United States Court of Appeals,
Eleventh Circuit.
No. 95-3431.
R. Glen MITCHELL, as Personal Representative for the Estate of
Richard Jefferson Mitchell, Plaintiff-Appellant,
v.
DUVAL COUNTY SCHOOL BOARD, James Jaxon, Defendants-Appellees.
March 17, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 95-678-CIV-J-20), Harvey E. Schlesinger,
District Judge.
Before ANDERSON, Circuit Judge, and KRAVITCH* and HENDERSON, Senior
Circuit Judges.
PER CURIAM:
I. BACKGROUND
This case undoubtedly involves a tragic situation: while
standing on the edge of a parking lot at Terry Parker High School
on November 4, 1993, fourteen year old Richard Jefferson Mitchell
(Mitchell) was shot and killed by non-student, third party
assailants attempting to rob him. Mitchell had attended a
school-sponsored function earlier that evening, and was waiting for
his ride home. According to appellant's complaint, Mitchell had
attempted to telephone his father from the school administration
office, but was denied entry to the office by school officials.
Mitchell used an outside pay phone to call his father, and then
waited for his father outdoors on a driveway near the school
parking lot.
*
Judge Kravitch was in regular active service when this
matter was originally submitted but has taken senior status
effective January 1, 1997.
Appellant R. Glen Mitchell, as personal representative for
the estate of Richard Jefferson Mitchell, brought suit pursuant to
42 U.S.C. § 1983, claiming that the actions of the defendants,
Duval County School Board and its high school principal, James
Jackson, resulted in the deprivation of Mitchell's rights,
privileges and immunities as guaranteed by the Due Process Clause
of the Fourteenth Amendment. The district court granted
defendants' Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to
state a cause of action upon which relief could be granted.1 On
appeal, appellant contends that, while ordinarily a school or other
government entity is not obligated to protect persons from the
crimes of third parties, the circumstances of Mitchell's death
qualify for an exception to this rule.
II. DISCUSSION
Generally a person does not have a constitutional right under
the Fourteenth Amendment to be protected from the criminal acts of
third parties. See DeShaney v. Winnebago County Dept. of Social
Services, 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249
(1989) (stating 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").
However, appellant argues that courts have found such protection in
two special circumstances: where the state has created the danger,
and where the victim has a special relationship to the state. The
1
This Court reviews de novo a district court's order
dismissing a complaint, accepting all allegations in the
complaint as true and construing the facts in a light favorable
to the plaintiff. Fortner v. Thomas, 983 F.2d 1024, 1027 (11th
Cir.1993).
dispositive issue in this appeal is whether appellant has stated a
viable claim, under either theory, that the school defendant
violated a constitutional duty owed to Mitchell.
We summarily reject the latter theory on the basis of Wright
v. Lovin, 32 F.3d 538 (11th Cir.1994). In circumstances not
distinguishable in principle from the circumstances of this case,
the Wright court rejected the argument that a student attending a
voluntary program has a special relationship with his school
sufficient to impose a constitutional duty on the school to protect
the student from injury by third parties. Id. at 540.2
We turn to appellant's other theory, i.e., that the school
defendant in this case created the danger. In Cornelius v. Town of
Highland Lake, Ala., 880 F.2d 348, 352-55 (11th Cir.1989), cert.
denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990), we
held that a state has a duty to protect an individual from third
parties when the state's actions place an individual in "special
danger." 880 F.2d 348, 352-55. While there is some question
whether Cornelius's special danger theory of liability remains good
2
In Wright, as in this case, the school program being
attended by the student was a voluntary one. In such
circumstances, the court held that no special relationship
existed between the school and the student sufficient to give
rise to a constitutional duty on the part of the school to
protect the student from harm by non-state actors. Although
noting that it need not decide the somewhat different issue of
whether mandatory school attendance gave rise to the special
relationship between school and student, the court pointed out
that every court of appeals which had addressed that issue had
found an absence of the special relationship and had refused to
impose a constitutional duty to protect the student from injury
by third parties. Id. (citing cases to this effect).
law,3 we need not decide that issue today. Assuming arguendo that
Cornelius has not been undermined, we find that appellant's
pleadings nevertheless failed to state a claim.
In order for a plaintiff to hold the state liable under the
"special danger" analysis, he must show that the state
affirmatively placed him in a position of danger which was
distinguishable from that of the general public. Cornelius, 880
F.2d at 354-56. In describing the necessary factors for finding
liability under the state-created danger theory, the Fifth Circuit
has emphasized that the acts of the state must facilitate the
crime's commission:
[T]he environment created by the state actors must be
dangerous; they must know it is dangerous; and to be liable,
they must have used their authority to create an opportunity
that would not otherwise have existed for the third party's
crime to occur.
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1361, 131 L.Ed.2d
218 (1995) (emphasis added). In determining whether the above
standard is satisfied, courts look both at state actions increasing
danger and to the related factor of whether a custodial
relationship exists between the state and the perpetrator of the
crime. For example, in Cornelius, a work squad inmate in the
3
Cornelius may not have survived Collins v. City of Harker
Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992),
where the Supreme Court held that a voluntary employment
relationship does not impose a constitutional duty on government
employers to provide a reasonably safe work environment. 503
U.S. at 127, 112 S.Ct. at 1069. See Hamilton By and Through
Hamilton v. Cannon, 80 F.3d 1525, 1531 n. 6 (11th Cir.1996);
Lovins v. Lee, 53 F.3d 1208, 1211 (11th Cir.1995); Wooten v.
Campbell, 49 F.3d 696, 700 n. 4 (11th Cir.), cert. denied, ---
U.S. ----, 116 S.Ct. 279, 133 L.Ed.2d 302 (1995); Wright v.
Lovin, 32 F.3d 538, 541 n. 1 (11th Cir.1994).
municipality's custody was permitted to leave the prison under the
supervision of an untrained and unarmed civilian employee. The
inmate was given access to dangerous weapons, was placed in the
vicinity of the victim's workplace, and was able to use these
weapons to kidnap and terrorize the municipal employee at knife
point. 880 F.2d at 355, 357. Critical to our finding that the
actions of the defendants evidenced the existence of special danger
liability was "the fact that the work squad inmates were in the
defendants' custody when Mrs. Cornelius was kidnapped"; and, under
the stated circumstances, "the defendants' conduct ...
significantly increased both the risk of harm to the plaintiff, and
the opportunity for the inmates to commit the harm." Id. at 357.
See also Nishiyama v. Dickson County, Tenn., 814 F.2d 277 (6th
Cir.1987) (where the county allowed an inmate on "trusty" status to
have unsupervised use of a patrol car equipped with standard blue
flashing lights and identifying markings, and the inmate used the
patrol car's lights to pull over plaintiff's daughter and beat her
to death).
Accepting appellant's allegations as true and construing them
in a light most favorable to appellant, we find that the pleadings
nevertheless failed to present facts sufficient to give rise to
liability under the special danger theory. According to appellant,
the school's policy of not allowing students to use the
administration office telephone affirmatively placed Mitchell in an
inherently dangerous situation. We disagree. There is no
allegation that the outside pay telephone which Mitchell used was
in a dangerous location; indeed, it was established beyond doubt
at oral argument that appellant cannot prove that it was in an
inherently dangerous location. In addition, nothing in the
school's policy required Mitchell to wait where he did. Even if,
as appellant alleges, Mitchell was not allowed to wait inside the
administration office, Mitchell had the option of waiting either
inside the building or immediately outside. For example, Mitchell
could have waited in the school's courtyard, which is immediately
adjacent to the administration office. Instead of waiting there,
Mitchell stood a considerable distance away on the edge of the
school's parking lot. We conclude that it is beyond doubt that
appellant cannot prove a set of facts that any school policy
required Mitchell to wait in an inherently dangerous location.
Also, in this case there was no connecting relationship
between the appellees and Mitchell's assailants. Thus, this case
is distinguishable from Cornelius with respect to both factors
which the Cornelius court found significant. First, in Cornelius,
the government had custody and control of the inmate work squad;
here the school had no such relationship with Mitchell's
assailants. Second, in Cornelius, the government increased the
risk of danger to the victim by having inadequate supervision of
the inmates, by providing the inmates with dangerous weapons and by
placing the inmates at the victim's workplace, thus subjecting her
to a danger distinct from that of the general public. By contrast,
in the instant case, the school did not create the danger; the
school neither placed Mitchell in a dangerous location nor placed
the assailants in the place where Mitchell was.
III. CONCLUSION
For the foregoing reasons, the district court's dismissal of
appellant's § 1983 claim is
AFFIRMED.