Joseph WALTON, as next friend of Christopher Walton, a minor, Plaintiff-Appellee, v. Alma ALEXANDER, et al., Defendants, Alma Alexander, Defendant-Appellant.
No. 93-7313.
United States Court of Appeals, Fifth Circuit.
May 19, 1994.
Order Granting Rehearing En Banc July 1, 1994.
I totally agree with the majority that this case should be remanded so the district court can give further consideration to its sentence. Unlike the majority, on remand I would not foreclose the district court from considering in the upward departure calculus the prior bank robberies the defendant was charged with committing in Counts 1 and 2 of this indictment.
As the majority opinion reflects, the circuits are split over this question. The majority relies on the opinions of the Ninth and Third Circuits.1 These cases hold, as do the majority, that the defendant does not get the benefit of his plea bargain when the district court upwardly departs based on the dismissed counts of the indictment. I agree with the Second and Tenth Circuits2 that no reasonable basis exists for a defendant who enters a guilty plea to believe that the court cannot use the prior criminal conduct from the dismissed counts of the indictment to enhance his sentence. Ashburn‘s plea bargain had no language that could have led him to that conclusion. It provided that the government would dismiss two of the counts and the government fully complied with that obligation.
I also find nothing in the guidelines themselves that would lead a defendant to reasonably expect that the conduct underlying the dismissed counts could not be used to enhance his sentence. The general guideline authorizing departure,
In deciding whether to depart because of the defendant‘s criminal history, subsection (e) expressly authorizes the court to consider “prior similar adult criminal conduct not resulting in a criminal conviction.” Neither this guideline nor its commentary suggests that an exception exists for prior similar criminal conduct that is the subject of dismissed counts of an indictment.
Because nothing in the plea agreement or the guidelines prevents the district court from considering the criminal acts underlying the dismissed counts, I would not require the district judge to close his eyes to this conduct.
ORDER
(July 1, 1994)
BY THE COURT:
A majority of the Judges in active service, on the Court‘s own motion, having determined to have this case reheard en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
STANDARD OF REVIEW
Review of a district court‘s ruling on a motion for summary judgment is plenary. Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). Although review is de novo, the court of appeals applies the same standards as those that govern the district court‘s determination. Jackson v. Federal Deposit Ins. Corp., 981 F.2d 730, 732 (5th Cir.1992). Summary judgment must be granted if the court determines that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
J. Stephen Wright, Frascogna, Courtney, Wright, Biedenharn & Smith, Jackson, MS, for appellant.
Duncan L. Lott, Booneville, MS, for appellee.
Before POLITZ, Chief Judge, GARWOOD, Circuit Judge, and PARKER*, District Judge.
ROBERT M. PARKER, District Judge:
Plaintiff-appellee Joseph Walton filed this action on behalf of his son Christopher Walton (Walton), a student at the Mississippi School for the Deaf, against Defendant-appellant Dr. Alma Alexander (Alexander), former superintendent of the Mississippi School for the Deaf, alleging violations of
During the latter part of 1987, while he was a student at the Mississippi School for the Deaf (the School), Walton was sexually assaulted by a fellow student. This assault was reported to school officials, including Alexander, who filed a report with the Mississippi Department of Welfare. Pursuant to the School‘s policies implemented by Alexander, both the School and the Mississippi Department of Welfare investigated the assault. The School called its discipline committee to counsel both students and to contact each student‘s parents regarding the assault. Walton was also provided with medical treatment by the School‘s physician. Walton and his assailant were suspended from the School campus for three days, which Alexander believed to be the maximum punishment allowed under a consent decree from an unrelated class action settlement, Mattie T. v. Holiday1.
Upon return from suspension, Alexander contends both Walton and his assailant were given psychological consultation by the School‘s psychologist. On the other hand, Walton contends that after returning to the School he did not receive any counseling or instructions as to how to protect himself from further assault. Alexander recalls that in addition to counseling, the two students were placed in separate dormitories. Walton alleges, however, that Alexander took insufficient measures to shield him from the assailant after returning from suspension. The law is clear that the court cannot consider mere general allegations of fact in response to a motion for summary judgment. Therefore, we find Alexander‘s efforts to separate Walton from his assailant to be undisputed. By the fall of 1988, budgetary constraints imposed by the State of Mississippi forced the School to close all but one male dormitory. Consequently, Walton and his assailant were placed in the same dormitory. Walton was assigned a special dormitory room with a private bath, which was intended to keep Walton out of the bathrooms with other male students. Walton contends that the assailant was allowed unrestricted access to him in 1988, and he was again sexually assaulted by the same student. However, Alexander was not informed of the second assault. Thereafter, Walton filed the present action under
QUALIFIED IMMUNITY
Appellant contends that the district court erred in denying her summary judgment because she was entitled to qualified immunity as a matter of law.
State officials are protected by qualified immunity for alleged constitutional torts if their conduct does not violate clearly established law effective at the time of the alleged tort. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Therefore, the first step in examining a defendant‘s claim of qualified immunity is to determine whether the plaintiff has “allege[d] the violation of a clearly established constitutional right.” Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). For a constitutional right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987).
Walton‘s amended complaint alleges that he was deprived of his “right to be free from sexual assault while attending school at the Mississippi School For the Deaf” in violation of his substantive due process right to bodily integrity. A substantive due process right, as opposed to a procedural due process right, is one either listed in the Bill of Rights or one held to be so fundamental that a state may not take it away. See generally, Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
Although the Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law,” nothing in the language of the clause
However, in certain limited circumstances, when a “special relationship” exists between a state official and a particular individual, the state official is imposed with a duty to protect that particular individual, thereby creating a constitutional right to care and safety. See generally Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that the State is required to provide adequate medical care to incarcerated prisoners). For example, in Youngberg v. Romeo, supra, the U.S. Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires a state, through its officials, to provide for the reasonable safety and care of involuntarily committed mental patients. Id. at 314-325, 102 S.Ct. at 2457-2463. Estelle and Youngberg stand for the proposition that when a state holds a person against his will, the Constitution imposes a duty upon the state and its officials to assume the responsibility for that person‘s safety and well-being. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 200, 109 S.Ct. at 1005. This duty arises from the limitations that have been imposed on the individual‘s freedom to act on his own behalf. Id. at 200, 109 S.Ct. at 1006; see also Estelle v. Gamble, supra at 103, 97 S.Ct. at 290.3 These cases leave open “the possibility that the duty owed by a state to prisoners and the institutionalized might also be owed to other categories of persons in custody by means of ‘similar restraints of personal liberty.‘” D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1370 (3d Cir.1992) (en banc), cert. denied, --- U.S. ---, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993) (quoting DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 200, 109 S.Ct. at 1006).
Appellant contends that no “special relationship” exists between herself and Walton because his voluntary enrollment at the School does not place him within a category of persons recognized by law in 1987 and 1988 as involuntarily committed to state custody. Appellant primarily relies on the opinion in D.R. By L.R. v. Middle Bucks Area Vo. Tech. School, supra, in which the Third Circuit held that a school official‘s authority over a special education day student does not create the type of physical custody necessary to establish a special relationship between the official and the student due to the fact that both the student and her parents retain substantial freedom to act. D.R. by L.R., 972 F.2d at 1373. The Court reasoned that because the students were able to return home at the end of the school day, their parents remained their primary caretakers. Id. The Court noted, however, that in those cases in which a duty was imposed, the state
There are several factors that exist in this residential special education school which distinguish this case from those cases involving students who attend day classes, as in D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, supra. For example, the School had twenty-four (24) hour custody of Walton, a handicapped child who lacks the basic communications skills that a normal child would possess. Because its students are handicapped, the School has to enforce strict rules that impact on what the students can and cannot do. Obviously, Walton was not free to leave when he resided at the School. In addition, the economic realities of most Mississippi families are such that there is no other viable option to them if they want their handicapped children to receive an education. The residential special education program provided by the State of Mississippi had a significant custodial component wherein Walton was dependent on the School for his basic needs and lost a substantial measure of his freedom to act. Therefore, Walton falls within a category of persons in custody by means of “similar restraints of personal liberty,” thereby establishing the existence of a “special relationship” between Alexander and Walton sufficiently clear by law in 1987 and 1988 to impose Alexander with a duty to provide Walton with reasonable conditions of safety. No reasonable superintendent in 1987 could have assumed she could fail to take reasonable steps to protect the bodily integrity of one of her “special relationship” students.
Having established that Walton‘s constitutional right to bodily integrity and Alexander‘s duty with respect to that right were clearly established in 1987, when the first incident of sexual molestation occurred, we must determine whether, on the record before us, Alexander‘s failure to act or actions amounted to “deliberate indifference.” In Doe v. Taylor Ind. School Dist.4, this Court held that a school official‘s liability arises only at the point when the student shows that the official, by action or inaction, demonstrates a deliberate indifference toward his or her constitutional rights. Taylor, 15 F.3d at 454. The standard to be applied is not one of a guarantor or insurer of Walton‘s safety, but whether Alexander‘s actions provided reasonable conditions of safety, so as not to rise to a level of deliberate indifference. Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745, 761 (5th Cir.1993); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.1988) (rehearing denied) (holding that in order to violate a constitutional right, a defendant must act either knowingly or with deliberate, reckless indifference).
In Taylor, this Court adopted a test for determining personal liability of officials in physical sexual abuse cases. Although Taylor involved the physical sexual abuse of a student by an employee of the school, we can apply the same test to a “special relationship” student who is sexually molested or abused by a third party, which in this case is another student. A supervisory school official can be held personally liable for the violation of a “special relationship” student‘s constitutional right to bodily integrity in sexual molestation cases if the student establishes that:
- the defendant learned of facts or a pattern of sexual molestation or abuse by a third party pointing plainly toward the conclusion that the third party was sexually molesting or abusing the “special relationship” student; and
- the defendant demonstrated deliberate indifference toward the constitutional rights of the “special relationship” student by failing to take action that was obviously necessary to prevent or stop the abuse; and
- such failure caused a constitutional injury to the “special relationship” student.
The evidence submitted by the plaintiff in this case clearly establishes that soon after
CONCLUSION
The District Court‘s Order denying the Motion for Summary Judgment filed by superintendent Alexander is REVERSED.
GARWOOD, Circuit Judge, concurring specially:
I agree with the judgment of reversal, but am unable to join in the majority opinion.
This suit under
I agree with the majority‘s obviously correct holding that the absence of evidence sufficient to sustain a finding that appellant was deliberately indifferent to Walton‘s safety entitles her to summary judgment. And that is plainly true whether or not the state had a DeShaney “special relationship” to Walton while he attended its School for the Deaf. This case could, and should, have easily and simply been disposed of on that basis alone. However, the majority, quite unnecessarily, goes further and purports to hold that Walton was in a DeShaney “special relationship” and that this was clearly established constitutional law in 1988. These rulings are, as a practical matter, largely insulated from further challenge because neither appellant nor Walton has any incentive to contest them.
I emphatically disagree both with the wholly unnecessary reaching of such constitutional issues and with the majority‘s resolution of them.
As to the former, it is settled that federal courts have a “strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.” County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). This “responsibility to avoid unnecessary constitutional adjudication” is “a fundamental rule of judicial restraint.” Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 (1984).1 All this, of course, ap-
As the majority has spoken—albeit unnecessarily—to whether this case presents a DeShaney special relationship, I feel compelled to likewise address that issue.
The key to the DeShaney “special relationship” is that it arises “when the State takes a person into its custody and holds him there against his will” and thus “by the affirmative exercise of its power so restrains an individual‘s liberty that it renders him unable to care for himself.” Id. 489 U.S. at 200, 109 S.Ct. at 1005. That is not the situation here. The State of Mississippi did not force Walton to attend the School for the Deaf or hold him there against his will. There is no evidence or allegation that attendance at the School for the Deaf is other than voluntary (or even that boarding there is something that the School requires of all who wish to enroll as students). Indeed, the record reflects that at all relevant times Walton had passed the age at which Mississippi required attendance at any school.2
The majority infers that the School for the Deaf was the only educational opportunity practically available to Walton. That reasoning goes far beyond the DeShaney rationale, which is focused on compulsion “by the affirmative exercise of” state “power.” Indeed, in this respect the majority seems to suggest that the state‘s failure to act—its supposed failure to provide other educational opportunities for the deaf—furnishes the required compulsion. But that is contrary to the very heart of DeShaney‘s rationale. Id. at 196, 109 S.Ct. at 1003.3
“the Mississippi School for the Deaf was not the only public deaf education facility in the State of Mississippi. In fact, handicapped educational facilities were available throughout the state, including deaf education facilities. The local school districts were obligated to provide handicapped educational facilities, including deaf educational facilities, so long as at least five handicapped students could be found in their district. Consequently, many such facilities were spread around the state.
In addition, there were private deaf education institutions in the State of Mississippi.
Indeed, students at the Mississippi School for the Deaf were there voluntarily. They and their parents were free to place them in either public or private educational facilities throughout the state and they were not obligated to attend the Mississippi School for the Deaf. They were free to enroll at the Mississippi School for the Deaf and they could withdraw at their option.”
Mississippi law provides for special education programs in local schools for children with defective hearing, as well as for financial assistance for this purpose to such students attending private schools. See
The majority looks to DeShaney‘s footnote 9 and the foster home case cited in the majority‘s footnote 3. Again, however, the majority fails to observe the crucial distinguishing factor, made plain by the DeShaney footnote, namely state coercion: “Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.” Id. 489 U.S. at 201, 109 S.Ct. at 1006, n. 9. Here, Walton attended the School for the Deaf voluntarily and/or by the choice of his parents. Similarly, the cases cited in the majority‘s note 3 are all ones in which the state, by the affirmative exercise of its powers, has taken the child from its parents and involuntarily placed it in state custody and in the setting in which the injury arose.4
Post-DeShaney, there are no appellate decisions of which I am aware that have found a “special relationship” where the State is not holding the plaintiff “against his will.” Id. 489 U.S. at 198, 109 S.Ct. at 1005. Even compulsory school attendance laws—not present here—have not sufficed for this purpose. See Maldonado v. Josey, 975 F.2d 727, 730-733 (10th Cir.1992), cert. denied, --- U.S. ---, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1371-72 (3d Cir.1992) (en banc), cert. denied, --- U.S. ---, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); J.O. v. Alton Community Unit Sch. Dist. II, 909 F.2d 267, 272 (7th Cir.1990). Pre-DeShaney, there are a few appellate decisions—none by this Court—indicating that those “voluntarily committed” to a state mental hospital or facility for the retarded may stand in what amounts to a “special relationship” to the state institution. See Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978); Society for Good Will To Retarded Children v. Cuomo, 737 F.2d 1239, 1244 (2d Cir.1984). It is doubtful that these cases survive DeShaney as they are directly contrary to its held “against his will” rationale. Moreover, they seem to rely on the idea that by accepting custody of the individual the state assumed the duty to take affirmative action to protect him from fellow inmates.7 This, however, runs counter to DeShaney‘s rejection of the analogous contention made there, viz:
“It may well be that, by voluntarily undertaking to protect Joshua against a dan-
Moreover, even if Goodman or Society for Good Will survive DeShaney, they would not control the result here. There is no reason to believe that Walton‘s status at the School for the Deaf was comparable, in terms of his ability to act for himself and his general freedom, to that of a patient in a mental hospital or a retarded child in a state home. There is nothing to indicate that Walton was not competent mentally and, except for his deafness, physically. At the time of the first incident he was sixteen years old and at the time of the second—the one as to which recovery is sought—he was seventeen. The age of consent for sexual contact is generally not greater than sixteen. See
The majority‘s finding of a “special relationship” here is without support in reason or authority and is contrary to DeShaney.
Not only does the majority unjustifiably decree a constitutional “special relationship” here, but it goes on to say that this was “clearly established law” in 1988. In other words, the majority holds that any reasonable superintendent of the Mississippi School for the Deaf must have realized in 1988 that an institution of that kind, at which attendance was voluntary, stood in the same relationship to its seventeen-year-old boarding students, who were past compulsory school age, were mentally and physically competent apart from their deafness, and remained in their parents’ legal custody, as did a state prison or state mental hospital to its involuntary convicted or incompetent inmates. This must have been realized despite the total absence of any decision of the United States Supreme Court, or of this Court, or of any district court in this Circuit, tending to support such an analogy, with no case from this or any other circuit addressing the deaf (or blind or competent but physically ill, etc.), with numerous cases holding voluntary custody insufficient, and with the few pre-DeShaney cases from other circuits suggesting such a relationship in the case of voluntary commitment dealing only with those so mentally ill or retarded as to be essentially helpless. The majority may not approve of the “clearly established law” requirement, or the way it was interpreted in Anderson, but surely they are bound by it, and may not drain it of all meaning and content. And that, surely, they have done here.
For these reasons, though I agree that there was no showing that appellant was deliberately indifferent to Walton‘s safety and that reversal is required, I am unable to join the majority opinion. I hence concur in the result.
ORDER
(July 1, 1994)
BY THE COURT:
A majority of the Judges in active service, on the Court‘s own motion, having determined to have this case reheard en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.