Lovins v. Lee

United States Court of Appeals,

Eleventh Circuit.

No. 94-8580.

Terrie Lynn LOVINS, Plaintiff-Appellant,

v.

Earl D. LEE, Individually and in his official capacity as the
former Sheriff of Douglas County, Ronald H. Shadix, Individually
and in his official capacity as the former Chief Deputy Sheriff of
Douglas County, Douglas County, J.R. Allen, Individually and in his
official capacity as Deputy Sheriff of Douglas County, Michelle
Huey, Individually and in her official capacity as Deputy Sheriff
of Douglas County, Defendants-Appellees.

June 6, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CV-659-RHH), Robert H. Hall, Judge.

Before CARNES and BARKETT, Circuit Judges, and GIBSON*, Senior
Circuit Judge.

CARNES, Circuit Judge:

In this tragic case a young woman was kidnapped and brutally

raped by a violent criminal who had been temporarily released from

custody while serving a jail sentence. The issue presented is

whether the victim has a substantive due process right to recover

from those responsible for the criminal's release, which is alleged

to have been contrary to state law. Binding precedent requires us

to hold that there is no general substantive due process right to

be protected against the release of criminals from confinement,

even if that release violates state law.

I.

In July of 1991, Danny Leonard Ray was serving a sentence in

*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
the Douglas County, Georgia jail for a "Peeping Tom" offense and

for criminal trespass. At the time he committed and was convicted

for those crimes, Ray was on probation, and he had been convicted

previously for the crimes of theft, robbery, kidnapping, and rape.

Notwithstanding his history of violent crimes, Ray was made a

"trusty" at the Douglas County jail, and he was given a number of

weekend passes out of custody which he took advantage of,

apparently without incident. Then, on July 1, 1991, Ray was

released on a week-long "emergency" pass he had obtained by telling

a deputy a number of lies.

The first day of his release on that emergency pass, Ray

abducted the plaintiff from the front of a grocery store, drove her

to a deserted area, raped and sodomized her, and left her tied up

in the woods. After being apprehended and convicted of kidnapping,

rape, aggravated sodomy, and armed robbery for those actions, Ray

was sentenced to life imprisonment plus twenty years.

Plaintiff filed this 42 U.S.C. § 1983 action against Douglas

County, Georgia, and various individuals, including the county's

former sheriff and former chief deputy sheriff, claiming that they

violated her substantive due process rights by releasing Ray, a

dangerous criminal, before he was entitled to be released. The

district court granted summary judgment for all of the defendants,

and plaintiff appeals.

The parties disagree about whether the defendant's actions in

placing Ray in the trusty program and releasing him on an emergency

pass was contrary to Georgia law. The district court noted that,

"[p]laintiff has alleged facts which suggest that Ray was not
eligible to participate in the trusty program and that defendants

were wrong to have given him any passes." Apparently proceeding on

the assumption that the defendants had violated Georgia law in

releasing Ray, the district court nonetheless concluded that

defendants' actions did not violate plaintiff's substantive due

process rights. For purposes of this appeal, we, too, will assume

that Ray was ineligible for the trusty program and that defendants

violated Georgia law by placing him in that program and by

releasing him on the emergency pass.

II.

The Supreme Court has tightly restricted the authority of

federal courts in the substantive due process area. The Court has

unanimously noted its reluctance to expand the concept of

substantive due process, because "guideposts for responsible

decisionmaking in this unchartered 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, Texas, 503 U.S. 115,

125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992) (citation

omitted).

The Supreme Court has been particularly unreceptive to the

central premise of plaintiff's position, which is that citizens of

this country have a substantive due process right to be protected

by government from the lawless among us. Faced with a similar

contention in DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249

(1989), the Court held that "nothing in the language of the Due
Process Clause itself requires the State to protect the life,

liberty, and property of its citizens against invasion by private

actors. The Clause is phrased as a limitation on the State's power

to act, not as a guarantee of certain minimal levels of safety and

security." Nor did the Court find anything in the history of the

Clause to support placing such an obligation upon government.

Instead, it concluded that the provision's "purpose was to protect

the people from the State, not to ensure that the State protected

them from each other. The Framers were content to leave the extent

of governmental obligation in the latter area to the democratic

political processes." Id. at 196, 109 S.Ct. at 1003.

Attempting to escape the clear language of DeShaney,

plaintiff argues that this case fits within the "special

relationship" exception to the general rule that the Due Process

Clause does not entitle a citizen to be protected from violence at

the hands of non-governmental actors. Unfortunately for plaintiff,

that exception is limited to circumstances in which there is a

special relationship between the government and the victim of

violence or mistreatment, a circumstance that is lacking in the

present case. Examples of special relationship cases include those

involving incarcerated prisoners and involuntarily committed mental

patients. DeShaney, 489 U.S. at 198-99, 109 S.Ct. at 1004-05. A

long line of decisions have held that government has some

responsibility to assure, to the extent reasonably possible, the

safety of such persons. The Supreme Court has explained that those

special relationship decisions "stand only for the proposition that

when the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and general

well-being." Id. at 199-200, 109 S.Ct. at 1005. The duty in such

cases arises from the limitations which the government has imposed

on the freedom of the individual to act on his own behalf. Id. at

200, 109 S.Ct. at 1005-06. In this case, by contrast, Douglas

County had not imposed upon the plaintiff any restrictions to act

on her own behalf. There was no special relationship between her

and the county; she was in all respects a member of the general

citizenry.

In a further attempt to escape the effect of DeShaney,

plaintiff points to footnote 2 of that opinion. There, id. at 195

n. 2, 109 S.Ct. at 1003 n. 2, the Supreme Court declined to address

the issue of whether the State's child protection statutes gave the

plaintiff child in that case an entitlement to receive protective

services in accordance with the statute, an entitlement which might

enjoy due process protection against deprivation under Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33

L.Ed.2d 548 (1972). Plaintiff argues that Georgia statutes

restricting the release of convicted criminals such as Ray gave her

an entitlement under state law which was protected under the Due

Process Clause, and that the defendants deprived her of that

entitlement when they released Ray in violation of those statutes.

This argument is foreclosed by at least two decisions, one of which

is Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985). In that case, an

elderly woman was raped in her home by a delinquent, who six months

earlier had been convicted and imprisoned at a state industrial
school for breaking and entering into that very woman's home. At

the time of the rape, the delinquent had just been released on a

Christmas furlough, notwithstanding the fact that he had "an

extensive criminal and troubled psychiatric history." Id. at 643.

The plaintiff contended that the release violated state law, but

this Court held: "The fact that defendants may have violated the

duties set out by state law for employees of the Department of

Youth Services does not mean that the defendants deprived plaintiff

of her liberty rights without due process of law." Id. at 647.

The victim plaintiff in Jones may have had a state tort action

against the defendants for violation of their duties under state

law, but that was held to be insufficient to give her a valid

constitutional claim. Id.

Plaintiff's argument that the violation of state law by the

defendants gives her a viable substantive due process claim is also

foreclosed by the Supreme Court's decision in Collins, 503 U.S.

115, 112 S.Ct. 1061, 117 L.Ed.2d 261. That case involved an action

by the widow of a city sanitation department employee who died of

asphyxia after entering a manhole to unstop a sewer line. The

widow sued the city and various municipal officials claiming that

their failure to train or warn city employees, including her

husband, about known hazards in the workplace violated her

husband's substantive due process rights. Id. at 116-20, 112 S.Ct.

at 1064-65. She contended that her substantive due process claim

was supported by the Texas Hazard Communication Act. Id. at 129,

112 S.Ct. at 1070. The Supreme Court assumed that that state

statute imposed a duty on the city to warn its sanitation employees
about the dangers of noxious gases in the sewers and a duty to

provide safety training and protective equipment to minimize those

dangers; the Court further assumed that the statute created an

entitlement that qualifies as a liberty interest protected by the

Due Process Clause. Even with those assumptions, however, the

Supreme Court held that the defendants' violation of that state

statute did not give rise to a viable substantive due process

claim. Id. at 127-30, 112 S.Ct. at 1070-71.

The plaintiff relies upon Cornelius v. Town of Highland Lake,

Alabama, 880 F.2d 348 (11th Cir.1989), cert. denied, 494 U.S. 1066,

110 S.Ct. 1784, 108 L.Ed.2d 785 (1990), but there is considerable

doubt about whether that decision survives the Supreme Court's

subsequent Collins decision. Two panels of this Court have

expressed some doubt about the continuing viability of the

Cornelius decision. See Wooten v. Campbell, 49 F.3d 696, 700 n. 4

(11th Cir.1995) ("There is some question whether this Court's

holding in Cornelius survived the Supreme Court's decision in

Collins...."); Wright v. Lovin, 32 F.3d 538, 541 n. 1 (11th

Cir.1994) ("We note that there is some doubt whether our holding in

Cornelius has survived the Supreme Court's recent holding in

Collins...."). Even assuming, however, that Cornelius is still

good law, it is distinguishable from the case at hand. The

Cornelius plaintiff was a female employee of city hall who, in

order to keep her job, had to work around work squad inmates. It

was that employment situation, the Cornelius court reasoned, which

created a special relationship between the city and the plaintiff.

880 F.2d at 355. Moreover, some of the governmental defendants in
Cornelius had furnished the work squad inmates with tools which

were dangerous weapons. Id. at 358. By contrast, in this case

there was no special relationship, employment or otherwise, between

the plaintiff and the defendants, nor did the defendants furnish

dangerous weapons to the criminal who victimized the plaintiff.

Plaintiff also relies upon Taylor v. Ledbetter, 818 F.2d 791

(11th Cir.1987) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct.

1337, 103 L.Ed.2d 808 (1989), which is readily distinguishable,

because it is a special relationship case. The child victim in

Taylor had been involuntarily removed from the custody of her

parents and placed in a foster home where she suffered permanent

injuries as a result of severe beatings. Id. at 792. The Court

explained that, "a child involuntarily placed in a foster home is

in a situation so analogous to a prisoner in a penal institution

and a child confined in a mental health facility that the foster

child may bring a section 1983 action for violation of fourteenth

amendment rights." Id. at 797 (footnote omitted). Plaintiff's

reliance upon Nishiyama v. Dickson County, Tennessee, 814 F.2d 277

(6th Cir.1987), also does her little good. Nishiyama preceded

DeShaney and Collins, and it was thus unguided by those decisions.

Moreover, Nishiyama is distinguishable, because the inmate

perpetrator in that case was not only released from custody but was

also given a sheriff' department patrol car with blue lights, which

he used to pull over the victim's car before he beat the victim to

death. 814 F.2d at 279. In this case by contrast, none of the

defendants provided the criminal with the instrumentalities which

he used to commit the crime.
 The closing paragraph of the Supreme Court's DeShaney opinion

says much about the current state of substantive due process law:

The people of Wisconsin may well prefer a system of
liability which would place upon the State and its officials
the responsibility for failure to act in situations such as
the present one. They may create such a system, if they do
not have it already, by changing the tort law of the State in
accordance with the regular lawmaking process. But they
should not have it thrust upon them by this Court's expansion
of the Due Process Clause of the Fourteenth Amendment.

Id. 489 U.S. at 203, 109 S.Ct. at 1007. In this case, the district

court dismissed plaintiff's state law claims without prejudice,

thus sending her to the state courts to seek a remedy for the

egregious injury she has suffered. Whether or not the people of

Georgia have decided to provide such a remedy, that is where the

Supreme Court has said that cases like this one belong.

III.

The judgment of the district court is AFFIRMED.