Powell v. Georgia Department of Human Resources

United States Court of Appeals,

Eleventh Circuit.

No. 96-8359.

Bruce James POWELL, Sr., individually as Natural Father of Bruce James Powell, Jr., and as
Administrator of the Estate of Bruce James Powell, Jr., Plaintiff-Appellant,

v.

GEORGIA DEPARTMENT OF HUMAN RESOURCES, James G. Ledbetter, individually and
as the Commissioner of the Department of Human Resources of the State of Georgia, Doug
Greenwell, individually and as Director of the Department of Human Resources of the State of
Georgia Division of Family and Children Services, Pat Fitzgerald, individually and as the Director
of the County Department of Family and Children Services, Mignon Rosen, individually and as an
employee of the Richmond County Department of Family and Children Services, Jane Doe, a DFCS
Caseworker known and identified with the initials M.D.S., individually and as an employee of the
Richmond County Department of Family and Children Services, Defendants-Appellees.

May 29, 1997.

Appeal from the United States District Court for the Southern District of Georgia. (No. CV195-128),
Dudley H. Bowen, Jr., Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges.

ANDERSON, Circuit Judge:

Appellant Bruce James Powell, Sr., appeals the district court's order dismissing his complaint

for failure to state a claim upon which relief can be granted. We affirm.

I. FACTS1 AND PROCEDURAL HISTORY

This case involves the tragic death of Powell's infant son. Powell's son, Bruce James Powell,
Jr., was born on April 26, 1993. Approximately one month after the baby's birth, Powell, age 18,

and the baby's mother, age 15, ended their relationship. The mother retained primary physical

custody of the baby, with Powell exercising visitation rights. On July 22, 1993, the mother married

James Loren, age 20.

On August 29, 1993, the baby's maternal grandmother, Janice Newman, took the baby to the

1
Because we are reviewing the district court's dismissal of Powell's complaint for failure to
state a claim, we accept the factual allegations of the complaint as true, construe them in the light
most favorable to Powell, and determine whether it appears beyond doubt that Powell can prove
no facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102,
2 L.Ed.2d 80 (1957); Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir.1995).
home of the baby's maternal great aunt, Jeannette Odum. Odum noticed bruises on the baby, became

concerned, and took the baby to Powell's workplace to show him the baby's bruises. At Powell's

request, Odum called the Richmond County Department of Family and Children Services ("DFCS")

and reported that she suspected the baby was being abused.

Appellee Mignon Rosen, a DFCS caseworker, met Powell and Odum at Powell's workplace

and examined the baby. Rosen noticed that the baby had a scrape across his forehead, discoloration

over his left ear with slight swelling, broken blood vessels in his right ear, and three bruises on the

back of his thigh. She noted these injuries in her initial report. Rosen was informed that the baby's

mother was very young and immature and that Loren, the baby's stepfather, was a heavy drinker who

handled the baby roughly.

Rosen contacted her supervisor at DFCS, who advised Rosen that a doctor should examine

the baby. Rosen did not follow this advice and did not have the baby examined by a doctor. Rosen

gave Odum protective custody of the baby and promised to speak with the mother and Loren the

next day about the baby's situation.

Later that same night, Rosen received a telephone call from Odum. Odum reported that

Newman was going to call the sheriff's department and obtain custody of the baby. Rosen told

Odum that the baby could be taken into protective custody.

After her conversation with Odum, Rosen called "Ask a Nurse" to inquire about the possible

causes of the baby's injuries. Rosen was informed that there was no medical condition that would

cause the observed injuries. Rosen then called an emergency shelter and was told that the shelter

could house the baby for the night. Rosen, however, took no action to place the baby in the shelter.

The mother and Newman arrived later that night at Odum's home with a deputy sheriff and

demanded the return of the baby. After learning of Rosen's involvement with the baby's case, the

deputy called Rosen to advise her of the situation. Rosen, acting on the instructions of her

supervisor, went to Odum's home. Discussions occurred in which the mother indicated that Loren

had explained the baby's injuries by saying that the baby had fallen off the bed. Rosen allowed the

baby to be released into Newman's custody, although protective custody at the emergency shelter
was available. Rosen instructed Newman that Newman should not return the baby to the mother's

custody.

The next day, August 30, 1993, the baby's case was assigned to appellee Jane Doe, an

unknown DFCS caseworker with the initials M.D.S. No action was taken that day on the baby's case.

On August 31, 1993, Jane Doe called Newman, who told Jane Doe that the baby had returned to the

mother's home, despite Rosen's instructions to the contrary. During this conversation, Jane Doe

learned that the mother and Loren lived with Loren's sister and her boyfriend in an environment of

excessive drinking. Newman, in another telephone conversation with Jane Doe later that same day,

also told Jane Doe that she believed that someone who lived in the baby's home had dropped the

baby. The mother and Loren failed to meet with Jane Doe that day as scheduled to discuss the

baby's care.

Jane Doe took no further action on the baby's case. She made an entry in the baby's file on

September 16, 1993 stating: "Another intake. Due to excessive # of intakes and [caseworker] trying

to get case load in order to be out on [leave] starting 9/17/93, [caseworker] unable to make another

contact."

The baby, who was not yet five months old, died that day. The official cause of the baby's

death was "blunt force trauma to the head." For over two weeks prior to his death, the baby had

been severely abused and neglected. The baby's injuries included innercranial bleeding, retinal

bleeding, abrasions, and over 100 bruises on his body. The baby's treating physicians described the

baby's case as one of the worst instances of child abuse they had ever seen. The mother and Loren

were convicted of the baby's murder.

Powell sued the appellees under 42 U.S.C. § 1983, seeking monetary damages and claiming

that the appellees violated his son's substantive and procedural due process rights and his son's

Eighth Amendment rights. He also alleged a state law claim against the appellees under the Georgia

Tort Claims Act. The appellees moved to dismiss Powell's complaint. The district court held

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure that Powell failed to state a federal

claim upon which relief can be granted. Consequently, the district court dismissed Powell's federal
claims and declined to exercise its jurisdiction over Powell's state law claim.2

The only issue before us in this appeal is whether Powell has stated a claim against the

individual appellees in their individual capacities. Powell asserts only two claims on appeal: a

substantive due process claim and a procedural due process claim.3

II. ANALYSIS

Before analyzing Powell's claims, we pause to note that the circumstances alleged by Powell

are troubling and tragic. However, Powell has elected to sue in federal court and thus has

undertaken to prove more than merely wrongful acts on the part of the appellees or a constitutional

violation; rather, in order to surmount the appellees' qualified immunity shield, Powell must prove

that the appellees violated clearly established constitutional rights of which a reasonable person

would have known.

Qualified immunity shields government officials performing discretionary duties from civil

litigation and liability if their conduct violates no "clearly established statutory or constitutional

rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We readily conclude in this case that the appellees

were performing discretionary duties,4 and thus the burden shifts to Powell to demonstrate that the

appellees violated clearly established constitutional rights of which a reasonable person would have

known. McCoy v. Webster, 47 F.3d 404, 407 (11th Cir.1995). As the Supreme Court most recently
stated in United States v. Lanier, "[Q]ualified immunity seeks to ensure that defendants "reasonably

can anticipate when their conduct may give rise to liability' ... by attaching liability only if "[t]he

contours of the right [violated are] sufficiently clear that a reasonable official would understand that

2
The district court dismissed the state law claim without prejudice.
3
Powell has not appealed the district court's determination that the Department of Human
Resources and the individual appellees in their official capacities are immune from suit under the
Eleventh Amendment. Powell also has not appealed the district court's dismissal of his claim
that the appellees violated his son's Eighth Amendment rights.
4
The appellees' actions in the instant case are indistinguishable from those which we held in
McCoy v. Webster, 47 F.3d 404 (11th Cir.1995), to be discretionary. We summarily reject
Powell's argument to the contrary.
what he is doing violates that right.' " --- U.S. ----, ----, 117 S.Ct. 1219, 1227, --- L.Ed.2d ----, ----

(1997) (alteration in original) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019,

82 L.Ed.2d 139 (1984), and Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97

L.Ed.2d 523 (1987), respectively). When analyzing a claim of qualified immunity in a case which

is in a Rule 12(b)(6) posture, we determine " "whether, under the most favorable version of the facts

alleged, defendant's actions violate clearly established law.' " Fortner v. Thomas, 983 F.2d 1024,

1028 (11th Cir.1993) (quoting Bennett v. Parker, 898 F.2d 1530, 1535 n. 2 (11th Cir.1990) (Tjoflat,

J., concurring), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991)).

We turn first to Powell's substantive due process claim and then to his procedural due process

claim.

A. Substantive Due Process Claim

Powell argues that the appellees violated his son's substantive due process rights by

removing the baby from Odum's safe care and allowing the baby to return to a known zone of danger

with an abusive mother and stepfather. Powell must prove more than negligent or wrongful acts on

the part of the appellees or an abuse of power rising to the level of a constitutional violation. In

order to strip the appellees of their qualified immunity defense, Powell must demonstrate that the

appellees violated clearly established constitutional rights of which a reasonable person would have

known. Two cases involving facts very similar to the instant facts, one a Supreme Court case and

one an Eleventh Circuit case, persuade us that Powell cannot prove a violation of a clearly

established constitutional right.

In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct.

998, 103 L.Ed.2d 249 (1989), Joshua DeShaney and his mother brought a § 1983 claim against

social workers and other officials who failed to protect Joshua, despite suspecting that Joshua's

father was abusing him. The Supreme Court held that there was no substantive due process violation

under the following circumstances. After Joshua's parents divorced, the father was awarded legal

custody of Joshua. The first complaint of child abuse occurred in January 1982. The Department

of Social Services ("DSS") interviewed the father, who denied the accusations. DSS did not pursue
the matter. In January 1983, Joshua was hospitalized with multiple bruises and abrasions. DSS was

notified that child abuse was suspected, and custody was temporarily withdrawn from the father.

The appropriate team of county officials considered the matter, determined there was insufficient

evidence of child abuse, and decided to recommend that Joshua be returned to the father's custody.

Based on this recommendation, the juvenile court returned Joshua to his father's custody.

Thereafter, the following additional warning signals came to the attention of the defendant officials.

A month later, Joshua was treated at the emergency room for suspicious injuries. During monthly

visits in the next six months, the caseworker observed suspicious injuries on Joshua's head. In

November 1983, Joshua was again treated at the emergency room for injuries believed to be caused

by child abuse. During the next two home visits, the caseworker was told that Joshua was too ill to

see her. DSS took no action. In March 1984, Joshua was severely beaten by his father. As a result

of this beating, Joshua sustained severe brain damage, which required that Joshua be permanently

institutionalized. The Supreme Court held that "[a]s a general matter, ... we conclude that a State's

failure to protect an individual against private violence simply does not constitute a violation of the

Due Process Clause." Id. at 197, 109 S.Ct. at 1004. The Court also rejected Joshua's argument that

a "special relationship" existed because the officials knew that Joshua faced a special danger of

abuse at his father's hands, and had specifically proclaimed an intention to protect him against that

danger. Id. at 197-98, 109 S.Ct. at 1004.5
The relevant Eleventh Circuit case is Wooten v. Campbell, 49 F.3d 696 (11th Cir.), cert.

denied, --- U.S. ----, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995). In Wooten, after a child was abducted

by his father, the state agency comparable to the one involved in this case was awarded legal custody

of the child and given the authority to place the child. With the consent of the child's parents, the

agency placed the child with the mother and allowed unsupervised visits by the father. During an

unsupervised visit, the father again abducted the child, killed the child, and then committed suicide.

5
The Court distinguished the relationship created when a state restrains an individual's liberty
such that it renders him unable to care for himself. See DeShaney, 489 U.S. at 198-200, 109
S.Ct. at 1004-06 (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)
(incarceration); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)
(involuntarily committed mental patients)).
The mother brought a § 1983 claim against the agency and its involved employees, alleging that the

defendants were reckless in allowing the father to have unsupervised visits with the child when the

evidence showed that the father posed a significant risk of danger to the child. The district court

dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Noting

that the facts were very similar to those in DeShaney, this court affirmed, holding that there was no

substantive due process violation. Id. at 701. Although the state agency had legal custody of the

child, this court emphasized that the mother herself had physical custody of the child and also had

access to the courts had she wanted to challenge the unsupervised visitation. Id. at 700. As in the

DeShaney case, this court stressed that the child had been killed by a private actor, the father, and

not by the State. Id.

Comparing the facts of the instant case to the facts in DeShaney, it is true that caseworker

Jane Doe gave the baby's case very little attention after taking over responsibility from Rosen on

August 30, 1993. She merely had two telephone conversations with Newman, in whose custody

Rosen had left the baby. During one of these conversations, Jane Doe learned that Newman had

permitted the mother to take the baby back to the mother's home, the environment in which it was

suspected that previous child abuse might have occurred. Jane Doe apparently did schedule a

meeting with the mother and her husband, Loren, for that day, but they failed to appear at the

meeting. Jane Doe took no further action.

While we do not condone Jane Doe's neglect, we nevertheless readily conclude that it is

indistinguishable from the caseworker's failure to act in DeShaney. Indeed, the danger signals in

DeShaney (including one hospitalization and two emergency room visits, all indicating suspected

child abuse) were more pronounced than in the instant case. In an attempt to distinguish DeShaney,

Powell points to the fact that the Supreme Court noted that the State in that case did not "do anything

to render [the abused child] any more vulnerable" to abuse. DeShaney, 489 U.S. at 201, 109 S.Ct.

at 1006. Powell argues that a plaintiff can make out a viable substantive due process claim by

proving that the officials created or increased the danger to the child. Powell contends that the

increase in danger occurred in the instant case on August 29, 1993, when caseworker Rosen
permitted the baby to be removed from the safe haven of Odum's home.6 Recalling the facts, that

night Newman and the mother, accompanied by a deputy sheriff, went to Odum's home and

demanded that the baby be returned. The deputy telephoned Rosen, and Rosen actually went to

Odum's home. After discussions in which the mother denied child abuse and related the explanation

that the baby had fallen off the bed, Rosen allowed the baby to be released into Newman's custody

at Newman's home. By allowing the baby to leave the safe haven of Odum's home, Powell argues

that caseworker Rosen affirmatively increased the danger to which the baby was exposed.

We can assume arguendo, without deciding, that in some circumstances, a plaintiff might

be able to establish a substantive due process violation upon proof that a state actor created or

increased the danger to a child or rendered a child more vulnerable to abuse.7 However, both

DeShaney and Wooten indicate that Rosen's allowing the baby to leave the safety of Odum's home

cannot be the basis for a substantive due process claim in this case. The language in DeShaney upon

which Powell relies (i.e., about rendering the child more vulnerable) is followed immediately by

language rejecting an argument precisely like Powell's:

While the State may have been aware of the dangers that Joshua faced in the free world, it
played no part in their creation, nor did it do anything to render him any more vulnerable to
them. That the State once took temporary custody of Joshua does not alter the analysis, for
when it returned him to his father's custody, it placed him in no worse position than that in
which he would have been had it not acted at all ....

DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006 (emphasis added). Although in this Rule 12(b)(6)
posture, we do indulge the inference that Newman's home was less safe than Odum's, the danger

signals apparent to Rosen in this case certainly do not exceed those apparent to the team which

6
In his brief on appeal, Powell acknowledges that the "substantive claim does not hang on the
two weeks of inactivity which triggers the procedural claim. Instead, the substantive claim is
triggered by the active and forcible abuse of Power [sic] by the state officials on one day, August
29, 1993." Appellant's Brief at 46 (emphasis omitted).
7
For cases discussing such claims, see, e.g., Mitchell v. Duval County Sch. Bd., 107 F.3d 837,
838-39 (11th Cir.1997) (assuming arguendo that a plaintiff might be able to state a substantive
due process claim if the state's actions placed the plaintiff in "special danger"); Kneipp v.
Tedder, 95 F.3d 1199, 1205 (3d Cir.1996) (discussing "state-created danger" theory); Uhlrig v.
Harder, 64 F.3d 567, 572-73 & nn.6-7 (10th Cir.1995) (discussing "creation of danger" theory),
cert. denied, --- U.S. ----, 116 S.Ct. 924, 133 L.Ed.2d 853 (1996); Leffall v. Dallas Indep. Sch.
Dist., 28 F.3d 521, 530-31 (5th Cir.1994) (discussing "state-created danger" theory).
decided to return Joshua to his father in the DeShaney case. That team knew that Joshua had just

been admitted to the hospital with multiple bruises and abrasions and that the examining physician

suspected child abuse. The team also knew of the allegation of abuse one year earlier. In this case,

we note that Rosen merely permitted the baby's grandmother, Newman, to take custody of the baby.

Rosen specifically instructed that the baby was not to be returned to the mother in whose home the

suspected abuse occurred. In this respect, the instant facts are more favorable to the appellees than

those in DeShaney. We also note that Rosen's decision was made during an actual visit to the scene

and followed her discussion with the mother, Newman, Odum, and the deputy sheriff, during which

the mother denied any abuse and gave an explanation for the baby's injuries. Finally, we note that

the subsequent removal of the baby to the mother's home was without the appellees' permission, and

thus is a mere failure to act similar to that in DeShaney. The government officials in DeShaney had

greater dominion and control over Joshua (i.e., temporary legal custody) than did the appellees here.

Similarly, the agency in Wooten had legal custody of the child, allowed the child to return to the

mother's custody, and permitted unsupervised visits by the father, who was the alleged source of

danger to the child. In neither DeShaney nor Wooten did the affirmative act of permitting the child's

return to the home environment rise to the level of a substantive due process violation. In evaluating

the asserted increased danger in DeShaney, the Court seemed to focus on the totality of the agency's

actions, and in any event declined to place much significance on a single judgment call in returning

Joshua to his home environment.

We recognize that the facts of DeShaney and Wooten are not identical to the instant facts.

In DeShaney, the agency's decision to permit Joshua to return to his home environment was

apparently in the nature of a recommendation to the juvenile court, which followed the agency's

recommendation. In Wooten, the similar decision was with the consent of the parents. However,

caseworker Rosen's decision clearly constituted an exercise of judgment very similar to that of the

officials in DeShaney and Wooten. Moreover, as in Wooten, Powell and Odum "had access to the

courts if [they were] displeased" with Rosen's decision. Wooten, 49 F.3d at 700.

Because the appellees in the instant case claim qualified immunity, we need only decide that
the appellees violated no clearly established constitutional rights.8 We readily conclude that the
appellees' actions are sufficiently similar to the actions of the comparable officials in DeShaney and

Wooten that it cannot be said that a reasonable official would have understood that the actions at

issue in this case violated constitutional rights. Accordingly, we hold that the appellees are shielded

by qualified immunity, and we affirm as to this claim.

B. Procedural Due Process Claim

Powell alleges that the appellees' failure to follow the Richmond County Child Abuse

Protocol ("the Protocol") violated his son's procedural due process rights.9 In their defense, the

8
As this court has explained previously,

Since a plaintiff must show both that there is a constitutional right that is
allegedly violated and that the right was clearly established at the time, a negative
decision on either prevents the plaintiff from going forward. Once it is
determined that there is no clearly established right, the Court could well leave for
another day the determination as to whether there is such a right, albeit not one
that a reasonable person would have known. It is the plaintiff's burden to show
that when the defendants acted, the law established the contours of a right so
clearly that a reasonable official would have understood his acts to be unlawful.

Spivey v. Elliott, 41 F.3d 1497, 1499 (11th Cir.1995).
9
As quoted in the appellees' brief, the Protocol provides as follows:

When a report of child abuse/neglect is received by DFCS, the case shall be
assigned to a caseworker to make an initial assessment/investigation (including
whether the case is that of a caretaker or noncaretaker). In determining the
appropriate action to be taken by DFCS, the caseworker shall go to where the
child is located to conduct an interview with the child to establish that the child is
in fact alleging abuse/neglect.

Appellees' Brief at 13. The Protocol, as quoted in Powell's complaint, further provides:

If there is reasonable cause to believe that abuse has occurred, DFCS shall take
the following action or actions:

1. Seek protective custody of the child. (See Juvenile Court Section).

2. If appropriate, allow the child to remain with its family and provide ongoing
monitoring and treatment.

3. Immediately notify the appropriate law enforcement agency pursuant to
O.C.G.A. § 19-7-5. (See Law Enforcement Section).

4. File any and all Juvenile Court proceedings necessary for the protection of the
child.
appellees invoke the protections of qualified immunity.

Powell argues that Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990),

shows that the appellees violated his son's clearly established procedural due process rights. In

Zinermon, the plaintiff, a former state mental hospital patient, alleged that the State violated his due

process rights by failing to have in place appropriate precommitment safeguards ensuring that state

mental hospital patients are in fact competent to sign forms authorizing their voluntary admission

and treatment. The Supreme Court held that the plaintiff stated a procedural due process claim

because the deprivation of the plaintiff's liberty was predictable and predeprivation process was

feasible. Id. at 136, 110 S.Ct. at 989. Powell argues that Zinermon applies to this case. He asserts

that the State should have provided predeprivation process in this case because the State should have

anticipated that caseworkers might be so overloaded with cases that they would neglect their duties.

He further contends that the value of predeprivation safeguards is high in child abuse cases and the

State is in the position to provide predeprivation process.

The appellees, however, argue that Powell cannot state a claim for a violation of his son's

procedural due process rights.10 The appellees assert that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.

5. If there is reasonable cause to believe abuse has occurred, DFCS will seek a
physical examination in those instances where a medical test will be
needed to substantiate the same, or will photograph evidence of physical
abuse where a medical examination is not necessary. Any physical
examination will be conducted as expeditiously as possible.
...

[I]f a report of child abuse ... is made to DFCS ... and it has reasonable cause to
believe such report is true, then the agency shall immediately notify the
appropriate authority or District Attorney and forward the proper reports within a
timely manner.

...

Every abused child should have a physical examination as soon as possible
following disclosure of the abuse. Typically, the child will be examined at one of
the local hospitals according to accepted hospital procedure.

Compl. at 12-13.
10
As a threshold matter, the appellees argue that the Protocol did not vest Powell's son with a
legitimate claim of entitlement such that a failure to follow the Protocol constituted a procedural
1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393

(1984) control this case. In Parratt and Hudson, the Supreme Court held that there is no procedural

due process violation when the act complained of is the random and unauthorized act of a state

employee for which adequate postdeprivation process is available. Hudson, 468 U.S. at 533, 104

S.Ct. at 3203-04; Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. The Parratt-Hudson reasoning

applies when the official action complained of is of a type that the State cannot reasonably foresee

and for which predeprivation process thus is not feasible. Hudson, 468 U.S. at 533, 104 S.Ct. at

3203; Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. See also Zinermon, 494 U.S. at 128-30, 110 S.Ct.

at 985-86. The appellees argue that in this case, the State could not reasonably foresee that the

caseworkers would fail to follow the Protocol. The appellees also contend that providing

predeprivation process, such as a hearing, for child abuse cases is not feasible because caseworkers

often must make quick judgment calls in such cases. Furthermore, the appellees argue that the State

has provided Powell with adequate postdeprivation process because Powell may pursue a damage

claim in the Georgia state courts under the Georgia Tort Claims Act.11

The crux of Powell's claim is his contention that predeprivation process was feasible in this

case and was not provided, thus violating the baby's procedural due process rights. In Zinermon,

the Court found that a predeprivation procedure was feasible and would avert the problem of

incompetent people signing voluntary admission forms before receiving treatment for mental illness.
The Court explained that "had the State limited and guided petitioners' power to admit patients, the

deprivation might have been averted." Zinermon, 494 U.S. at 137, 110 S.Ct. at 989. The Court

indicated that the State could provide such guidance by having "a specific requirement that

due process violation. Because we ultimately conclude that the appellees are entitled to qualified
immunity in any event, we can assume arguendo, without deciding, that Powell's son had such a
liberty interest.
11
Powell argues that this post-deprivation process is inadequate because the State has invoked
sovereign immunity as to any possible claims under the Georgia Tort Claims Act. However,
assuming arguendo that the State is immune, Powell's argument is foreclosed by our decision in
Rittenhouse v. DeKalb County, 764 F.2d 1451, 1459 (11th Cir.1985) ("the sovereign immunity
enjoyed by [the county and the government official] [does] not render appellant's state law
remedy inadequate under Parratt "), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d
308 (1986).
petitioners determine whether a patient is competent to consent to voluntary admission." Id. at 135-

36, 110 S.Ct. at 988-89.12

By contrast, in the instant case, the Protocol already provides predeprivation procedures for

caseworkers to follow. There is no other feasible predeprivation procedure that is readily apparent

to us. It is clear from the Protocol that a caseworker must make a judgment decision "[i]n

determining the appropriate action to be taken." Appellees' Brief at 13 (quoting Protocol). The

caseworker must make an initial assessment and must determine on an ongoing basis whether or not

there is "reasonable cause to believe that abuse has occurred." Compl. at 12 (quoting Protocol). We

readily conclude that it would not be feasible to require a hearing before every such judgment

decision by a caseworker. Indeed, the Protocol established by the appellees in the instant case would

seem to be precisely the kind of procedure contemplated in Zinermon because it guides caseworkers'

decision-making. We do not understand Powell to be challenging the adequacy of the Protocol

itself; rather, he argues that caseworkers Rosen and Jane Doe did not follow the Protocol.

The only specific procedure suggested by Powell is that the officials should have provided

more staffing, supervision, and training so that neglect of duty would not result from excessive

caseloads.13 However, we know of no case which has held that the Constitution requires a

government to provide more personnel or more training in order to reduce the risk of random and

unauthorized acts of neglect of duty. The Parratt decision suggests just the opposite. The
deprivation there, as here, resulted from a failure to follow applicable procedures. Parratt, 451 U.S.

at 531, 543, 101 S.Ct. at 1910, 1917. Although not mentioned by the Court, additional money,

personnel, or training might well have averted the prison officials' negligence in failing to follow

12
At several places, the Court referred to such a procedure. For example, the Court noted that
"[t]here is, however, no specified way of determining, before a patient is asked to sign admission
forms, whether he is competent." Zinermon, 494 U.S. at 136, 110 S.Ct. at 989. See also id. at
135, 110 S.Ct. at 988 ("But the statutes do not direct any member of the facility staff to
determine whether a person is competent to give consent, nor to initiate the involuntary
placement procedure for every incompetent patient.").
13
In his brief, Powell asserts that "the State was in a position to provide the requisite
predeprivation process by oversight, supervision, adequate staffing and caseload distribution,
management and training." Appellant's Brief at 26-27.
the policies and losing plaintiff's hobby kit.

Because the appellees have invoked the defense of qualified immunity, Powell must prove

a violation of a clearly established constitutional right. Under the circumstances of this case, we

cannot conclude that there was a clearly established constitutional right to some additional

predeprivation procedure in this case. In other words, we cannot conclude that it was clearly

established at the time of the appellees' actions in this case that an additional predeprivation

procedure was feasible. Although the appellees' actions were disastrous in hindsight, Powell has

not demonstrated that the contours of his son's procedural due process rights were sufficiently clear

that a reasonable official would understand that the conduct at issue here violated constitutional

rights. Accordingly, we hold that the appellees are shielded by qualified immunity from Powell's

procedural due process claim. We affirm the district court as to this claim.

III. CONCLUSION

We are not without sympathy for Powell's situation. His son's death was an unquestionably

cruel loss. For the foregoing reasons, however, we conclude that Powell has failed to surmount the

appellees' qualified immunity shield with respect to either of his claims.14

AFFIRMED.

14
Because the district court properly dismissed Powell's federal claims, it did not err by
dismissing without prejudice his state law claim.