J.R. v. Gloria

United States Court of Appeals
For the First Circuit

No. 09-1404

J.R., a minor, P.P.A. Molly Raymond; MOLLY RAYMOND; B.R.,
a minor, P.P.A. Molly Raymond,

Plaintiffs, Appellants,

v.

MARGARET GLORIA; STEPHANIE TERRY; STATE OF RHODE ISLAND
DEPARTMENT OF CHILDREN, YOUTH, AND FAMILIES,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Thomas L. Mirza and Pelletier & Mirza, LLP were on brief for
appellants.
Genevieve M. Allaire Johnson, Special Assistant Attorney
General, with whom Patrick C. Lynch, Attorney General, were on
brief for appellees.

January 27, 2010
 LYNCH, Chief Judge. This is one of several cases before

this court claiming that the state of Rhode Island has failed to

protect children in its care.

Plaintiffs, a family whose twins were in foster care,

here appeal from the district court's grant during trial of a Rule

50(a) motion for judgment as a matter of law to the defendants,

Margaret Gloria, a social worker for the Rhode Island Department of

Children, Youth, and Families (DCYF), and Stephanie Terry, her

supervisor. See J.R. v. Gloria, 599 F. Supp. 2d 182, 205 (D.R.I.

2009).

Plaintiffs J. R. and B.R., twin boys and minors, and

their mother, Molly Raymond, brought substantive due process claims

under 42 U.S.C. § 1983 and state law claims under Rhode Island

negligence law for damages against the two state DCYF officials.

Plaintiffs allege that when the twins were living in foster care

between November 1996 and May 1998, from the ages of four to five,

they were physically and sexually abused by Samuel "Thinman"

Stevens, who they say lived in the foster home and acted as the

twins' de facto caretaker. They claim this abuse resulted from

defendants' actionable failures to comply with state law

requirements.

The question before us is whether the court erred in

granting defendants immunity from the federal and state law claims

at issue. We hold that the district court properly granted

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defendants qualified immunity on the § 1983 action and judgment for

defendants on state sovereign immunity and qualified immunity

defenses under Rhode Island state law. This case also demonstrates

the adage that claims based on possible violations of state laws do

not necessarily make out claims of violations of federal due

process guarantees.

I.

Because this is an appeal from a grant of a Rule 50(a)

motion, we recount the facts in the light most favorable to

plaintiffs. See Philip v. Cronin, 537 F.3d 26, 32 (1st Cir. 2008);

see also Jennings v. Jones, 587 F.3d 430, 438 (1st Cir. 2009).

J.R. and B.R. were placed in a foster home in Providence,

Rhode Island with Faith Sykes and her husband, Marron Smith, in

November 1996, when they were four years old. Neither defendant

had a role in the placement decision. There is no claim that the

twins should not have been placed in foster care or that the

initial placement in the Sykes home was inappropriate. Rather,

plaintiffs' case turns upon defendants' alleged failure to

investigate and prevent the events that are alleged to have

occurred during this placement.

Plaintiffs claim that from the time the twins were placed

in the Sykes home in November 1996 until they were removed in May

1998, defendant Gloria and others in DCYF knew that two adult men,

Samuel Stevens, whom the twins referred to as "Thinman," and

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William Lovick, whom the twins called "Bobo," were living on the

third floor of the Sykes residence.1 There were also numerous

indications that both men, at various points, were acting as the

twins' de facto caretakers.2 Indeed, Stevens was such a regular

presence at the Sykes home that Mary Starnes, the assigned DCYF

case aide, identified the home with reference to "Thinman" in her

notes, and she reported numerous interactions with Stevens to

defendant Gloria. Stevens also accompanied Gloria to some of the

twins' counseling sessions. Defendant Terry was also aware that

Stevens and Lovick were involved in the twins' lives.

DCYF apparently did not ever complete background

investigations of either Stevens or Lovick, although DCYF's

regulations required the agency to screen any adult resident or

regular caretaker in a foster home. See R.I. Dep't of Youth,

Children, and Families, State of Rhode Island Foster Care

Regulations § II.C, Clearances and Record Checks (1998)

[hereinafter "Foster Care Regulations"]. Plaintiffs say that

Gloria also told Sykes that both Stevens and Lovick could remain in

1
For the purposes of this opinion, we will refer to the
men by their last names as "Stevens" and "Lovick." William Lovick
is also referred to as "Lovikk" and "Lovett" in the records.
2
Plaintiffs do not allege that Lovick was responsible for
the abuse they say occurred in the Sykes home. Rather, they
portray his ongoing presence in the home without any background
investigation as evidence of DCYF's lax supervision of the twins'
foster care environment.

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the home and knew that Sykes depended upon them to help supervise

the twins.

Additionally, neither Sykes nor defendants Gloria or

Terry ever reported to DCYF's licensing division that these men

were residing in the home or that they were acting as caretakers

for the twins. DCYF regulations required foster parents to inform

the department of any such changes in foster household composition.

See Foster Care Regulations §§ V.2; V.Q. In August 1997, DCYF's

licensing division nonetheless renewed Sykes's foster home license.

Foster home licenses can be revoked if the foster parent fails to

notify DCYF of changes in household composition or if the foster

parent omits important facts about the foster environment. Id.

§ III.C.

There were various Child Abuse and Neglect Tracking

System (CANTS) investigations of the twins' care during their

eighteen-month stay in the Sykes home. Two of the reports

mentioned Lovick but not Stevens. In March 1997, J.R. told DCYF

case aide Starnes that "Bobo" (Lovick) had hit him, but the twins

did not answer further questions, and after further investigation,

DCYF deemed the report unfounded. In August 1997, a separate

investigation mentioning Lovick was initiated when the twins'

counselor noticed J.R. had scratch marks on his head and neck.

DCYF determined this report was also unfounded after the twins said

these injuries came from fighting with each other. DCYF also made

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a formal finding that there was insufficient evidence to conclude

that Lovick was improperly supervising the children.

There were also several other reported incidents between

the spring and fall of 1997 in which the twins exhibited behavioral

problems or physical injuries, including bruises. With the

exception of the reports discussed above, none of these reports

mentioned either Stevens or Lovick. DCYF determined that none of

these reports supported a formal finding of likely abuse.

On May 27, 1998, one of the twins' teachers called the

DCYF hotline because she had noticed bruises on their forearms.

The twins told a DCYF investigator that the bruises were made when

"Thinman" (Stevens) hit them with a belt and that he had done this

before. This was the first report mentioning Stevens. The

investigator took the twins to the hospital and documented their

injuries. DCYF also discovered a belt in the Sykes home in the

location the twins had described. DCYF permanently removed the

twins from the Sykes home that same day. Following an

investigation, DCYF determined that there was credible evidence of

institutional neglect by Sykes and abuse by Stevens.

In March 1999, some ten months after the twins were

removed, the twins' mother and a counselor jointly reported for the

first time that B.R. and J.R. had said "Thinman" had sexually

abused them. DCYF investigated but determined the report was

inconsistent and unfounded. Still, we will assume, in plaintiffs'

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favor, that the report was correct because the harm it alleges is

the foundation of their suit. Since the twins left the Sykes

foster home in 1998, they have suffered from a number of severe

developmental challenges and have required ongoing institutional

care.

Plaintiffs originally sued Gloria and Terry for state law

negligence claims in Rhode Island state court in 2001, but they

amended the complaint to allege constitutional violations under 42

U.S.C. § 1983 in 2008. Gloria and Terry removed the case to

federal court on April 15, 2008. The case proceeded to a jury

trial. On November 17, 2008, at the close of plaintiffs' case and

after six days of trial during which nineteen witnesses for

plaintiffs testified, defendants filed a Rule 50(a) motion for

judgment as a matter of law. They asserted, among other grounds,

a qualified immunity defense to the § 1983 claim and immunity to

the state law negligence claims based on Rhode Island's state

sovereign immunity and state qualified immunity law.

In a decision and order dated February 26, 2009, the

district court entered judgment for the defendants. J.R., 599 F.

Supp. 2d at 183. It held that Gloria and Terry were entitled to

qualified immunity against the § 1983 claims because plaintiffs'

evidence, taking all the inferences in their favor, had not

established that there was a substantive due process violation or

that such a right was clearly established at the time of the

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alleged violation. Id. at 192-204. It further held that Gloria

and Terry were immune from state tort liability for their official

conduct because of Rhode Island's state sovereign immunity and that

Gloria was entitled to state law qualified immunity from the

individual negligence claim. Id. at 204-05.

II.

We review de novo a grant of judgment under Rule 50(a).

See Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 59 (1st

Cir. 2007). We review the district court's underlying legal

conclusions de novo and take the evidence in the light most

favorable to the plaintiffs. See id. at 61.

A. Federal Constitutional Claims under § 1983

Officials are entitled to qualified immunity against

claims of federal constitutional violations unless (1) "the facts

that a plaintiff has alleged or shown make out a violation of a

constitutional right" and (2) "the right at issue was 'clearly

established' at the time of defendant's alleged misconduct."

Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (internal citations

omitted).

The district court held that plaintiffs' case failed on

both grounds. On appeal, plaintiffs challenge the district court's

ruling that Gloria and Terry were entitled to qualified immunity

because, inter alia, plaintiffs had not put forward evidence that

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could establish the first prong, that there was a substantive due

process violation.

Plaintiffs' substantive due process theory turns upon

Gloria's and Terry's alleged failures to protect the twins from the

risks present in their foster home. Plaintiffs argue that Gloria

and Terry knew that the twins were regularly being cared for by two

unknown, uninvestigated adult male residents, Samuel "Thinman"

Stevens and William "Bobo" Lovick. They also say that the number

of DCYF investigations before May 1998 should have alerted Gloria

and Terry to the possibility of abuse in the home.

Plaintiffs further argue that defendants were

"deliberately indifferent" to these apparent risks because they

failed to conduct background checks on Stevens and Lovick, did not

report these changes in household composition, and failed to

maintain regular, direct contact with the twins, even though,

plaintiffs say, DCYF regulations required these steps to be taken.

Had defendants told DCYF's licensing unit about Stevens's and

Lovick's unreported presence in the home, plaintiffs say DCYF would

have revoked the foster license. Plaintiffs theorize that if the

license had been revoked, the boys would have been removed and they

would not have been harmed.

We reject plaintiffs' argument and affirm the district

court's holding that Gloria and Terry were entitled to qualified

immunity because plaintiffs failed to establish on the facts that

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there was a substantive due process violation. We need not address

whether any such "right" would have been clearly established at the

time of the alleged violation, Saucier v. Katz, 533 U.S. 194, 201

(2001), though we note that plaintiffs did not challenge the

district court's holding on this issue.

A Due Process Clause claim requires that there be a

deprivation of life, liberty, or property by the government. Here,

the deprivations alleged were by private parties. "As a general

matter . . . a State's failure to protect an individual against

private violence simply does not constitute a violation of the Due

Process Clause," unless the government is responsible for the

deprivation. DeShaney v. Winnebago County Dep't of Soc. Servs.,

489 U.S. 189, 197, 199-200 (1989). There is no claim that the

state officials here actively directed or assisted private actors

in causing harm.

We have, under some language in DeShaney, posited that in

situations where a state creates a "special relationship" because

of "the limitation which [the state] has imposed on [an

individual's] freedom to act on his own behalf," its subsequent

failure to protect an individual may amount to a substantive due

process violation. Rivera v. Rhode Island, 402 F.3d 27, 34 (1st

Cir. 2005) (quoting DeShaney, 489 U.S. at 200). That affirmative

duty to protect does not arise from the state's knowledge of the

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individual's predicament or from its expression of intent to help

him, but instead from the limitation described.3

The mere creation of a special relationship, even if

placing young children into foster care created such a

relationship, is not enough to make out a due process claim for any

harm that may follow. Even then, the claim against the defendants

must also involve "conscience-shocking" conduct by state officials,

see id. at 35-36, and "the official conduct 'most likely to rise to

the conscience-shocking level' is the 'conduct intended to injure

in some way unjustifiable by any government interest.'" Chavez v.

Martinez, 538 U.S. 760, 775 (2003) (quoting County of Sacramento v.

Lewis, 523 U.S. 833, 849 (1998)). The Supreme Court has also

repeatedly "expressed [its] reluctance to expand the doctrine of

substantive due process." Id.; see also Maldonado v. Fontanes, 568

F.3d 263, 273 (1st Cir. 2009). In particular, the Court has made

it clear that state officials' negligence, without more, is simply

insufficient to meet the conscience-shocking standard. See Lewis,

523 U.S. at 848-49.

We assume arguendo that DCYF created a "special

relationship" because it affirmatively took responsibility for

protecting the twins from harm while they remained in foster care.

3
This case does not involve the state-created danger
theory, which this circuit has never, in any event, found
applicable. See Véléz-Diaz v. Vega-Irizarry, 421 F.3d 71, 80 (1st
Cir. 2005).

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Even so, plaintiffs, on all of their evidence, did not make out a

substantive due process claim. The evidence they put forward

alleges troubling lapses in DCYF's supervision of the twins' foster

care environment. But it does not allege any behavior by

defendants that would meet the legal definition of conscience-

shocking conduct.

Plaintiffs argue that the legal standard for defining

conduct that "shocks the conscience" is whether the state has acted

with "deliberate indifference." That is not entirely correct. As

we stated in Rivera, deliberately indifferent behavior does not per

se shock the conscience. Indeed, we suggested that it is only

"[i]n situations where actors have an opportunity to reflect and

make reasoned and rational decisions" that "deliberately

indifferent behavior may suffice to shock the conscience." 402

F.3d at 36.4 The burden to show state conduct that "shocks the

conscience" is extremely high, requiring "stunning" evidence of

"arbitrariness and caprice" that extends beyond "[m]ere violations

of state law, even violations resulting from bad faith" to

"something more egregious and more extreme." DePoutot v.

Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005). Gloria and Terry do

4
This circuit has never found on the facts of a case that
deliberately indifferent behavior was sufficiently conscience-
shocking to violate a plaintiff's substantive due process rights.
Rivera merely suggested that under certain circumstances,
deliberately indifferent behavior could conceivably qualify. 402
F.3d at 36; see also Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 53
(1st Cir. 2006).

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not defend their actions on the basis that they were responding to

an emergency, with no time to reflect, but on the basis that even

if their conduct fell short of regulatory requirements, it did not

come close to shocking the conscience.

Plaintiffs' evidence did not show the defendants acted

even with deliberate indifference. Though other circuits have

varied in their formulations of when "deliberate indifference"

rises to conscience-shocking conduct in the foster care context,

state officials must have been at least aware of known or likely

injuries or abuse and have chosen to ignore the danger to the

child. See Nicini v. Morra, 212 F.3d 798, 810 (3d Cir. 2000)

(listing cases); see also Waubanascum v. Shawano County, 416 F.3d

658, 666-67 (7th Cir. 2005) (holding that plaintiffs must present

evidence that "the state actor knows or suspects that the . . .

foster parents with whom a child is placed are likely to abuse the

child" to show deliberate indifference).

Even when the evidence is viewed in the light most

favorable to plaintiffs, no rational trier of fact could conclude

that the defendants were aware that the twins were in danger of

being abused or otherwise harmed by Stevens. Even if Gloria and

Terry knew that Stevens and Lovick were living in and caring for

the twins in the Sykes home, Gloria and Terry had no reason on that

basis to identify them as a risk to the children. Plaintiffs have

never asserted that Lovick was responsible for any of the harms

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they claim. Previous reported incidents were investigated by DCYF

and deemed not credible. Further, the reports contained no

indication that Stevens was in any way involved.

Plaintiffs also argue that the various reported incidents

should be viewed in the aggregate as general warning signs of abuse

in the home. But these reports were all deemed unfounded until the

May 1998 incident that resulted in the twins' removal. Moreover,

Gloria's uncontested testimony indicated that DCYF social workers

were not ordinarily given much information about unfounded CANTS

reports. And there were no reports of suspected abuse, no

indications of any injuries, and no reported behavioral problems

between September 1997 and May 1998, which undercuts plaintiffs'

theory of escalating warning signs.

Furthermore, there is no evidence that defendants made a

reasoned decision to deliberately ignore the risk of harm to the

twins in the course of supervising the twins' foster care

placement. The defendants' failure to conduct background checks on

Stevens and Lovick and to report their residency at the Sykes home

were, at worst, possible violations of state law.5 That failure

5
Because we are reviewing a Rule 50(a) motion, we accept
plaintiffs' version of the facts surrounding the background checks.
However, we note, as the district court observed, that defendants
vigorously contested plaintiffs' claim that DCYF never conducted a
state background check on Stevens. DCYF officials testified that
they did conduct a background check on Stevens through the Rhode
Island Attorney General's Office, that no red flags appeared in it,
and that this information was verbally conveyed to DCYF. See J.R.,
599 F. Supp. 2d at 197 n.20.

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does not amount to inherently egregious conduct. Plaintiffs'

contention that the twins would not have been abused if DCYF had

rescinded the Sykes's foster home license or removed them from the

Sykes home at an earlier stage is an argument about "but for"

causation, but not about the defendants' intentions or actions.

The defendants are entitled to qualified immunity. The

supervisory liability claim against Terry necessarily fails as

well. See Rivera, 402 F.3d at 38-39.

B. State Law Claims

Plaintiffs also brought negligence claims under Rhode

Island tort law against Gloria and Terry in their official

capacities and against Gloria in her individual capacity. We hold,

as did the district court, that all of these claims are barred by

Rhode Island state law immunity doctrines.

Under Rhode Island law, state sovereign immunity is

waived and state entities and their official representatives can be

sued for torts only if (1) the state entity has a "special duty" to

the plaintiffs, (2) the state entity has engaged in an "egregious"

alleged act or omission, or (3) the state entity was engaging in

the kind of actions that private parties normally perform. See

Kuzniar v. Keach, 709 A.2d 1050, 1053 (R.I. 1998); see also R. I.

Gen. Laws § 9-31-1. We reject plaintiffs' argument on appeal that

the "special duty" exception applied and allowed suit against

Gloria and Terry in their official capacities.

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 The "special duty" exception applies only if (1) state

officials were aware of plaintiffs or their situation, (2) the

officials "acted or failed to act in some way that was potentially

injurious" to plaintiffs, and (3) it was "reasonably foreseeable"

that plaintiffs' injuries would result from these acts or

omissions. Morales v. Town of Johnston, 895 A.2d 721, 731 (R.I.

2006).

Plaintiffs argue that the district court should have

found this "special duty" exception applicable given the court's

conclusions in its substantive due process analysis that defendants

had a "special relationship" with plaintiffs and that plaintiffs'

evidence might suffice to show negligence.

This argument ignores the district court's finding that

there was no evidence presented to show that defendants had any

"actual knowledge of a substantial risk of harm." Nor did

plaintiffs present evidence showing that defendants could have

reasonably foreseen that either Stevens or Lovick were likely to

abuse the children. Plaintiffs' failure to present such evidence

means that they cannot satisfy the third prong of this test.

Gloria and Terry remain entitled to immunity for the negligence

claims brought against them in their official capacities. See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100, 106

(1984) (holding that barring waiver by the state, the Eleventh

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Amendment precludes federal courts from hearing state claims

brought against state officials in their official capacities).

Finally, as the district court held, Gloria is entitled

to qualified immunity against the state law negligence claims made

against her individually. Rhode Island law allows state officials

like Gloria to invoke qualified immunity against state law

negligence claims. See Hatch v. Town of Middletown, 311 F.3d 83,

90 (1st Cir. 2002). Plaintiffs seem to suggest to the contrary,

but their argument conflates Rhode Island's waiver of state

sovereign immunity under R.I. Gen. Laws § 9-31-1 in suits against

state officials in their official capacities with defendants'

entitlement to qualified immunity for suits brought against them in

their individual capacities. Any challenge to the merits of the

district court's qualified immunity ruling is waived.

Plaintiffs have made serious allegations about

shortcomings in DCYF's monitoring of the twins' foster care

placement in the Sykes home. But their remedy is not in court.

We affirm the district court's grant of judgment as a

matter of law to the defendants under Rule 50(a).

So ordered.

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