UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1256
JOHN DOE, 4,
Plaintiff – Appellant,
v.
PRESIDENT JOHN W. ROSA, individually; MARK BRANDENBURG;
COLONEL JOSEPH TREZ, individually; JENNIFER GARROTT,
individually,
Defendants - Appellees.
No. 16-1257
JOHN DOE, A,
Plaintiff – Appellant,
v.
PRESIDENT JOHN W. ROSA, individually; MARK BRANDENBURG,
individually; COLONEL JOSEPH TREZ, individually; JENNIFER
GARROTT, individually,
Defendants - Appellees.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:14-cv-04396-RMG; 2:14-cv-00710-RMG)
Submitted: October 31, 2016 Decided: November 4, 2016
Before KING and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jacqueline LaPan Edgerton, W. Mullins McLeod, Jr., MCLEOD LAW
GROUP, LLC, Charleston, South Carolina; Allan P. Sloan, II,
Kristen B. Fehsenfeld, PIERCE, HERNS, SLOAN & WILSON,
Charleston, South Carolina; Gregg Meyers, JEFF ANDERSON &
ASSOCIATES, Saint Paul, Minnesota, for Appellants. M. Dawes
Cooke, Jr., John W. Fletcher, Charleston, South Carolina;
Russell G. Hines, Stephen L. Brown, Carol B. Ervin, Brian L.
Quisenberry, Stephanie N. Ramia, YOUNG, CLEMENT, RIVERS, LLP,
Charleston, South Carolina; Caroline Wrenn Cleveland, Bob J.
Conley, Emmanuel J. Ferguson, CLEVELAND & CONLEY, LLC,
Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
John Doe, 4, and John Doe, A, appeal from the district
court’s order granting summary judgment to Defendants in
Appellants’ 42 U.S.C. § 1983 (2012) proceeding. Appellants
alleged that Defendants John W. Rosa (President of The Citadel
during the relevant time period), Mark Brandenburg (The
Citadel’s attorney), Colonel Joseph Trez (Rosa’s executive
assistant), and Jennifer Garrott (Deputy Director and Director
of The Citadel’s summer camp) failed to protect them from the
known risk of Louis ReVille, who sexually abused Appellants
after he left his employment with The Citadel. We have reviewed
the parties’ briefs and the record, and we find no meritorious
issues for appeal. Accordingly, we affirm substantially for the
reasons stated by the district court. See John Doe 4 v. Rosa,
No. 2:14-cv-04396-RMG (D.S.C. Feb. 8, 2016); John Doe A v. Rosa,
No. 2:14-cv-00710-RMG (D.S.C. Feb. 8, 2016).
The district court relied primarily on our decision in Doe
2 v. Rosa, 795 F.3d 429 (4th Cir. 2015), cert. denied, 136 S.
Ct. 811 (2016), which involved a substantially similar factual
background, similar legal issues, and one of the Defendants in
this case. All the suits considered the application of the
state created danger doctrine, which attaches § 1983 liability
to a failure to protect, where a plaintiff can “show that the
state actor created or increased the risk of private danger, and
3
did so directly through affirmative acts, not merely through
inaction or omission.” Id. at 439.
In Doe 2, we found that the plaintiffs had not shown a
state created danger claim against Rosa because, for several
reasons, they could not “demonstrate that [Rosa] created or
substantially enhanced the danger which resulted in [their]
tragic abuse at the hands of ReVille.” Id. First, unlike in
the instant case, ReVille began abusing the plaintiffs in Doe 2
prior to the date when Rosa was on notice of ReVille’s risk.
Second, Rosa did not “create or increase” the risk of
plaintiffs’ abuse because Rosa did not make the danger to the
plaintiffs worse and he had no constitutional duty to save them.
Third, Rosa did not commit “affirmative acts”; allegations that
he stood by and did nothing were insufficient. Finally, Rosa
did not know the plaintiffs and had never spoken with them. Id.
at 439-41.
On appeal, Appellants argue that the district court
incorrectly read Doe 2 to require that the victim be known to
the state actor. Appellants attempt to distinguish Doe 2 by
pointing out that, unlike the present case, the plaintiffs in
Doe 2 were abused prior to Rosa’s knowledge that ReVille was a
4
pedophile. 1 Further, Appellants contend that circuits are split
as to whether a state created danger victim must be “known” or
must be merely part of a “readily definable group at risk of
harm.”
While a review of Appellants’ citations does not show a
clear split in the circuits, even assuming there is one, we find
it unnecessary to draw specific lines, as even under the
“readily definable group” test, summary judgment was properly
granted in this case. Appellants first cite Estate of
Johnson v. Weber, 785 F.3d 267, 271 (8th Cir. 2015), and
Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1262 (10th
Cir. 1998). While these cases discussed a risk to a group of
victims, the cases actually involved victims known to the state
actor. As such, they do not support Appellants’ argument that
Doe 2 required an improper nexus between the state actor and the
victim.
Appellants cite only one circuit court case involving an
unknown victim. In Reed v. Gardner, 986 F.2d 1122, 1127 (7th
Cir. 1993), the Seventh Circuit held that “direct contact” with
the victims was not required if the dangers presented are
1We conclude that this fact is irrelevant, as in Doe 2 we
considered the legal issues in the case, assuming that the Does
faced a “new or increased risk of abuse” after Rosa’s actions or
inactions. 795 F.3d at 440.
5
“familiar and specific,” and cause “an immediate threat of harm
[with a] limited range and duration.” The facts in Reed were
that officers arrested a sober driver of a car, leaving the car
keys with a drunk passenger who caused a head-on collision two
hours later. Id. at 1123. The court found that such
allegations stated a claim. Id. at 1127.
The relationship between the victims and the state actors
in the instant case were significantly more attenuated than the
relationship in Reed. In Reed, the danger was of a short
duration (the length of intoxication) and in a limited
geographical area. The injury occurred two hours after the
actions of the state actors, and the Reed court itself found
this short period of time significant. 986 F.2d at 1127. Here,
the time period ranged from weeks to months, was open ended, and
involved risks covering a larger geographic area.
In addition, the potential victims in the instant case
would include at least any minor with whom ReVille came in
contact with as part of his teaching, mentoring, supervising, or
coaching at any place and at any time in the future. This class
is neither discrete or identifiable. In fact, such a class is
practically akin to the general public. The “general public is
not ‘a limited, precisely definable group,’ and the
state-created-danger doctrine does not apply.” Glasgow v.
Nebraska, 819 F.3d 436, 442 (8th Cir. 2016); see also Jones v.
6
Reynolds, 438 F.3d 685, 697-98 (6th Cir. 2006) (holding that
group of at least 150 spectators at a drag race was too large
and unidentified for state created danger doctrine to apply).
Even accepting Appellants’ argument that other circuits
have decided the issue differently, Appellants have failed to
show that our language in Doe 2 should be ignored or that it is
inapplicable in the instant case. In Doe 2, we ruled that
“immediate interactions between the [state actor] and the
plaintiff” are a required nexus for state created danger
liability. We found it significant that the state actor did not
know the plaintiffs and was unaware of their existence. That is
precisely the situation for all the Defendants in this case. It
is undisputed that none of the Defendants knew the Appellants.
In addition, to the extent the Defendants knew or should have
known that ReVille posed a threat, the victims he posed a threat
to were too diffuse and unspecified a group to attach
constitutional significance to the Defendants’ failure to
protect them. Accordingly, we affirm the judgment of the
district court granting summary judgment to Defendants on the
state created danger claims.
7
Appellants also raised supervisory liability claims against
Rosa and Garrott for their supervision of ReVille. 2 Supervisory
officials may be held liable where “supervisory indifference or
tacit authorization of subordinates’ misconduct [is] a causative
factor in the constitutional injuries they inflict on those
committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th
Cir. 1994) (internal quotation marks omitted). To establish a
viable claim of supervisory liability under § 1983, the
plaintiff must establish (1) “the supervisor had actual or
constructive knowledge that his subordinate was engaged in
conduct that posed a pervasive and unreasonable risk of
constitutional injury to citizens like the plaintiff,” (2) the
supervisor’s response was sufficiently inadequate “to show
deliberate indifference to or tacit authorization of the alleged
offensive practices,” and (3) “an affirmative causal link
between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.” Id. at 799
(internal quotation marks omitted).
The district court ruled that, once ReVille left the employ
of The Citadel, the causal link was broken. The court noted
2 Appellants also allege that Rosa is liable for the actions
of Brandenburg and Trez. However, because the evidence is
insufficient to support Appellants’ state created danger claims,
for the reasons discussed above, Appellants’ supervisory
liability claims must also fail.
8
that “[t]o rule otherwise would expose a former supervisor to
unlimited and continuous liability for the acts of private
violence of his former subordinate after the former subordinate
left his government employer for the balance of the natural life
of the former subordinate.” On appeal, Appellants address this
issue, without citation and also without explaining why the
district court’s conclusions were incorrect.
We conclude that the district court correctly granted
summary judgment to Rosa and Garrott on Appellants’ supervisory
liability claims. There can be no supervisory liability when
there is no underlying violation of the Constitution. See
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 724 (4th Cir.
1991). Here, because ReVille was not a state actor, there was
no underlying constitutional violation. This is fatal to
Appellants’ supervisory liability claims.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
9