Waubanascum, Naquase v. Shawano County ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3290
NAHQUASEH B. WAUBANASCUM,
Plaintiff-Appellee,
v.
SHAWANO COUNTY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-111—Thomas J. Curran, Judge.
____________
ARGUED JANUARY 20, 2005—DECIDED AUGUST 1, 2005
____________
Before FLAUM, Chief Judge, and BAUER and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Nahquaseh Waubanascum was
placed into foster care in the Shawano County, Wisconsin,
home of Mark Fry. Tragically, Waubanascum suffered
sexual abuse at Fry’s hands. Waubanascum brought a 42
U.S.C. § 1983 claim against Shawano County, alleging that
the county deprived him of substantive due process when it
issued a “courtesy” foster care license to Fry. A jury re-
turned a verdict in Waubanascum’s favor, and the district
court entered judgment thereon against the county. We
conclude, however, that Shawano County owed no constitu-
2 No. 04-3290
tional duty to Waubanascum and thus is entitled to judg-
ment as a matter of law. Accordingly, we vacate the judg-
ment of the district court and direct that judgment be
entered in Shawano County’s favor on remand.
I. Background
A tragic series of circumstances brought Nahquaseh
Waubanascum into the vile clutches of Mark Fry.
Waubanascum was raised by his grandparents on the
Menominee Indian Reservation in Wisconsin.
Waubanascum had a troubled childhood. In 1995, when
Waubanascum was around fifteen years old, he stole a car
and went for a joyride. Menominee County subsequently
took legal custody of Waubanascum, removed him from his
grandparents’ home, and deposited him in a series of group
homes for boys.
At the time, Fry was the principal at the Menominee
Indian Junior/Senior High School. Fry befriended
Waubanascum and visited him in the group homes for a
time. Eventually, Fry suggested that Waubanascum come
to live as a foster child in his home, and Waubanascum
agreed. One wrinkle was that Fry’s home was located not in
Menominee County, which had custody of Waubanascum,
but just across the line in neighboring Shawano County.
Accordingly, Fry submitted his foster care application to
Menominee County, not Shawano County.
Menominee County processed Fry’s foster application in
accordance with its standard procedure. As with all such
applications, the process was lengthy and detailed. Among
other things, the county constructed a foster home study,
which involved several home visits to evaluate the physical
condition of Fry’s home. The process also entailed a number
of interviews to determine whether Fry would be a suitable
foster parent. The interviews evaluated Fry’s views on
various topics, including parenting, education, and supervi-
No. 04-3290 3
sion. A Menominee County representative met with Fry at
least three times for a total of eight to ten hours.
The resulting home study described Fry’s residence, his
family history, and his educational and work background,
which included ten years of prior teaching experience in
Illinois. The home study concluded that Fry was “a very
intelligent and caring individual” whose “desire to help
seems very genuine.” In short, the study concluded that Fry
met the state standards governing licensure of foster homes
and that he was a good candidate for a license.
Menominee County also contacted two of Fry’s personal
references, who offered no information that raised any red
flags. In addition, Fry gave written authorization for a
criminal background check. The county arranged for the
check in the same way it did with all of its foster care
applications—it submitted a request to the Wisconsin
Department of Justice (“DOJ”) to undertake the task, which
often requires six weeks to complete.
While Fry’s criminal background check was proceeding,
Menominee County reviewed all of the information it had
gathered in Fry’s case and concluded that he was an ex-
cellent candidate for a foster care license. Fry was well
known in sparsely populated Menominee County. He was a
licensed teacher, an experienced educator, and the principal
of the local high school. One county social worker later
described Fry as “very intelligent,” “eager to assist,” and “a
valuable resource for kids who may . . . have educational
issues.” In short, Fry appeared to be an ideal foster parent,
and at the time, the county had no reason to believe other-
wise. Consequently Menominee County requested that
Shawano County issue a foster care license to Fry. At the
time of the request, Menominee County also informed
Shawano County that it had initiated the criminal back-
ground check of Fry.
4 No. 04-3290
A request to issue a “courtesy” license of this sort was not
uncommon; Shawano County had for years issued such
licenses to Menominee County and other counties. Other
Wisconsin counties did likewise. Shawano County’s practice
was to rely solely on the requesting county to conduct all
background checks of the prospective licensee and to fulfill
all of the requirements of relevant state law and regula-
tions. The county had in the past issued licenses in cases
like Fry’s, in which the criminal background check was in
progress but not yet completed.
Shawano County reviewed Fry’s home study along with
the other information pertaining to Fry’s application that
Menominee County provided. Persons reviewing Fry’s file
believed that a criminal background check had already been
completed or was being handled by Menominee County,
based on that county’s earlier representation. On the basis
of this belief, the positive information contained in the
home study, and past positive experiences with courtesy
licensing, Shawano County issued Fry a foster care license
on August 21, 1995. Two months later, on October 16, Fry’s
criminal background check came back clean from Wiscon-
sin’s DOJ.
In September, Menominee County placed Waubanascum
in Fry’s home, although Menominee County kept legal
custody over Waubanascum. In fact, under the terms of the
license, Menominee County retained jurisdiction over, and
responsibility for, the placement of any foster children in
Fry’s home. Regarding Waubanascum specifically,
Menominee County continued to provide services to him
and paid for his foster care placement with Fry. When it
issued Fry’s license, Shawano County did not know of
Waubanascum or that he would be placed in Fry’s home.
After placement, Waubanascum was monitored under
Menominee County’s “Intensive Supervision Program,” the
highest level of supervision by its social workers, which is
No. 04-3290 5
geared toward at-risk juveniles. Pursuant to the program,
two certified social workers made face-to-face contact with
Waubanascum seven days a week and with Fry and the
school at least once a week. The social workers also visited
Fry’s home two to three times a week.
Not long after Waubanascum’s foster care placement, dis-
quieting information came to light about Fry. In October
1995, an Indian School student told someone at a hospital
in Shawano County that Fry sexually abused him. The
student described shopping for clothes with Fry, and then
returning to Fry’s home. The student drank some juice,
became groggy, and went upstairs to nap. The student
described “dreaming” that Fry had “messed” with him—that
Fry rubbed his penis on the student’s leg and fondled his
genitals. Other evidence indicated that the student had
been drugged and sexually assaulted.
Randall Giese, a Shawano County Sheriff’s Deputy,
investigated the allegations and informed the Menominee
County Department of Social Services, which initiated its
own investigation. Deputy Giese also informed an unnamed
intake worker at Shawano County’s Department of Social
Services. Deputy Giese assured the worker that the child in
question was safe and that he would continue the investiga-
tion. Deputy Giese later testified that he may have spoken
with other Shawano County workers, as well.
In the wake of the allegations, Waubanascum’s social
workers questioned him without Fry present.
Waubanascum, however, indicated that everything was fine
and that he wished to remain in Fry’s home. Menominee
County considered removing Waubanascum from Fry’s
home, but decided not to on the basis of the results of its
inquiry and the fact that Waubanascum was doing very well
in terms of behavior, school attendance, and grades. The
social workers became more vigilant in their supervision of
Waubanascum’s status, but believed that Waubanascum
was not at risk.
6 No. 04-3290
All was not well at the Fry home, however. In December
1995, Waubanascum began to have trouble sleeping and
“dreamed” of Fry fondling him and masturbating in his
presence as he attempted to sleep. Over the course of sev-
eral months, these “dreams” progressed to more disturbing
events during Waubanascum’s waking hours. Fry often
contrived to sleep in the same bed with Waubanascum.
Worse, Fry became increasingly and openly physical with
Waubanascum, giving him “backrubs” that ultimately led
to undisguised attempts to engage in various sex acts with
Waubanascum. These encounters took place in Fry’s home
and in various hotel rooms during several cross-country
trips.
In February 1996, Waubanascum informed one of the
Menominee County social workers about these acts of sex-
ual abuse. That same day, Menominee County removed
Waubanascum from Fry’s home. On April 30, 1996,
Shawano County revoked Fry’s foster care license, and Fry
was arrested and later convicted for his crimes.
It was only after the removal of Waubanascum from Fry’s
home that Fry’s unsavory past came to light. Fry had been
a history teacher for ten years in Illinois. In his off hours,
however, Fry engaged in very disturbing behavior. In one
bizarre instance, Fry was discovered at night on the roof of
the home of one of his male students trying to peer into a
window. Even more bizarre, Fry was dressed in black
“ninja-style” attire, wearing a mask, and toting binoculars,
a flashlight, and a canister of mace. Another student
reported that he had spotted a similarly attired prowler in
his backyard at night on more than ten occasions.
A person matching this description was also discovered
attempting to enter the bedroom window of a sleeping
student. After pursuing the person on foot, the student was
able to identify the person as Mark Fry. These acts gar-
nered considerable public attention in Northbrook, Illinois,
No. 04-3290 7
where Fry lived. Local authorities eventually arrested Fry
in 1991 and charged him with attempted burglary and
disorderly conduct. He was later convicted of misdemeanor
disorderly conduct. Following these events, Fry moved to
Wisconsin, where, amazingly, he was licensed as a teacher
and hired as a high school principal in Menominee County.
Unfortunately, Fry’s criminal past and history of bizarre
behavior did not come to light when Menominee County
processed Fry’s foster care application. It was later discov-
ered that when the Wisconsin DOJ performed its criminal
background check of Fry, it limited its inquiry to reported
criminal activity within Wisconsin, not elsewhere. This
oversight, combined with the other unfortunate occurrences
recounted above, resulted in Waubanascum being placed in
Fry’s home.
On January 30, 2001, Waubanascum filed suit in federal
court against Menominee County, the Menominee Indian
School District, and Shawano County. Waubanascum
pursued his claims under 42 U.S.C. § 1983, alleging that
each of the defendants violated his constitutional due pro-
cess rights in issuing the foster care license and placing him
in the foster care home with Fry. Waubanascum later
settled his claims against Menominee County and the
school district, and the district court entered an order dis-
missing those claims on February 18, 2004.
The case against Shawano County, however, proceeded to
trial. Following the presentation of Waubanascum’s case,
Shawano County filed a motion for judgment as a matter of
law, which the district court denied. On May 13, 2004, the
jury returned a special verdict in favor of Waubanascum
and against the county, and the court entered judgment in
the amount of $175,000, plus almost $70,000 in costs and
fees. Shawano County filed another motion for judgment as
a matter of law or, in the alternative, a new trial. The court
denied this motion, and the county appealed.
8 No. 04-3290
II. Discussion
We review a denial of a motion for judgment as a matter
of law de novo, viewing all the evidence in the light most
favorable to the nonmovant. See Gower v. Vercler, 377 F.3d
661, 666 (7th Cir. 2004); DeBiasio v. Ill. Cent. R.R., 52 F.3d
678, 682 (7th Cir. 1995). Pursuant to Rule 50, judgment as
a matter of law is appropriate if “there is no legally suffi-
cient evidentiary basis for a reasonable jury to find for [a]
party on [an] issue . . . .” Fed. R. Civ. P. 50(a)(1). We
examine the record as a whole to determine whether there
was sufficient evidence from which a reasonable jury could
have returned the verdict, Marshall v. Teske, 284 F.3d 765,
770 (7th Cir. 2002), but we may not reweigh this evidence
nor substitute our own credibility determinations for that
of the jury. See Gower, 377 F.3d at 666. If reasonable
persons could not find that the evidence justifies a decision
for a party on an essential element of its claim, the court
should grant judgment as a matter of law. Deimer v.
Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 343 (7th Cir.
1995).
It is important to keep in mind what this case is not
about. Despite the lengthy recitation in the facts of the un-
fortunate miscues that led to Waubanascum’s abuse, this
case is not a state law tort action against Shawano County.
This is a case alleging deprivation of due process rights se-
cured under the federal constitution. Waubanascum’s claims
arise under 42 U.S.C. § 1983, which requires a plaintiff to
show that (1) the defendant deprived him of a right secured
by the Constitution and laws of the United States, and (2)
the defendant acted under color of state law. See J.H. ex rel.
Higgin v. Johnson, 346 F.3d 788, 791 (7th Cir. 2003). The
second requirement is not disputed in this case. As to the
first, the jury agreed with Waubanascum’s contention that
Shawano County violated his Fourteenth Amendment due
process rights. Specifically, the jury found that Shawano
County had a policy or custom of issuing courtesy foster
No. 04-3290 9
care licenses, and that the county acted with deliberate
indifference to Waubanascum’s constitutional rights when
it issued Fry’s courtesy foster care license in the first place
and failed to monitor the license thereafter.
The Supreme Court has made it very clear that a state
ordinarily has no constitutional duty to protect private citi-
zens from doing harm to each other, so the state’s failure to
protect an individual from private injury does not violate
that individual’s due process rights. See DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989). “[T]he Due Process Clause of the Fourteenth
Amendment . . . does not transform every tort committed by
a state actor into a constitutional violation.” Id. at 202.
Even so, the Due Process Clause imposes such a duty when
“state action creates, or substantially contributes to the
creation of, a danger or renders citizens more vulnerable to
a danger than they otherwise would have been.” Lewis v.
Anderson, 308 F.3d 768, 773 (7th Cir. 2002) (internal
quotation and citation omitted). Accordingly, we have
recognized two exceptions to DeShaney’s general rule. See
Monfils v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998) (cita-
tions omitted). One exception arises when the state has
established a “special relationship” with an individual—if
the state has custody of the individual, for example. See id.
The other exception comes about when the state “affirma-
tively places a particular individual in a position of danger
the individual would not have otherwise faced.” Id. at 516
(citations omitted); see also Lewis, 308 F.3d at 773.
A. Special relationship exception
In the foster care context, we have recognized that a child
has a constitutional right to be placed into a safe and secure
foster home. Specifically, we have recognized that state
actors are liable only if they violated “the right of a child in
10 No. 04-3290
state custody not to be handed over by state officers to a
foster parent or other custodian . . . whom the state knows
or suspects to be a child abuser.” K.H. ex rel. Murphy v.
Morgan, 914 F.2d 846, 852 (7th Cir. 1990) (emphasis in
original); cf. DeShaney, 489 U.S. at 201 n.9.
For there to be a constitutional duty, the state must have
custody over the child, or it cannot be liable under the
special relationship exception to DeShaney. See Stevens v.
Umsted, 131 F.3d 697, 702 (7th Cir. 1997) (citing DeShaney,
489 U.S. at 200); Hutchinson v. Spink, 126 F.3d 895, 900
(7th Cir. 1997) (“[T]he State has a ‘special relationship’ with
those it has taken into custody.”). Under the facts pre-
sented, we do not see how a reasonable jury could find that
Waubanascum satisfied this requirement at trial. As ample
evidence indicates, and as Waubanascum concedes,
Menominee County, not Shawano County, had custody over
Waubanascum. Waubanascum lived in Menominee County
and attended school there. Menominee County took him
from his grandparents’ custody after his involvement in
petty crime. It processed Fry’s foster care application. It
investigated Fry’s background and suitability to be a foster
parent. It requested the criminal background check from
the Wisconsin DOJ. It requested that Shawano County
issue the foster care license (and the license specified that
Menominee County would place children in Fry’s home and
maintain jurisdiction and custody over them). It monitored
Waubanascum under its highest level of supervision during
the time he was placed in Fry’s home. It investigated the
allegations of abuse lodged against Fry by the unnamed
student. And, it ultimately removed Waubanascum from
Fry’s home when Waubanascum reported the sexual abuse
to Menominee County case workers. In short, Menominee
County unambiguously exercised custody over
Waubanascum in every respect except two: Fry’s home
happened to be in Shawano County, and Shawano County
granted the courtesy license that allowed Waubanascum to
be placed in Fry’s home.
No. 04-3290 11
Waubanascum attempts to sidestep the unambiguous
custody requirement by contending that Shawano County’s
“special relationship” with Waubanascum arose because it
issued the courtesy foster license; had it not done so,
Waubanascum never would have been placed with Fry to
begin with. Waubanascum argues that Wisconsin laws and
regulations set forth numerous requirements regarding
foster licensing, thus indicating that Shawano County had
a constitutional duty to him. He further argues that the
county violated this duty by its policy of issuing courtesy
licenses without undertaking its own background investiga-
tions, which exhibited “deliberate indifference” to
Waubanascum’s right to be placed in a safe foster home.
As to Shawano County’s “policy,” the evidence indicates
that Shawano County issued courtesy foster licenses over
the years under circumstances similar to those in
Waubanascum’s case—it relied on the requesting county to
process the applications, conduct investigations, and initi-
ate background checks. It is less clear whether Shawano
County’s practice in fact complied with Wisconsin law in
effect at the time. The jury apparently believed that it did
not, which is not surprising, given the extensive testimony
to that effect at trial. But this fact is irrelevant in determin-
ing whether Shawano County’s actions created a constitu-
tional duty to Waubanascum, let alone whether it violated
that duty. That state laws required Shawano County to
perform its own background checks is not sufficient to
create a “special relationship” that qualifies as a DeShaney
exception. State law does not create duties under the
federal constitution, and violations of state law are by
themselves insufficient to impose liability under § 1983.
See, e.g., J.H., 346 F.3d at 793 (collecting authority). If
Shawano County’s failure to conduct a separate background
check was contrary to state law, such “dereliction of statu-
tory duties should be of concern to . . . the [s]tate of [Wis-
consin], [but] do[es] not form the basis of a § 1983 claim.”
Id. (citation omitted).
12 No. 04-3290
But even if Shawano County may somehow be understood
to have had “custody” over Waubanascum by virtue of
having issued a foster care license to Fry, this would not
end the inquiry. Shawano County must also have exhibited
deliberate indifference. In the foster care context, we apply
a “modified” deliberate indifference standard. Id. at 792.
Under this standard, the state must have actual knowledge
or suspicion of the risk of harm the child may suffer while
in foster care. As we noted in K.H., “[t]he only right in
question . . . is the right of a child in state custody not to be
handed over by state officers to a foster parent . . . whom
the state knows or suspects to be a child abuser. Only in this
case thus narrowly described can the foster parent be fairly
considered an instrument of the state for child abuse.” K.H.,
914 F.2d at 852 (emphasis in original); see also J.H., 346
F.3d at 795 (“[L]iability will only arise if the state actor
knows or suspects that the agency or foster parents with
whom a child is placed are likely to abuse the child.”); Camp
v. Gregory, 67 F.3d 1286, 1293 (7th Cir. 1995) (reiterating
K.H.’s knowledge or suspicion requirement) (collecting
authority).
Waubanascum suggests that Shawano County showed
deliberate indifference by its “long-standing custom of
granting courtesy licenses without conducting investiga-
tions of the applicants.” Thus, he argues, “Shawano
County’s policy was deliberately indifferent to a known risk
to foster children.” Waubanascum seems to propose that
state laws and regulations assume that failure to perform
background checks necessarily will expose foster children to
risk, thus constituting deliberate indifference. This argu-
ment misstates the legal standard, because it sidesteps the
requirement that there be knowledge or suspicion of actual
risk and substitutes the possibility of risk arising from the
county’s custom. Undoubtedly, foster children would be
exposed to a heightened degree of risk if foster license
applicants were subjected to no background checks at all.
No. 04-3290 13
We may assume that it is this very concern that underlies
Wisconsin’s laws and regulations requiring such back-
ground checks before a foster license may be granted.
But a failure to abide by a general statutory requirement
for background checks cannot substitute for the require-
ment of actual knowledge or suspicion in the foster home
context. See J.H., 346 F.3d at 793 (“[C]onstructive or
statutorily-implied knowledge cannot serve as a substitute
for actual knowledge or suspicion.”). As noted, it is unclear
that Shawano County actually did violate Wisconsin law in
effect at the time that the county granted Fry the courtesy
foster license. But in any event, state law does not create a
duty under the federal constitution, so even if Shawano
County failed to abide by Wisconsin law, this would not by
itself amount to a violation of Waubanascum’s due process
rights. See id.
No evidence presented at trial indicated that Shawano
County knew or even suspected that Fry had a criminal
past or would be likely to abuse Waubanascum. Indeed, to
the contrary, all of the information and findings that
Menominee County made in processing Fry’s application
(and passed on to Shawano County when it requested a
courtesy license) indicated that Fry would make an ideal
foster parent. Shawano County witnesses testified that
they, too, believed Fry would make an excellent candidate
on the basis of that information.
But even if Shawano County should have performed its
own background check or otherwise duplicated the work of
Menominee County, it is far from clear that the situation
would have ended any differently. The evidence at trial in-
dicated that Fry’s background check, which was performed
by Wisconsin’s DOJ, came back clean. No evidence indicated
that Menominee County did anything wrong when it re-
quested that the state perform the background check, nor
did any evidence show that Shawano County would have
14 No. 04-3290
gone beyond what Menominee County did in requesting the
check. Likewise, it is unclear that the result would have
been any different if Shawano County had waited for the
return of the clean background check from Wisconsin’s DOJ
before issuing the foster license. Of course, with the clarity
of hindsight, we now know that the criminal background
check conducted by the state was inadequate because it
excluded a check of criminal convictions outside Wisconsin
that would have turned up details of Fry’s checkered past
in Illinois. But this oversight at most amounts to some
species of negligence on the part of Wisconsin’s DOJ and,
even if it could be laid at the feet of Shawano County,
cannot establish the county’s liability. See Lewis, 308 F.3d
at 773 (“Negligence or even gross negligence does not suffice
to give rise to liability under § 1983) (citations omitted); c.f.
Kitzman-Kelley v. Warner, 203 F.3d 454, 462 (7th Cir. 2000)
(Posner, C.J., dissenting) (noting that it would be a “funda-
mental misconception” to conclude “that negligence and
deliberate indifference are the same thing”).
We have applied the modified deliberate indifference
standard to dispose of analogous arguments in cases with
similarly tragic facts. In Lewis, foster children were placed
into an abusive home, and they later sued the state defen-
dants under § 1983. Lewis, 308 F.3d at 770. The defendants
licensed the foster parents after receiving mostly positive
information in the course of their investigation, but also
some information that hinted that the applicants might be
unfit. Id. at 774-75. We reaffirmed the K.H. modified
deliberate indifference standard and held that the state
defendants were entitled to summary judgment. Id. at 775-
76. We concluded that the state workers may well have
been negligent in performing their background investiga-
tion, but they were never alerted to actual abuse or the
likelihood of it. Id. Thus, the defendants could not be held
liable under § 1983. See id. at 773 (stating that, pursuant
to K.H., the defendants could not “be held liable on the
No. 04-3290 15
basis of facts they did not actually know or suspect, even if
they might have learned about disqualifying information if
they had conducted a more thorough inquiry”).
In J.H., the plaintiffs were sexually abused in foster
homes selected by a licensed private welfare agency under
contract with the Illinois Department of Children and
Family Services. J.H., 346 F.3d at 789. The plaintiffs sued
several employees of the latter department under § 1983.
Id. The plaintiffs made an argument similar to
Waubanascum’s—that the defendants “knew” of the risk of
abuse because Illinois law imposed various statutory duties
on the state workers regarding licensing of foster homes,
and the workers could not delegate its statutory supervisory
duties to the contracted agency. Id. at 793. We held,
however, that the defendants were entitled to summary
judgment. Id. at 796. There was no evidence that the
defendants knew of or suspected abuse, and such knowledge
could not be imputed from a statute, nor could “statutorily-
implied” knowledge serve as a substitute for K.H.’s re-
quirement of actual knowledge or suspicion. Id. at 795-96.
Though the sad facts of this case are not precisely analo-
gous to those in K.H., J.H., or Lewis, the same legal princi-
ples apply. There was no evidence presented at trial that
Shawano County had actual knowledge, or even suspicion,
that Waubanascum (or any child) would be at risk in Fry’s
home. Therefore, under the appropriate legal standard, the
jury could not have found Shawano County deliberately
indifferent to Waubanascum’s rights. We conclude that no
special relationship existed between Shawano County and
Waubanascum, and therefore the county had no constitu-
tional duty to Waubanascum on that basis.
B. State-created danger exception
Waubanascum also invokes the second exception to
DeShaney, under which the state may be liable when it
16 No. 04-3290
“affirmatively places a particular individual in a position of
danger the individual would not otherwise have faced.”
Monfils, 165 F.3d at 516 (quotation and citation omitted).
Waubanascum argues that Shawano County, by issuing the
license to Fry, “committed an affirmative act that placed
Waubanascum in a position of danger that he would not
have faced, and subsequently had an opportunity to protect
him from that danger.” In essence, Waubanascum simply
repeats the claim we disposed of above: that Shawano
County never should have issued the courtesy license to
begin with. Waubanascum also, however, takes issue with
Shawano County’s actions (or inactions) following the
issuance of the license. In particular, Waubanascum con-
tends that the county failed to respond to the sexual assault
allegations against Fry leveled by the unnamed student in
October 1995. According to Waubanascum, the county knew
of these allegations because Deputy Giese notified an
unnamed intake worker for the county’s department of
social services and possibly others in that organization. He
also proposes that the county is on the hook “regardless of
whether or not Shawano County officials placed the child
with its licensee, or knew the specific identity of the child
placed in his home.”
Although Waubanascum contends otherwise, we find the
facts of this case to be very similar to those in Ruiz v.
McDonnell, 299 F.3d 1173 (10th Cir. 2002). In Ruiz, the
plaintiff’s son died while in a licensed day care facility. The
plaintiff brought a § 1983 action against the director and
various workers of Colorado’s Department of Human
Services, alleging that her case fell within the “danger cre-
ation” exception. Id. at 1182. As the Tenth Circuit noted,
“the crux of Ms. Ruiz’s claim is that [her son] suffered
injuries of constitutional proportions because the State
Defendants improperly licensed Tender Heart [Day Care]
after failing to conduct an investigation into the facility.”
Id. at 1183.
No. 04-3290 17
The Tenth Circuit affirmed the dismissal of the
plaintiff’s complaint, concluding that the act of granting a
license did not impose an immediate risk of harm. Id. In
addition, the court found it dispositive that the licensure
“affected the public at large” and did not target specifically
the plaintiff or her child. See id. In sum, the court concluded
that the plaintiff “failed to allege any affirmative conduct on
the part of the State Defendants that created or increased
the danger to [the child,]” and therefore failed to state a
viable § 1983 claim. Id.
We find this reasoning persuasive and applicable in the
present case. The evidence at trial revealed that Shawano
County did not know who specifically would be placed into
Fry’s home. Similar to the Ruiz court’s conclusion, the only
conceivable danger created by Shawano County’s licensing
of Fry would be to the public as a whole (all children
eligible to be placed in Fry’s home), because the licensure
was not “aimed” at Waubanascum specifically. Cf. Ruiz, 299
F.3d at 1183 (“Unlike the direct placement of a child into an
abusive home, the mere licensure of [the day care facility]
was not an act directed at [the child], which, in and of itself
placed [the child] in danger.”). The evidence clearly estab-
lished that it was Menominee County, not Shawano County,
that placed Waubanascum in Fry’s home (in fact, the terms
of the license unambiguously indicated that Menominee
County would have responsibility for placement of any
foster children in the home). Therefore, the evidence did not
support the conclusion that Shawano County affirmatively
placed Waubanascum into harm’s way when it did not even
know of Waubanascum’s existence at the time it issued the
license to Fry. See Monfils, 165 F.3d at 516; accord Ruiz,
299 F.3d at 1183.
For similar reasons, Shawano County’s failure to act in
the wake of the October 1995 accusations does not satisfy
the state-created danger exception. Waubanascum asserts
that Shawano County was responsible for “monitoring
18 No. 04-3290
[Fry’s] license” and was on notice of the October 1995 alle-
gations, so the county should have removed Waubanascum
from Fry’s home.
We think Waubanascum reads the danger exception and
the evidence too broadly. No evidence indicates that
Shawano County was required to “monitor” Fry’s license. In
fact, as discussed above, the evidence revealed the con-
trary—Menominee County retained legal custody of
Waubanascum and continued to monitor his status in Fry’s
home under its highest level of supervision, even though
Fry’s home was located across the Shawano County line.
Regarding the county’s notice that Waubanascum may be
in danger, the evidence is unclear whether Deputy Giese
informed only a low-level intake worker, or additional
Shawano County employees as well, of the October 1995
abuse allegations. It is clear, however, that there was no
definitive evidence from which the jury could conclude that
someone with decision- or policymaking authority at
Shawano County received word of the allegations (indeed,
the director and deputy director of Shawano County’s
Department of Social Services both testified that they did
not receive word of the allegations until April 1996, after
Waubanascum reported Fry’s abuse). Nevertheless, the
distinction is irrelevant.
Evidence at trial showed that Deputy Giese undertook a
criminal inquiry of the matter, which was certainly appro-
priate. Consistent with his concern for the well-being of
foster children that may have been in Fry’s custody, the
deputy informed Menominee County, which then conducted
its own investigation of the allegations and took special
steps to question Waubanascum outside the presence of
Fry. Even if we assume that responsible persons at
Shawano County knew of the allegations and failed to act
despite the fact that Menominee County was pursuing its
own investigation, this would be insufficient to trigger the
No. 04-3290 19
exception. As we observed in Stevens, “[i]naction by the
state in the face of a known danger is not enough to trigger
the obligation [to protect private citizens from each other].”
Stevens, 131 F.3d at 705 (quotation and citation omitted);
see also DeShaney, 489 U.S. at 203 (“The most that can be
said of the state functionaries in this case is that they stood
by and did nothing when suspicious circumstances dictated
a more active role for them.”). Similarly, the evidence
introduced in this case is insufficient to satisfy the state-
created danger exception to DeShaney, and Waubanascum
points us to no authority to support a contrary conclusion.
We remain mindful that “[a]ttacking a jury verdict is a
hard row to hoe[,]” particularly in a tragic case like this one.
Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir.
1999). The evidence before the jury certainly revealed a
number of missteps and dropped balls leading to the tragic
outcome of this case. But we are equally mindful of the
Supreme Court’s caution against making “the Fourteenth
Amendment a font of tort law to be superimposed upon
whatever systems may already be administered by the
states.” Paul v. Davis, 424 U.S. 693, 701 (1976). As we have
already noted, mere negligence does not provide a basis for
liability under § 1983, see Lewis, 308 F.3d at 773, nor does
a violation of state law. See J.H., 346 F.3d at 793. To
recover under § 1983, Waubanascum had to show that the
county’s actions deprived him of some right to which he is
entitled under the federal constitution. He has not done so.
An exhaustive review of the record and the trial evidence in
the light most favorable to Waubanascum reveals at most
negligence or some violation of state law on Shawano
County’s part. Absent from this evidence are facts support-
ing the conclusion that Shawano County owed
Waubanascum a constitutional duty as defined under
controlling caselaw, let alone that the county violated that
duty. In sum, the evidence presented to the jury was
insufficient to demonstrate that Shawano County deprived
20 No. 04-3290
Waubanascum of his due process rights, and thus there was
not a legally sufficient basis for the jury’s verdict.
Shawano County is entitled to judgment as a matter of
law, and we need not reach the parties’ remaining argu-
ments.
III. Conclusion
Because the evidence introduced at trial was insufficient
to demonstrate § 1983 liability on Shawano County’s part,
we REVERSE the district court’s denial of Shawano County’s
motion for judgment as a matter of law, and VACATE the
judgment of the district court entered on the jury’s verdict.
We REMAND the case to the district court and direct that
judgment as a matter of law be entered in Shawano
County’s favor. The parties shall bear their own costs.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-05