Doe v. Rains County Independent School Dist. ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-41113
JOHN DOE and JANE DOE, as Next Friend of
Sarah Doe,
Plaintiff-Appellee,
versus
RAINS COUNTY INDEPENDENT SCHOOL DISTRICT,
ET AL.,
Defendants,
DANA WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(October 3, 1995)
Before REYNALDO G. GARZA, KING, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This appeal arises from yet another tragic instance of a high
school coach's alleged sexual abuse of a student. It brings a
difficult issue testing limits of federal judicial authority:
whether a school teacher's breach of a state-law duty to report
child abuse can, by itself, give rise to a federal claim against
the teacher under 42 U.S.C. § 1983. The parents of Sarah Doe
allege that Dana White, a school teacher, caused Sarah to be
deprived of rights protected under state law and the federal
constitution when White failed to report her discovery of Sarah's
sexual abuse within forty-eight hours as required by Texas law.
See Tex. Fam. Code Ann. § 34.01-34.02. White appeals from the
district court's denial of her motion for summary judgment, in
which she asserted qualified immunity. We do not reach the issue
of qualified immunity. We conclude that because White's breach of
her duty under Texas law to report child abuse was not under color
of state law, the Does failed to state a claim under § 1983 against
White. We reverse and order dismissal of the suit against White.
I.
A.
The Does argue that the sole issue before us is the district
court's denial of White's motion for summary judgment on qualified
immunity grounds, and that we therefore lack authority to review
the ruling below that the Does have stated a claim against White.
This argument is without merit. When reviewing a district court's
rejection of a defendant's assertion of qualified immunity, we
start by asking whether plaintiffs have alleged a violation of a
clearly established constitutional right. Blackwell v. Barton, 34
F.3d 298, 301 (5th Cir. 1994). Thus, before reaching the qualified
immunity question, we "first resolve the constitutional question --
that is, whether [plaintiffs have] stated a claim for a violation
of a right secured to [them] under the United States Constitution."
Duckett v. City of Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992)
(citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). In deciding
2
whether the Does have stated a claim against White, we accept as
true the facts as alleged by the Does.
B.
In September 1990, David Siepert resigned from his teaching
and coaching position with the Lake Dallas Independent School
District, amid allegations that he was sexually involved with a
student of his who had been babysitting for him. In August 1991,
with the help of Arthur Talkington, a former Lake Dallas colleague
who was employed with RISD, Siepert obtained a coaching position at
Rains High School in RISD. From the start of his employment with
RISD, Siepert developed a reputation for acting inappropriately
toward female students. Reports of his misbehavior indicated, for
example, that Siepert summoned female students from class early to
wrap ankles or wrists for athletics, talked in front of students
about dating high school students, and massaged a female student
while alone with her in the gym.
During the fall of 1991, while fifteen-year-old Sarah Doe was
a student in Siepert's physical education class, Siepert contacted
Sarah at school about babysitting for him. Not long after Sarah
began babysitting for Siepert's two children, Siepert began making
sexual advances toward her. Siepert eventually began having sexual
intercourse with Sarah on a regular basis throughout the 1991-1992
school year, typically at his home while Sarah was "babysitting."1
Siepert, though, did not limit his interaction with Sarah to his
1
Siepert has denied the allegations that he engaged in any
misconduct of a sexual nature with Sarah.
3
home. He often discussed babysitting arrangements with Sarah at
school, drove Sarah from school to his home when she was scheduled
to babysit, and gave gifts to her while in his car or at school.
In addition, Siepert had physical contact with Sarah during his
physical education class; for example, he would request Sarah's
assistance in putting away athletic equipment, then grab her hands
and buttocks while they were alone in the equipment room. Although
this in-school contact ended with the arrival of summer vacation,
Siepert's requests for babysitting assistance did not.
Dana White entered the scene during the summer of 1992. White
was employed as a junior high school teacher with RISD from August
1982 until June 1993, during which time she was certified as a
teacher in Texas and paid monthly pursuant to her teaching contract
with RISD. On June 22, 1992, White found out that Siepert was
having sexual relations with Sarah. On that date, Sarah called
White from Siepert's home, where Sarah was babysitting, to ask for
advice about a condom leak. White suspected that Sarah might be
having problems of a sexual nature with the adult for whom she was
babysitting, but did not know his identity until Sarah indicated
that she was babysitting for Siepert. White immediately went to
Siepert's home to talk with Sarah in person, at which time Sarah
revealed the details of her ongoing sexual affair with Siepert.
White chose not to report Siepert's abuse of Sarah at that time.2
2
White insists that she remained silent to honor her promise
of confidentiality to Sarah, which Sarah demanded before revealing
Siepert's identity, and also because White believed that Sarah was
not in immediate danger since Siepert was out of town. Although
White's reasons for not reporting the abuse are not in the Does'
4
Although Sarah made efforts to terminate her involvement with
Siepert, she continued to babysit for him intermittently throughout
the summer and into the fall of 1992. On November 5, 1992, Sarah
visited White's classroom to complain about her frustration with
Siepert. Sarah told White that Siepert had been making Sarah feel
guilty about turning down babysitting assignments, and that he had
told Sarah that he was interested in dating her. White discussed
Sarah's problem with her brother, her husband, and an attorney, but
she again declined to report the abuse to the proper authorities.
From November 5 through November 12, 1992, White and other school
teachers and officials had various conversations regarding Sarah's
abuse; however, a proper report was not made until November 12.3
Jane and John Doe brought this civil rights suit asserting
state and federal claims on behalf of Sarah against Siepert, White,
RISD, and certain other RISD teachers and officials. The Does
allege that the defendants violated, inter alia, the Due Process
Clause of the Fourteenth Amendment by causing Sarah to be deprived
of her liberty interest in bodily integrity. The Does sued White
in her individual and official capacities, asserting that White, by
exhibiting deliberate indifference to Sarah's constitutional rights
alleged facts and thus not relevant to our disposition, we mention
them to facilitate a better understanding of the supposed
circumstances of White's inaction.
3
On that date, White accompanied Sarah to Sarah's home, where
Sarah told her parents about her involvement with Siepert. While
there are conflicting indications as to what happened immediately
thereafter, there is no dispute that White subsequently went to the
local sheriff's office to file a report that included a discussion
of Sarah's sexual involvement with Siepert.
5
in breaching her duty under Texas law to report Sarah's abuse,
caused Sarah's deprivation under color of state law. White moved
for summary judgment, arguing that the Does had failed to state a
claim against her in her official capacity, and that she was
entitled to qualified immunity in her individual capacity. The
district court granted summary judgment for White in her official
capacity, but denied her motion as to her individual capacity.
White appeals this denial of summary judgment on her qualified
immunity claim, asserting that the Does have failed to state a
§ 1983 claim against her, and that in any event she is entitled to
qualified immunity.
II.
A.
To state a claim under § 1983, plaintiffs must allege two
elements: first, that they were deprived of a right or interest
secured by the Constitution and laws of the United States, and
second, that the deprivation occurred color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988).4 Where an asserted interest is
protected by a constitutional provision that operates only against
4
§ 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
6
the State, such as those of the Fourteenth Amendment, plaintiffs
must also allege state action to satisfy the first step of alleging
an actionable deprivation. See Lugar v. Edmondson Oil Co., 457
U.S. 922, 930 (1982). Hence, to allege a violation of the Due
Process Clause of the Fourteenth Amendment, the under color of
state law requirement of § 1983 is usually overlapped by an
allegation of state action made in asserting the constitutional
violation. The Fourteenth Amendment's state action requirement may
be nominally distinct from § 1983's under color of state law
requirement, but the two inquiries are related; a showing of state
action is sufficient to establish action under color of state law,
id. at 935 & n.18, and "it is clear that in a § 1983 action brought
against a state official, the statutory requirement of action
`under color of state law' and the `state action' requirement of
the Fourteenth Amendment are identical," id. at 929. Accordingly,
in § 1983 suits alleging a violation of the Due Process Clause of
the Fourteenth Amendment, we have collapsed the state action and
color of state law inquiries into a single, second step:
Plaintiffs must (1) assert a protected "liberty or property"
interest and (2) show that they were deprived of that interest
under color of state law. See Doe v. Taylor Indep. Sch. Dist., 15
F.3d 443, 450 (5th Cir. 1993) (en banc), cert. denied, Lankford v.
Doe, 115 S. Ct. 70 (1994).
In light of our recent decision in Doe v. Taylor, we have
little trouble concluding that the Does' allegations are sufficient
to establish that Sarah suffered an actionable deprivation of her
7
liberty interest in freedom from sexual abuse by persons wielding
state authority. In Doe v. Taylor, we held that "schoolchildren do
have a liberty interest in their bodily integrity that is protected
by the Due Process Clause of the Fourteenth Amendment and that
physical sexual abuse by a school employee violates that right."
15 F.3d at 445. The factual predicate of Doe v. Taylor painted an
unfortunate picture of sexual exploitation that is similar to what
allegedly transpired in this case: A high school coach who had a
reputation for behaving inappropriately toward female students
developed a sexual interest in a fifteen-year-old student in his
biology class. Using his state power and status, the coach
manipulated the student, pursuing her during school hours and on
school grounds -- for example, by writing suggestive notes on her
homework and exams, showing her favoritism in class, and buying
alcoholic beverages for her and her friends during lunch,
eventually having sexual intercourse with her on repeated
occasions. We concluded that he had acted under color of state law
in sexually abusing the student, finding that "a `real nexus'
exist[ed] between the activity out of which the violation occur[ed]
and the teacher's duties and obligations as a teacher." Id. at 452
n.4.
Doe v. Taylor persuades us that the Does have stated a § 1983
claim against Siepert for depriving Sarah of her federal
constitutional right to bodily integrity. Sarah was a student in
Siepert's class, and Siepert had considerable interaction with
Sarah at school: He allegedly discussed babysitting arrangements
8
with her, gave her rides from school, delivered personal notes to
her, and gave gifts to her. Particularly since White herself
concedes in her brief that Siepert can be held liable under § 1983
for Sarah's injury, we find it appropriate to assume, for purposes
of this appeal, that the Does have adequately alleged that Siepert
acted under color of state law in causing Doe to be deprived of her
liberty interest in bodily integrity. It is true that this reach
of a constitutionally secured interest in personal liberty is
fairly debatable as an original proposition. We were persuaded in
Doe v. Taylor that Supreme Court precedent has ended that precise
debate for this, an inferior court.
B.
That a deprivation has occurred at the hands of a state actor,
however, does not answer the separate question of which other
persons, apart from the immediate perpetrator, may be held liable
under § 1983. To help focus this inquiry, our decision in Bush v.
Viterna, 795 F.2d 1203 (5th Cir. 1986), outlined a three-step
approach for drawing the circle of liability in a § 1983 action.
After finding that (1) a rights violation occurred (2) under color
of state law, only then do we ask a third and final question: Who
are the state actors responsible for the constitutional violation?
Id. at 1209; see also Collins v. City of Harker Heights, 112 S. Ct.
1061, 1066 (1992) ("[P]roper analysis requires us to separate two
different issues when a § 1983 claim is asserted against a
municipality: (1) whether plaintiff's harm was caused by a
constitutional violation, and (2) if so, whether the city is
9
responsible for that violation."). As we explained in Bush, this
final question "will usually be answered exclusively by reference
to state law and practice. . . . The states have virtually
complete freedom to decide who will be responsible for such tasks,
and therewith to determine who will be held liable for civil rights
violations that occur in the course of carrying them out." 795
F.2d at 1209. Much as state law defines property interests, see
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985),
identifies which state officials have final policymaking authority,
see City of St. Louis v. Praprotnik, 485 U.S. 112, 124-27 (1988),
and determines whether a federal employee was acting within the
scope of his employment, see Garcia v. United States, 62 F.3d 126,
___ (5th Cir. 1995) (en banc), state law in this context delineates
the contours of federal liability by locating the persons who can
be held responsible under § 1983 for causing a constitutional
injury.
The Does allege that the Texas Family Code, by imposing on
teachers an affirmative duty to report child abuse in a timely
manner, has encircled White as a state actor who can be held liable
under § 1983 for Sarah's deprivation. The Family Code provides
generally that "[a]ny person having cause to believe that a child's
physical or mental health or welfare has been or may be adversely
affected by abuse or neglect shall report in accordance with
Section 34.02 of this code." Tex. Fam. Code Ann. § 34.01. While
Subsections (a) and (b) of § 34.02 prescribe the requisite method
10
and content for a proper report, § 34.02(d) establishes a more
stringent reporting requirement for "professionals":
If a professional has cause to believe that a child has
been or may be abused or neglected, the professional
shall make an oral report as prescribed by Subsection (a)
of this section not later than the 48th hour after the
hour the professional first suspects that the child has
been or may be abused or neglected. . . . In this
subsection, "professional" means an individual who is
licensed or certified by the state, or who is an employee
of a facility licensed, certified, or operated by the
state, and who in the normal course of official duties,
or duties for which a license or certification is
required, has direct contact with children.
"Professional" includes teachers, nurses, doctors, and
day-care employees.
Hence, since a knowing failure to report in accordance with the
applicable requirements is punishable as a misdemeanor, see Tex.
Fam. Code Ann. § 34.07, the Family Code imposes on all teachers a
criminally enforceable obligation to report child abuse within
forty-eight hours of acquiring suspicion or knowledge of the abuse.
The Does argue that a teacher who waits longer than forty-
eight hours to report state-occasioned child abuse subjects herself
to liability under § 1983 if she was deliberately indifferent to
the constitutional rights of the abused child. In particular, the
Does rely on our holding in Doe v. Taylor that, where supervisory
school officials were deliberately indifferent to a subordinate
teacher's sexual abuse of a grade-school student, the officials can
be held responsible for the resulting deprivation of the student's
constitutional rights. See 15 F.3d at 452-54. While acknowledging
that White was not a supervisory official, the Does suggest that
our reasoning in Doe v. Taylor should be extended to this case,
emphasizing the following passage from the concurring opinion:
11
"State law allows us `to identify the persons responsible for [the]
identified civil rights violation.' . . . To put the matter
differently, state law guides us in circling state actors who
fairly can be said to have caused Doe to be subjected to the rights
violation." Id. at 463 (Higginbotham, J., concurring). The
district court agreed with the Does, relying on this passage in
concluding that the Does had stated a § 1983 claim against White
for causing Sarah's constitutional deprivation.
White does not dispute that she breached her duty under Texas
law by not reporting Sarah's abuse more promptly. Instead, she
argues that her breach, standing alone, cannot give rise to a
federal claim against her. Thus, White offers a contrary reading
of Doe v. Taylor, pointing to a different statement in the
concurrence: "Consider a classroom teacher in the same school as
Coach Stroud who had full knowledge of Coach Stroud's activities
but looked the other way. Any moral duty aside, no one suggests
that § 1983 imposes liability upon this silent teacher." Id. at
464 (Higginbotham, J., concurring).
As the Does have pointed out, however, White omitted a key
sentence that immediately follows her quoted segment: "This
conclusion is found in the role of state law." Id. The Does thus
argue that here, unlike Doe v. Taylor, state law does impose an
affirmative duty on a fellow teacher not to remain silent, and that
White's breach of that duty therefore can serve as the basis for
§ 1983 liability. Hence, the precise question for this court is
whether state law supports the conclusion that White's breach of
12
her state-law duty to report child abuse renders her responsible
for Sarah's constitutional injury at the hands of Siepert.
C.
The Does arguments, though logically enticing, are ultimately
incomplete. As we explained in Bush, it is often difficult, but
nevertheless essential, to "isolat[e] the appropriate inquiry into
the identity of the state actors responsible for the violations
from the separate question of whether particular defendants had
breached some duty imposed on them by state law." 795 F.2d at 1209
(emphasis added). While the state may levy responsibility for
constitutional injuries through imposition of state-law duties, it
does not follow that every person who violates state law is
amenable to a federal claim. A state employee's breach of a duty
does not by itself establish her liability under § 1983; rather,
asking whether a breach of a state-law duty resulted in a
constitutional injury is a vehicle for answering the critical
question: whether state law has reposed in a defendant enough
responsibility for the underlying conduct that she can be said to
have caused the injury herself. The state allocates responsibility
under state law, but it is a federal decision as to whether its
assignments of duties and authority create action under color of
state law. A state employee's breach of a state-law duty to act
can give rise to § 1983 liability, but only if, as a matter of
federal law, the duty is of such nature as to render her
responsible for the constitutional harm when breached.
13
It is important to keep in mind that we are not asking whether
breach of a state-law duty constitutes a distinct constitutional
violation. Since the Does have already asserted an actionable
constitutional deprivation based on Siepert's abusive conduct, the
precise question remaining is whether there are persons in addition
to Siepert whose responsibility under state law is sufficient to
subject them to liability under § 1983 for that single deprivation
-- persons who, in the legal sense, are the participants. By
supplying the requisite elements of a § 1983 claim -- i.e., a
constitutional deprivation, causation, and action under color of
state law -- Siepert's alleged misconduct frees us to redirect our
focus away from the requirements for a constitutional claim, which
Siepert has met, and toward the lines of responsibility under state
law. In short, once we determine that a constitutional violation
has occurred, we are no longer barred from finding another person
liable under § 1983 for committing a state-law breach that caused
the constitutional injury, even if the breach itself does not
independently satisfy the elements of a constitutional claim.
Taken to its extreme, such reliance on state law could allow
states virtually unfettered latitude in prescribing the scope of
federal liability. Subject only to due process limitations, a
state conceivably could declare a person responsible for someone
else's unconstitutional conduct, through creation of state-law
duties, no matter how attenuated the person's relationship to the
injurious conduct and regardless of whether the person otherwise
had any affiliation with the state. But since the effect of state
14
law in defining federal liability is ultimately an issue of federal
law, and given our role in shaping federal law, we have seen fit to
avoid such an outcome through interpretation of the elements of
federal constitutional and statutory claims asserted via § 1983.
The Supreme Court has emphasized that "the Due Process Clause
`does not purport to supplant traditional tort law in laying down
rules of conduct to regulate liability for injuries that attend
living together in society.'" Collins, 112 S. Ct. at 1070 (finding
no federal constitutional obligation to provide state employees
with minimum levels of workplace safety and security) (quoting
Daniels v. Williams, 474 U.S. 327, 332 (1986)); see also Bush, 795
F.2d at 1209 ("[T]he enforcement of state law is the job of the
states, and the federal civil rights statute may not be used to
bootstrap alleged violations of state law into federal claims.").
Mindful of its role in preserving the distinction between state law
torts and constitutional violations, the federal judiciary has
fashioned certain limiting principles designed to cabin the ability
of state law to render persons liable under § 1983 for causing a
constitutional injury. A municipality, for instance, cannot be
held vicariously liable under § 1983; rather, plaintiffs must point
to an official policy or custom that was the "moving force" of a
constitutional injury. Monell v. New York City Dep't of Social
Servs., 436 U.S. 658, 694 (1978). Further, injuries resulting from
a municipality's failure to train or to supervise its employees can
give rise to § 1983 liability only where the inaction is indicative
of an official policy or custom that manifests deliberate
15
indifference toward the rights of the injured persons. See City of
Canton v. Harris, 489 U.S. 378, 388 (1989). Monell's moving force
requirement for claims of failure to train means that "the
identified deficiency in a city's training program must be closely
related to the ultimate injury." City of Canton, 489 U.S. at 391.
Stated another way, "[t]here must at least be an affirmative link
between the training inadequacies alleged, and the particular
constitutional violation at issue." Oklahoma City v. Tuttle, 471
U.S. 808, 824 n.8 (1985).
As the Court has explained, "permitting cases against cities
for their `failure to train' employees to go forward under § 1983
on a lesser standard of fault would result in de facto respondeat
superior liability on municipalities -- a result we rejected in
Monell." City of Canton, 489 U.S. at 392. Significantly, though,
the refusal to impose vicarious liability, the requirement of an
official policy or custom, the deliberate indifference standard,
and the moving force test are not mandated by the language of
either the Constitution or § 1983. Rather, they are limiting
principles that federal courts have fashioned in the course of
drawing the line between liability under state-law obligations and
§ 1983. The force of this distinction is exemplified by our
holding that vicarious liability can never be the basis for a
§ 1983 claim, even where state law provides that a supervisor is
vicariously liable for the conduct of his subordinates. See Baskin
v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979) (relying on Monell).
We, as federal courts, have chosen to supply certain glosses in our
16
construction of § 1983 to bring into focus the difference between
a state-law breach and a constitutional violation. In other words,
in asking the federal-law question whether a state-law duty imposed
responsibility under § 1983 for another person's constitutional
wrong, we have chosen to say that not all state law obligations are
of such nature that a person's breach subjects that person to
federal liability. We have chosen to demand a heightened showing
of fault and causation before concluding that breach of a duty to
act renders a supervisory state official or a municipality liable
under § 1983.
That a supervisory school official may be held liable under
§ 1983 for breaching his state-law duty to stop or prevent child
abuse thus does not compel the conclusion that a nonsupervisory
teacher is responsible for breaching a state-law duty to report the
abuse. Instead, this conclusion depends on a relative analysis of
state law's treatment of supervisors and teachers. We must ask
what it is about a supervisor's duties and functions that renders
a state supervisory official liable for a constitutional
deprivation by a subordinate. Only when we learn this can we
decide whether, despite her lack of supervisory powers, a teacher
who breaches her duty to report child abuse nevertheless engages in
conduct akin to that of a supervisor who flouts his responsibility
to supervise. By focusing on the core elements of supervisory
liability, we can avoid the "risk of applying state law rather than
simply using state law to identify the persons responsible for an
identified civil rights violation." Bush, 795 F.2d 1209.
17
III.
The Does' reliance on our analysis of supervisory liability in
Doe v. Taylor begs a critical element of this final step in our
Bush inquiry: Was White acting under color of state law when she
breached this duty? Color of state law in this context does not
implicate the state action requirement of the Fourteenth Amendment
because we are not asking whether White is guilty of committing an
independent constitutional violation. Rather, since the Does seek
to hold White liable for damages under § 1983, the key question is
whether she has met the statutory requirements of a § 1983 claim --
whether she fairly can be said to have acted under color of state
law in causing Sarah's constitutional injury. As the Supreme Court
has explained, even where state action is not necessary to state a
claim under § 1983, the color of state law requirement of § 1983
still maintains its vitality as a statutory element:
[A]lthough . . . the under-color-of-state-law requirement
does not add anything not already included within the
state-action requirement of the Fourteenth Amendment,
§ 1983 is applicable to other constitutional provisions
and statutory provisions that contain no state-action
requirement. Where such a federal right is at issue, the
statutory concept of action under color of state law
would be a distinct element of the case not satisfied
implicitly by a finding of a violation of the particular
federal right.
Lugar, 457 U.S. at 935 n.18.
While this case does not involve a federal right apart from
the Does' Fourteenth Amendment substantive due process claim, the
Court's analysis is nevertheless instructive as to the "distinct"
nature of the statutory requirement of "action under color of state
law." That is, as Siepert's alleged sexual misconduct has already
18
supplied the requisite state action for purposes of asserting a
Fourteenth Amendment violation, we need not ask about Fourteenth
Amendment state action in focusing on the Does' § 1983 claim
against White. But since we do have to ask whether White has met
the statutory requirement of action under color of state law, our
inquiry into White's liability under § 1983 is analytically similar
to a § 1983 claim in which a claimant asserts the violation of a
federal provision that does not contain a state action requirement.
Thus, in asking whether White is liable under § 1983 for causing
Sarah's deprivation by Siepert, we must determine whether it fairly
can be said that White's breach of her state-law duty to report
child abuse was action under color of state law, for only then can
we find that the Does have satisfied the elements of a § 1983 claim
against White.
As we will explain, "color of state law" demands a causal
connection between the state-law breach and the constitutional
injury, and satisfaction of this causation requirement in turn
hinges on the presence of a right of legal control over the events
culminating in the constitutional harm. Thus, while state law
guides us in locating the constitutional actors responsible for
causing a constitutional injury, we are still constrained in
drawing the circle of federal liability; we must be satisfied that
White's failure to report Sarah's abuse within forty-eight hours
had the requisite causal relationship to Sarah's constitutional
wrong. Simply put, White is responsible under § 1983 for breaching
19
her duty to report Siepert's abuse of Sarah only if state law also
empowered her with a right of legal control over Siepert.
A.
While state law imposes a panoply of legally enforceable
obligations on both citizens and state employees, not every law
creating a duty establishes that the obligated party is a state
actor for purposes of fulfilling the duty. "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.'" DeShaney v. Winnebago County Dep't
of Social Servs., 489 U.S. 189, 202 (1989) (quoting Daniels v.
Williams, 474 U.S. at 335). Many jurisdictions, for example, have
recognized misprision of felony as a common law offense,
criminalizing a failure to report known commission of a felony, see
21 Am. Jur. 2d § 34, yet it has never been suggested that a person
becomes a state actor solely by committing this offense. If
imposition of a duty on a person by itself cloaked that person with
state authority such that breach entailed an exercise of state
power, then every citizen would act under color of state law and
face federal liability when breaching virtually any state-law
obligation. As such an outcome is untenable, a threshold question
when dealing with any § 1983 action based on a breach of an
affirmative duty is whether the alleged failure to act can be said
to constitute action under color of state law.
20
Liability attaches under § 1983 only where a defendant, acting
under color of state law, causes a person to be deprived of a
federally secured right or interest. This requirement that action
be under color of state law is as essential as it is rigorous; a
person does not act under color of state law solely by virtue of
her relationship to the state, but depending on her function --
i.e., the nature of her challenged conduct. See Polk County v.
Dodson, 454 U.S. 312, 319-20 (1981) (holding that public defender
does not act under color of state law when defending clients); see
also Daniels v. Williams, 474 U.S. at 335-36 (emphasizing that
claim based on Fourteenth Amendment does not transform every tort
committed by state official or employee into constitutional
violation); Screws v. United States, 325 U.S. 91, 111 (1945)
(noting that acts of state officer in ambit of personal pursuits
are not acts under color of state law). Regardless of one's
affiliation with the state, "a person acts under color of state law
only when exercising power `possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law.'" Polk County, 454 U.S. at 317-18 (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)). Hence, to
determine which state-law duties are such that a breach is under
color of state law from, we focus on the nature of the duty, not
the status of the person. We ask whether a particular duty is of
such a nature that breach by a defendant represents a misuse of
state authority -- i.e., whether the failure to act in accordance
21
with the state-law duty entailed an exercise of power made possible
only because the defendant was clothed with the authority of law.
Where the alleged official misconduct involves a breach of an
affirmative duty to act, a two-party conceptual complexity arises
from the fact that the act complained of is (1) unlawful, and
(2) an act of omission, rather than commission. Ordinarily, the
unlawfulness of official conduct does not preclude us from finding
that the conduct was nevertheless action under color of state law.
Thus, where a state official acted under a grant of authority by
the state, she can be held liable under § 1983 for unlawful conduct
on the ground that she exceeded her authority. See, e.g., Monroe
v. Pape, 365 U.S. 167, 170-87 (1961), overruled in part on other
grounds, Monell, 436 U.S. at 690-701.
This analysis cannot be easily extended, however, when the
issue is a breach of an affirmative duty to act. In particular,
the conceptual difficulty is in deciding when it can be said that
there was a conferral of state authority making it possible for a
defendant to wield state power in failing to act. Thus, when
deciding whether the defendant exercised state power, the first
question is, necessarily, whether the defendant possessed any state
power to begin with -- i.e., whether she was clothed with state
authority with respect to her duty to act. This inquiry, in turn,
requires an examination of our cases in which § 1983 liability has
22
been based on a defendant's failure act, with a particular focus on
the nature of the duty breached.5
B.
As we have held that state supervisors can be found liable
under § 1983 for failing to comply with a state-law duty to act, we
necessarily have determined that under certain circumstances, a
guilty supervisor's inaction may constitute action under color of
state law. If a supervisor acted under color of state law, then he
must have possessed and exercised state power in failing to act and
thereby causing the constitutional injury perpetrated by his
subordinate. Accordingly, we start by reviewing our supervisory
liability cases in an effort to distill the proper meaning of
"under color of state law" as applied in the context of a
defendant's inaction in the face of a duty to act.
In Sims v. Adams, 537 F.2d 829 (5th Cir. 1976), we explained
that "§ 1983 requires a degree of causation as an element of
individual liability, but it does not specifically require
`personal participation.'" Id. at 831. Where personal
participation is absent, "a supervisory defendant is [still]
subject to § 1983 liability when he breaches a duty imposed by
state or local law, and this breach causes plaintiff's
5
We are mindful of the Supreme Court's ruling in Collins that
§ 1983 does not require "proof of an abuse of governmental power
separate and apart from the proof of a constitutional violation."
112 S. Ct. at 1065. Here, plaintiffs have already alleged a
constitutional violation; we ask whether there is an exercise of
authority only in answering the separate question of which other
persons can be held liable under § 1983 for causing the alleged
deprivation.
23
constitutional injury." Id. Thus, the plaintiff in Sims stated a
claim against defendants who "allegedly breached the duties of a
mayor and a chief of police to control a policeman's known
propensity for improper use of force." Id. at 832.
Following the Supreme Court's decision in Monell, we held that
a supervisory official could not be held vicariously liable under
§ 1983 for the misconduct of a subordinate, even where state law
did impose vicarious liability on the supervisor. See Baskin v.
Parker, 602 F.2d at 1208. We did not retreat, however, from the
rule that a state supervisor's breach of a state-law duty can give
rise to direct liability under § 1983. We established a three-part
test for determining when a supervisory official can be held liable
for the conduct of a subordinate: "the plaintiff must show that:
(1) the [supervisor] failed to supervise or train the
[subordinate], (2) a causal connection existed between the failure
to supervise or train and the violation of the plaintiff's rights,
and (3) such failure to supervise or train amounted to gross
negligence or deliberate indifference." Hinshaw v. Doffer, 785
F.2d 1260, 1263 (5th Cir. 1986); see also Bowen v. Watkins, 669
F.2d 979, 988 (5th Cir. 1982); Douthit v. Jones, 641 F.2d 345, 346-
47 (5th Cir. 1981); Barksdale v. King, 699 F.2d 744, 746-48 (5th
Cir. 1983).
With this precedent in hand, we concluded in Doe v. Taylor
that supervisory school officials can be held liable under § 1983
for a subordinate teacher's sexual abuse of an elementary or
secondary school student. 15 F.3d at 452-54. Relying on the
24
Supreme Court's analysis in City of Canton, we 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 to his or her constitutional rights." Doe
v. Taylor, 15 F.3d at 454. We adopted a three-step test in cases
involving alleged sexual abuse of a grade-school student: Where a
supervisory school official (1) knew facts "pointing plainly toward
the conclusion that the subordinate was sexually abusing the
student," (2) demonstrated deliberate indifference toward the
student's constitutional rights by failing to take appropriate
action to prevent or stop the abuse, the official can be held
personally liable to the student if (3) the official's failure to
act caused a constitutional injury to the student. Id.
Although these cases did not discuss how an official who
breached a state-law duty to act could be said to have been acting
under color of state law, it is not difficult to see that they
possessed state authority. State law imposes duties on supervisory
officials while entrusting them with power to assure compliance
with constitutional standards, typically by exercising direct
control over subordinates. Failure to exercise control, if
accompanied by the requisite level of indifference, may give rise
to § 1983 liability. See, e.g., Sims, 537 F.2d at 832 (breach of
"duties of a mayor and a chief of police to control a policeman's
known propensity for improper use of force"); Bowen, 669 F.2d at
988 (failure to supervise in face of history of widespread abuse);
Hinshaw, 785 F.2d at 1264 & n.1 (failure "to control an officer's
25
known propensity for the improper use of force"); Doe v. Taylor, 15
F.3d at 454 (failure to supervise or control sexually wayward
coach). Thus, where a supervisory official breached a state-law
duty with deliberate indifference toward a resulting constitutional
injury, he misused the state authority conferred on him to
supervise and control his subordinates. The supervisor's failure
to act, coupled with his deliberate indifference, was tantamount to
a conscious decision to allow the alleged constitutional injury to
occur or persist. See, e.g., Doe v. Taylor, 15 F.3d at 463 ("An
omission that evinces deliberate indifference toward the violation
of an individual's constitutional rights may amount to an act that
causes the violation.") (Higginbotham, J., concurring); cf. City of
Canton, 489 U.S. at 389 ("`[M]unicipal liability under § 1983
attaches where -- and only where -- a deliberate choice to follow
a course of action is made from among various alternatives' by city
policymakers.") (quoting Pembaur v. City of Cincinnati, 475 U.S.
469, 483 (1986)). This conclusion obtains because the state
official was responsible for preventing the constitutional injury;
his failure to do so rendered him directly liable for the
deprivation that his subordinate perpetrated. Such a supervisory
official is liable under § 1983 not because he committed a distinct
constitutional violation by breaching his duty to supervise, but
because his failure to control his subordinate rendered him
responsible for the resulting subordinate misconduct --
essentially, he was a legal participant.
26
We have never suggested, however, that only supervisors can be
held liable for a failure to act that results in a constitutional
injury. Rather, it is state law's grant of a right of legal
control over the immediate perpetrator of an injury that
establishes that a state supervisor possessed and exercised state
authority. While supervisors frequently have a right of control by
virtue of their status, control can exist in other ways.
Judge Rubin's opinion in Howard v. Fortenberry, 723 F.2d 1206
(5th Cir. 1984), is instructive. In Howard, two prisoners died
after prison officers confined them to a so-called "hot box," which
was intended to serve as a disciplinary measure for uncooperative
prisoners. The plaintiffs brought claims against various
officials, including the Director of the Department of Corrections
and two "sanitarians" who had a statutory duty to inspect the
prison. The basis for the suit against the Director was that he
breached his duty to inspect the prisons or otherwise to delegate
the task to subordinates. Despite his position as a "Director,"
which ordinarily would seem to connote that he held a supervisory
position, we found that he "apparently ha[d] no authority to remedy
any deficiencies he might observe, beyond reporting them to the
Governor." Id. at 1212. Because we found no evidence supporting
"a causal connection between the Director's failure to report a
condition in the prison to the Governor and the failure of the
prison Board of Governors to change that condition," id., we
concluded that "the Director's dereliction, if any, did not have a
27
sufficient causal connection to the constitutional deprivation to
establish liability under § 1983," id.
Our analysis of the sanitarians in Howard, however, compelled
a different result. We noted that the sanitarians had "stated in
their depositions that, if they had seen and inspected the cells,
they would have forbidden their use immediately; their failure to
inspect thus had a clear causal connection to the deaths of [the
plaintiffs]." Id. at 1213. Thus, even though the sanitarians were
not positioned as supervisors, they acknowledged that they had a
right of control over the persons who committed the deprivation, in
that they could have forbidden the prison officials from using the
hot boxes. In other words, the sanitarians had legal authority to
control the prison personnel with respect to their usage of the hot
box, and therefore their failure to inspect, together with their
corresponding failure to prevent the constitutional harm, was
action under color of state law.
This element of legal control is not confined to cases in
which a state employee breached a duty to exert control over
another state employee. Rather, the existence of a legal right of
control is the linchpin in all cases in which we have found § 1983
liability based on breach of a duty to act, even where private
actors committed the injurious harm. Consider, for example, our
decision in Lopez v. Houston Ind. School Dist., 817 F.2d 351 (5th
Cir. 1987). In Lopez, we held that a school bus driver could be
found liable under § 1983 for failing to protect a student on his
bus from being pummeled by another student. Even though the other
28
student's action was not a constitutional tort, as the attacking
student was a private actor, we found that the bus driver had
caused a distinct constitutional injury. Observing that he "was
entrusted with the care of students attending school under Texas'
compulsory education statute," id. at 356, we concluded that "[h]is
alleged failure to protect [the plaintiff] or to render emergency
aid abuse[d] state power," id. State law, in making the bus driver
responsible for the welfare of students on his bus, empowered him
with a right of control over those students. Significantly, the
driver locked the students in the bus and left them. Since he
would have been authorized under state law to use force to break up
the fight, we held that his failure to do so after closing off the
victim's possible escape routes, if accompanied by the requisite
level of indifference, amounted to a conscious choice -- under
color of state law -- to allow the beating of the child to
continue. See id. at 354-56.6
6
Lopez is not to be understood as recognizing a "special
relationship" between schoolchildren and the state giving rise to
a generalized federal constitutional duty to protect children from
harm on school buses. See Walton v. Alexander, 44 F.3d 1297, 1302-
04 & n.4 (5th Cir. 1995) (en banc) (discussing contours of "special
relationship" as emerging from DeShaney, Estelle v. Gamble, 429
U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 407 (1982)).
Under Lopez, a state employee may face § 1983 liability when he
misuses his state-conferred position in physically restraining a
child in such a manner that the employee's conduct is tantamount to
participation in the child's beating or other such victimization.
Indeed, as Judge Posner has explained, "[i]f the state puts a man
in a position of danger from private persons and then fails to
protect him, it will not be heard to say that its role was merely
passive; it is as much an active tortfeasor as if it had thrown him
into a snake pit." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.
1982).
29
In sum, our cases indicate that a right of legal control over
the persons or events giving rise to the injury complained of has
existed in those instances in which we have necessarily found that
breach of a state-law duty to act was action under color of state
law. Hence, the question in this case is whether a failure to
report, in the absence of an accompanying duty to exercise state-
conferred legal control, can still be said to constitute action
under color of state law that causes the unreported constitutional
injury. Holding that White can be held liable under § 1983 for an
alleged delay in reporting Sarah's sexual abuse, in the absence of
a determination that she had a legal right of control over Siepert,
would effectuate an unprecedented extension of federal liability.
Our authority to allow such a result aside, it is inappropriate to
do so unless we first conclude that the right of legal control is
of no significance to the elements of § 1983 liability. We turn
now to that question.
C.
A right of control, as noted by our analysis in Howard, speaks
most apparently to the issue of causation; absent a right of
control, we concluded that the causal connection between the
failure to act and the ultimate injury was too speculative to
support a finding of § 1983 liability. Indeed, we suggested in
Bush that the requisite causation under § 1983 could never exist
unless a defendant had a duty to correct the constitutional
violation: "[A]ccepting for now the concept that the breach of a
state-imposed duty can cause a constitutional tort, we hold that
30
the necessary causal relationship is absent when a state duty to
regulate, monitor, inspect, or advise is not accompanied by an
obligation to extirpate constitutionally substandard conditions or
activities that may be encountered." 795 F.2d at 1208. Under this
rule, even where a plaintiff might be able to demonstrate that
compliance with a state-law duty would have been instrumental in
preventing or stopping a constitutional harm, the stricter causal
connection requirement of § 1983 may foreclose a federal claim
against the noncomplying defendant.
We have cautioned, however, that causation under § 1983 is
"not to be gauged by the standards of ordinary tort law." Gonzalez
v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 755 (5th Cir. 1993);
(citing Martinez v. California, 444 U.S. 277, 285 (1980)). Indeed,
this requirement of a causal connection in a § 1983 action often
may have the practical effect of imposing a heightened standard of
proximate cause. For example, in Martinez v. California,
plaintiffs sued under § 1983 on behalf of a woman whose life was
taken by a parolee five months after his release by a parole board.
The Supreme Court concluded that, "[r]egardless of whether, as a
matter of state tort law, the parole board could be said either to
have had a `duty' to avoid harm to [the parolee's] victim or to
have proximately caused her death," the board did not deprive the
victim of her life within the meaning of the Fourteenth Amendment.
Martinez, 444 U.S. at 285 (citing Palsgraf v. Long Island R. Co.,
248 N.Y. 339, 162 N.E. 99 (1928)). The Court emphasized that "at
least under the particular circumstances of this parole decision,
31
appellants' decedent's death [was] too remote a consequence of the
parole officers' action to hold them responsible under the federal
civil rights law. Although a § 1983 claim has been described as a
`species of tort liability,' it is perfectly clear that not every
injury in which a state official has played some part is actionable
under that statute." Id. (quoting Imbler v. Pachtman, 424 U.S.
409, 417 (1976)).
This causal connection requirement may take shape as a
stricter test of factual causation, but it is a more nuanced
inquiry, particularly in the context of a failure to act. In
demanding that a failure to supervise or train must be "closely
related" to the constitutional injury, see City of Canton, 489 U.S.
at 391 -- and regardless of how this test is otherwise stated, see
Oklahoma City v. Tuttle, 471 U.S. at 824 n.8 (indicating necessity
of "affirmative link" between training inadequacies and
constitutional violation); Polk County, 454 U.S. at 326 (noting
that official policy must be "moving force" of constitutional
violation) -- the ultimate inquiry is whether there is a connection
between action taken under color of state law and the
constitutional harm. Of course, that the challenged conduct was
indeed action under color of state law -- that a separate nexus
existed between the alleged inaction and an exercise of state
authority -- is implicit in a finding that such a causal connection
existed for purposes of § 1983 liability. See Doe v. Taylor, 15
F.3d at 452 ("[I]f a `real nexus' exists between the activity out
of which the violation occurs and the teacher's duties and
32
obligations as a teacher, then the teacher's conduct is taken under
color of state law.").
When a claimant shows that there is both conduct under color
of state law and causation of the injury -- only then has he
satisfied § 1983's requirement of causation under color of state
law. Put another way, the under color of state law requirement
cannot be separated from the question of a causal connection
between state authority and an alleged constitutional injury;
rather, the notion of such a causal relationship is impounded in
§ 1983's requirement of action under color of state law.
In the context of an alleged breach of a state-law duty to
act, the causal connection becomes unsteady at the point of conduct
unless there is a right of legal control over the persons or events
giving rise to the injury. Absent such control, a person's ability
to abate the harm is too speculative to support § 1983 liability.
At the same time, lack of legal control calls into question whether
there is an exercise of state authority in failing to act. A right
of control is authority conferred on a defendant by the State, and
failure to utilize it properly can be said to constitute action
under color of state law because the state actor is empowered by
state law to take action that ordinary citizens cannot. If state
law has imposed a duty to report, investigate, monitor, or regulate
without granting a duty to exercise state-conferred legal control
over the underlying persons or events, there is no conduit through
which an exercise of state power can be said to have caused the
constitutional injury. Because we find that the existence of a
33
right of legal control is a compelling distinction in the question
whether state law has located a person as a constitutional actor,
we insist that a breach of a state-law duty to report cannot render
a person liable under § 1983 as a responsible state actor unless
that person also had a duty under state law to exercise state
authority in controlling the events that produced the unreported
injury.
IV.
Based on our analysis of the Texas Family Code, we conclude
that White's breach of her duty to report did not establish the
requisite causal nexus between state authority and Sarah's injury
and therefore was not action under color of state law. The Family
Code imposes a general duty on all citizens to report child abuse
to the proper authorities. To supplement this citizen-wide duty,
the statute establishes a stricter reporting requirement for
"professionals," defined to include teachers, doctors, day-care
sitters, and other such persons who are licensed, certified, or
employed by the state, and who have contact with children in the
course of their official duties. See Tex. Fam. Code Ann. § 34.01-
34.02. Yet despite the reference to state certification,
licensing, or employment in identifying who bears the heightened
reporting obligation, the statute nowhere distinguishes between
public and private professionals. More important, since the
statute does not empower either citizens or professionals with a
right of control over the child abuser, a failure to report in the
34
proper manner does not have the causal connection necessary to
implicate an exercise of state power made possible only because the
silent party is clothed with state authority.
Two illustrations expose the folly of suggesting that this
Texas statute locates citizens or professionals as state actors who
can be held responsible for constitutional injuries committed by
persons whom they fail to report. First, suppose that White, while
vacationing in Daingerfield, Texas, had told a privately employed
research physician, who had no daily contact with children, about
Sarah's abuse. While this doctor would face state criminal
penalties for waiting too long to report the abuse, it is difficult
to see how the doctor, solely because she was licensed by the state
to practice medicine, possessed and exercised state authority in
not reporting the breach. Second, since the duty to report child
abuse applies regardless of whether the abuser is a state actor or
private citizen, a finding of § 1983 liability based on a teacher's
failure to report would turn on the status of the abuser, not the
teacher. Where a child abuser has no state affiliation, the abuse
itself is not a constitutional injury; the child would have to
allege a separate deprivation arising purely from the teacher's
failure to report. Such a claim would be unavailing, however,
unless we were to conclude that the teacher's breach of a duty was
by itself a constitutional tort. Indeed, as we have explained, the
presence of state-conferred legal control is necessary to the
requisite link between the teacher as a state actor and the sexual
abuse.
35
Even though the Family Code has not empowered White with
control over Siepert, White still may be held liable under § 1983
for Sarah's injury if she otherwise possessed authority under state
law -- e.g., as a teacher or a citizen -- to exercise control over
Siepert actions. Such control need not have been labeled as
"supervisory," but may have existed, for example, if she had legal
power to prohibit Siepert from having contact with Sarah. Cf.
Howard, 723 F.2d at 1213 (emphasizing that sanitarians could have
prohibited prison officials from using unsafe hot boxes). In such
a situation, White's failure to report Sarah's sexual abuse may be
found to have caused Sarah's constitutional injury because of
White's responsibility for Sarah's welfare and concomitant right to
exercise control over Siepert.7
Based on our review of the Does' allegations, we find no basis
for concluding that Sarah had sufficient control over Siepert to
render her liable under § 1983 for his abuse of Sarah. The Does
concede that White did not have supervisory authority over Siepert.
Although White and Siepert both worked in the same school district,
White was a junior high school teacher at a different school than
Siepert; even though White and Siepert were at neighboring schools,
7
Thus, a school supervisory official can be held liable for
breaching his duty under the Family Code to report a subordinate's
abuse of a grade school student. See Doe v. Taylor, 15 F.3d at 465
(Higginbotham, J., concurring). The federal cause of action arises
not strictly from the official's breach of his duty to report, but
because his inaction constitutes an injurious abdication of his
separate responsibility to supervise and control his subordinates.
In other words, a supervisory official's failure to report child
abuse is simply one manifestation of his failure to take steps to
prevent or eliminate injury to a student.
36
her nearby status did not give her any legal control over Siepert.
Regardless of whether Sarah had a generalized duty under state law
to intervene on Sarah's behalf, we find that White had no right of
control over Siepert and hence conclude that she cannot be held
responsible under § 1983 for causing Sarah's constitutional injury
at the hands of Siepert.
In short, we conclude that a failure to report child abuse as
required by Texas Fam. Code Ann. §§ 34.01-34.02 is not action under
color of state law. Since state law has not otherwise empowered
White with a right of control over Siepert, we conclude that her
breach did not have the requisite causal connection to Sarah's
constitutional injury, and that White's delay in reporting was not
action under color of state law. White therefore cannot be held
responsible under § 1983 for Siepert's sexual abuse of Sarah.
Although White violated Texas law by breaching her duty to report
Sarah's abuse within forty-eight hours, White's lack of control
over Siepert means that she did not "exercise power `possessed by
virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.'" Polk County, 454 U.S.
at 317-18 (quoting Classic, 313 U.S. at 326). The decision of the
district court denying White's motion for summary judgment is
reversed, and this case is remanded with instructions to dismiss
the § 1983 claim against White with prejudice, and to dismiss
without prejudice the state claims against White over which the
trial court had supplemental jurisdiction.
REVERSED and REMANDED.
37