Walton v. Alexander ( 1994 )

  •                        United States Court of Appeals,
                                     Fifth Circuit.
                                      No. 93-7313.
      Joseph WALTON, as next friend of Christopher Walton, a minor,
                        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
    judgment is plenary.       Lodge Hall Music, Inc. v. Waco Wrangler Club,
    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
    favorable to the nonmoving party.          Lavespere v. Niagara Mach. &
    Tool Works, Inc., 
    910 F.2d 167
     (5th Cir.1990).
         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
          Civil Action No. DC-75-31-S (N.D.Miss.1979).
    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
                               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
    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
    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
          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
    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
          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.
    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
          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.
    498 U.S. 1040
    111 S. Ct. 712
    112 L. Ed. 2d 701
    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
    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"
             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,
    15 F.3d 443
     (5th Cir.1994).
    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
         (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;
         (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
    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.
           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.
           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
           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
    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
    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
          See also, e.g., Jean v. Nelson, 
    472 U.S. 846
    , 854, 
    105 S. Ct. 2992
    , 2997, 
    86 L. Ed. 2d 664
                       " "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
    "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
    105 S. Ct. 2992
    , 2997, 
    86 L. Ed. 2d 664
     (1985).            The majority
    should not have disregarded the wise counsel of those and like
           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
    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
          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.
         "... [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);
    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-
                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.
         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
          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
    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
    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
           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.
          Declining to find a "special relationship," the Third
    Circuit states:
                            "In this case, Walter Fialkowski's personal
    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.
    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).
          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.
    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.
    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
          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.
         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.
    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
          Cserr was the principal authority relied on in Goodman.
    Id. at 804.
    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.
    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).
          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.
    468 U.S. 183
    , 193-95, 
    104 S. Ct. 3012
    , 3019-20, 
    82 L. Ed. 2d 139
    (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
          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.").
    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.