Ct. 1219, 1227 (1997)
(alteration in original) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S. Ct. 3012, 3019 (1984), and Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987), respectively). When analyzing a claim of qualified immunity in a case which is in a
Rule 12(b)(6) posture, we determine "'whether, under
the most favorable version of the facts alleged, defendant's actions violate clearly established law.'" Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir.
1993) (quoting Bennett v. Parker, 898 F.2d 1530, 1535 n.2 (11th Cir. 1990) (Tjoflat, J., concurring), cert.
denied, 111 S. Ct. 1003 (1991)). We turn first to Powell's substantive due process
claim and then to his procedural due process claim.
A. Substantive Due Process Claim
Powell argues that the appellees violated his son's substantive due process rights by removing
the baby from Odum's safe care and allowing the
baby to return to a known zone of danger with an
10 abusive mother and stepfather. Powell must prove
more than negligent or wrongful acts on the part of the appellees or an abuse of power rising to the level
of a constitutional violation. In order to strip the
appellees of their qualified immunity defense, Powell
must demonstrate that the appellees violated clearly established constitutional rights of which a
reasonable person would have known. Two cases involving facts very similar to the instant facts, one a Supreme Court case and one an Eleventh Circuit
case, persuade us that Powell cannot prove a violation of a clearly established constitutional right. In DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189, 109 S.Ct. 998 (1989), Joshua DeShaney and his mother brought a §1983
claim against social workers and other officials who
failed to protect Joshua, despite suspecting that Joshua's father was abusing him. The Supreme
Court held that there was no substantive due process violation under the following circumstances.
After Joshua's parents divorced, the father was
awarded legal custody of Joshua. The first
11 complaint of child abuse occurred in January 1982.
The Department of Social Services ("DSS") interviewed the father, who denied the accusations.
DSS did not pursue the matter. In January 1983,
Joshua was hospitalized with multiple bruises and
abrasions. DSS was notified that child abuse was suspected, and custody was temporarily withdrawn
from the father. The appropriate team of county officials considered the matter, determined there was insufficient evidence of child abuse, and decided to
recommend that Joshua be returned to the father's custody. Based on this recommendation, the juvenile court returned Joshua to his father's
custody. Thereafter, the following additional warning signals came to the attention of the
defendant officials. A month later, Joshua was treated at the emergency room for suspicious
injuries. During monthly visits in the next six
months, the caseworker observed suspicious injuries on Joshua's head. In November 1983,
Joshua was again treated at the emergency room for injuries believed to be caused by child abuse.
12 During the next two home visits, the caseworker was
told that Joshua was too ill to see her. DSS took no action. In March 1984, Joshua was severely beaten
by his father. As a result of this beating, Joshua
sustained severe brain damage, which required that
Joshua be permanently institutionalized. The Supreme Court held that "[a]s a general matter, . . .
we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197, 109 S. Ct. at 1004. The Court also rejected Joshua's argument that a "special relationship"
existed because the officials knew that Joshua faced a special danger of abuse at his father's hands, and
had specifically proclaimed an intention to protect him against that danger. Id. at 197-98, 109 S. Ct. at 1004.5
5 The Court distinguished the relationship created when a state restrains an individual's liberty such that it renders him unable to care for himself. See DeShaney, 489 U.S. at 198-200, 109 S. Ct. at 1004-06 (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976) (incarceration); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452 (1982) (involuntarily committed mental patients)).
13 The relevant Eleventh Circuit case is Wooten v. Campbell, 49 F.3d 696 (11th Cir.), cert. denied, 116 S.
Ct. 379 (1995). In Wooten, after a child was abducted
by his father, the state agency comparable to the one involved in this case was awarded legal custody of
the child and given the authority to place the child.
With the consent of the child's parents, the agency placed the child with the mother and allowed
unsupervised visits by the father. During an
unsupervised visit, the father again abducted the child, killed the child, and then committed suicide. The mother brought a §1983 claim against the
agency and its involved employees, alleging that the defendants were reckless in allowing the father to have unsupervised visits with the child when the
evidence showed that the father posed a significant
risk of danger to the child. The district court
dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Noting that the facts were very similar to those in DeShaney, this
court affirmed, holding that there was no substantive
due process violation. Id. at 701. Although the state
14 agency had legal custody of the child, this court
emphasized that the mother herself had physical custody of the child and also had access to the
courts had she wanted to challenge the
unsupervised visitation. Id. at 700. As in the DeShaney case, this court stressed that the child
had been killed by a private actor, the father, and not by the State. Id.
Comparing the facts of the instant case to the facts in DeShaney, it is true that caseworker Jane Doe gave the baby's case very little attention after
taking over responsibility from Rosen on August 30, 1993. She merely had two telephone conversations with Newman, in whose custody Rosen had left the
baby. During one of these conversations, Jane Doe learned that Newman had permitted the mother to take the baby back to the mother's home, the
environment in which it was suspected that previous
child abuse might have occurred. Jane Doe apparently did schedule a meeting with the mother
and her husband, Loren, for that day, but they failed
to appear at the meeting. Jane Doe took no further
15 action.
While we do not condone Jane Doe's neglect, we nevertheless readily conclude that it is
indistinguishable from the caseworker's failure to act
in DeShaney. Indeed, the danger signals in DeShaney (including one hospitalization and two
emergency room visits, all indicating suspected child abuse) were more pronounced than in the
instant case. In an attempt to distinguish DeShaney, Powell points to the fact that the Supreme Court
noted that the State in that case did not "do anything to render [the abused child] any more vulnerable" to
abuse. DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. Powell argues that a plaintiff can make out a viable
substantive due process claim by proving that the officials created or increased the danger to the child.
Powell contends that the increase in danger
occurred in the instant case on August 29, 1993, when caseworker Rosen permitted the baby to be
removed from the safe haven of Odum's home.6
6 In his brief on appeal, Powell acknowledges that the "substantive claim does not hang on the two weeks of inactivity which triggers the 16 Recalling the facts, that night Newman and the
mother, accompanied by a deputy sheriff, went to Odum's home and demanded that the baby be
returned. The deputy telephoned Rosen, and Rosen
actually went to Odum's home. After discussions in
which the mother denied child abuse and related the explanation that the baby had fallen off the bed,
Rosen allowed the baby to be released into Newman's custody at Newman's home. By allowing the baby to leave the safe haven of Odum's home,
Powell argues that caseworker Rosen affirmatively increased the danger to which the baby was exposed.
We can assume arguendo, without deciding, that in some circumstances, a plaintiff might be able to
establish a substantive due process violation upon
proof that a state actor created or increased the danger to a child or rendered a child more vulnerable
procedural claim. Instead, the substantive claim is triggered by the active and forcible abuse of Power [sic] by the state officials on one day, August 29, 1993." Appellant's Brief at 46 (emphasis omitted).
17 to abuse.7 However, both DeShaney and Wooten indicate that Rosen's allowing the baby to leave the
safety of Odum's home cannot be the basis for a substantive due process claim in this case. The
language in DeShaney upon which Powell relies (i.e.,
about rendering the child more vulnerable) is followed immediately by language rejecting an
argument precisely like Powell's:
While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all . . . .
7 For cases discussing such claims, see, e.g., Mitchell v. Duval County Sch. Bd., 107 F.3d 837, 838-39 (11th Cir. 1997) (assuming arguendo that a plaintiff might be able to state a substantive due process claim if the state's actions placed the plaintiff in "special danger"); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996) (discussing "state-created danger" theory); Uhlrig v. Harder, 64 F.3d 567, 572-73 & nn.6-7 (10th Cir. 1995) (discussing "creation of danger" theory), cert. denied, 116 S. Ct. 924 (1996); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 530-31 (5th Cir. 1994) (discussing "state-created danger" theory).
18 DeShaney, 489 U.S. at 201, 109 S. Ct. at 1006
(emphasis added). Although in this Rule 12(b)(6) posture, we do indulge the inference that Newman's
home was less safe than Odum's, the danger signals
apparent to Rosen in this case certainly do not
exceed those apparent to the team which decided to return Joshua to his father in the DeShaney case. That team knew that Joshua had just been admitted to the hospital with multiple bruises and abrasions and that the examining physician suspected child
abuse. The team also knew of the allegation of abuse one year earlier. In this case, we note that Rosen merely permitted the baby's grandmother,
Newman, to take custody of the baby. Rosen specifically instructed that the baby was not to be returned to the mother in whose home the suspected
abuse occurred. In this respect, the instant facts are more favorable to the appellees than those in
DeShaney. We also note that Rosen's decision was
made during an actual visit to the scene and
followed her discussion with the mother, Newman,
Odum, and the deputy sheriff, during which the
19 mother denied any abuse and gave an explanation
for the baby's injuries. Finally, we note that the subsequent removal of the baby to the mother's
home was without the appellees' permission, and
thus is a mere failure to act similar to that in
DeShaney. The government officials in DeShaney had greater dominion and control over Joshua (i.e.,
temporary legal custody) than did the appellees here. Similarly, the agency in Wooten had legal custody of
the child, allowed the child to return to the mother's
custody, and permitted unsupervised visits by the father, who was the alleged source of danger to the
child. In neither DeShaney nor Wooten did the affirmative act of permitting the child's return to the
home environment rise to the level of a substantive due process violation. In evaluating the asserted
increased danger in DeShaney, the Court seemed to focus on the totality of the agency's actions, and in
any event declined to place much significance on a single judgment call in returning Joshua to his home
environment.
We recognize that the facts of DeShaney and
20 Wooten are not identical to the instant facts. In
DeShaney, the agency's decision to permit Joshua to return to his home environment was apparently in the nature of a recommendation to the juvenile court,
which followed the agency's recommendation. In
Wooten, the similar decision was with the consent of
the parents. However, caseworker Rosen's decision clearly constituted an exercise of judgment very
similar to that of the officials in DeShaney and Wooten. Moreover, as in Wooten, Powell and Odum "had access to the courts if [they were] displeased"
with Rosen's decision. Wooten, 49 F.3d at 700. Because the appellees in the instant case claim
qualified immunity, we need only decide that the appellees violated no clearly established
constitutional rights.8 We readily conclude that the
8 As this court has explained previously,
Since a plaintiff must show both that there is a constitutional right that is allegedly violated and that the right was clearly established at the time, a negative decision on either prevents the plaintiff from going forward. Once it is determined that there is no clearly established right, the Court could well leave for another day the 21 appellees' actions are sufficiently similar to the
actions of the comparable officials in DeShaney and Wooten that it cannot be said that a reasonable
official would have understood that the actions at issue in this case violated constitutional rights.
Accordingly, we hold that the appellees are shielded
by qualified immunity, and we affirm as to this claim.
B. Procedural Due Process Claim
Powell alleges that the appellees' failure to follow the Richmond County Child Abuse Protocol
("the Protocol") violated his son's procedural due process rights.9 In their defense, the appellees
determination as to whether there is such a right, albeit not one that a reasonable person would have known. It is the plaintiff's burden to show that when the defendants acted, the law established the contours of a right so clearly that a reasonable official would have understood his acts to be unlawful.
Spivey v. Elliott, 41 F.3d 1497, 1499 (11th Cir. 1995). 9 As quoted in the appellees' brief, the Protocol provides as follows:
22 When a report of child abuse/neglect is received by DFCS, the case shall be assigned to a caseworker to make an initial assessment/investigation (including whether the case is that of a caretaker or noncaretaker). In determining the appropriate action to be taken by DFCS, the caseworker shall go to where the child is located to conduct an interview with the child to establish that the child is in fact alleging abuse/neglect.
Appellees' Brief at 13. The Protocol, as quoted in Powell's complaint, further provides:
If there is reasonable cause to believe that abuse has occurred, DFCS shall take the following action or actions:
1. Seek protective custody of the child. (See Juvenile Court Section). 2. If appropriate, allow the child to remain with its family and provide ongoing monitoring and treatment. 3. Immediately notify the appropriate law enforcement agency pursuant to O.C.G.A. § 19-7-5. (See Law Enforcement Section). 4. File any and all Juvenile Court proceedings necessary for the protection of the child. 5. If there is reasonable cause to believe abuse has occurred, DFCS will seek a physical examination in those instances where a medical test will be needed t o substantiate the same, or will photograph evidence of physical abuse where a medical examination is not necessary. Any physical examination will 23 invoke the protections of qualified immunity.
Powell argues that Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975 (1990), shows that the appellees violated his son's clearly established procedural due
process rights. In Zinermon, the plaintiff, a former
state mental hospital patient, alleged that the State violated his due process rights by failing to have in
place appropriate precommitment safeguards
ensuring that state mental hospital patients are in fact competent to sign forms authorizing their
be conducted as expeditiously as possible.
...
[I]f a report of child abuse . . . is made to DFCS . . . and it has reasonable cause to believe such report is true, then the agency shall immediately notify the appropriate authority or District Attorney and forward the proper reports within a timely manner.
Every abused child should have a physical examination as soon as possible following disclosure of the abuse. Typically, the child will be examined at one of the local hospitals according to accepted hospital procedure.
Compl. at 12-13. 24 voluntary admission and treatment. The Supreme
Court held that the plaintiff stated a procedural due process claim because the deprivation of the
plaintiff's liberty was predictable and predeprivation
process was feasible. Id. at 136, 110 S. Ct. at 989. Powell argues that Zinermon applies to this case. He
asserts that the State should have provided predeprivation process in this case because the
State should have anticipated that caseworkers
might be so overloaded with cases that they would neglect their duties. He further contends that the value of predeprivation safeguards is high in child
abuse cases and the State is in the position to provide predeprivation process. The appellees, however, argue that Powell
cannot state a claim for a violation of his son's
procedural due process rights.10 The appellees
10 As a threshold matter, the appellees argue that the Protocol did not vest Powell's son with a legitimate claim of entitlement such that a failure to follow the Protocol constituted a procedural due process violation. Because we ultimately conclude that the appellees are entitled to qualified immunity in any event, we can assume arguendo, without deciding, that Powell's son had such a liberty interest. 25 assert that Parratt v. Taylor, 451 U.S. 527, 101 S. Ct.
1908 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194 (1984) control this case. In Parratt and
Hudson, the Supreme Court held that there is no procedural due process violation when the act complained of is the random and unauthorized act of
a state employee for which adequate postdeprivation
process is available. Hudson, 468 U.S. at 533, 104 S.
Ct. at 3203-04; Parratt, 451 U.S. at 541, 101 S. Ct. at
1916. The Parratt-Hudson reasoning applies when the official action complained of is of a type that the
State cannot reasonably foresee and for which predeprivation process thus is not feasible. Hudson,
468 U.S. at 533, 104 S. Ct. at 3203; Parratt, 451 U.S. at 541, 101 S. Ct. at 1916. See also Zinermon, 494 U.S. at 128-30, 110 S. Ct. at 985-86. The appellees argue
that in this case, the State could not reasonably foresee that the caseworkers would fail to follow the
Protocol. The appellees also contend that providing predeprivation process, such as a hearing, for child
abuse cases is not feasible because caseworkers
often must make quick judgment calls in such cases.
26 Furthermore, the appellees argue that the State has
provided Powell with adequate postdeprivation process because Powell may pursue a damage claim
in the Georgia state courts under the Georgia Tort
Claims Act.11 The crux of Powell's claim is his contention that
predeprivation process was feasible in this case and was not provided, thus violating the baby's
procedural due process rights. In Zinermon, the Court found that a predeprivation procedure was
feasible and would avert the problem of incompetent people signing voluntary admission forms before
receiving treatment for mental illness. The Court explained that "had the State limited and guided petitioners' power to admit patients, the deprivation
11 Powell argues that this post-deprivation process is inadequate because the State has invoked sovereign immunity as to any possible claims under the Georgia Tort Claims Act. However, assuming arguendo that the State is immune, Powell's argument is foreclosed by our decision in Rittenhouse v. DeKalb County, 764 F.2d 1451, 1459 (11th Cir. 1985) ("the sovereign immunity enjoyed by [the county and the government official] [does] not render appellant's state law remedy inadequate under Parratt"), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193 (1986). 27 might have been averted." Zinermon, 494 U.S. at
137, 110 S. Ct. at 989. The Court indicated that the State could provide such guidance by having "a
specific requirement that petitioners determine
whether a patient is competent to consent to
voluntary admission." Id. at 135-36, 110 S. Ct. at 988- 89.12 By contrast, in the instant case, the Protocol already provides predeprivation procedures for
caseworkers to follow. There is no other feasible predeprivation procedure that is readily apparent to
us. It is clear from the Protocol that a caseworker must make a judgment decision "[i]n determining the appropriate action to be taken." Appellees' Brief at
13 (quoting Protocol). The caseworker must make
12 At several places, the Court referred to such a procedure. For example, the Court noted that "[t]here is, however, no specified way of determining, before a patient is asked to sign admission forms, whether he is competent." Zinermon, 494 U.S. at 136, 110 S. Ct. at 989. See also id. at 135, 110 S. Ct. at 988 ("But the statutes do not direct any member of the facility staff to determine whether a person is competent to give consent, nor to initiate the involuntary placement procedure for every incompetent patient."). 28 an initial assessment and must determine on an
ongoing basis whether or not there is "reasonable cause to believe that abuse has occurred." Compl.
at 12 (quoting Protocol). We readily conclude that it
would not be feasible to require a hearing before
every such judgment decision by a caseworker. Indeed, the Protocol established by the appellees in
the instant case would seem to be precisely the kind of procedure contemplated in Zinermon because it guides caseworkers' decision-making. We do not
understand Powell to be challenging the adequacy of the Protocol itself; rather, he argues that
caseworkers Rosen and Jane Doe did not follow the Protocol. The only specific procedure suggested by
Powell is that the officials should have provided
more staffing, supervision, and training so that neglect of duty would not result from excessive
caseloads.13 However, we know of no case which
13 In his brief, Powell asserts that "the State was in a position to provide the requisite predeprivation process by oversight, supervision, adequate staffing and caseload distribution, management and training." Appellant's Brief at 26-27. 29 has held that the Constitution requires a government
to provide more personnel or more training in order to reduce the risk of random and unauthorized acts
of neglect of duty. The Parratt decision suggests just the opposite. The deprivation there, as here, resulted from a failure to follow applicable
procedures. Parratt, 451 U.S. at 531, 543, 101 S. Ct. at 1910, 1917. Although not mentioned by the Court, additional money, personnel, or training might well have averted the prison officials' negligence in
failing to follow the policies and losing plaintiff's hobby kit. Because the appellees have invoked the defense
of qualified immunity, Powell must prove a violation of a clearly established constitutional right. Under the circumstances of this case, we cannot conclude
that there was a clearly established constitutional right to some additional predeprivation procedure in
this case. In other words, we cannot conclude that it
was clearly established at the time of the appellees'
actions in this case that an additional predeprivation
procedure was feasible. Although the appellees'
30 actions were disastrous in hindsight, Powell has not
demonstrated that the contours of his son's procedural due process rights were sufficiently clear
that a reasonable official would understand that the
conduct at issue here violated constitutional rights.
Accordingly, we hold that the appellees are shielded by qualified immunity from Powell's procedural due
process claim. We affirm the district court as to this claim.
III. CONCLUSION
We are not without sympathy for Powell's
situation. His son's death was an unquestionably cruel loss. For the foregoing reasons, however, we
conclude that Powell has failed to surmount the appellees' qualified immunity shield with respect to
either of his claims.14 AFFIRMED.
14 Because the district court properly dismissed Powell's federal claims, it did not err by dismissing without prejudice his state law claim. 31