[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 16, 2012
No. 10-15879
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:07-cv-00980-CAP
JANE DOE, (a Pseudonym), as Parent, Next Friend,
and Natural Guardian of JOHN DOE (a Pseudonym),
a minor,
Plaintiff-Appellee,
versus
KAYE E. BRADDY,
JANET E. ENGLISH, et al.
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 16, 2012)
Before EDMONDSON and ANDERSON, Circuit Judges, and EDENFIELD,*
District Judge.
*
Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia,
sitting by designation.
PER CURIAM:
This substantive-due-process case involves the federal rights of a child
injured while not in state custody and the applicability of qualified immunity to
the acts of state social workers that allegedly led, in fact, to the child’s injury.
Defendants, all state social workers, placed a teenaged minor in an adoptive
home. The teenager later sexually assaulted the young grandchild of the adoptive
parents. The Victim (acting through his mother) sued the state workers under 42
U.S.C. § 1983, claiming violation of his federal substantive due process rights.
Defendants moved for summary judgment on qualified immunity grounds, but the
District Court denied the motion. Defendants appeal.
Because the preexisting law at the pertinent time did not clearly establish
that the Victim’s federal rights would be violated by the state workers’ acts, we
reverse the District Court’s decision and remand the case for dismissal of the
federal claims against Defendants in their individual capacities.
2
I. Background1
This case involves a sexual assault on a five-year old boy (“John Doe”) by a
sixteen-year old male (“C.H.”). C.H. -- through the acts of state workers -- had
been placed in an adoptive home: the Templeton home, the place of the assault.
John Doe is the son of Jane Doe and the grandson of Gwen and Harold
Templeton. Gwen Templeton saw a television program that featured C.H. She
became interested in adopting him. C.H. then was in state custody in Laurens
County, Georgia; the Templetons lived in Cherokee County, Georgia. At the
pertinent times, Defendants were all state social workers.
C.H.’s Life History and Allegations of Abuse and Inappropriate Conduct
C.H. had a troubled upbringing -- he had been in foster care since he was
about 2 years old. When C.H. became available for adoption at age 14, he was
living in a foster home with other children in Laurens County. In July 2003,
Defendant Braddy visited C.H. at the foster home and was told by a male foster
1
In this review of the denial of summary judgment, we set forth the evidenced facts in the light
most favorable to Plaintiffs, the non-moving party. See Andujar v. Rodriguez, 486 F.3d 1199, 1202
n.1 (11th Cir. 2007). These facts are supposed for today’s decision.
3
child that C.H. had touched him on the chest. Braddy’s documents indicate that
some child (uncertainty exists about whether it was a different child) also said
C.H. asked him to go behind the school and let C.H. bounce on his lap. These
comments, according to Braddy’s notes, made the child (or maybe the two
children) feel uncomfortable. In response to the reported conduct, Braddy
recommended “wrap around” services, which means C.H. would -- and did --
receive therapy while in the foster home. Other record evidence indicates C.H. --
before later going into the Templeton’s home -- had at times been physically
violent and threatening to peers and adults.2
In March 2004, C.H.’s then-foster mother contacted Braddy and said she
had found a pouch hidden in C.H.’s room. The pouch included pictures of naked
men and women, as well as photos of C.H.’s genitals. The foster mother said a
child had reported that C.H. had shown him some of the photos of C.H.’s genitals.
2
Some of this evidence includes C.H. cutting a girl with a knife, striking an adult, and threatening
to set a girl on fire and “blow up” a boy.
4
Dr. Whitley’s Evaluation of C.H.
On 9 March 2004, in response to things like the foster mother’s allegations,
Braddy accompanied C.H. to a psychologist, Dr. Whitley. Braddy relayed the
allegations and instances of C.H.’s misconduct. She also disclosed that C.H. had
recently said his grandfather had molested him in the past. Among other things,
Braddy asked for recommendations about placement for C.H. During Whitley’s
examination, C.H. denied his being sexually abused and his acting out in a sexual
way.
In his report (“the Whitley Report”), Whitley recounted the inappropriate
touching and other allegations. Whitley also noted the photographs found in the
zipped pouch. The Whitley Report included the following recommendations:
“Based on the above information, it is recommended that [C.H.] be placed
[in] a group home or residential treatment facility, as opposed to a family
foster home where other children might be vulnerable to his sexual acts.
Nevertheless, any placement decisions should be based on input from his
caregivers, and the professionals working with him.”
5
Whitley recommended that C.H. receive treatment that gives “attention to matters
of sexuality,” finding that it is “unclear whether [C.H.] has empathy for those to
whom he makes unwanted sexual advances.” Whitley also made this observation:
“Until appropriate placement and treatment can be arranged, [C.H.] requires
very close supervision, and should never be left alone with other children,
and he should not share a bedroom with other children.”
Other psychological reports had been made about C.H. in the past -- including one
authored by a Dr. Anderson in 2003. But Whitley’s was the most explicit report
about C.H.’s sexual issues.
After Dr. Whitley’s evaluation, C.H. was placed in a different group home
in March 2004. Braddy did enroll C.H. in additional counseling, although
Plaintiffs dispute whether C.H. ever actually completed this course of counseling.
No further information of sexual incidents arose during this time: that is, after the
Whitley examination (on 9 March 2004) and before C.H. went into the Templeton
home (on 17 December 2004).
6
C.H.’s Placement in the Templeton Home
In December 2003, after seeing a television program that C.H. was in, Gwen
Templeton felt moved to adopt him. Jane Doe and her son, John Doe, lived in the
Templetons’ home from about April 2002 to about August 2004. The Does then
moved out for a while. Around October or November 2004, Jane Doe began to
move her and her son John back into the Templetons’ home. Record evidence
shows that, at times, accounts of who resided in the Templeton home were not
consistent. For example, around March 2004, Gwen Templeton wrote in a
questionnaire for prospective adoptive parents that Jane and John Doe lived in the
Templeton house. But in an application for adoption dated 18 April 2004, Gwen
Templeton wrote “None” in the space to list “children at home.”
As a preliminary step to C.H.’s possible adoption, Defendant English
compiled C.H.’s “life history”; a “life history” typically consists, among other
things, of a narrative, social updates, and medical and psychological records.
English (of Laurens County) forwarded the life history report to Defendant Evans
of Cherokee County (where the Templetons lived). English and Evans testified
that the life history report sent by English and received by Evans included a copy
of the Whitley Report and other psychological evaluations. But English also
7
testified that she did not update other portions of C.H.’s file with information
taken from the Whitley Report.3
Before C.H. went to live in the Templetons’ home, Evans conducted a home
study by going to the Templetons’ home in the summer of 2004. Later, Evans met
with Gwen Templeton on 2 November 2004 (Harold Templeton did not attend).
Gwen Templeton says that she was given a “big book of information” but that she
did not look at it because “[i]t was just too much.” She was also separately given
Dr. Anderson’s report, which is a 7-page document prepared in January 2003 that
does not discuss C.H.’s sexual issues. Gwen Templeton took Dr. Anderson’s
report. She did not ask about the existence or availability of newer information.
Gwen Templeton says the choice, at the time, was either to sit there and look
through the “big book” with Evans or otherwise to take Dr. Anderson’s report.
She did not go through the “big book.”
On 19 November 2004, the Templetons met with several government social
workers. A portion of C.H.’s life history was discussed. Gwen Templeton
remembers hearing that C.H. may have been sexually abused as a child and that he
was looking at pictures of naked men. She does not remember discussion about
3
In deposition testimony English testified, “I don’t care whether I read it [the Whitley Report] or
not. I wasn’t taking the child into my home.”
8
whether C.H. inappropriately touched another child. One of the social workers
asked the Templetons if they would be comfortable if C.H. had a same-sex
preference. The Whitley Report and its recommendations were not discussed.
On 17 December 2004 (the placement date), the Templetons met with
Braddy and English to pick up C.H. from the group home where he was living and
take him to the Templetons’ home where he was then to reside. The Templetons
were provided with C.H.’s life history: a lot of material. Each Templeton
reviewed it some time later. Both Templetons say they did not see the Whitley
Report and were not made aware of the Report or its contents during the adoption
process.
Post-Placement
After C.H. was residing with the Templetons, Defendant Giersberg made
several visits to the Templeton home between January and May 2005. On her first
visit, she became aware that Jane and John Doe were at the home. Giersberg
never showed the Templetons the Whitley Report, but says she discussed (in
general terms) with Gwen Templeton C.H.’s earlier inappropriate conduct. In
May 2005, Giersberg recommended finalizing the adoption.
9
In June 2005, Jane Doe learned from her son, John Doe, that C.H. (then 16
years old) had sexually abused John Doe (then 5 years old). C.H. was arrested and
removed from the Templetons’ home. Jane Doe says she learned of the Whitley
Report sometime later. Jane Doe says she then confronted her parents, the
Templetons, who disavowed knowledge of the Whitley Report.
II. Discussion
Qualified Immunity
“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or,
indeed, even the burdens of litigation. It is important to emphasize that this
inquiry must be undertaken in light of the specific context of the case, not as a
broad general proposition.” Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004)
(internal quotations and citation omitted).
Qualified immunity to a great extent protects government officials
performing discretionary functions; it should protect all officials except “the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
10
106 S. Ct. 1092, 1096 (1986). And government actors are not required to err on
the side of caution. Davis v. Scherer, 104 S. Ct. 3012, 3020 (1984).
Here, in placing C.H. with an adoptive family, Defendants were
unquestionably state officials acting within the scope of their discretionary
authority. So, Plaintiffs bear the burden of showing that qualified immunity does
not apply.
In this case, because the preexisting law at the time did not already clearly
establish that what the social workers did violated the Victim’s federal rights, we
must reverse the District Court’s denial of summary judgment. Defendants are
entitled to qualified immunity.
Whether the Victim’s Federal Rights were “Clearly Established”
Given the Circumstances
The Victim in this case, John Doe, was not in the custody of the state. John
Doe was a person who was present and living freely with his mother in the
Templetons’ home. Plaintiffs claim that John Doe had a right of safety by virtue
of the federal doctrine of substantive due process.
Only in limited circumstances does the Constitution impose affirmative
duties of care on the state. See DeShaney v. Winnebago Cnty. Dep’t of Soc.
11
Servs., 109 S. Ct. 998, 1003-04 (1989). And we have written that only custodial
relationships automatically give rise to a governmental duty, under substantive due
process, to protect persons from harm by third parties. White v. Lemacks, 183
F.3d 1253, 1257 (11th Cir. 1999).
A decision about a substantive due process violation requires an exact
examination of the circumstances. For substantive due process purposes, we have
never addressed the question of harm caused to a person situated as John Doe was
situated: one in no custodial relationship with the state -- in the specific context of
a third-party minor injured by another child in an adoptive home setting.
But we have said that, if the plaintiff alleging the rights violation is in no
custodial relationship with the state, then state officials can violate the plaintiff’s
substantive due process rights only when the officials cause harm by engaging in
conduct that is “arbitrary, or conscious shocking, in a constitutional sense.” Id. at
1259 (quoting Collins v. City of Harker Heights, 112 S. Ct. 1061, 1070 (1992)).
“[O]nly the most egregious official conduct can be said to be arbitrary in the
constitutional sense.” County of Sacramento v. Lewis, 118 S. Ct. 1708, 1716
(1998) (internal quotations omitted). In addition, this standard “is to be narrowly
interpreted and applied,” White, 183 F.3d at 1259, such that “even intentional
12
wrongs seldom violate the Due Process Clause.” Waddell v. Hendry Cnty.
Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003).4
For qualified immunity purposes in this case, the federal law applicable to
the specific circumstances of this case was not close to established clearly at the
pertinent time. The general legal propositions discussed above about substantive
due process and non-custodial relationships are vague in themselves, and more so
in their possible application to the circumstances of a case like this one, involving,
among other things, an adoptive home setting and a victim not in the custody of
the government. Moreover, qualified immunity’s “clearly established” test does
not operate at a high level of generality: “The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right . . . the unlawfulness must be apparent.” Anderson v. Creighton,
107 S. Ct. 3034, 3039 (1987). Furthermore, if case law is necessary to show
unlawfulness, that decisional law must apply with “obvious clarity” to the
officials’ own conduct -- what they are doing -- to give “fair warning” to the
4
“[T]he measure of what is conscious shocking is no calibrated yard stick . . . .” Lewis, 118 S.
Ct. at 1717 (1998). At the very least, in a non-custodial setting a substantive due process violation --
as we have said in some other non-custodial settings -- requires the plaintiff to make a showing of
deliberate indifference to an extremely great risk of serious injury, although the required showing
might actually be far higher. Waddell, 329 F.3d at 1306 n.5. About the exact standard for the
context of this case, we do not decide for certain. See id.
13
officials that their specific conduct violates federal law. See Hope v. Pelzer, 122
S. Ct. 2508, 2516 (2002).
In no way did Waddell -- an opinion cited by Plaintiffs -- clarify or
particularize the liability standard (even roughly) for a case of this kind.5 Waddell
explicitly declined to declare the precise liability standard to be employed in non-
custodial substantive due process cases even of the kind presented in Waddell.
So, Waddell, like the other decisions Plaintiff cites, cannot apply to the facts of
this case with “obvious clarity” and, therefore, is incapable of having provided the
social workers “fair warning” of the alleged unlawfulness of their acts. And all
the child-injury cases cited by Plaintiffs are too readily distinguishable, involving
children injured while in state custody and, thus, cannot provide “fair warning” in
the particular circumstances of this case: a child injured while not in state
custody.6
5
Waddell ruled for the defendants and presented an entirely different factual context. Briefly
stated, in Waddell the plaintiffs alleged a substantive due process violation against state officials in
the context of an automobile collision involving a confidential informant who had been released
from jail and was driving one of the cars. The facts of Waddell, therefore, are entirely different from
the facts of this case.
6
E.g., H.A.L. ex rel. Lewis v. Foltz, 551 F.3d 1227 (11th Cir. 2008) (finding no qualified
immunity at motion to dismiss stage for state social workers who were deliberately indifferent to the
clearly established right of a foster child in state custody to be reasonably safe from sexual abuse);
Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc) (finding foster child in state custody
can state a section 1983 cause of action if injury occurs after state employee’s deliberate indifference
to a known and substantial risk of serious harm).
14
In addition, Plaintiffs cite no binding authority -- and we have found no
Georgia Supreme Court decision and no binding authority -- that requires, for
federal substantive due process purposes, that all psychological information about
a potential adoptive child always be turned over to and called to the attention of
the potential adoptive parents.
Finally, even when the broad “arbitrary, or conscious shocking, in a
constitutional sense” general proposition is applied to the facts and context of this
case, our conclusion on immunity would remain the same. Even when we assume
the law is clearly established at this high level of generality, the state workers’ acts
were not “clearly unlawful in light of pre-existing law.” McClish v. Nugent, 483
F.3d 1231, 1248 (11th Cir. 2007) (emphasis added).
The Whitley Report, upon which Plaintiffs rely most heavily, was due to be
given some weight by the social workers. And the record shows that it was, at
least to some degree. For federal constitutional purposes, the social workers were
not obviously legally obliged to do exactly what Dr. Whitley recommended.
Furthermore, the Whitley Report seems to acknowledge that “any placement
decisions should be based on input from [C.H.’s] caregivers, and the professionals
working with him.”
15
Whitley explicitly qualified his recommendation with the caveat that the
professionals working with C.H. should have a say in the placement decision (and
possibly override Whitley’s recommendation against placing C.H. in a home with
other children). Determinations of what constitutes egregious conduct by state
officials “must not be made in the glow of hindsight.” Waddell, 329 F.3d at 1305.
Based on all the information available at the time, the decision -- even if incorrect
and ultimately harmful, in fact, to John Doe -- to place C.H. in this adoptive home
just was not obviously arbitrary or conscious shocking in a constitutional sense.
This case is not the rare case where the officials’ conduct was so egregious
that the officials should have known their acts were contrary to federal
constitutional commands, even in the absence (as is true here) of relevant case
law. Such cases are “exceptional” and “rarely arise.” See Santamorena v. Ga.
Military Coll., 147 F.3d 1337, 1340 n.6 (11th Cir. 1998) (substantive due process
case).
III. Conclusion
“[T]he [Supreme] Court has always been reluctant to expand the concept of
substantive due process because guideposts for responsible decisionmaking in this
16
uncharted area are scarce and open-ended . . . The doctrine of judicial self-restraint
requires us to exercise the utmost care whenever we are asked to break new
ground in this field.” Collins v. City of Harker Heights, 112 S. Ct. 1061, 1068
(1992) (internal citation omitted) (emphasis added).
To rule against the individual defendants in this case would definitely break
new ground. The contours of John Doe’s claimed due process right were not at all
clear in the circumstances, and the alleged unlawfulness (under the preexisting
federal law) of the social workers’ acts was far from obvious.7 No truly relevant
case law applied with “obvious clarity” to what the social workers were doing.
The preexisting law gave no “fair warning” of the alleged unlawfulness (under
federal law) of their acts in advance of their acts. Given the circumstances, the
developed federal law at the time stopped well short of clearly establishing the
unlawfulness of the social workers’ conduct. So under the law, the individual
defendants have the right to immunity.
The District Court erred in denying Defendants’ summary judgment motion.
REVERSED and REMANDED.
7
In these kinds of personal-injury based substantive due process cases, we are always guided by
the Supreme Court’s statement that “the Fourteenth Amendment is not a ‘font of tort law to be
superimposed upon whatever systems may already be administered by the States.’” Lewis, 118 S.
Ct. at 1718 (1998) (quoting Paul v. Davis, 96 S. Ct. 1155, 1160 (1976)).
17