Wooten v. Campbell , 49 F.3d 696 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 93-9158, 93-9324.
Sybille G. WOOTEN, Individually and as Administratrix of the
Estate of Daniel M. Wooten, Plaintiff-Appellee,
v.
Carol CAMPBELL, Individually, Nancy P. Gilbert, Individually,
Ruth Y. Hicks, Individually, Pat Keating, Individually, Jane Doe,
No. 1, Individually, Jane Doe, No. 2, Individually, John Doe, No.
1, Individually, John Doe, No. 2, Individually, Joanne Gaynor,
Defendants-Appellants.
Sybille G. WOOTEN, Individually and as Administratrix of the
Estate of Daniel M. Wooten, Plaintiff-Appellee,
v.
Douglas G. GREENWELL, Johnny V. Lewallen, Gerald V. Gouge, Betty
Wrights-Robinson, Gail Ormsby, John Doe No. 1, John Doe No. 2, Jane
Doe, No. 1, and Jane Doe No. 2, Defendants-Appellants.
Sybille G. WOOTEN, Individually and as Administratrix of the
Estate of Daniel M. Wooten, Plaintiff-Appellee,
v.
Carol CAMPBELL, Individually; Nancy P. Gilbert, Individually;
Ruth Y. Hicks, Individually; Pat Keating, Individually; Joanne
Gaynor, Defendants-Appellants,
Jane Doe, No. 1, Individually; Jane Doe, No. 2, Individually;
John Doe, No. 1, Individually; John Doe, No. 2, Individually,
Defendants.
Sybille G. WOOTEN, Individually and as Administratrix of the
Estate of Daniel M. Wooten, Plaintiff-Appellee,
v.
Douglas G. GREENWELL; Johnny V. Lewallen; Gerald V. Gouge;
Betty Wrights-Robinson; Gail Ormsby, Defendants-Appellants,
Jane Doe No. 1; Jane Doe No. 2; John Doe No. 1; John Doe No.
2, Defendants.
April 6, 1995.
Appeals from the United States District Court for the Northern
District of Georgia. (Nos. 1:92-cv-2047, 1:93-cv-218), Marvin H.
Shoob, District Judge
Before KRAVITCH and DUBINA, Circuit Judges, and GIBSON*, Senior
Circuit Judge.
DUBINA, Circuit Judge:
Appellants/defendants, officers and employees with the Georgia
Department of Human Resources ("DHR"), and the Forsyth County
Department of Family and Children Services ("DFACS"), appeal the
district court's order denying their motion to dismiss or, in the
alternative, motion for summary judgment. Defendants alleged in
their motion and contend on appeal that the plaintiff/appellee,
Sybille G. Wooten ("Wooten") fails to state a claim upon which
relief can be granted and that the defendants are entitled to
qualified immunity.1 Because we hold that Wooten fails to
establish the violation of a constitutional right, we reverse the
order of the district court denying the defendants' motion to
dismiss or, in the alternative, motion for summary judgment.2
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
1
Defendants also allege in their motion to dismiss that they
are entitled to relief because the present litigation is barred
by the "Rooker-Feldman" doctrine, see District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d
206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923); that Wooten's section 1983 claim
is barred by the Eleventh Amendment; and Wooten's state tort
claim is barred by sovereign immunity.
2
The district court erred in the first prong of its analysis
and, therefore, we need not discuss the remaining defenses raised
by the defendants. We note, however, that assuming arguendo
there is a violation of a constitutional right, the defendants
are clearly entitled to qualified immunity. See Spivey v.
Elliott, 41 F.3d 1497 (11th Cir.1995); Lassiter v. Alabama A & M
University, 28 F.3d 1146 (11th Cir.1994) (en banc); Courson v.
McMillian, 939 F.2d 1479 (11th Cir.1991). Under the qualified
immunity standards, Wooten fails to demonstrate that the
defendants violated a clearly established right. It was not
I. FACTS AND PROCEDURAL HISTORY
This is a tragic case. In June 1990, Wooten received a
protective order from the Superior Court of Forsyth County,
Georgia, giving her custody of her son, Daniel, and enjoining
Daniel's father, Michael Wooten ("Michael") from coming within 500
yards of Wooten or Daniel. Shortly thereafter, Michael abducted
Daniel from day care and a month later Michael was arrested for
felony interference with custody. Upon notice from the Forsyth
County Sheriff's Office, the county DFACS became involved in
Daniel's case and petitioned the county Juvenile Court for
temporary legal custody of Daniel.
In August 1990, the Juvenile Court gave custody of Daniel to
the DHR acting through the DFACS and also gave the DHR authority to
place Daniel. Both of Daniel's parents consented to this custody
arrangement. The DHR and DFACS, after an investigation, placed
Daniel in Wooten's home and allowed Michael to visit him once every
two weeks under the supervision of DFACS caseworkers. Beginning in
November 1990, the DHR and DFACS allowed Michael to have
unsupervised visits with his son. During a January 31, 1991,
unsupervised visit, Michael abducted Daniel. Nearly two months
later, when police found Daniel and Michael, they discovered that
Michael had shot and killed Daniel and then Michael had committed
clearly established law then or now that these caseworkers could
expect to be liable when a child, in their legal, but not their
physical custody, is harmed by a natural parent while in the
physical custody of the other natural parent. The district
court's conclusion that the law is clearly established with
regards to this matter relied upon cases dealing with foster
care, not with a natural parent. We see a distinct difference in
the two situations.
suicide.
Wooten brought this action under 42 U.S.C. § 1983 alleging
that the defendants violated Daniel's constitutional rights under
the Fourteenth Amendment Due Process Clause by failing to protect
him from Michael. Wooten also asserted a state law claim for
wrongful death. Wooten alleges that the defendants were reckless
in granting Michael unsupervised visits when the evidence showed
that Michael posed a significant risk of danger to Daniel. She
also alleges that defendants of the state DHR interfered with the
county DFACS's management of Daniel's case and required the DFACS
to allow Michael to have unsupervised visits with Daniel. The
defendants filed a motion to dismiss or, in the alternative, a
motion for summary judgment asserting various grounds for
entitlement to relief, including qualified immunity. The district
court denied the motion, and the defendants appeal that order.
II. ANALYSIS
We note at this juncture that the Rule 12(b)(6) defense and
the qualified immunity defense become intertwined. Under Rule
12(b)(6), the defendants can defeat Wooten's cause of action if her
complaint fails "to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). Under the qualified immunity
defense, the defendants are immune from liability if Wooten's
complaint fails to state a violation of a "clearly established
statutory or constitutional right[ ] of which a reasonable person
would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). As the Supreme Court
states, "[a] necessary concomitant to the determination of whether
the constitutional right asserted by a plaintiff is "clearly
established' at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all." Siegert v. Gilley, 500 U.S. 226,
232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Accordingly, we
must first undertake an examination of Wooten's complaint to
determine if she possesses a right subject to a constitutional
violation. Id.3
The question we must resolve is whether a substantive due
process right is implicated where a public agency is awarded legal
custody of a child, but does not control that child's physical
custody except to arrange court-ordered visitation with the
non-custodial parent. The substantive component of the Due Process
Clause protects only those rights which are fundamental. McKinney
v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (en banc), cert.
denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995).
Substantive due process rights are created only by the
Constitution, not by state laws. Id. "A finding that a right
3
Our court has not specifically stated which analysis comes
first—the establishment of a violation of a constitutional right
or the establishment of a violation of a "clearly established'
constitutional right (readily analogized to the question: which
came first, the chicken or the egg?). There are several cases in
our circuit and in other circuits, however, which intimate that
the first question to be answered in this analytical framework is
whether the plaintiff establishes the violation of a
constitutional right. See, e.g., Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992), cert. denied, --
- U.S. ----, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993); Burrell v.
Board of Trustees of Georgia Military Colllege, 970 F.2d 785, 792
(11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1814, 123
L.Ed.2d 445 (1993); Sivard v. Pulaski Co., 17 F.3d 185 (7th
Cir.1994); Johnston v. City of Houston, 14 F.3d 1056 (5th
Cir.1994).
merits substantive due process protection means that the right is
protected "against certain government actions regardless of the
fairness of the procedures used to implement them.' " Id. (quoting
Collins v. City of Harker Heights, 503 U.S. 115, ----, 112 S.Ct.
1061, 1068, 117 L.Ed.2d 261 (1992) (internal quotations omitted)).
Hence, tort law remains largely outside the scope of the
substantive due process jurisprudence. McKinney, 20 F.3d at 1556.
The district court analogized this case to a foster care
situation when it found that Wooten stated a claim for a violation
of a constitutional right. This analysis is flawed in one major
respect: Daniel was in the physical custody of his natural mother,
not in a third-party foster home. Wooten maintained Daniel's
clothes, food, and shelter. In a foster care situation, the state
places the child, whether voluntarily or not, into the care of
persons the state has chosen. These foster families provide for
the child's physical needs on behalf of the state. The state
exercises control and dominion over the child in a foster care
situation and, accordingly, if a child is injured by a foster
family, he or she has a section 1983 claim for a violation of a
constitutional right. See Taylor by and through Walker v.
Ledbetter, 818 F.2d 791 (11th Cir.1987) (en banc), cert. denied,
489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989).
The facts of this case are very similar to the facts in
DeShaney v. Winnebago County Department of Social Services, 489
U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, a
minor child was severely beaten by his natural father despite
knowledge by state social workers of the father's violent
propensities. In rejecting the plaintiff's claims, the Supreme
Court held:
when the State by the affirmative exercise of its power so
restrains an individual's liberty that it renders him unable
to care for himself, and at the same time fails to provide for
his basic human needs—e.g., food, clothing, shelter, medical
care, and reasonable safety—it transgresses the substantive
limits on state action set by the Eighth Amendment and the Due
Process Clause. 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. In the substantive due process analysis, it is
the State's affirmative act of restraining the individual's
freedom to act on his own behalf—through incarceration,
institutionalization, or other similar restraint of personal
liberty—which is the "deprivation of liberty' triggering the
protections of the Due Process Clause, not its failure to act
to protect his liberty interest against harms inflicted by
other means.
489 U.S. at 200, 109 S.Ct. at 1005-06 (citations omitted).
The Court also noted that "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." Id. at 195, 109 S.Ct. at 1003. The purpose of the Due
Process Clause is to protect the people from the State, not to
ensure that the State protect the people from each other. Id. at
196, 109 S.Ct. at 1003. "As a general matter, then, 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.
As in DeShaney, Michael was a private actor. Wooten had
physical custody of Daniel and had consented to visits by Michael.
Wooten took no legal action to prevent the unsupervised out of
office visits nor the overnight visit at Michael's parents' home.
R 4-7, Exh. 3 & 4. Wooten signed a case panel review which
expressly stated that Michael would be allowed two hour visits away
from the office. Id. After initially placing Daniel in Wooten's
home, the state's only role was monitoring and arranging for the
visitation between Daniel and Michael. Wooten maintained the
control and dominion of Daniel and could have petitioned the court
for a change in the custody and visitation arrangements if she felt
Michael posed a risk to Daniel's well-being. Under these
circumstances, allowing a child visitation with a natural parent
does not so "shock the conscience" as to constitute a substantive
due process violation. DeShaney, 489 U.S. at 197, 109 S.Ct. at
1004.
Wooten contends that the state and her son had a "special
relationship" which imposed an affirmative duty on the state to
provide Daniel with protection. See Jones v. Phyfer, 761 F.2d 642(11th Cir.1985); Cornelius v. Town of Highland Lake, 880 F.2d 348(11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108
L.Ed.2d 785 (1990).4 In Cornelius, we held that "government
officials may be held liable for the deprivation by a third party
of a private citizen's due process rights when a special
relationship is found to exist between the victim and the third
party or between the victim and the government officials." 880
F.2d at 352-53. There is no special relationship here: Daniel was
4
There is some question whether this court's holding in
Cornelius survived the Supreme Court's decision in Collins v.
City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d
261 (1992), which held that a voluntary employment relationship,
standing alone, does not impose a constitutional duty on
government employers to provide a reasonably safe work
environment. This panel, however, need not rely upon Cornelius
in making its decision.
in the physical custody of his natural mother when his natural
father took him; Daniel did not rely solely upon the state for his
physical needs and safety; Wooten had access to the courts if she
was displeased with the unsupervised visitation; Wooten could have
intervened to stop the unsupervised visitation; and Wooten was
able to protect Daniel because she had physical custody of Daniel.
As noted earlier, the state's sole responsibility was to monitor
and arrange Daniel's visitation with Michael.
The Supreme Court has noted that in certain limited
circumstances the Constitution imposes upon the state affirmative
duties of care and protection with respect to particular
individuals. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976), the Court recognized that the Eighth
Amendment's prohibition against cruel and unusual punishment
requires the state to provide adequate medical care to incarcerated
prisoners. The Court reasoned that because the prisoner is unable
"by reason of the deprivation of his liberty" to care for himself,
it is only fair that the state be required to care for him. Id. at
103-104, 97 S.Ct. at 290-91 (quotations omitted). In Youngberg v.
Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the
Court extended the Estelle analysis holding that the substantive
component of the Fourteenth Amendment's Due Process Clause requires
the state to provide involuntarily committed mental patients with
such services as are necessary to ensure their "reasonable safety'
from themselves and others. 457 U.S. at 314-325, 102 S.Ct. at
2457-2463. These cases, however, provide no support for Wooten in
the present case.
The state did not so restrain Daniel's freedom or hold him
against his will to such an extent that a "special relationship"
was created. The affirmative duty to protect arises from the
limitation which the state imposes on an individual's freedom to
act on his own behalf. The state did not impose any limitation on
Daniel's personal liberty or freedom to act. The state placed
Daniel in the physical custody of his natural mother and monitored
Daniel's visitation with his natural father. The state's
obligation did not rise to the level of an affirmative duty to
protect because the state did not restrain Daniel's liberty to the
extent that it rendered him unable to care for himself. DeShaney,
489 U.S. at 200, 109 S.Ct. at 1005-06.
Several circuits have utilized DeShaney to find a distinction
between situations where a child is totally dependent upon the
state for security needs and situations where the primary
responsibility for care remains with a natural parent. See e.g.,
Maldonado v. Josey, 975 F.2d 727 (10th Cir.1992), cert. denied, ---
U.S. ----, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. by L.R. v.
Middle Bucks Area Vocational Tech. School, 972 F.2d 1364 (3rd
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1045, 122 L.Ed.2d
354 (1993); J.O. v. Alton Community Unit School Dist. 11, 909 F.2d
267 (7th Cir.1990). Each of these cases involved children who were
harmed by public school teachers. The plaintiffs in these cases
attempted to hold school system officials liable based upon the
custodial relationship which existed between the school system and
the child, especially in light of state compulsory attendance laws.
The courts uniformly held that substantive due process did not
furnish the plaintiffs a basis to recover against the school
systems because the state had not rendered the children totally
dependent upon the state.5
The present case is similarly analogous to DeShaney and the
above-referenced cases to warrant our conclusion that Wooten has no
claim under substantive due process. In those cases, like here,
the children remained in the physical custody of their parents who
were free to take steps to protect them from harms perpetrated by
other persons. The key inquiry in this case is whether the county
caseworkers controlled Daniel's life to such an extent that Wooten
could not reasonably be expected to protect him. The answer is
that they did not. Accordingly, Wooten's complaint fails to state
a claim upon which relief can be granted and should have been
dismissed.
III. CONCLUSION
We are not unsympathetic to Wooten and the tragic
circumstances under which she lost her son. In applying the law,
however, we cannot be guided by emotions. The facts of this case
are similar to those in DeShaney, and it is under those principles
that we hold that Wooten's complaint fails to state a violation of
a constitutional right. We note that our decision does not
foreclose other avenues of relief available to Wooten. We must
remember that the individual truly responsible for this tragedy is
Michael, not the state, for it was Michael who shot Daniel and then
5
See also Wright v. Lovin, 32 F.3d 538 (11th Cir.1994) (a
child's voluntary school attendance did not create a custodial
relationship between himself and the school sufficient to give
rise to a constitutional duty of protection).
killed himself.
REVERSED.