concurring in part and dissenting in part, in which RONEY, Chief Judge, and HILL, Circuit Judge, join:
The majority today holds that a state foster care caseworker, his immediate supervisor, and everyone else in the chain of supervision between the caseworker and the director of the state welfare department (including the director) can be held liable for physical injuries deliberately in*810flicted on a child by her foster parents. The majority bases its conclusion on two theories of liability. First, purporting to follow Doe v. New York City Dep’t of Social Servs., 649 F.2d 134 (2d Cir. 1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), the majority holds that the officials can be held liable on the theory that they were “deliberately indifferent” to the duties of their offices. Assuming the validity of the principle Doe articulated— that an official may be held liable under 42 U.S.C. § 1983 (1982) for permitting a child to remain in a foster home while knowing that the child will be exposed to a substantial risk of child abuse or knowing facts that would lead any reasonable person to recognize that risk — the facts of this case neither resemble those in Doe nor satisfy the standard Doe enunciated. Moreover, the majority’s holding cannot be reconciled with the Supreme Court’s decision in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), a decision that both Doe and the majority fail to address. I therefore dissent from the majority’s holding on the Doe claim.
The majority today also holds that the Georgia foster care scheme gave the foster child in this case a “legitimate claim of entitlement,” under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), thus creating a procedural due process claim for the injury she sustained at the hands of her foster parents. I disagree with this conclusion and accordingly dissent from the majority’s holding on the Roth claim. I concur in the majority’s disposition of count III of the complaint, upholding the panel’s decision that count III failed to state a claim for relief.
I.
The facts of this case, as stated in the complaint, are crucial to our consideration of this appeal.1 Kathy Jo Taylor, the plaintiff, was born on February 3, 1980. On April 28, 1982, the plaintiff was removed from the custody of her natural parents by order of the Gwinnett County, Georgia, Juvenile Court.2 That court placed her in the temporary custody of the Gwinnett County Department of Family and Children’s Services (DFACS), a division of the Georgia Department of Human Resources (DHR). In August 1982, DFACS placed the plaintiff in a foster home.3 According to the complaint, the foster parents, Roy Michael Lathren and Linda Price Lathren, “were legally and morally unfit to be entrusted with the custody, supervision, and care of the Plaintiff and such fact was known to the Defendants or should have been known to them in the exercise of even slight care.”
In October 1982, the plaintiff suffered serious physical injuries and eventually lapsed into a coma from which she has yet to recover. The circumstances surrounding this tragedy are uncertain.4 The com*811plaint alleges that the plaintiff, “on or about October 13, 1982, was wantonly and willfully struck, shaken, thrown down, beaten, and otherwise severely abused by the foster mother.” Further, the complaint alleges that “[t]he foster parents wantonly and willfully failed to seek emergency medical treatment for the Plaintiff until October 17, 1982, when she suffered seizures and lapsed into a coma.”
The plaintiff, through her guardian ad litem, brought suit in the district court under 42 U.S.C. § 1983 (1982). The complaint named several defendants: James G. Ledbetter, Ph.D., Commissioner of the DHR; Patricia Johnson, Ph.D., Director of the DHR’s Division of Family and Children’s Services; Frederick B. Webb, Director of DFACS; Sonyonna Stone Danielle, supervisor of placement services for DFACS; and Jo Ann Hoover and W.R. Berry, DFACS caseworkers. The complaint consisted of three counts, two of which are relevant here. Count I alleged that the defendants, in violation of the fourteenth amendment, deprived the plaintiff of liberty without due process of law by denying her entitlements (an adequate preplacement investigation, and subsequent supervision of her custody in her foster home) that the Georgia foster care scheme granted her. In count II, the plaintiff alleged that the defendants violated the substantive guarantees of the eighth and fourteenth amendments because, with deliberate indifference, they failed to discharge their duty to inspect the Lathren home before placing the plaintiff there and they failed to supervise the Lathrens’ care of the child.5
Pursuant to Fed.R.Civ.P. 12(b)(6), the district court dismissed, without leave to amend,6 all counts of the plaintiff’s complaint. The plaintiff then appealed. A divided panel of this court affirmed, finding that (1) the plaintiff’s factual allegations in count II were insufficient to state a “deliberate indifference” substantive due process claim under Doe v. New York City Dep’t of Social Servs., 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), because the complaint did not allege that the defendants had knowledge of a risk of physical abuse to the child and that they acted or failed to act in deliberate indifference to that risk, and (2) as to count I, the Georgia foster care scheme does not create the alleged “legitimate claim of entitlement” under Board of Regents v. Roth, 408 U.S. 564, 92 *812S.Ct. 2701, 33 L.Ed.2d 548 (1972), because it creates procedural guidelines, not specific rights or entitlements. We took this case en banc to determine whether either of these counts of the complaint states a claim upon which relief may be granted. For convenience of analysis, I will address the count II claim first.
II.
A.
The plaintiffs count II claim is that each of the defendants deprived her of substantive rights, secured by the eighth amendment7 and the due process clause of the fourteenth amendment, to be free from physical abuse at the hands of her foster parents. In analyzing this claim, it is important to note that the plaintiff does not contend that any of the defendants personally participated in the infliction of her injuries. Cf Martinez v. California, 444 U.S. 277, 285 & n. 10, 100 S.Ct. 553, 559 & n. 10, 62 L.Ed.2d 481 (1980).
The plaintiff relies on the Second Circuit’s opinion in Doe v. New York City Dep’t of Social Servs., 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), to support her claim that she was deprived of substantive constitutional rights. In essence, the Doe court held that the Supreme Court, given its reasoning in the eighth amendment case of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), would recognize as a fundamental constitutional right the right of a foster child to be free of physical abuse caused by the deliberate indifference of state welfare officials responsible for the child’s supervision. In Estelle, the Supreme Court, observing that a state has an obligation to provide its prison inmates necessary medical care, held that the “deliberate indifference” of state prison personnel to an inmate’s serious illness or injury constitutes cruel and unusual punishment, giving rise to a claim under 42 U.S.C. § 1983.8 As the Court stated, “[t]his is true whether the indiffer*813ence is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05, 97 S.Ct. at 291 (emphasis added) (footnotes omitted).
The Seventh Circuit applied the Estelle rationale in a case in which a mental patient murdered a woman after being discharged from a state psychiatric hospital. Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982). Her personal representative sought to hold the hospital officials who were responsible for the discharge liable in damages because they allegedly released the patient with reckless disregard for the public’s safety. Id. at 617. The court upheld the district court’s judgment summarily dismissing the plaintiff’s claim on the merits, but acknowledged that a constitutional claim for reckless indifference could lie, under 42 U.S.C. § 1983, depending on the facts of the particular case.9
If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit. It is on this theory that state prison personnel are sometimes held liable under section 1983 for the violence of one prison inmate against another.
Bowers, 686 F.2d at 618 (citation omitted).
The potential reach of the Estelle principle, expressed as a substantive right included within the penumbras of the Bill of Rights and made applicable in non-prisoner contexts, see supra note 7, is very broad, subjecting government officials to possible liability for a wide range of misconduct by private actors. The federal courts, however, have been careful to establish limits on the scope of Estelle -type liability, limits that are essential to retain the character of section 1983 as a remedy for violations of constitutional magnitude, not “a font of tort law,” see Daniels v. Williams, 474 U.S. 327, —, 106 S.Ct. 662, 666, 88 L.Ed.2d 662 (1986) (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)).
Even before the Bowers decision, for example, the Supreme Court recognized the need for liability limits. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the personal representative of a girl, murdered by a mentally disturbed sex offender while he was on parole, attempted to obtain money damages under section 1983 against the state officials who were responsible for paroling the offender. The personal representative alleged that the officials deprived the decedent of procedural due process of law under the fourteenth amendment because they released the offender knowing that he would probably commit a violent crime, such as the murder at issue. Id. at 279-81, *814100 S.Ct. at 556-57.10 (As I discuss in Part II.B. infra, the complaint in the instant case, in contrast, does not allege that any defendant knew that the plaintiff would be exposed to a substantial risk of physical abuse in the Lathren foster home.) A unanimous Supreme Court rejected the personal representative’s section 1983 claim, holding that the allegations of his complaint failed to state a claim of constitutional magnitude, as distinguished from a claim under state tort law:
Although the decision to release [the offender] from prison was action by the State, the action of [the offender] five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a “duty” to avoid harm to his victim or to have proximately caused her death, we hold that, taking these particular allegations as true, [the parole officials] did not “deprive” [the] decedent of life within the meaning of the Fourteenth Amendment.
[The decedent’s] life was taken by the [offender] five months after his release. He was in no sense an agent of the parole board. Further, the parole board was not aware that [the] decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to “deprive” someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at least under the particular circumstances of this parole decision, [the] decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as “a species of tort liability,” it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.
Id. at 284-85,100 S.Ct. at 559 (citations and footnotes omitted) (emphasis added); see also Bowers, 686 F.2d at 617-19 (state mental hospital not liable under section 1983 for releasing a mental patient who subsequently murdered a woman, because the officials had not knowingly placed the victim, a member of the general public, in a position of danger).
Sixteen months after the Supreme Court handed down its Martinez decision, the Second Circuit decided Doe. That case involved a section 1983 claim by a foster child against a child-placement agency licensed by the City of New York.11 She alleged that her foster father had sexually abused her for a number of years, that the agency had knowledge of facts placing it on notice of that abuse, and that the agency ignored these facts and had done nothing to alleviate the situation. The agency’s conduct, she alleged, amounted to deliberate indifference to her safety in the foster home and thus deprived her of a liberty interest without due process of law, in violation of the fourteenth amendment. Doe, 649 F.2d at 137-40.
Doe was tried by a jury, which exonerated the child placement agency. The plaintiff appealed, seeking a new trial on the ground that the district court’s jury instruction on the doctrine of deliberate indifference imposed on her a greater burden of proof than that doctrine mandated. The court of appeals agreed and remanded the case for a new trial. Id. at 141. In its opinion, the court recognized a point that *815we should bear in mind in deciding this case: a foster child seeking damages against a child placement agency or its officials for child abuse inflicted by a foster parent faces a heavier burden in establishing deliberate indifference than does a prison inmate seeking damages against prison officials for cruel and unusual punishment. For example, unlike the prison situation, there is no strong chain of command in the placement and supervision of children in foster care:
There is a closer and firmer line of authority running from superiors and subordinates within [a penal] institution than exists in the foster care context, particularly in respect of the relationship between agency personnel and the foster parent. [Prison] administrators can readily call in subordinates for consultation. They can give strict orders with reasonable assurance that their mandates will be followed, and as added insurance other employees stationed in proximity of the subordinates to whom orders are directed may be instructed to monitor compliance.
By contrast, the [foster care agency] ha[s] to rely upon occasional visits for its information gathering, and its relationship to the foster family [is] less unequivocally hierarchical than is the case with prison guards and a warden.
Id. at 142. Moreover, to give the child a normal family environment, foster care officials understandably feel “constrained to respect the foster family’s autonomy and integrity[,] and [feel] pressured to minimize intrusiveness.” Id. Prison officials, on the other hand, feel no such constraint or pressure; their role is to monitor and control an inmate’s environment and activities on a day-to-day basis. Consequently, prison officials will normally have more information available to them about the conditions of an inmate’s confinement than officials overseeing foster care will have about the conditions of a foster home placement.
The deliberate indifference standard of fault — used by the Supreme Court in Estelle and, purportedly, by the majority today — is analogous to reckless disregard of safety, which is well defined in tort law:
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965) (hereinafter Restatement); see also Doe, 649 F.2d 143-44 & nn. 4-5. Recklessness, like deliberate indifference, is a higher standard of fault than mere negligence:
Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.
Restatement, supra, § 500 comment g (emphasis added);12 see also Doe, 649 F.2d *816143-44 & n. 5. Thus, to establish deliberate indifference, a plaintiff must allege and prove that the defendants either had actual knowledge of a substantial risk or had knowledge of facts that would indicate this risk to any reasonable person. See Estelle, 429 U.S. at 104-06, 97 S.Ct. at 291-92; Doe, 649 F.2d at 141.
As the foregoing discussion demonstrates, it is more difficult for a foster child, who has suffered physical abuse at the hands of his or her foster parents, to prove that the abuse flowed from the deliberate indifference of the child placement official than it is for a prison inmate to satisfy that standard in an eighth amendment case. This difference is a function of the notice requirement of the deliberate indifference standard. As the Second Circuit noted in Doe, in the relationship between foster care officials and foster parents, the officials will inherently have less information about the foster care setting— and thus less knowledge of potential danger to the foster child — than their prison official counterparts will have concerning the inmates in their charge. With these observations and the Restatement principles in mind, I shall assess the sufficiency of the plaintiff’s allegations in count II of her complaint.
B.
I first assess the plaintiff’s allegations against W.R. Berry, the caseworker whom DFACS assigned to handle the plaintiff’s case, because he is the defendant most likely to have known that the plaintiff faced a substantial danger of child abuse in the Lathren home or to have had knowledge of facts that would have led a reasonable person to conclude that the plaintiff faced such a danger. The plaintiff alleged that (1) Berry had the duty to investigate the Lathren home and to supervise it while the plaintiff lived there and (2) Berry failed “to make a thorough and complete investigation and study” of that home. These allegations do not even state a claim of negligence, because they do not disclose whether Berry would have discovered, in the exercise of due care, that the plaintiff faced a risk of child abuse if placed in the Lathren home. Nonetheless, granting the plaintiff’s complaint the most liberal reading, I proceed on the assumption that the complaint alleges that Berry would have discovered this risk and therefore that it states a cause of action for simple negligence.13
To state a claim of deliberate indifference, however, the plaintiff had to allege additional facts: that Berry either had actual knowledge that the plaintiff faced a substantial risk of child abuse in the Lathren home or had knowledge of facts that would have caused a reasonable person to conclude that the child faced this risk. The plaintiff alleged no such additional facts. It is true that she alleged that Berry acted with deliberate indifference in failing to carry out his investigative and supervisory duties, a mere conclusion of ultimate fact. The plaintiff did not, however, take the requisite further step and allege that Berry acted with deliberate indifference toward a *817known danger of the child abuse she eventually suffered. The plaintiff did assert that the Lathrens “were legally and morally unfit” to be foster parents (which I will assume means that the Lathrens would likely abuse the plaintiff), but she did not also allege that Berry — or, for that matter, any of the other defendants — knew this fact. When the allegations in a complaint are vague and conclusory, “and fail to set forth facts which, if proved, would warrant the relief sought, it is proper to dismiss for failure to state a claim.” Davidson v. State of Georgia, 622 F.2d 895, 897 (5th Cir.1980) (per curiam) (citations omitted);14 see also Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984) (“In civil rights actions, it has been held that a complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory.”) (citations omitted). Thus, the plaintiff failed to state a claim for relief against Berry in count II of her complaint.
This conclusion is buttressed by the Supreme Court’s rationale and holding in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). There, the Court concluded that parole officials could not be held liable under section 1983 even though they released a known sex offender who was likely to commit a violent crime and even though the murder of the victim was foreseeable. Id. at 278, 100 S.Ct. at 556. In the instant case, the officials had no knowledge that the Lathrens had any propensity for child abuse.
Similarly, the Seventh Circuit’s Bowers decision supports my conclusion. As the court noted in Bowers, “[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). There is no allegation in this case that the Lathren foster home was the equivalent of a snake pit and that the defendants knew this fact or had knowledge of facts that would have led a reasonable person to recognize it as such.
The plaintiff’s allegations against the remaining defendants suffer from the same deficiency described above. The allegations do not set forth facts indicating what, if anything, these defendants knew about the danger of physical abuse the plaintiff faced if DFACS placed her, or permitted her to remain, in the Lathren home.15 All the plaintiff alleged was the conclusion that these defendants 16 were deliberately indifferent in carrying out their duties to ensure that the caseworker, Berry, did his job.
The majority’s upholding of count II of the complaint against defendants Ledbetter and Johnson, the DHR officials in the state capital, is particularly disturbing in light of those defendants’ complete separation from the events that brought about the plaintiff’s injury. This court should bear in mind that section 1983 liability cannot be based on vicarious liability or respondeat superior. See Monell v. Department of Social Seros., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (“[W]e conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”);17 Coffy v. *818Multi-County Narcotics Bureau, 600 F.2d 570, 580 (6th Cir.1979) (“Liability under § 1983 may not be imposed upon an official simply on the basis of respondeat superi- or.”) (citation omitted). Rather, the plaintiff must allege and prove that each official actively participated in, encouraged, or directed the alleged deprivation. Ford v. Byrd, 544 F.2d 194, 195 (5th Cir.1976) (per curiam) (affirming dismissal of section 1983 suit in which plaintiff made no claim that supervisor directed, ordered, participated in, or approved the deprivation); Coffy, 600 F.2d at 580.
The complaint alleges no facts even suggesting that defendants Ledbetter and Johnson participated in, encouraged, or directed the plaintiff’s placement in the Lathren home, let alone that they acted with deliberate indifference to a substantial risk that the plaintiff would suffer serious physical abuse. On the contrary, the allegations, taken as a whole, make it plain that these defendants had no role in the plaintiff's placement in or the supervision of the Lathren home. All the plaintiff alleged was that these defendants recklessly supervised the child placement activities of DFACS.18
In sum, the district court cannot be faulted for concluding that count II of the complaint failed to state a claim for relief against any of the defendants. In granting the defendants' motion to dismiss count II, the court did not give the plaintiff leave to file an amended complaint.19 The plaintiff, however, did not request such leave, and on appeal has not contended that the district court erred in not according her an opportunity to present sufficient factual allegations by way of an amended count. For these reasons, I would affirm the dismissal of count II.
III.
The second question this case presents is whether, under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701 (1972), the Georgia foster care statutes and regulations give a dependent child about to be placed in a foster home a “legitimate claim of entitlement,” i.e., the right to an adequate preplacement investigation of the foster home and proper postplacement supervision of the home, which the state cannot deny the child without due process of law. In Roth, a state university decided not to renew the one-year contract of a non-tenured professor. The professor brought suit, claiming that the university’s action violated his procedural due process rights under the fourteenth amendment. As the Supreme Court observed, “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Id. at 569, 92 S.Ct. at 2705. The Roth Court articulated the following standard for determining whether a person *819possesses a constitutionally protected property interest:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in [Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970),] had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.
Roth, 408 U.S. at 577, 92 S.Ct. at 2709.20 The Court went on to find that the professor in Roth had no legitimate claim of entitlement pursuant to either his employment contract, or to “any state statute or university rule or policy.” Id. at 578, 92 S.Ct. at 2710.
The principle of Roth and subsequent Supreme Court cases is that the due process clause protects property and liberty interests that have been recognized and protected by state law. See Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975-76, 41 L.Ed.2d 935 (1974); Roth, 408 U.S. at 571-78, 92 S.Ct. at 2706-10. The state laws or regulations must, however, create a legitimate claim of entitlement; in other words, they must be more than mere procedural guidelines or grants of discretionary authority to state officials. Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983); Bishop v. Wood, 426 U.S. 341, 344-47, 96 S.Ct. 2074, 2077-79, 48 L.Ed.2d 684 (1976); Jean v. Nelson, 727 F.2d 957, 981 (11th Cir.1984) (en banc), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985).
In this case, the plaintiff claims, and the majority holds, that the Georgia foster care statutes and regulations create a liberty interest consisting of the right of a dependent child to have a preplacement investigation and subsequent supervision of any foster home in which he or she is placed, and that the defendants deprived her of that liberty interest without due process of law. Because I believe the majority has misread Georgia law and misapplied the dictates of Roth, I respectfully dissent from the court’s holding on the Roth claim.
The majority opinion places a great deal of weight on the comprehensive nature of the Georgia foster care scheme, apparently ignoring the Supreme Court’s admonition that the mere existence of “a careful procedural structure” does not preordain the existence of a protected liberty interest. See Hewitt, 459 U.S. at 471, 103 S.Ct. at 871. In fact, the Georgia statutory scheme is comprehensive only in granting broad discretion and authority to officials of the DHR and its county departments. It does not, however, grant to the plaintiff any specific entitlements of the sort the Supreme Court found in Hewitt. That case involved a prisoner’s challenge to the actions of Pennsylvania prison officials in removing him from the general prison population and placing him in administrative *820segregation. Under Pennsylvania statutory law, prison officials were not permitted to place inmates in administrative segregation without (1) assessing the need for that action, (2) determining that there is a threat of serious disturbances in the prison, (3) notifying the inmate that he is under investigation and that he will receive a hearing prior to any disciplinary action, (4) performing a complete investigation, and (5) conducting a hearing if the inmate is to be placed in administrative custody. See id. at 470 n. 6, 103 S.Ct. at 871 n. 6.
The Georgia foster care scheme was established “to promote, safeguard, and protect the well-being and general welfare of children and youth.” Ga.Code Ann. § 49-5-2 (1986). Georgia law grants the DHR and its county departments authority over foster care:
The Department of Human Resources is authorized and empowered, through its own programs and the programs of county or district departments of family and children services, to establish, maintain, extend, and improve throughout the state, within the limits of funds appropriated therefor, programs that will provide
(2) Child welfare services as follows:
(A) Casework services for children and youths ... to help overcome problems that result in dependency, deprivation, or delinquency ...
(E) Boarding care, or payment of maintenance costs, in foster family homes or in group-care facilities for children and youths who cannot be adequately cared for in their own homes ...
(3) Services to courts, upon their request, as follows:
(A) Accepting for casework services and care all children and youths whose legal custody is vested in the department by the court ...
(6) Regulation of child-placing and child-caring agencies by:
(A) Setting standards for and providing consultation and making recommendations concerning establishment and incorporation of all such agencies; and
(B) Licensing and inspecting regularly all such agencies to ensure their adherence to established standards as prescribed by the department____
Id. § 49-5-8(a). These statutory provisions simply grant the DHR and its county departments, including DFACS, authority and responsibility for the placement of children in foster care.
Significantly, Georgia law gives the DHR and its county departments the power to regulate “child-placing and child-caring agencies,” including the power to set standards, license these agencies, and inspect these agencies. Id. § 49-5-8(a)(6). A child-placing agency is defined as “any institution, society, agency, or facility, whether incorporated or not, which places children in foster homes for temporary care or for adoption.” Id. § 49-5-3(2). A child-caring agency “means any institution, society, agency, or facility, whether incorporated or not, which either primarily or incidentally provides full-time care for children under 17 years of age outside of their own homes, subject to such exceptions as may be provided in rules and regulations of the board.” Id. § 49-5-3(1). These provisions are general grants of power, which by their nature involve broad grants of discretion to the DHR and DFACS: discretion to set standards, to license, and to inspect child-placing and child-caring agencies. A dependent child can have no legitimate claim of entitlement based simply on this grant of authority.
In reaching its conclusion that Georgia law does give rise to a legitimate claim of entitlement on behalf of the plaintiff, the majority relies on three statutory provisions and two regulations. As the following discussion demonstrates, none of these provisions creates an entitlement on behalf of the plaintiff. First, the majority quotes the Georgia code provision defining legal custody of a child to include “[t]he right and the duty to protect, train, and discipline” the child and “[t]he responsibility to provide him with food, clothing, shelter, education, and ordinary medical care.” Id. § 49-5-3(12). This provision, which simply defines “legal custody,” is inapposite. The gist of the plaintiff’s complaint concerns *821the defendants’ alleged failure to inspect and supervise the Lathren home; there is no claim that the DHR or DFACS was directly involved in failing to protect the plaintiff or failing to provide her with medical care.
Second, the majority inexplicably relies on Ga.Code Ann. § 49-5-12(Z), stating that this provision places a mandatory duty on the DHR to investigate thoroughly each foster home and to supervise the home during the period of foster care. In fact, section 49-5-12(Z) places the responsibilities the majority describes on “child-placing agencies,” not on DHR or DFACS.21 As I have noted earlier, DHR and DFACS are empowered to set standards for, license, and inspect child-placing agencies. Section 49-5-12(Z) places the responsibility to inspect and to supervise individual foster homes on “child-placing agencies.” Because no such agency, within the meaning of the Georgia code, is a defendant in this case, this section is inapplicable.
Similarly, the majority’s reliance on two DHR regulations is misplaced. These regulations provide as follows:
(3) The selection of a foster home or group care facility for a particular child shall be based on an assessment of the child’s total needs and how well a particular program can meet the child’s needs.
(16) Supervision of children placed in foster homes shall be maintained by the Agency through visits made at regular intervals and as frequently as is necessary for the best interest of the child.
There shall be at least one personal contact per month.
Ga.Comp.R. & Regs. r. 290-2-12-.08(3), (16) (1984) (emphasis added). Once again, the responsibilities described in these regulations apply to child-placing agencies, not to the DHR and DFACS. These regulations are part of a series of regulations the DHR promulgated specifically to regulate child-placing agencies. See id. rr. 290-2-12-.01 to 290-2-12-.14. They are contained in a chapter of the Georgia regulations entitled “Child-Placing Agencies.” Moreover, one of the regulations, subsection (16), expressly grants the supervision responsibility to “the Agency,” which means the child-placing agency, not the DHR or DFACS. See id. r. 290-2-12-.01(i) (defining “agency”); see also Ga.Code Ann. § 49-5-3(2) (1986) (defining “child-placing agency”).22 These DHR regulations do not create any duties on the part of DHR or DFACS, and thus they cannot serve as the basis for the plaintiff’s Roth claim.
Finally, the majority relies on Ga.Code Ann. § 49-5-12(m) (1986), which states as follows:
It shall be the duty of the [DHR] to inspect at regular intervals all licensed child welfare agencies within the state, including all family boarding homes, foster family homes, and family day-care homes used by such agencies. The department shall have right of entrance, privilege of inspection, and right of access to all children under the care and control of the licensee.
*822This provision does in fact apply to the DHR, placing on it the duty to inspect all foster homes “at regular intervals.” This duty arises, however, in connection with its power to license foster homes, see id. § 49-5-8(a)(6)(B); it does not confer any specific duty to oversee the placement of an individual child in the foster home. Thus, this section simply requires that the DHR inspect foster homes, as frequently as needed for licensing purposes, to assure that its continued licensing of those homes is warranted. Consequently, this provision does not create a legitimate claim of entitlement to have the DHR conduct a preplacement investigation or subsequently supervise the placement of an individual child in foster homes.
In addition to dissenting from the majority’s analysis of the Georgia foster care scheme, I am troubled by the majority’s failure to recognize the analytical problem and the remedies problem created by its holding. As the majority notes, Roth and its progeny are procedural due process cases. If a court finds that state law creates a “legitimate claim of entitlement,” the next step in the Roth analysis is to determine what process is due and whether the state provided that process. See, e.g., Hewitt, 459 U.S. at 472-77, 103 S.Ct. at 871-74. The focus of this type of analysis is on the requirements of predeprivation notice and a hearing. See id. This case, however, is about investigation and supervision of foster homes, not about predeprivation notice and a hearing. In effect, the majority holds that the plaintiff has a legitimate claim of entitlement to investigation and supervision of her foster home, but that the state can deprive her of those rights after providing notice and a hearing.23
Further, the majority creates a remedies problem: the remedy for a procedural due process violation is restoration of the status quo ante and an injunction barring deprivation of the plaintiff’s rights without the requisite procedural protections. See Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976) (“All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard,’ to insure that they are given a meaningful opportunity to present their case.”) (citation omitted). The plaintiff does not seek this type of remedy, and it would not make sense for her to do so, because predeprivation notice and a hearing would not provide the money damages she seeks for the injury her foster parents inflicted.
IY.
For the reasons I have set forth, I respectfully dissent from the majority’s disposition of counts I and II of the complaint in this case. I concur in the majority’s adoption of the panel’s disposition of count III.
APPENDIX
COMPLAINT
NOW COMES the Plaintiff, KATHY JO TAYLOR, a minor, (“Plaintiff”), by and through David S. Walker, Jr., Attorney at Law, as Guardian Ad Litem, and her attorneys, Don C. Keenan and Keenan & Associates, P.C., and files this Complaint against the Defendants, JAMES G. LEDBETTER, Ph.D., PATRICIA JOHNSON, Ph.D., FREDERICK B. WEBB, SONYONNA STONE DANIELLE, JO ANN HOOVER, and W.R. BERRY, in their individual and official capacities, and hereby respectfully shows the Court as follows:
1.
The Plaintiff Kathy Jo Taylor is a citizen of the State of Georgia, and is physically located in a skilled nursing area at the Georgia Retardation Center in Atlanta, Georgia.
*8232.
The Defendant James G. Ledbetter, Ph.D., is a citizen of the State of Georgia and the Commissioner of the State of Georgia Department of Human Resources, which is an agency of the government of the State of Georgia. Service of Process may be had by service of this Complaint at 47 Trinity Avenue, S.W., Atlanta, Georgia.
3.
The Defendant Patricia Johnson, Ph.D., is a resident of the State of Georgia and the Director of the State of Georgia Department of Human Resources’ Division of Family and Children’s Services. Service of Process may be had by the service of this Complaint at 47 Trinity Avenue, S.W., Atlanta, Georgia.
4.
The Defendant Frederick B. Webb is a citizen of the State of Georgia and the Director of the Gwinnett County Department of Family and Children’s Services, which is a local sub-division of the Georgia Department of Human Resources. Service of Process may be had by service of this Complaint at 189 Chestnut Street, Lawrenceville, Georgia.
5.
The Defendant Sonyonna Stone Danielle is a citizen of the State of Georgia and is an employee of and supervisor of placement services for the Gwinnett County Department of Family and Children’s Services. Service of Process may be had by service of this Complaint at 189 Chestnut Street, Lawrenceville, Georgia.
6.
The Defendant Jo Ann Hoover is a citizen of the State of Georgia and an employee of the Gwinnett County Department of Family and Children’s Services. Service of Process may be had by service of this Complaint at 189 Chestnut Street, Lawrenceville, Georgia.
7.
The Defendant W.R. Berry is a citizen of the State of Georgia and an employee of the Gwinnett County Department of Family and Children’s Services. Service of Process may be had by service of this Complaint at 189 Chestnut Street, Lawrence-ville, Georgia.
8.
Jurisdiction is conferred upon this Court by virtue of 28 U.S.C. §§ 1331,1343, in that this action is authorized by 42 U.S.C. § 1983 and the Constitution of the United States to redress deprivations of constitutionally protected rights and interests under color of state law. The amount in controversy exceeds $10,000.00, exclusive of costs and interest.
9.
The Plaintiff is a Minor, born on February 3, 1980, and brings this action by and through David S. Walker, Jr., Attorney at Law, as her Guardian Ad Litem; be [sic] being lawfully appointed to such capacity by order of the Gwinnett County Juvenile Court on January 6,1984.
10.
The custody, supervision, and care of the Plaintiff and her sister, Jodi Taylor, was given to the Gwinnett County Department of Family and Children’s Services (“DEFACS”) by lawful Order of the Gwinnett County Juvenile Court on or about May 5, 1982.
11.
The named Defendants, at all times relevant hereto, by operation of the said lawful Order and of state law, had responsibility for the custody, supervision, and care of the Plaintiff.
12.
The Defendants James G. Ledbetter, Ph.D., and Patricia Johnson, Ph.D., by virtue of their positions of authority and trust, and by operation of state law, had the ministerial duty to administer and *824supervise ■ the local administration of state laws, rules, and regulations relating to public child welfare and youth services, and suck duty included the duty to inspect at regular intervals all foster family homes used by authorized state agencies. The Defendants were grossly negligent in and deliberately indifferent to the discharge of this ministerial duty.
13.
The Defendants Frederick B. Webb, Sonyonna Stone Danielle, Jo Ann Hoover, and W.R. Berry, by virtue of their positions of authority and trust, and by operation of state law, had the duty, in placing the Plaintiff in foster family homes, to promote, safeguard, and protect the well-being and general welfare of the Plaintiff, by thoroughly investigating each such home and the character and reputation of the persons residing therein and by adequately supervising each such home during the period of care. The Defendants were grossly negligent in and deliberately indifferent to the discharge of this ministerial duty.
14.
As a direct and proximate result of the gross and culpable misfeasance, malfeasance, and nonfeasance of the Defendants, the Plaintiff has suffered grievous personal injuries and is in a comatose and vegetative condition and is without hope of recovery as it has been determined to a medical certainty that said condition is permanent and terminal.
15.
As a direct and proximate result of the gross and culpable misfeasance, malfeasance, and nonfeasance of the Defendants, the Plaintiff has been deprived, by state action, under color of state law, and without due process of law, of certain of her fundamental rights.
16.
The Defendant Jo Ann Hoover, an employee of DEFACS and the representative of DEFACS present when the Gwinnett County Juvenile Court placed the custody, supervision, and care of the Plaintiff and her sister in DEFACS, was informed by members of Plaintiffs natural family, including but not limited to her mother, Debra Trefren, her grandmother, Mary Blanche Collins, and her uncle, Dennis Collins, on or about May 5, 1982, that the' Plaintiffs natural aunt and blood relative, Brenda J. Dyer, and her husband, James T. Dyer, were desirous of having custody of the Plaintiff and her sister placed in them.
17.
Brenda J. and James T. Dyer were legally and morally fit individuals to be entrusted with the custody, supervision, and care of the Plaintiff and her sister, and such fact was known to or should have been known to the Defendant Jo Ann Hoover in the exercise of even slight care, and, through her, to the other Defendants.
1.8.
The Defendant Jo Ann Hoover arbitrarily, maliciously, in bad faith, in reckless disregard of and deliberate indifference to the best interests of the Plaintiff and her sister, and in a grossly negligent manner failed to explore the possibility of having custody of the Plaintiff and her sister placed with Brenda J. and James T. Dyer, or to even forward to her superiors or otherwise report the information that they were desirous of having such custody placed in them; such failure being in violation of state law, rules and regulations.
19.
The Defendant W.R. Berry, an employee of DEFACS and the caseworker to whom the Plaintiff and her sister were assigned, was grossly negligent and deliberately indifferent in failing to independently investigate whether any members of the Plaintiffs natural family were legally and morally fit individuals to be.¡ entrusted with the custody, supervision, and care of the Plaintiff and her sister and were desirous of having such custody *825placed in them; such failure being in violation of state law, rules and regulations.
20.
The Defendant Sonyonna Stone Danielle, an employee of DEFACS and the supervisor of placement services, was grossly negligent and deliberately indifferent in the discharge of the ministerial and supervisory duties of her office as relating to the custody, supervision, and care of the Plaintiff, and as established by state law, rules and regulations.
21.
The Defendant Frederick B. Webb, the Director of DEFACS, was grossly negligent and deliberately indifferent in the discharge of the ministerial and supervisory duties of his office as relating to the custody, supervision, and care of the Plaintiff, and as established by state law, rules and regulations.
22.
The Defendants above-named in Paragraphs 18-21 were grossly negligent and deliberately indifferent in failing to acquire or procure complete physical and medical, data concerning the Plaintiff and to provide same to the foster parents to whom the custody, supervision, and care of the Plaintiff was given; such failures being in violation of state rules and regulations.
23.
The Defendants above-named in Paragraphs 18-21 were grossly negligent and deliberately indifferent in failing to make a thorough and complete investigation and study of the foster home of Linda Price Lathren and Roy Michael Lathren (referred to hereinafter as “foster mother” “foster father”, or collectively as , “foster parents”) prior to the Plaintiff being placed therein on or about August 12,1982; such failures being in violation of state rules and regulations.
24.
The Defendants above-named in Paragraphs 18-21 were grossly negligent and deliberately indifferent in failing to properly maintain supervision of the foster home of the foster parents subsequent to the Plaintiff being placed therein; such failures being in violation of state rules and regulations.
25.
The Defendants James G. Ledbetter, Pk.D., and Patricia Johnson, Ph.D., were grossly negligent and deliberately indifferent in failing to properly administer and supervise the local administration, by the Defendants above-named in Paragraphs 18-21, of the relevant state laws, rules, and regulations, and in failing to inspect at regular intervals the foster home of the foster parents; such failures being in violation of state law.
26.
The Plaintiff, together with her sister, * was placed in the foster home of the foster parents on or about August 12, 1982.
27.
The foster parents were legally and morally unfit to be entrusted with the custody, supervision, and care of the Plaintiff and such fact was known to the Defendants or should have been known to them in the exercise of even slight care.
28.
The Plaintiff, on or about October 13, 1982, was wantonly and willjully struck, shaken, thrown down, beaten, and otherwise severely abused by the foster mother, and suffered severe and grievous personal injuries as a direct and proximate result thereof.
29.
The foster parents wantonly and willjully failed to seek emergency medical treatment for the Plaintiff until October 17, 1982, when she suffered seizures and lapsed into a coma.
*82630.
As a direct and proximate result of the above, the Plaintiff has been deprived, by state action, under color of state law, and without due process of law, of the use of her mind and body, of her health, of the enjoyment of life, and, ultimately, of life itself.
31.
In particular, the arbitrary, grossly negligent, and deliberately indifferent acts and omissions of the Defendants, in utterly failing to comply with the mandatory, ministerial and supervisory statutory and regulatory duties specifically designed to promote, safeguard, and protect the well-being and general welfare of the children of this State, including the Plaintiff, have directly and proximately resulted in the Plaintiff being unlawfully deprived of the use of her mind and body, of her health, of the enjoyment of life, and, ultimately, of life itself.
32.
As a direct and proximate result of the above, Plaintiff:
(a) suffered severe injury;
(b) suffered permanent disability;
(c) lost future income potential;
(d) suffered severe pain and suffering; and
(e) incurred and will continue to incur substantial medical expense.
COUNT ONE — DUE PROCESS OF LAW AS PROVIDED BY STATE LAW, RULES AND REGULATIONS
33.
Paragraphs 1 through 32 are herein realleged as if more fully set out below.
34.
The acts and omissions of the Defendants have deprived the Plaintiff of liberty without due process of law in contravention of the Fourteenth Amendment of the United States Constitution as a result of the failure of the Defendants to keep the Plaintiff free from harm by placing the Plaintiff in an unsuitable foster home and subjecting her therein to severe physical harm; said acts and omissions being in violation of state law, rules and regulations providing certain benefits and entitlements to the Plaintiff.
COUNT TWO — CRUEL AND UNUSUAL PUNISHMENT
35.
Paragraphs 1 through 32 are herein realleged as if more fully set out below.
36.
The acts and omissions of the Defendants have denied the Plaintiff of her right to be free from cruel and unusual punishment in contravention of the Eighth and Fourteenth Amendments to the United States Constitution as a result of the Defendants directly and proximately inflicting harsh and brutal punishment upon the Plaintiff, failing to adequately investigate and supervise the foster home wherein the Plaintiff was placed, and otherwise depriving the Plaintiff of the care, protection and benefits to which she was entitled under state and federal law, rules and regulations.
COUNT THREE — DUE PROCESS OF LAW AS PROVIDED BY FEDERAL LAW, RULES AND REGULATIONS
37.
Paragraphs 1 through 32 are herein realleged as if more fully set out below.
38.
The requirements of 42 U.S.C. § 601 et seq., and 45 C.F.R. § 233 et seq., are applicable to the foster placement of the Plaintiff in that it was financed in part, directly or indirectly, by funds provided by the United States Department of Health and Human Services.
39.
The Defendants are subject to the requirements of 42 U.S.C. § 601 et seq., and 45 C.F.R. § 233 et seq.
*82740.
The Defendants have denied the Plaintiff of her rights, benefits and entitlements as guaranteed by 42 U.S.C. § 601 et seg., and 45 C.F.R. § 233 et seg., and thereby deprived her of liberty without due process of law in contravention of the Fourteenth Amendment of the United States Constitution.
WHEREFORE, Plaintiff respectfully prays, requests and demands this Honorable Court as follows:
(a) that process issue in terms provided by law and that Defendants be served according to law;
(b) that a jury trial be held;
(c) that Plaintiff have judgment against Defendants, jointly and severally, for all special, general and compensatory damages recoverable by law in the amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) or such other amount as a jury may determine to be just and proper;
(d) that Plaintiff have judgment against Defendants, jointly and severally, for all punitive and exemplary damages recoverable by law in the amount of FOUR MILLION DOLLARS ($4,000,-000.00) or such other amount as a jury may determine to be just and proper;
(e) that the costs of this litigation, including reasonable attorney’s fees, as provided by 42 U.S.C. § 1988, be assessed against Defendants; and
(f) that Plaintiff receive all other relief which this Court may determine to be just and proper.
. Because the legal sufficiency of count II of the complaint (the Doe claim) turns on the adequacy of the facts alleged in that count, I include the entire complaint as an appendix to my opinion.
. The complaint does not allege on whose initiative the court began dependency proceedings. See generally Ga.Code Ann. § 15-11-24 (1985) (“[T]he petition alleging ... deprivation ... of a child may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true.").
. Foster homes in Georgia are licensed by the state. See infra Part III. Once a child has been adjudicated a dependent, the court may, for example, place the child in the custody of the county department of family and children’s services, which in turn may put the child in a licensed foster home. Alternatively, the court may give custody of the child to a licensed child-placing agency for placement in a foster home. See Ga.Code Ann. § 15-11-34 (1985). The complaint does not allege that any "child-placing agency,” as defined under Georgia law, played a role in the selection of the foster home in this case or in the supervision of the plaintiff s stay in that home. See generally infra Part III (discussing Georgia foster care scheme). I thus assume that no child-placing agency was involved in the plaintiffs placement and that DFACS placed the plaintiff directly in the foster home.
. The complaint includes, for example, an allegation that the defendants "were grossly negligent and deliberately indifferent in failing to acquire or procure complete physical and medical data concerning the Plaintiff and to provide *811same to the foster parents to whom the custody, supervision, and care of the Plaintiff was given.” In light of other allegations in the complaint, this statement apparently is part of an alternate explanation for the plaintiffs injuries, i.e., that her injuries resulted from an unnecessary or excessive dose of medicine, not from physical abuse by her foster mother.
. Count III alleged that the defendants deprived the plaintiff of rights guaranteed by 42 U.S.C. §§ 601-615 (1982 & Supp. Ill 1985) (Social Security Act provisions governing aid to families with dependent children). I concur in the majority’s affirmance of the district court’s dismissal of count III, a claim which merits no further discussion.
. The district court dismissed count I because it concluded that the Georgia foster care scheme consisted of procedural guidelines and did not create a "legitimate claim of entitlement” under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The court dismissed count II on several grounds. First, it correctly noted that the eighth amendment is inapplicable outside the prison context. Second, it indicated that the plaintiff “has specifically not sought to recover” under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and Doe v. New York City Dep’t of Social Servs., 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Although the complaint is ambiguous, I believe it at least attempts to allege a Doe claim. The plaintiff argued the merits of this claim in her brief opposing the defendants’ motion to dismiss, and in her brief in support of her motion to alter the district court’s final judgment and for a rehearing. Third, the court believed that the defendants were immune from liability under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); the majority does not address the immunity question, which should be reconsidered by the district court on remand. Finally, the court believed that the complaint merely alleged administrative negligence insufficient to state a claim under section 1983.
As to count III, the district court properly dismissed the plaintiff’s claim in light of the rationale of Black v. Beame, 550 F.2d 815 (2d Cir.1977) (portions of Social Security Act governing aid to families with dependent children do not create a private cause of action).
. The eighth amendment's protections are of course made applicable to the states by the fourteenth amendment, see Estelle, 429 U.S. at 101, 97 S.Ct. at 289. The eighth amendment only applies to convicts in government custody and thus is obviously inapplicable here. I therefore treat count II as asserting a substantive right created by the “penumbras” of the Bill of Rights and made enforceable against the states by the due process clause of the fourteenth amendment. In this opinion, I assume for sake of discussion that the Bill of Rights created the substantive right that the plaintiff asserts in count II.
. Section 1983 provides a federal remedy against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (1982). Every section 1983 action requires a showing (1) that the defendant deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or federal law, and (2) that the defendant was acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Dollar v. Haralson County, 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). Except for count III, which is meritless, see supra notes 5 & 6, the plaintiff's complaint is based solely on an alleged deprivation of constitutional rights.
To establish that a state official’s nonfeasance has deprived an individual of a constitutional right, a section 1983 plaintiff must prove three elements. First, he must demonstrate the existence of a custodial or other special relationship in which the state has exposed the plaintiff to harm or danger. See Estelle, 429 U.S. at 103-04, 97 S.Ct. at 290-91; Jones v. Phyfer, 761 F.2d 642, 645-47 (11th Cir.1985); Jensen v. Conrad, 747 F.2d 185, 193 (4th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985); Doe, 649 F.2d at 141.
Second, the alleged nonfeasance must cause the deprivation of a constitutional right. See Martinez, 444 U.S. at 284-85, 100 S.Ct. at 559; Gilmere v. City of Atlanta, 774 F.2d 1495, 1504 (11th Cir.1985) (en banc) (plaintiff must prove the existence of an "affirmative link" between the alleged deprivation and the action or inaction of the state officials), cert. denied, — U.S. -, 106 S.Ct. 1970, 90 L.Ed.2d 654 and— U.S. -, 106 S.Ct. 1993, 90 L.Ed.2d 673 (1986); see also Doe, 649 F.2d at 141 ("[Tjhe omissions must have been a substantial factor leading to the denial of a constitutionally protected liberty or property interest.”) (citation omitted). This causation requirement is more stringent than, for example, the proximate cause requirement of tort law. See Martinez, 444 U.S. at 285, 100 S.Ct. at 559 ("Regardless of whether, as a matter of state tort law, the parole board could be said *813... to have proximately caused [the victim’s] death, we hold that, taking these particular allegations as true, appellees did not ‘deprive’ [the victim] of life within the meaning of the Fourteenth Amendment.’’) (citations omitted).
The third requirement for section 1983 liability is that the state officials must have displayed at least "deliberate indifference” to the plaintiffs situation. Estelle, 429 U.S. at 104-06, 97 S.Ct. 291-92; Doe, 649 F.2d at 141. This requirement is the focus of my dissent concerning the plaintiffs Doe claim.
. The Seventh Circuit’s opinion in Bowers did not indicate the specific constitutional source of the substantive right, if any, on which the deceased woman’s personal representative based his claim. The court appears to have treated the personal representative as having asserted a procedural due process right under the fourteenth amendment. The court stated, in this context, that
[t]here is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law. But there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution.
Bowers, 686 F.2d at 618 (citation omitted).
. The Supreme Court assumed, for purposes of its decision, that the parole officials “knew, or should have known, that the release of [the offender] created a clear and present danger that such an incident would occur. Their action is characterized [in the complaint] not only as negligent, but also as reckless, willful, wanton and malicious." Martinez, 444 U.S. at 280, 100 S.Ct. at 556 (footnote omitted).
. The original defendants in Doe were the New York City Department of Social Services and its former commissioners, the Catholic Home Bureau, and other institutional and individual defendants. All defendants reached a settlement with the plaintiffs, except the Catholic Home Bureau and its caseworkers. The district court dismissed the claims against the caseworkers for failure of service of process. Thus, the only remaining defendant before the court on appeal was the Catholic Home Bureau. See Doe, 649 F.2d at 140 n. 1.
. The Restatement effectively distinguishes intent, recklessness, and negligence as follows:
*816All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282.
Restatement (Second) of Torts § 8A comment b (1965).
. As noted supra note 1, the complaint is reproduced in the appendix to this opinion. I have italicized every operative fact alleged in the complaint, except the conclusory allegations, such as "arbitrary," “grossly negligent,” "deliberately indifferent,” "gross and culpable misfeasance, malfeasance, and nonfeasance,” and "arbitrarily, maliciously, in bad faith, in reckless disregard of and deliberate indifference to the best interests of the Plaintiff.” Nowhere in the alleged facts does the plaintiff aver what Berry would have discovered had he carried out his duties of investigation and supervision with due care.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. In fact, the complaint does not even allege that these defendants were aware that the plaintiff was being placed in the Lathren home.
. The statement in the text does not apply to one of the remaining defendants, Jo Ann Hoover, who is a DFACS caseworker. The plaintiff names her in the complaint not because she played a role in the allegedly inadequate investigatlon or supervision of the Lathren home, but rather because she was the caseworker who was present when the Gwinnett County Juvenile Court placed the plaintiff in the custody of DFACS and because she allegedly failed to consider placing the plaintiff in the custody of the plaintiffs aunt. The complaint contains no allegation that Hoover was responsible for investigating or supervising the Lathren home.
. The Supreme Court’s rejection of respondeat superior liability in Monell was founded in large part on the express language of section 1983 itself, see Monell, 436 U.S. at 691-92, 98 S.Ct. at *8182036-37, and thus applies with equal force to the liability of governmental entities (as in Monell) and of supervisory officials. See also Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976).
. The implausible nature of the plaintiffs Doe claim against Ledbetter and Johnson is highlighted by the Georgia statutes concerning DHR, to which the plaintiff refers in her complaint and in the briefs. See abo infra Part III. As commissioner of the DHR, Ledbetter is “the chief administrative officer of the department” and "shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.” Ga.Code Ann. § 49-2-1 (1986). The DHR handles a wide array of matters, including rehabilitation services; services for children, the handicapped, and the aged; public assistance; and correctional activities. See, e.g., id. §§ 49-2-3, 49-2-6, 49-2-7.
One division of the DHR is the Division of Family and Children Services, see generally id §§ 49-2-4, 49-4-3, which was headed by Johnson during the time relevant to this suit. The Division is responsible for social services and public assistance programs within the state, and it coordinates the activities of each county department of family and children services, including DFACS. The Georgia statutes provide only that the director of the Division shall direct and supervise the activities of the Division. See id. § 49-4-3(b).
. See generally Fed.R.Civ.P. 15(a) (party may amend pleadings “by leave of court ... and leave shall be freely given when justice so requires”); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597-98 (5th Cir.1981) (noting discretionary nature of decision to grant leave to amend and policy favoring permission when justice so requires).
. Of course, the Constitution, through the fourteenth amendment, also protects individual interests that are secured by the Bill of Rights itself — such as the fourth amendment right to be free from unreasonable searches and seizures and the eighth amendment proscription against cruel and unusual punishment — regardless of the content of state law. See Paul v. Davis, 424 U.S. 693, 710 n. 5, 96 S.Ct. 1155, 1165 n. 10, 47 L.Ed.2d 405 (1976).
. This provision states as follows:
Child-placing agencies, in placing children in foster family homes, shall safeguard the welfare of such children by thoroughly investigating each such home and the character and reputation of the persons residing therein and shall adequately supervise each home during the period of care. All children placed in foster family homes shall, as far as is practicable, be placed with persons of the same religious faith as the children themselves or the children’s parents.
Ga.Code Ann. § 49 — 5 — 12(/) (1986) (emphasis added).
My conclusion that this provision does not apply to the DHR or DFACS is supported by Georgia’s rules of statutory construction. See id. § 1-3-8 ("The state is not bound by the passage of a law unless it is named therein or unless the words of the law are so plain, clear, and unmistakable as to leave no doubt as to the intention of the General Assembly.”).
. The other regulation, subsection (3), makes no express reference to the entity upon which it places responsibility. Nonetheless, the DHR's placement of this regulation among a series of regulations describing the duties of child-placing agencies makes it plain that the regulation was meant to apply to those agencies. In any event, I believe that subsection (3) — even if it did apply to the DHR and DFACS — is too general to warrant a legitimate claim of entitlement under Roth.
. Of course, the majority also holds that the plaintiff has a Doe claim for violation of her substantive due process rights. That claim, however, is analytically distinct from the Roth claim.