PUBLISH
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
------------------------------------------- No. 97-9214 FILED -------------------------------------------- U.S. COURT OF APPEALS D. C. Docket No. 1:97-CV-4-JOF ELEVENTH CIRCUIT 2/19/03 THOMAS K. KAHN YASMIN SANTAMORENA, individually and as next CLERK friend of H.S., a minor,
Plaintiff-Appellant,
versus
GEORGIA MILITARY COLLEGE, PETER J. BOYLAN, General, et al., Defendants-Appellees.
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Appeal from the United States District Court for the Northern District of Georgia
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(July 31, 1998)
Before EDMONDSON and BIRCH, Circuit Judges, and LAWSON*, District Judge.
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* Honorable Hugh Lawson, U.S. District Judge for the Middle District of Georgia, sitting by designation. EDMONDSON, Circuit Judge:
Plaintiff appeals the district court’s dismissal of her claim
-- a claim brought on behalf of Plaintiff and Plaintiff’s minor
daughter -- that Defendants, Georgia Military College (“GMC”)
and several of its officials, violated Plaintiff’s and her
daughter’s substantive due process rights. Because we agree
with the district court that the individual Defendants are entitled
to qualified immunity, we affirm.1
1 Plaintiff originally sued both the institution, Georgia Military College, and several of its officials (in both their official and individual capacities). The district court granted Defendants’ motion to dismiss, concluding that the institution (and the Defendants sued in their official capacities) was entitled to sovereign immunity and that the Defendants, sued in their individual capacities, were entitled to qualified immunity. Plaintiff appeals only the determination by the district court that the individual Defendants were entitled to qualified immunity. 2 Background
GMC is a state-run institution that serves as both a high
school and a college. Plaintiff’s daughter, H.S., was a 13-year-
old high school freshman enrolled at GMC.2 According to GMC
policy, high school freshmen were required to stay on campus
and to live in the barracks for the first four weeks of school.
During this period, only the high school was in session; but
GMC’s college football team was on campus for pre-season
training.
Before enrolling H.S. at GMC, H.S.’s parents inquired about
security on the campus. In response to these concerns, several
school officials represented to H.S.’s parents that H.S. would be
adequately protected. School officials specifically told H.S.’s
parents these things: that H.S. would be housed in a room near
H.S. was one of only two female students enrolled in 2
GMC’s high school program. 3 a school official’s -- Defendant Major Banks’s -- living quarters;
that an adult supervisor would be assigned to H.S.’s barracks
and available at all times; that a piece of sliding cardboard
would be placed on the inside of the observation window in the
door to H.S.’s room so that she could observe visitors; that
security personnel would be present in the barracks to monitor
visitors; and that a nightly bed check would be conducted to
ensure that all students were in their rooms by 10:00 p.m.
About one week after H.S. arrived at GMC, she and her
roommate (the other female high school student at GMC) were
moved to a room in the opposite wing from the room in which
the two were originally placed. No other school personnel or
students lived in that wing of the barracks, and this new room
was some distance from Major Banks’s living quarters. In
addition, the new room had a wooden board nailed to the
observation window of the door -- not a piece of sliding
4 cardboard -- which prevented H.S. from observing and
identifying visitors.
On 1 September 1995, after being moved to the new room,
H.S. was awakened by a knock on her door. H.S. opened the
door and allowed GMC college football player, Kareem Holmes,
to enter her room. Holmes then raped H.S.
Plaintiff, the parent of H.S., asserts that on the night of the
attack, no security personnel were present to monitor the
barracks, no bed check was conducted, and all supervisory
responsibility for the barracks had been delegated to Defendant
Major Banks. Major Banks was left in charge because Lt. Diane
Ortega, the official actually assigned to supervise the main
barracks and the female hall on the night of the incident, was
not on campus.
Plaintiff filed suit under 42 U.S.C. § 1983. Plaintiff’s claim
is based on the rape of H.S. by a private third party on the
campus of GMC while H.S. was a resident high school student
5 there. Plaintiff alleges that GMC and GMC officials -- by failing
to protect H.S. from harm by a private actor (Holmes) -- violated
H.S.’s Fourteenth Amendment rights to personal security and
to physical integrity and violated Plaintiff’s related right to
maintain family integrity.3 The district court dismissed the
complaint, before discovery, concluding in relevant part that
the individual Defendants were entitled to qualified immunity.
Plaintiff appeals the dismissal of her complaint against the
individual Defendants -- General Peter J. Boylan, Colonel
Frederick Van Horn, Major Walter Banks, and Sergeant Larry
Swint4 -- challenging the district court’s conclusion that these
Defendants were entitled to qualified immunity.
3 The alleged constitutional violations are premised on the existence of a constitutional duty -- owed to H.S. (and secondarily to Plaintiff) by the school officials -- to protect H.S. from private third parties. All individual Defendants were teachers or 4
administrators at GMC at the time of the incident. 6 Discussion
“Qualified immunity protects government officials
performing discretionary functions from civil trials . . . and from
liability if their conduct violates no clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Lassiter v. Alabama A & M Univ., 28 F.3d 1146,
1149 (11th Cir. 1994) (en banc) (internal quotations and citations
omitted).5 To overcome this immunity, Plaintiff has the burden
of pointing to case law which “pre-date[s] the offic[ial]’s alleged
improper conduct, involve[s] materially similar facts, and ‘truly
compel[s]’ the conclusion that the plaintiff had a right under
No party disputes that Defendants were performing 5
discretionary functions in relation to the events of this case. 7 federal law.”6 Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir.
1998) (citing Lassiter, 28 F.3d at 1150).
Defendants “assert[ed] the defense of qualified immunity
in a Rule 12(b)(6) motion to dismiss, and they are entitled to
qualified immunity at this stage in the proceedings if [Plaintiff’s]
complaint fails to allege a violation of a clearly established
constitutional right.” Williams v. Alabama State Univ., 102 F.3d
1179, 1182 (11th Cir. 1997). Whether the complaint alleges the
violation of a clearly established right is a question of law,
6 This statement summarizes the usual rule and the law that applies in this case. We can imagine an exceptional case where “the words of a federal statute or federal constitutional provision will be specific enough to establish the law applicable to particular circumstances clearly and to overcome qualified immunity even in the absence of case law,” Lassiter, 28 F.3d at 1150 n.4, or where “a general constitutional rule already identified in the decisional law [applies] with obvious clarity to the specific conduct in question,” United States v. Lanier, 117 S.Ct. 1219, 1227 (1997). But these exceptional cases rarely arise. And we are not faced with such an exceptional case: given the circumstances of this case, the Due Process Clause does not provide the essential, obvious clarity. 8 which we review de novo. See id. In deciding this case, we
accept all facts alleged in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party, Plaintiff.
See id.
Plaintiff recognizes that her complaint, which is premised
on a violation of the Due Process Clause,7 is based on the rape
of her daughter, not by a school official, but by a private third
party. And, “nothing in the language of the Due Process Clause
itself requires the State to protect the life, liberty, and property
of its citizens against invasion by private actors.” DeShaney v.
Winnebago County Dep’t of Social Servs., 109 S.Ct. 998, 1003
(1989). “As a general matter, . . . a State’s failure to protect an
The Due Process Clause of the Fourteenth Amendment 7
provides, in pertinent part, that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 9 individual against private violence simply does not constitute
a violation of the Due Process Clause.” Id. at 1004.8
But “in certain limited circumstances the Constitution
imposes upon the State affirmative duties of care and
protection with respect to particular individuals.” Id. Where
“the State takes a person into its custody and holds him there
against his will . . . the Constitution imposes upon [the State] a
corresponding duty to assume some responsibility for his
safety and general well-being.” Id. at 1005. Thus, a duty may
be imposed on States to protect involuntarily committed mental
patients, prisoners, and involuntarily placed foster children.
See, e.g., Youngberg v. Romeo, 102 S.Ct. 2452 (1982) (mental
patients); Estelle v. Gamble, 97 S.Ct. 285 (1976) (prisoners);
8 We note that the absence of a constitutional duty to protect does not negate the possibility that state law duties might be owed to individuals by government actors: state tort actions might apply. 10 Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (foster
children).
The question presented in this case is whether, given the
status of the preexisting law, the Defendants, at the pertinent
time, clearly owed Plaintiff or H.S. some constitutional duty to
protect H.S. based on the voluntary, custodial relationship
between H.S. and GMC. So, we consider cases where we have
talked about the possibility of a constitutional duty when the
State has a “special relationship” with either the victim or the
perpetrator. See Wyke v. Polk County Sch. Bd., 129 F.3d 560
(11th Cir. 1997); Mitchell v. Duval County Sch. Bd., 107 F.3d 837
(11th Cir. 1997); Cornelius v. Town of Highland Lake, 880 F.2d
348 (11th Cir. 1989).
“The contours of what constitutes a ‘special relationship’
between a [State institution], acting through its officials, and its
citizens are hazy and indistinct.” Wideman v. Shallowford
Comm. Hosp., Inc., 826 F.2d 1030, 1035 (11th Cir. 1987) (quoting
11 Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir. 1985)).
During oral argument, Plaintiff’s counsel acknowledged that
whether a voluntary, instead of an involuntary, custodial
arrangement between the State and a citizen could give rise to
a special relationship, and thus a constitutional duty, remains
“unclear” in this circuit. But still Plaintiff argues that the
preexisting law was somehow so clearly established that
Defendants should not be protected by qualified immunity.
Plaintiff points us to three cases, which Plaintiff claims
clearly established that GMC owed a constitutional duty to H.S.:
Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987); Cornelius v.
Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989); and Spivey
v. Elliott, 29 F.3d 1522 (11th Cir. 1994). None of these cases,
however, provide the “bright line” necessary to delineate the
concrete circumstances in which officials will violate the
Constitution. See Lassiter, 28 F.3d at 1150 (“If case law, in
factual terms, has not staked out a bright line, qualified
12 immunity almost always protects the defendant.”) (internal
quotations and citations omitted).
When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. . . . Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.9
Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County
Sheriff’s Dep’t, 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmondson,
J., dissenting), approved en banc, 998 F.2d 923 (11th Cir. 1993)).
9 Plaintiff argues that this circuit’s qualified immunity analysis, generally requiring materially similar cases to establish clearly a constitutional right, is no longer good law after Lanier, 117 S.Ct. 1219. We have already reaffirmed our qualified immunity analysis in the light of Lanier. See Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 825 n.3 (11th Cir. 1997) (en banc) (specifically discussing the impact of Lanier on the law of the circuit). “The principles of qualified immunity set out in Lassiter v. Alabama A & M Univ., . . . continue to be the guiding directives for deciding cases involving the question of a state actor’s entitlement to qualified immunity in this circuit.” Id. at 823. 13 Given the facts, the cases relied on by Plaintiff are not
materially similar to the case before us and would have
required Defendants to draw inferences -- inferences of highly
debatable validity -- to reach the conclusion that H.S. (and
secondarily Plaintiff) was owed a constitutional duty. These
cases do not address the situation in this case: where an
individual is voluntarily in the custody of the State10 or where
the State represented that it would provide the individual with
security. Cf. Taylor, 818 F.2d 791 (The court wrote these words
about involuntary custody in foster homes: “The liberty interest
in this case is analogous to the liberty interest in Youngberg.
In both cases, the state involuntarily placed the person in a
custodial environment, and in both cases, the person is unable
to seek alternative living arrangements.”) (emphasis added);
10 We understand that presence at a custodial school may not be a voluntary decision on the part of the minor student. But only restraints of freedom imposed by the State, not by a student’s parents, can give rise to a constitutional duty requiring the State to protect that student. 14 Cornelius, 880 F.2d 348;11 Spivey, 29 F.3d 1522, withdrawn,
11 In Cornelius, the court determined that a special relationship might exist between the town and a town employee, the town clerk, where the town knowingly placed the town clerk in danger by allowing poorly supervised prison labor to work near the town clerk’s place of employment, the town hall. Later panels have questioned the survival of Cornelius, and its special danger theory, following the Supreme Court’s decision in Collins v. City of Harker Heights, 112 S.Ct. 1061, 1070-71 (1992) (employment relationship alone cannot give rise to constitutional duty to protect). See Mitchell, 107 F.3d at 839 n.3 (“Cornelius may not have survived Collins . . . .”); Wright v. Lovin, 32 F.3d 538, 541 n.1 (11th Cir. 1994) (same). Because Cornelius has significantly different facts and its validity has been expressly questioned in our later opinions, we cannot let Cornelius be the case that clearly established H.S.’s right to the State’s protection: Cornelius did not clarify the law to the point that all reasonable school officials in Defendants’ place must have known they were subject to a constitutional duty to protect H.S. The confusion created by the Supreme Court’s intervening decision in Collins, and by later opinions by this court questioning Cornelius, presents the legal possibility that law, which may have once been clear, can become unclear later. The nature of the law is not always to move from unsettled to settled. Although one of our decisions may not be expressly overruled, later cases -- at least Supreme Court cases -- may bring its reasoning or holding into such doubt that the elements set out in the case are no longer clearly established for purposes of qualified immunity. Given the confusion surrounding the soundness of 15 Spivey v. Elliott, 41 F.3d 1497 (11th Cir. 1995) (Spivey II).12 Thus,
these cases did not (and do not today) clearly establish that
Defendants owed Plaintiff or H.S. a federal constitutional duty
to protect H.S. from the incident in this case.
Given their facts, the cited precedents gave much too little
guidance. We cannot properly require Defendants in this case
to have drawn inferences when the facts of the existing cases
were considerably different from the circumstances facing
these particular Defendants.
Cornelius and considering its facts, we can locate no case (and Plaintiff has pointed us to no case) that is sufficiently factually similar to this case and that would have made it clear to Defendants at the time (or to us now) that Defendants placed H.S. in a position of danger which imposed upon them a constitutional duty to protect H.S. 12 Plaintiff relies on Spivey, 29 F.3d 1522. But the portion of that opinion on which Plaintiff relies was withdrawn. See Spivey II, 41 F.3d at 1499 (“[I]n the interest of efficiency and collegiality on this Court, where there are differing views as to the substantive right, this panel has chosen to withdraw all of its prior opinion which relates to whether the complaint alleges a constitutional right so that the opinion will serve as no precedent on that issue.”). 16 Furthermore, some preexisting case law may have
particularly suggested to Defendants (or to be more precise, to
every reasonable school official standing in Defendants’ place)
that no duty would arise in a voluntary situation, despite
representations by Defendants that protection would be
provided. See DeShaney, 109 S.Ct. at 1005-06 (“The affirmative
duty to protect arises not from the State’s knowledge of the
individual’s predicament or from its expressions of intent to
help him, but from the limitation which it has imposed on his
freedom to act on his own behalf.”) (emphasis added). “Unless
a government agent’s act is so obviously wrong, in the light of
preexisting law, that only a plainly incompetent officer or one
who was knowingly violating the law would have done such a
thing, the government actor has immunity from suit.” Lassiter,
28 F.3d at 1149. Defendants were not obviously violating
Plaintiff’s or H.S.’s clearly established rights in this case.
17 Because Plaintiff’s complaint fails to allege the violation of
a clearly established constitutional right, the district court
correctly granted Defendants’ motions to dismiss on grounds
of qualified immunity. We, given the status of the preexisting
law, view it as obvious that Defendants are entitled to qualified
immunity.
But we do acknowledge that the existence or nonexistence
of a constitutional right (or duty) in this case presents a
perplexing question: a question that we -- in part, because it
cannot be easily answered -- decline to answer at this time. To
overcome qualified immunity, Plaintiff must show both (1) that
Defendants violated a federal constitutional right and (2) that
the right was already clearly established at the time of the
violation. See Spivey II, 41 F.3d at 1499. “[A] negative decision
on either prevents the plaintiff from going forward.” Id. So, to
answer the other question is unnecessary to decide the case.
Thus, “[o]nce there has been a determination that there is no
18 ‘clearly established’ right, the parties can accomplish little in
pursuing the question of whether there is a right at all. . . .
[because t]hose who differ with the decision of the court could
write it off as dictum.” Id.13
13 We have already stated that “[t]he law cannot be established by dicta. Dicta is particularly unhelpful in qualified immunity cases where we seek to identify clearly established law.” Hamilton v. Cannon, 80 F.3d 1525, 1530 (11th Cir. 1996); see also In re United States, 60 F.3d 729, 731 (11th Cir. 1995) (“Statements of dicta are not part of the law of the case.”); United States v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992)(“[D]icta is inherently unreliable for what a court will do once faced with a question squarely and once its best thoughts, along with briefs and oral argument, are focused on the precise issue.”) (Edmondson, J., concurring). The reasons for avoiding dicta were briefly expressed by the Supreme Court early in our nation’s jurisprudence: It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other 19 A Supreme Court opinion recently suggested that the
“better approach” -- in cases involving the defense of qualified
immunity -- might be to decide whether the contended for
constitutional right exists at all before determining whether the
right was, at the pertinent time, clearly established. See County
of Sacramento v. Lewis, 118 S.Ct. 1708, 1714 n.5 (1998) (citing
Siegert v. Gilley, 111 S.Ct. 1789, 1793 (1991)) (“[T]he better
approach to resolving cases in which the defense of qualified
immunity is raised is to determine first whether the plaintiff has
alleged a deprivation of a constitutional right at all. Normally,
it is only then that a court should ask whether the right
allegedly implicated was clearly established at the time of the
events in question.”) (emphasis added).
We do not understand this footnote as an absolute
requirement that lower courts must always follow this
cases is seldom completely investigated. Cohens v. Virginia, 6 Wheat. 264, 399 5 L.Ed. 257 (1821). 20 “normally” “better approach.” In County of Sacramento, the
district court decided the case strictly on qualified immunity
grounds, that is, on the ground of the unsettled nature of the
law; but the Supreme Court never said the district court erred.
And if the Supreme Court intended to impose an absolute
requirement on lower courts always to address the merits of
constitutional issues even where qualified immunity obviously
applies and readily resolves the case, we believe the Supreme
Court would have said so more directly.14
14 Several separate opinions were written in County of Sacramento. As we understand it, four Justices did not endorse footnote 5 or expressly stressed that footnote 5 was no blanket rule. See County of Sacramento, 118 S.Ct. at 1722 (Breyer, J., concurring) and 118 S.Ct. at 1723 (Stevens, J., concurring) (specifically discussing footnote 5); see also 118 S.Ct. at 1723-25 (Scalia, J., with whom Thomas, J., joins, concurring in judgment only). Although a majority of the Justices did join in Justice Souter’s opinion (including footnote 5) for the Court, we cannot say that footnote 5 is doubtlessly a holding of the Court. See generally Crawford- El v. Britton, 118 S.Ct. 1584, 1590 (1998) (not everything set forth in an opinion is a holding of the case). We do recognize, however, that the Supreme Court has the power to supervise lower federal courts through special 21 At least in situations like this one -- (1) where the existence
of a constitutional right (or duty) presents a perplexing
question, (2) where the alleged right obviously was not already
clearly established, and (3) where the qualified immunity
determination does end the whole case -- it remains
appropriate, and sometimes preferable, to stop at the
determination that the right, if any, was not clearly
established.15 “A fundamental and longstanding principle of
statements that go beyond the holding of a case; and the Supreme Court has, on occasion, invoked such supervisory powers. See, e.g., Lowenfield v. Phelps, 108 S.Ct. 546, 551 n.2 (1988); Cheff v. Schnackenberg, 86 S.Ct. 1523, 1526 (1966). In footnote 5, the supervisory powers are not specifically invoked. But even if footnote 5 is a binding judicial pronouncement or a binding supervisory instruction, we -- given the footnote’s own words -- do not understand it to be a strict rule with no exceptions. 15 We do not say that the presence of these three features in the case at hand distinguishes it from County of Sacramento. One could argue that the same features were presented by County of Sacramento. We just say that these features make the case a fit subject for judicial discretion when it comes to fashioning the analysis: the kind of cases in which sometimes to decide the 22 judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them.” Lyng v. Northwest Indian Cemetery Protective Ass’n,
108 S.Ct. 1319, 1323 (1988); see also Jean v. Nelson, 105 S.Ct.
2992, 2997 (1985); In re Snyder, 105 S.Ct. 2874, 2880 (1985);
Superintendent, Massachusetts Correctional Instit., Walpole v.
Hill, 105 S.Ct. 2768, 2772 (1985); Spivey II, 41 F.3d at 1499
(decided after Siegert v. Gilley) (“[A] determination of whether
a right is clearly established will always require no more, and
will often require less, analysis than is required to decide
whether the allegedly violated constitutional right actually
exists in the first place. Moreover, deciding the case on the
‘clear establishment’ element comports with the well-
established principle disfavoring reaching substantive
constitutional issues if a case can be resolved on other
constitutional issue and sometimes not, depending on a wide array of other considerations. 23 grounds.”). “[T]his self-imposed limitation on the exercise of
the Court’s jurisdiction has an importance to the institution that
transcends the significance of particular controversies.” City
of Mesquite v. Aladdin’s Castle, Inc., 102 S.Ct. 1070, 1077
(1982).
The Supreme Court looked at these arguments for
avoiding the merits of constitutional issues when the Court, in
County of Sacramento, said that a decision on those merits was
normally the “better approach.” Still we conclude the Supreme
Court did not mean to nullify all the traditional restraint
principles or to take away all our discretion to analyze
particular qualified immunity cases, involving perplexing
constitutional issues, without first deciding whether the
constitutional right exists. We think the Supreme Court was
telling us that, notwithstanding the usual restraint arguments,
sometimes the courts can and should decide the constitutional
24 issues; and we will but -- because we believe the Supreme
Court has left us with some discretion -- not today.16
Because we conclude that Plaintiff and H.S. were owed no
clearly established constitutional duty by Defendants at the
time of the incident, Defendants are entitled to qualified
AFFIRMED.
16 Refraining (until truly necessary) from deciding -- in qualified immunity cases -- the more perplexing federal law issues will not inevitably preclude the law in due course from becoming clearly established. Suits seeking injunctions, suits against local governments, and certain criminal proceedings can settle the law. And, in circumstances where the right allegedly violated is one based in federal statute, Congress can add the necessary clarity to the law. Thus, our avoidance of a constitutional issue in a specific case, like this one, does not prevent the law from ever becoming clearly established; and if we chose to address the perplexing constitutional issue, we would not necessarily add clarity to the law because such a decision could be viewed as mere uncontrolling dicta. 25