United States Court of Appeals,
Fifth Circuit.
No. 93-7313.
Joseph WALTON, as next friend of Christopher Walton, a minor, Plaintiff-Appellee,
v.
Alma ALEXANDER, et al., Defendants,
Alma Alexander, Defendant-Appellant.
May 19, 1994.
Appeal from the United States District Court for the Northern District of Mississippi.
Before POLITZ, Chief Judge, GARWOOD, Circuit Judge, and PARKER*, District Judge.
ROBERT M. PARKER, District Judge:
Plaintiff-appellee Joseph Walton filed this action on behalf
of his son Christopher Walton (Walton), a student at the
Mississippi School for the Deaf, against Defendant-appellant Dr.
Alma Alexander (Alexander), former superintendent of the
Mississippi School for the Deaf, alleging violations of 42 U.S.C.
§ 1983. Alexander moved for summary judgment on the basis of
qualified immunity. The District Court denied her motion, and she
is before this Court on interlocutory appeal of that order as is
her right under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,
86 L.Ed.2d 411 (1985). For the reasons set out below, we REVERSE.
STANDARD OF REVIEW
Review of a district court's ruling on a motion for summary
* Chief Judge of the Eastern District of Texas, sitting by designation.
1 judgment is plenary. Lodge Hall Music, Inc. v. Waco Wrangler Club,
Inc., 831 F.2d 77, 79 (5th Cir.1987). Although review is de novo,
the court of appeals applies the same standards as those that
govern the district court's determination. Jackson v. Federal
Deposit Ins. Corp., 981 F.2d 730, 732 (5th Cir.1992). Summary
judgment must be granted if the court determines that "there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).
To determine whether there are any genuine issues of material fact,
the court must first consult the applicable substantive law to
ascertain what factual issues are material. The moving party bears
the burden of coming forward with proof of the absence of any
genuine issues of material fact through the identification of those
portions of the pleadings, depositions, answers to the
interrogatories, and admissions on file, together with any
affidavits which it believes demonstrates the absence of any
genuine issues of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The
nonmovant is then required to counter the motion for summary
judgment. FED.R.CIV.P. 56(e). "[M]ere general allegations which
do not reveal detailed and precise facts will not prevent the award
of summary judgment." Nicholas Acoustics, Etc. v. H & M Const.
Co., Inc., 695 F.2d 839, 844 (5th Cir.1983) (quoting Liberty
Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1051 (5th
Cir.1967)). The court must then review all evidence bearing on
those issues, viewing the facts and inferences in the light most
2 favorable to the nonmoving party. Lavespere v. Niagara Mach. &
Tool Works, Inc., 910 F.2d 167 (5th Cir.1990).
FACTS
During the latter part of 1987, while he was a student at the
Mississippi School for the Deaf (the School), Walton was sexually
assaulted by a fellow student. This assault was reported to school
officials, including Alexander, who filed a report with the
Mississippi Department of Welfare. Pursuant to the School's
policies implemented by Alexander, both the School and the
Mississippi Department of Welfare investigated the assault. The
School called its discipline committee to counsel both students and
to contact each student's parents regarding the assault. Walton
was also provided with medical treatment by the School's physician.
Walton and his assailant were suspended from the School campus for
three days, which Alexander believed to be the maximum punishment
allowed under a consent decree from an unrelated class action
settlement, Mattie T. v. Holiday1.
Upon return from suspension, Alexander contends both Walton
and his assailant were given psychological consultation by the
School's psychologist. On the other hand, Walton contends that
after returning to the School he did not receive any counseling or
instructions as to how to protect himself from further assault.
Alexander recalls that in addition to counseling, the two students
were placed in separate dormitories. Walton alleges, however, that
Alexander took insufficient measures to shield him from the
1 Civil Action No. DC-75-31-S (N.D.Miss.1979).
3 assailant after returning from suspension. The law is clear that
the court cannot consider mere general allegations of fact in
response to a motion for summary judgment. Therefore, we find
Alexander's efforts to separate Walton from his assailant to be
undisputed. By the fall of 1988, budgetary constraints imposed by
the State of Mississippi forced the School to close all but one
male dormitory. Consequently, Walton and his assailant were placed
in the same dormitory. Walton was assigned a special dormitory
room with a private bath, which was intended to keep Walton out of
the bathrooms with other male students. Walton contends that the
assailant was allowed unrestricted access to him in 1988, and he
was again sexually assaulted by the same student. However,
Alexander was not informed of the second assault. Thereafter,
Walton filed the present action under 42 U.S.C. § 1983, alleging a
Fourteenth Amendment violation based on Alexander's failure to
protect Walton from the sexual assault of the offending fellow
student.
QUALIFIED IMMUNITY
Appellant contends that the district court erred in denying
her summary judgment because she was entitled to qualified immunity
as a matter of law.
State officials are protected by qualified immunity for
alleged constitutional torts if their conduct does not violate
clearly established law effective at the time of the alleged tort.
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). Therefore, the first step in examining a defendant's claim
4 of qualified immunity is to determine whether the plaintiff has
"alleg[ed] the violation of a clearly established constitutional
right." Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114
L.Ed.2d 277 (1991). For a constitutional right to be clearly
established, "[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987).
Walton's amended complaint alleges that he was deprived of
his "right to be free from sexual assault while attending school at
the Mississippi School For the Deaf " in violation of his
substantive due process right to bodily integrity. A substantive
due process right, as opposed to a procedural due process right, is
one either listed in the Bill of Rights or one held to be so
fundamental that a state may not take it away. See generally,
Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28
(1982).
Although the Due Process Clause of the Fourteenth Amendment
provides that "[n]o State shall ... deprive any person of life,
liberty, or property, without due process of law," nothing in the
language of the clause itself requires a state, or its officials,
to protect the life, liberty, and property of persons within its
borders against the actions of private actors. Courts have
declined to recognize as a general rule a person's affirmative
right to state protection, even when such protection may be
necessary to secure life, liberty, or property interests. See
5 DeShaney v. Winnebago County Dept. of Social Services, 489 U.S.
189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989); see also
Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 2458, 73
L.Ed.2d 28 (1982). Following this reasoning, the U.S. Supreme
Court has concluded that, as a general matter, "a State's2 failure
to protect an individual against private violence simply does not
constitute a violation of the Due Process Clause." DeShaney v.
Winnebago County Dept. of Social Services, 489 U.S. at 197, 109
S.Ct. at 1004.
However, in certain limited circumstances, when a "special
relationship" exists between a state official and a particular
individual, the state official is imposed with a duty to protect
that particular individual, thereby creating a constitutional right
to care and safety. See generally Estelle v. Gamble, 429 U.S. 97,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that the State is
required to provide adequate medical care to incarcerated
prisoners). For example, in Youngberg v. Romeo, supra, the U.S.
Supreme Court held that the Due Process Clause of the Fourteenth
Amendment requires a state, through its officials, to provide for
the reasonable safety and care of involuntarily committed mental
patients. Id. at 314-325, 102 S.Ct. at 2457-2463. Estelle and
Youngberg stand for the proposition that when a state holds a
person against his will, the Constitution imposes a duty upon the
2 The U.S. Supreme Court's use of the term "State" is meant to refer to state and local governmental entities and their agents. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 195, n. 1, 109 S.Ct. at 1002, n. 1.
6 state and its officials to assume the responsibility for that
person's safety and well-being. DeShaney v. Winnebago County Dept.
of Social Services, 489 U.S. at 200, 109 S.Ct. at 1005. This duty
arises from the limitations that have been imposed on the
individual's freedom to act on his own behalf. Id. at 200, 109
S.Ct. at 1006; see also Estelle v. Gamble, supra at 103, 97 S.Ct.
at 290.3 These cases leave open "the possibility that the duty
owed by a state to prisoners and the institutionalized might also
be owed to other categories of persons in custody by means of
"similar restraints of personal liberty.' " D.R. by L.R. v. Middle
Bucks Area Vo. Tech. School, 972 F.2d 1364, 1370 (3d Cir.1992) (en
banc), cert. denied, --- U.S. ----, 113 S.Ct. 1045, 122 L.Ed.2d 354
(1993) (quoting DeShaney v. Winnebago County Dept. of Social
Services, 489 U.S. at 200, 109 S.Ct. at 1006).
Appellant contends that no "special relationship" exists
between herself and Walton because his voluntary enrollment at the
School does not place him within a category of persons recognized
by law in 1987 and 1988 as involuntarily committed to state
3 Some courts have also imposed a constitutional duty to protect foster children by analogy to involuntary institutionalized individuals. See Yvonne L., By and Through Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883, 893 (10th Cir.1992); Taylor By and Through Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989); Doe v. New York City Dept. of Social Services, 649 F.2d 134 (1981), after remand, 709 F.2d 782 (2d Cir.), cert. denied sub nom., Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). A special relationship is also recognized in cases involving a child removed from his home and placed under state supervision. See Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991).
7 custody. Appellant primarily relies on the opinion in D.R. By L.R.
v. Middle Bucks Area Vo. Tech. School, supra, in which the Third
Circuit held that a school official's authority over a special
education day student does not create the type of physical custody
necessary to establish a special relationship between the official
and the student due to the fact that both the student and her
parents retain substantial freedom to act. D.R. by L.R., 972 F.2d
at 1373. The Court reasoned that because the students were able to
return home at the end of the school day, their parents remained
their primary caretakers. Id. The Court noted, however, that in
those cases in which a duty was imposed, the state assumed "an
important, continuing, if not immediate, responsibility for the
child's well-being" due to the fact that the child's placement in
state custody rendered him or her dependent upon the state to meet
the child's basic needs. Id. at 1372.
There are several factors that exist in this residential
special education school which distinguish this case from those
cases involving students who attend day classes, as in D.R. by L.R.
v. Middle Bucks Area Vo. Tech. School, supra. For example, the
School had twenty-four (24) hour custody of Walton, a handicapped
child who lacks the basic communications skills that a normal child
would possess. Because its students are handicapped, the School
has to enforce strict rules that impact on what the students can
and cannot not do. Obviously, Walton was not free to leave when he
resided at the School. In addition, the economic realities of most
Mississippi families are such that there is no other viable option
8 to them if they want their handicapped children to receive an
education. The residential special education program provided by
the State of Mississippi had a significant custodial component
wherein Walton was dependent on the School for his basic needs and
lost a substantial measure of his freedom to act. Therefore, we
find that Walton falls within a category of persons in custody by
means of "similar restraints of personal liberty," thereby
establishing the existence of a "special relationship" between
Alexander and Walton sufficiently clear by law in 1987 and 1988 to
impose Alexander with a duty to provide Walton with reasonable
conditions of safety. No reasonable superintendent in 1987 could
have assumed she could have failed to take reasonable steps to
protect the bodily integrity of one of her "special relationship"
students.
Having established that Walton's constitutional right to
bodily integrity and Alexander's duty with respect to that right
were clearly established in 1987, when the first incident of sexual
molestation occurred, we must determine whether, on the record
before us, Alexander's failure to act or actions amounted to
"deliberate indifference." In Doe v. Taylor Ind. School Dist.4,
this Court held that a school official's liability arises only at
the point when the student shows that the official, by action or
inaction, demonstrates a deliberate indifference toward his or her
constitutional rights. Taylor, 15 F.3d at 454. The standard to be
applied is not one of a guarantor or insurer of Walton's safety,
4 15 F.3d 443 (5th Cir.1994).
9 but whether Alexander's actions provided reasonable conditions of
safety, so as not to rise to a level of deliberate indifference.
Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745, 761 (5th
Cir.1993); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th
Cir.1988) (rehearing denied) (holding that in order to violate a
constitutional right, a defendant must act either knowingly or with
deliberate, reckless indifference).
In Taylor, this Court adopted a test for determining personal
liability of officials in physical sexual abuse cases. Although
Taylor involved the physical sexual abuse of a student by an
employee of the school, we can apply the same test to a "special
relationship" student who is sexually molested or abused by a third
party, which in this case is another student. A supervisory school
official can be held personally liable for the violation of a
"special relationship" student's constitutional right to bodily
integrity in sexual molestation cases if the student establishes
that:
(1) the defendant learned of facts or a pattern of sexual molestation or abuse by a third party pointing plainly toward the conclusion that the third party was sexually molesting or abusing the "special relationship" student; and
(2) the defendant demonstrated deliberate indifference toward the constitutional rights of the "special relationship" student by failing to take action that was obviously necessary to prevent or stop the abuse; and
(3) such failure caused a constitutional injury to the "special relationship" student.
Taylor, 15 F.3d at 454.
The evidence submitted by the plaintiff in this case clearly
10 establishes that soon after Walton was first molested in 1987,
Alexander received a report from Walton of the incident. Alexander
learned of facts sufficient to satisfy the first prong of the test.
The evidence submitted also shows that Alexander did not respond
with deliberate indifference. She filed a report to the
Mississippi Department of Welfare; she personally investigated the
assault; she provided Walton with medical treatment administered
by the School's physician; she called the School's discipline
committee to counsel both students and notify each student's
parents; she suspended both students from the School campus for
three days; and she separated Walton from his assailant as best
she could under the circumstances created by the School's budgetary
constraints. Alexander's actions may have been ineffective in
halting the molestation, but her actions did not reflect that she
was deliberately indifferent. Alexander provided reasonable
conditions of safety to protect the bodily integrity of Walton.
Therefore, as to the third prong of the test, no failure to act or
action on her part had a causal connection with the second assault
which occurred in 1988. Summary judgment should have been granted
to Alexander on the grounds of qualified immunity.
CONCLUSION
The District Court's Order denying the Motion for Summary
Judgment filed by superintendent Alexander is REVERSED.
GARWOOD, Circuit Judge, concurring specially:
I agree with the judgment of reversal, but am unable to join
in the majority opinion.
11 This suit under 42 U.S.C. § 1983 seeks recovery of damages
from appellant, now retired but then superintendent of the
Mississippi School for the Deaf, for injuries suffered by one of
its students, Christopher Walton (Walton), when sexually assaulted
at the school by a fellow student, a private individual not acting
under color of law or with any authorization, approval, or
condonation by appellant or any other state actor. Appellant
challenges the denial of her motion for summary judgment based on
qualified immunity as well as on the assertion that there was no
constitutional violation. In this setting, even if Walton were in
such a "special relationship" to the state that the Constitution
imposed on it (and appellant) the duty to take affirmative action
to protect him from assault by private individuals not acting under
color of law, see DeShaney v. Winnebago County, 489 U.S. 189, 109
S.Ct. 998, 103 L.Ed.2d 249 (1989), nevertheless it is plain that
appellant would not have violated any constitutional right of
Walton's absent "deliberate indifference" on her part to his
safety.
I agree with the majority's obviously correct holding that the
absence of evidence sufficient to sustain a finding that appellant
was deliberately indifferent to Walton's safety entitles her to
summary judgment. And that is plainly true whether or not the
state had a DeShaney "special relationship" to Walton while he
attended its School for the Deaf. This case could, and should,
have easily and simply been disposed of on that basis alone.
However, the majority, quite unnecessarily, goes further and
12 purports to hold that Walton was in a DeShaney "special
relationship" and that this was clearly established constitutional
law in 1988. These rulings are, as a practical matter, largely
insulated from further challenge because neither appellant nor
Walton has any incentive to contest them.
I emphatically disagree both with the wholly unnecessary
reaching of such constitutional issues and with the majority's
resolution of them.
As to the former, it is settled that federal courts have a
"strong duty to avoid constitutional issues that need not be
resolved in order to determine the rights of the parties to the
case under consideration." County Court of Ulster County v. Allen,
442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979).
This "responsibility to avoid unnecessary constitutional
adjudication" is "a fundamental rule of judicial restraint." Three
Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 157, 104 S.Ct.
2267, 2279, 81 L.Ed.2d 113 (1984).1 All this, of course, applies
not only to the Supreme Court but to the lower federal courts as
well. See Bowen v. United States, 422 U.S. 916, 920, 95 S.Ct.
2569, 2573, 45 L.Ed.2d 641 (1975) (in light of the proper
1 See also, e.g., Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985):
" "Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.' [citations omitted]....' [i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.' [citation omitted]."
13 "reluctance to decide constitutional questions unnecessarily," the
Court of Appeals, "having correctly decided that Almeida-Sanchez
[v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596
(1973) ] did not apply to a 1971 search, ... should have refrained
from considering whether our decision in that case applies to
searches at checkpoints"). See also Jean v. Nelson, 472 U.S. 846,
854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985). The majority
should not have disregarded the wise counsel of those and like
cases.
As the majority has spoken—albeit unnecessarily—to whether
this case presents a DeShaney special relationship, I feel
compelled to likewise address that issue.
The key to the DeShaney "special relationship" is that it
arises "when the State takes a person into its custody and holds
him there against his will" and thus "by the affirmative exercise
of its power so restrains an individual's liberty that it renders
him unable to care for himself." Id. 489 U.S. at 200, 109 S.Ct. at
1005. That is not the situation here. The State of Mississippi
did not force Walton to attend the School for the Deaf or hold him
there against his will. There is no evidence or allegation that
attendance at the School for the Deaf is other than voluntary (or
even that boarding there is something that the School requires of
all who wish to enroll as students). Indeed, the record reflects
that at all relevant times Walton had passed the age at which
14 Mississippi required attendance at any school.2
The majority infers that the School for the Deaf was the only
educational opportunity practically available to Walton. That
reasoning goes far beyond the DeShaney rationale, which is focused
on compulsion "by the affirmative exercise of" state "power."
Indeed, in this respect the majority seems to suggest that the
state's failure to act—its supposed failure to provide other
educational opportunities for the deaf—furnishes the required
compulsion. But that is contrary to the very heart of DeShaney's
rationale. Id. at 196, 109 S.Ct. at 1003.3 See also, e.g., Dawson
2 Walton's affidavit states that the first incident (as to which, apparently, recovery is not sought) occurred "in late 1987" and the other "in October 1988." Walton was born September 5, 1971, as reflected by the attachment to his affidavit, and was hence fifteen years of age on September 1, 1987, and sixteen years of age on September 1, 1988. For the school year 1987- 1988, when the first incident occurred, Mississippi compulsory attendance applied only to those who had "not attained the age of" thirteen years "on or before September 1," 1987; for the school year 1988-1989, when the second incident occurred, Mississippi compulsory attendance applied only to those who had "not attained the age of" fifteen years "on or before September 1," 1988. Miss.Code § 37-13-91(2)(f)(ii) & (iii). Since Walton had attained the age of fifteen before September 1, 1987, he was not subject to compulsory school attendance during either the 1987-1988 or the 1988-1989 school years. It was not until the 1989-1990 school year that the compulsory attendance age included (as it does now) those who had "not attained the age of seventeen (17) years on or before September 1," 1989; however, by that time Walton would not have been covered because he had attained the age of seventeen on September 5, 1988. 3 "... [O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e.g., Harris v. McRae, 448 U.S. 297, 317-318, 100 S.Ct. 2671, 2688-2689, 65 L.Ed.2d 784 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment);
15 v. Milwaukee Housing Authority, 930 F.2d 1283, 1284-85 (7th
Cir.1991). Moreover, the record simply does not support the
majority. Appellant's supplemental affidavit filed below states:
"the Mississippi School for the Deaf was not the only public deaf education facility in the State of Mississippi. In fact, handicapped educational facilities were available throughout the state, including deaf education facilities. The local school districts were obligated to provide handicapped educational facilities, including deaf educational facilities, so long as at least five handicapped students could be found in their district. Consequently, many such facilities were spread around the state.
In addition, there were private deaf education institutions in the State of Mississippi.
Indeed, students at the Mississippi School for the Deaf were there voluntarily. They and their parents were free to place them in either public or private educational facilities throughout the state and they were not obligated to attend the Mississippi School for the Deaf. They were free to enroll at the Mississippi School for the Deaf and they could withdraw at their option."
Mississippi law provides for special education programs in local
schools for children with defective hearing, as well as for
financial assistance for this purpose to such students attending
private schools. See Miss.Code §§ 37-23-1—37-23-9; 37-23-61—37-
23-73.
Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, supra, 457 U.S., at 317, 102 S.Ct., at 2458 ("As a general matter, a State is under no constitutional duty to provide substantive services for those within its border"). As we said in Harris v. McRae: "Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference ..., it does not confer an entitlement to such [government aid] as may be necessary to realize all the advantages of that freedom.' 448 U.S., at 317-318, 100 S.Ct. at 2688-2689 (emphasis added)." Id.
16 The majority looks to DeShaney's footnote 9 and the foster
home case cited in the majority's footnote 3. Again, however, the
majority fails to observe the crucial distinguishing factor, made
plain by the DeShaney footnote, namely state coercion: "Had the
State by the affirmative exercise of its power removed Joshua from
free society and placed him in a foster home operated by its
agents, we might have a situation sufficiently analogous to
incarceration or institutionalization to give rise to an
affirmative duty to protect." Id. 489 U.S. at 201, 109 S.Ct. at
1006, n. 9. Here, Walton attended the School for the Deaf
voluntarily and/or by the choice of his parents. Similarly, the
cases cited in the majority's note 3 are all ones in which the
state, by the affirmative exercise of its powers, has taken the
child from its parents and involuntarily placed it in state custody
and in the setting in which the injury arose.4 In contrast, where
4 In Taylor By and Through Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 403 L.Ed.2d 808 (1989), a court order removed the child from the custody of her natural parents and put her in the custody of the state department, which then placed her with foster parents who injured her. Id. at 792. The Eleventh Circuit held this was analogous to Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), because "[i]n 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." Id. at 795 (emphasis added). Ledbetter went on to say "[w]e hold that a child involuntarily placed in a foster home is in a situation so analogous to a prisoner ... that the foster child may bring a section 1983 action...." Id. at 797 (emphasis added). The same sort of situation was before the Tenth Circuit in Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883, 892 (10th Cir.1992), where the court quoted this very language from Ledbetter. In Doe v. New York City Department of Social Services, 649 F.2d 134, 137 (2d Cir.1981), the child "when she was two years old, was placed in foster care ... in the legal custody of the New York City
17 the placement is voluntary many courts—and all since DeShaney —have
held that there is no such "special relationship." See, e.g.,
Milburn v. Anne Arundel County Department of Social Services, 871
F.2d 474, 476 (4th Cir.1989) (declining to find a "special
relationship" because "[t]he State of Maryland by the affirmative
exercise of its power had not restrained the plaintiff's liberty;
he was voluntarily placed in the foster home by his natural
parents"); Fialkowski v. Greenwich Home For Children, Inc., 921
F.2d 459, 465-66 (3d Cir.1990);5 Monahan v. Dorchester Counseling
Commissioner of Welfare," which subsequently placed her in foster homes where she was injured.
This was also the basis for the Seventh Circuit's decision in K.H. ex rel Murphy v. Morgan, 914 F.2d 846 (7th Cir.1990), where the court observed with respect to the female plaintiff that "The juvenile court ... ordered her removed from the custody of her parents ... [and] placed her with a foster parent." 914 F.2d 846 at 848. The court went on to say "Here ... the state removed a child from the custody of her parents; and having done so it could no more place her in a position of danger, deliberately and without justification ... than it could deliberately and without justification place a criminal defendant in a jail or prison in which his health or safety would be in danger...." Id. at 849. Morgan expressly recognizes that a different situation is presented, in which the state lacks responsibility, where there is a "voluntary placement by the natural parents." Id.
The special relationship that was referred to in dicta in our opinion in Griffith v. Johnson, 899 F.2d 1427, 1439 (5th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991), similarly was that which arose when the state involuntarily terminated the natural parent-child relationship by court proceedings and thereafter was appointed by the court as managing conservator for the child. Id. at 1431. 5 Declining to find a "special relationship," the Third Circuit states:
"In this case, Walter Fialkowski's personal
18 Center, Inc., 961 F.2d 987, 991 (1st Cir.1992).6 See also K.H. ex
rel Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir.1990) (citing
Milburn with approval).
Post-DeShaney, there are no appellate decisions of which I am
aware that have found a "special relationship" where the State is
not holding the plaintiff "against his will." Id. 489 U.S. at 198,
109 S.Ct. at 1005. Even compulsory school attendance laws—not
present here—have not sufficed for this purpose. See Maldonado v.
Josey, 975 F.2d 727, 730-733 (10th Cir.1992), cert. denied, ---
liberty was not substantially curtailed by the state in any way. His parents voluntarily placed him at the Greenwich Home CRRS; indeed, they specifically sought such a facility because they were not satisfied that he was making sufficient progress at the training facility in which he was previously placed. Not only were the Fialkowskis free to remove their son from the CRRS if they wished, but Walter Fialkowski himself enjoyed considerable freedom of movement. He was thus not deprived of freedom "through incarceration, institutionalization or other similar restraint of personal liberty.' DeShaney, 489 U.S. at 189, 109 S.Ct. at 998." Id. at 465-66 (footnote omitted). 6 Monahan finds no special relationship, stating:
"The complaint alleges that Monahan "voluntarily committed himself to the care and custody [of DMH and Millie's Cottage].' Because the state did not commit Monahan involuntarily, it did not take an "affirmative act' of restraining his liberty, an act which may trigger a corresponding due process duty to assume a special responsibility for his protection.... Monahan attempts to distinguish this case because, unlike Joshua DeShaney, who lived at home with his father, Monahan lived for six days in a facility administered by (or under contract to) the Commonwealth of Massachusetts.... Although Monahan may have had closer contacts with the state than did Joshua DeShaney, he was not being held "against his will,' nor had the state used its sovereign power to "render[ ] him unable to care for himself.' "
19 U.S. ----, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. v. Middle
Bucks Area Vocational Technical School, 972 F.2d 1364, 1371-72 (3d
Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1045,
122 L.Ed.2d 354 (1993); J.O. v. Alton Community Unit Sch. Dist.
II, 909 F.2d 267, 272 (7th Cir.1990). Pre-DeShaney, there are a
few appellate decisions—none by this Court—indicating that those
"voluntarily committed" to a state mental hospital or facility for
the retarded may stand in what amounts to a "special relationship"
to the state institution. See Goodman v. Parwatikar, 570 F.2d 801,
804 (8th Cir.1978); Society for Good Will To Retarded Children v.
Cuomo, 737 F.2d 1239, 1244 (2d Cir.1984). It is doubtful that
these cases survive DeShaney as they are directly contrary to its
held "against his will" rationale. Moreover, they seem to rely on
the idea that by accepting custody of the individual the state
assumed the duty to take affirmative action to protect him from
fellow inmates.7 This, however, runs counter to DeShaney's
rejection of the analogous contention made there, viz:
"It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger. See
7 Thus, Goodman states "[a]lthough there is nothing in the Constitution which requires the state of Missouri to admit all patients seeking treatment, once [plaintiff] Rachel was admitted as a patient, voluntary or involuntary, she had a constitutional right to a basically safe and humane living environment." Id. at 804. In Society for Good Will, the same thought was expressed: "Even granting that the State of New York was not required to build schools for the mentally retarded or admit voluntary residents, once it chose to house those voluntary residents, thus making them dependent on the state, it was required to do so in a manner that would not deprive them of constitutional rights." Id. at 1246.
20 Restatement (Second) of Torts § 323 (1965) ...; see generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 56 (5th ed. 1984) (discussing "special relationships' which may give rise to affirmative duties to act under the common law of tort). But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation.... A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not "all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment." Id. 489 U.S. at 201-02, 109 S.Ct. at 1006-07.
Moreover, even if Goodman or Society for Good Will survive
DeShaney, they would not control the result here. There is no
reason to believe that Walton's status at the School for the Deaf
was comparable, in terms of his ability to act for himself and his
general freedom, to that of a patient in a mental hospital or a
retarded child in a state home. There is nothing to indicate that
Walton was not competent mentally and, except for his deafness,
physically. At the time of the first incident he was sixteen years
old and at the time of the second—the one as to which recovery is
sought—he was seventeen. The age of consent for sexual contact is
generally not greater than sixteen. See 18 U.S.C. § 2243(a);
Model Penal Code § 213.3(1)(a). See also id. § 213.4, comment 1.
At common law, the age of consent to marry was fourteen for males.
52 AM.JUR.2D Marriage § 14; 55 C.J.S. Marriage § 111. At all times
Walton was in the legal custody of his parents, and apparently
resided with them during vacations and the like. They were free to
withdraw him from the School for the Deaf at any time or,
presumably, to change his status from that of boarder to day
student. He was not subject to any compulsory school attendance.
21 Whatever restrictions he might have been under while he—on the
basis of his parents' voluntary decision (and, for all we know, his
own)—attended the school as a boarder are not shown to be
significantly different from those which might be expected at a
private boarding school. In contrast, in Society for Good Will,
more than 75 percent of the residents were " "profoundly retarded
(IQ below 20).' " In Goodman it was said that a constitutional
violation might be found "[i]f plaintiff can establish ... a
sufficient helplessness on the part of [the injured mental patient]
Rachel," who had been involuntarily committed on at least two other
occasions. Id. at 804 (emphasis added). In Harper v. Cserr, 544
F.2d 1121 (1st Cir.1976), the court said that its conclusion that
"a voluntary inmate in a state institution, or her personal
representative, may in some circumstances have a cause of action
under § 1983 for malicious or wanton maltreatment or neglect,
cannot be regarded as more than tentative in the present state of
the law." Id. at 1122. It went on to observe that the
"constitutional basis" for a duty to inmates of state institutions
such as mental hospitals "has yet to be defined, especially with
respect to inmates whom the state claims no right to confine. In
the case of voluntarily committed persons, it would seem limited to
those who by reason of disability are to a great degree helpless;
and, if not confined de jure, are at least confined de facto." Id.
at 1123.8 Here, it can hardly be said that Walton was "to a great
8 Cserr was the principal authority relied on in Goodman. Id. at 804.
22 degree helpless." There is nothing to indicate that he was
incapable of living on his own or with his parents.
The majority's finding of a "special relationship" here is
without support in reason or authority and is contrary to DeShaney.
Unfortunately, the worst is yet to come. Appellant, whose
position as superintendent of the School unquestionably involved
the exercise of discretion, moved for summary judgment in part on
the basis of qualified immunity. It then became plaintiff's burden
"to rebut this defense by establishing that the official's
allegedly wrongful conduct [here, inaction] violated clearly
established law." Salas v. Carpenter, 980 F.2d 299, 306 (5th
Cir.1992). We do "not require that an official demonstrate that he
did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs." Id.9 The federal right must
have been clearly established in a sufficiently "particularized"
sense so that it was then "clear that a reasonable official would
understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523
We further observe that in Spence v. Staras, 507 F.2d 554 (7th Cir.1974), cited in Cserr (id. at 1123), the "nonverbal" inmate at the state hospital was described as a "person confined under state authority." Spence at 557 (footnote omitted). 9 And, it is settled that an official's violation of state law—no matter how well established and plain to one in his position—does not deprive him of section 1983 qualified immunity if under the circumstances it was not clearly established that his conduct violated the federal right sued on. Davis v. Scherer, 468 U.S. 183, 193-95, 104 S.Ct. 3012, 3019-20, 82 L.Ed.2d 139 (1984).
23 (1987) (emphasis added).10
Not only does the majority unjustifiably decree a
constitutional "special relationship" here, but it goes on to say
that this was "clearly established law" in 1988. In other words,
the majority holds that any reasonable superintendent of the
Mississippi School for the Deaf must have realized in 1988 that an
institution of that kind, at which attendance was voluntary, stood
in the same relationship to its seventeen-year-old boarding
students, who were past compulsory school age, were mentally and
physically competent apart from their deafness, and remained in
their parents' legal custody, as did a state prison or state mental
hospital to its involuntary convicted or incompetent inmates. This
must have been realized despite the total absence of any decision
of the United States Supreme Court, or of this Court, or of any
district court in this Circuit, tending to support such an analogy,
with no case from this or any other circuit addressing the deaf (or
blind or competent but physically ill, etc.), with numerous cases
10 See also, e.g., Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir.1989) ("Harlow's "clearly established' standard demands that a bright line be crossed. The line is not to be found in abstractions—to act reasonably, to act with probable cause, and so forth—but in studying how these abstractions have been applied in concrete circumstances."); Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir.1987) ("whether the law was clear in relation to the specific facts confronting the public official when he acted") (emphasis added); K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.1990) (although to defeat qualified immunity, a plaintiff need not "point to a previous case that differs only trivially from his case," nevertheless "[i]t is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions.... Liability in that particular set [of facts] must have been established at the time the defendant acted.").
24 holding voluntary custody insufficient, and with the few
pre-DeShaney cases from other circuits suggesting such a
relationship in the case of voluntary commitment dealing only with
those so mentally ill or retarded as to be essentially helpless.
The majority may not approve of the "clearly established law"
requirement, or the way it was interpreted in Anderson, but surely
they are bound by it, and may not drain it of all meaning and
content. And that, surely, they have done here.
For these reasons, though I agree that there was no showing
that appellant was deliberately indifferent to Walton's safety and
that reversal is required, I am unable to join the majority
opinion. I hence concur in the result.