[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ July 18, 2002
THOMAS K. KAHN
No. 02-10960 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 01-00188-CV-4-DF-5
MELANIE LYDIA DACOSTA,
Plaintiff-Appellee,
versus
STANISLAUS NWACHUKWA,
individually and in his official capacity as college instructor for Georgia Military
College,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(July 18, 2002)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Stanislaus Nwachukwa (Appellant), a college instructor at Georgia Military
college, appeals the district court’s denial of his motion to dismiss Melanie Lydia
Dacosta’s suit, filed pursuant to 42 U.S.C. § 1983, on the basis of qualified immunity.
The district court denied Appellant’s motion to dismiss, finding that Dacosta’s
complaint alleged a violation of her substantive due process rights under the
Fourteenth Amendment to the United States Constitution. Appellant asserts that his
conduct, as alleged in Dacosta’s complaint, amounts to only a state law tort and does
not constitute a substantive due process violation. Appellant further argues that even
if the facts alleged do constitute a violation of Dacosta’s constitutional rights, there
was no clearly established law sufficient to put Appellant on notice that his actions
amounted to a violation of those rights. We find that the facts alleged in the complaint
are not sufficient to state a claim for a substantive due process violation, and hence
reverse the district court.
BACKGROUND
A denial of qualified immunity on a motion to dismiss filed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure is an immediately appealable
interlocutory order. Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000). We
review such a denial de novo. Id. When reviewing the denial of a Rule 12(b)(6)
motion to dismiss, we accept all well-pleaded factual allegations in the complaint as
true and construe the facts in a light most favorable to the non-moving party. GJR
Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998).
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The following is a brief summary of the relevant facts, accepting Dacosta’s
well-pleaded factual allegations as true and construing them in a light most favorable
to her. On May 8, 1999, Dacosta attended a business class at Georgia Military
College taught by Appellant. Dacosta asked Appellant a question about his teaching
method; he ignored her question, though he answered similar questions posed by male
students in the class. Dacosta later asked the same question; this time, Appellant not
only failed to answer the question, but walked out of the classroom. Dacosta
followed him out the door, seeking to approach Appellant about the question that he
had persistently refused to address. Upon seeing that Dacosta had left the classroom
herself, Appellant darted back inside the classroom, and slammed the door in
Dacosta’s face in an effort to deny her reentry to the room. Dacosta held up an arm
in an attempt to protect herself from the door; her arm shattered the glass window on
the door and became lodged in the cracked pane. Appellant then violently swung
the door several times in an attempt to knock Dacosta back from the door. After this
effort proved unsuccessful, Appellant reached through the cracked glass pane and
shoved Dacosta’s face, still trying to forcibly dislodge her arm from the window. At
this point, several students in Dacosta’s class restrained Appellant until the police
arrived and arrested Appellant for criminal battery. Dacosta incurred medical
expenses of over $5,000 as a result of the incident.
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Dacosta’s complaint, filed against Appellant and the Board of Trustees of
Georgia Military College, alleged numerous violations of her federal constitutional
rights, statutory rights pursuant to 20 U.S.C. § 1621(a), and rights under Georgia tort
law. Both Appellant and the Board of Trustees filed motions to dismiss pursuant to
Rule 12(b)(6). The district court dismissed all of Dacosta’s claims pursuant to these
motions, with the exception of her individual claims against Appellant under the Due
Process Clause of the Fourteenth Amendment. This appeal follows.
DISCUSSION
In evaluating a claim of qualified immunity, a reviewing court’s first task is
to determine whether the plaintiff has alleged the deprivation of a cognizable
constitutional right. Conn v. Gabbert, 526 U.S. 286, 290 (1999). In the instant
case, we must first ascertain whether the facts alleged in Dacosta’s complaint
amount to a violation of Dacosta’s rights under the Due Process Clause.
The substantive component of the Fourteenth Amendment’s Due Process
Clause “prevent[s] government [officials] from abusing [their] power, or
employing it as an instrument of oppression.” Collins v. City of Harker Heights,
503 U.S. 115, 126 (1992) (internal quotation marks omitted). Our substantive due
process doctrine is designed to “protect[] those rights that are fundamental – rights
that are implicit in the concept of ordered liberty.” Skinner v. City of Miami, 62
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F.3d 344, 347 (11th Cir. 1995) (internal quotation marks omitted) (citation
omitted). The substantive element of the Due Process Clause protects certain
rights not expressly mentioned in the Constitution, such as the right to privacy,
from state infringement. See Planned Parenthood v. Casey, 505 U.S. 833, 847–49
(1992).
While the Supreme Court has extended protection under the Due Process
Clause to a number of rights not explicitly referenced in the Constitution’s text, it
has cautioned against the open-ended judicial expansion of other unenumerated
rights. City of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“[W]e have always
been reluctant to expand the concept of substantive due process.”) (internal
quotation marks omitted); Collins, 503 U.S. at 125 (“[G]uideposts for responsible
decisionmaking in this [substantive due process 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.”) (citation omitted).
Courts have been notably reluctant to expand substantive due process
doctrine to encompass state torts. Rights conferred by state tort law, and
adequately protected by that law, “remain largely outside the scope of substantive
due process jurisprudence.” Skinner, 62 F.3d at 347. Substantive due process
doctrine is not a “font of tort law to be superimposed upon whatever systems may
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already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701 (1976).
Indeed, substantive rights “created only by state law (as is the case with tort law
and employment law) are not subject to substantive due process protection . . .
because substantive due process rights are created only by the Constitution.”
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc) (internal
quotation marks omitted). Conduct by a government actor that would amount to
an intentional tort under state law would only rise to the level of a substantive due
process violation if it “shocks the conscience” or interferes with rights “implicit in
the concept of ordered liberty”– in other words, only if it affects individual rights
guaranteed, explicitly or implicitly, by the Constitution itself. United States v.
Salerno, 481 U.S. 739, 746 (1987).
In the instant case, Dacosta has alleged intentional battery – a tort under
Georgia law. Her right to be free from such a battery is conferred by Georgia law
and protected by the Georgia courts. Dacosta cannot point us to any authority
suggesting that such conduct, malicious as it may have been, amounted to a
deprivation of her rights under the U.S. Constitution, as opposed to a deprivation
of her rights under Georgia law. The cases she cites as authority for her
substantive due process claim involve excessive force used by law enforcement
officers, and are not applicable to the instant case. See, e.g., Gilmere v. City of
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Atlanta, 774 F.2d 1495 (11th Cir. 1985); Johnson v. Glick, 481 F.2d 1495 (2nd Cir.
1973).
The Skinner case provides useful guidance in our evaluation of Dacosta’s
substantive due process claim. In Skinner, a group of firefighters pinned a co-
worker to the floor of the firehouse and subjected him to a degrading assault as a
part of a hazing ritual. Skinner, 62 F.3d at 346. The plaintiff argued that such
conduct “shocked the conscience” and should give rise to a substantive due process
claim. We noted that Skinner had in fact been assaulted, and should be free to
pursue remedies for that assault under state law. Id. at 347. However, we also
pointed out that Skinner could provide no authority for the proposition that his
assault amounted to a violation of his constitutional rights, and denied him relief
on that claim. Id. at 347–48.
In the instant case, Dacosta likewise cannot point to any authority holding
that a battery perpetrated by a college teacher upon an adult student rose to the
level of a substantive due process violation. In light of the Supreme Court’s
finding in Collins that this area of the law should be developed cautiously, we feel
that judicial restraint demands that we find no such violation on these facts.
Remedies for batteries of this sort should be pursued in accordance with state law.
CONCLUSION
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In order to overcome the defense of qualified immunity at the 12(b)(6) stage,
a plaintiff must first assert the violation of a cognizable constitutional right.
Dacosta has not done that in this case. Hence, the district court erred in denying
Appellant qualified immunity. Accordingly, we reverse and remand this case to
the district court for an entry of judgment in accordance with Appellant’s motion
for dismissal.
REVERSED AND REMANDED.
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