United States Court of Appeals,
Eleventh Circuit.
No. 93-8269.
Tremain SPIVEY, Plaintiff,
Shirley Spivey, as next friend for Tremain Spivey, Plaintiff-
Appellant,
v.
Michael ELLIOTT; Lynn Crothers; Wilma Davis, Carolyn Mitchell,
Defendants-Appellees.
Jan. 11, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:90-cv-325-HLM), Harold L. Murphy,
Judge.
ON SUA SPONTE RECONSIDERATION
Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit
Judge.
RONEY, Senior Circuit Judge:
In this 42 U.S.C.A. § 1983 action against two officials of the
state-operated residential school for the hearing impaired where an
eight-year-old plaintiff was sexually assaulted by a
thirteen-year-old fellow classmate, we affirmed a summary judgment
in favor of the defendants on the ground of qualified immunity.
Spivey v. Elliott, 29 F.3d 1522 (11th Cir.1994). The panel
majority first determined that a special relationship existed
between the student and the state that imposed a constitutional
duty on the state to protect the student from sexual assault by a
classmate, but then determined that the right was not clearly
established at the time. Judge Cox dissented on the ground that
the complaint did not allege a violation of a constitutional right.
After the divided panel issued that opinion, although no
petition for rehearing or suggestion of en banc was filed, the
mandate was withheld. Some judges of this Court questioned the
propriety of making a decision as to whether the violation of a
constitutional right had been alleged, suggesting that it was only
necessary to determine that there was no "clearly established"
constitutional right alleged. Consequently, this panel decidedsua
sponte to readdress its prior opinion.
In our opinion, the panel majority had followed the perceived
teachings of Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114
L.Ed.2d 277 (1991), in which the Supreme Court indicated that faced
with this situation a court should first determine whether there is
a statutory or constitutional right implicated, and if so, whether
that right was clearly established at the time. Upon
reconsideration on the suggestion of other members of this Court,
we now think it enough to decide that there was no clearly
established constitutional right allegedly violated by the
defendants.
The defendants are entitled to qualified immunity if it is
determined that the legal precedents do not reveal that the
defendants violated "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).
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. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 3039, 97 L.Ed.2d 523 (1987).
This exercise is probably of more interest to the bench and
bar for future cases than to the parties in this particular case.
Once there has been a determination that there is no "clearly
established" right, the parties can accomplish little in pursuing
the question of whether there is a right at all. The same parties
will win and the same parties will lose regardless of the court's
decision on that point. Those who differ with the decision of the
court could write it off as dictum. No judge has suggested to this
panel that the decision of the district court should not be
affirmed.
With the case in this posture, it would be an expensive
imposition on the parties to put this case en banc to resolve
whether a constitutional right has been implicated, or to determine
a different method of analysis than that used by the panel
majority, points as to which Judge Cox differed in his dissent. In
any event, a determination of whether a right is clearly
established will always require no more, and will often require
less, analysis than is required to decide whether the allegedly
violated constitutional right actually exists in the first place.
Moreover, deciding the case on the "clear establishment" element
comports with the well-established principle of disfavoring
reaching substantive constitutional issues if a case can be
resolved on other grounds.
This is not to say that should a court determine that it is
appropriate to first decide whether there has been a constitutional
right alleged, it may not do so. But in the interest of efficiency
and collegiality on this Court, where there are differing views as
to the substantive right, this panel has chosen to withdraw all of
its prior opinion which relates to whether the complaint alleges a
constitutional right so that the opinion will serve as no precedent
on that issue. The opinion is fully reaffirmed, however, on the
holding that there was no constitutional duty clearly established
at the time of the sexual assault, so the defendant officials were
properly entitled to qualified immunity.
AFFIRMED.