Bruce James POWELL, Sr., individually as Natural Father of Bruce James Powell, Jr., and as Administrator of the Estate of Bruce James Powell, Jr., Plaintiff-Appellant, v. GEORGIA DEPARTMENT OF HUMAN RESOURCES, James G. Ledbetter, individually and as the Commissioner of the Department of Human Resources of the State of Georgia, Doug Greenwell, individually and as Director of the Department of Human Resources of the State of Georgia Division of Family and Children Services, Pat Fitzgerald, individually and as the Director of the County Department of Family and Children Services, Mignon Rosen, individually and as an employee of the Richmond County Department of Family and Children Services, Jane Doe, a DFCS Caseworker known and identified with the initials M.D.S., individually and as an employee of the Richmond County Department of Family and Children Services, Defendants-Appellees.
No. 96-8359.
United States Court of Appeals, Eleventh Circuit.
May 29, 1997.
114 F.3d 1074
Carol A. Cosgrove, Atlanta, GA, for Defendants-Appellees.
ANDERSON, Circuit Judge:
Appellant Bruce James Powell, Sr., appeals the district court‘s order dismissing his complaint for failure to state a claim upon which relief can be granted. We affirm.
I. FACTS1 AND PROCEDURAL HISTORY
This case involves the tragic death of Powell‘s infant son. Powell‘s son, Bruce James Powell, Jr., was born on April 26, 1993. Ap-
On August 29, 1993, the baby‘s maternal grandmother, Janice Newman, took the baby to the home of the baby‘s maternal great aunt, Jeannette Odum. Odum noticed bruises on the baby, became concerned, and took the baby to Powell‘s workplace to show him the baby‘s bruises. At Powell‘s request, Odum called the Richmond County Department of Family and Children Services (“DFCS“) and reported that she suspected the baby was being abused.
Appellee Mignon Rosen, a DFCS caseworker, met Powell and Odum at Powell‘s workplace and examined the baby. Rosen noticed that the baby had a scrape across his forehead, discoloration over his left ear with slight swelling, broken blood vessels in his right ear, and three bruises on the back of his thigh. She noted these injuries in her initial report. Rosen was informed that the baby‘s mother was very young and immature and that Loren, the baby‘s stepfather, was a heavy drinker who handled the baby roughly.
Rosen contacted her supervisor at DFCS, who advised Rosen that a doctor should examine the baby. Rosen did not follow this advice and did not have the baby examined by a doctor. Rosen gave Odum protective custody of the baby and promised to speak with the mother and Loren the next day about the baby‘s situation.
Later that same night, Rosen received a telephone call from Odum. Odum reported that Newman was going to call the sheriff‘s department and obtain custody of the baby. Rosen told Odum that the baby could be taken into protective custody.
After her conversation with Odum, Rosen called “Ask a Nurse” to inquire about the possible causes of the baby‘s injuries. Rosen was informed that there was no medical condition that would cause the observed injuries. Rosen then called an emergency shelter and was told that the shelter could house the baby for the night. Rosen, however, took no action to place the baby in the shelter.
The mother and Newman arrived later that night at Odum‘s home with a deputy sheriff and demanded the return of the baby. After learning of Rosen‘s involvement with the baby‘s case, the deputy called Rosen to advise her of the situation. Rosen, acting on the instructions of her supervisor, went to Odum‘s home. Discussions occurred in which the mother indicated that Loren had explained the baby‘s injuries by saying that the baby had fallen off the bed. Rosen allowed the baby to be released into Newman‘s custody, although protective custody at the emergency shelter was available. Rosen instructed Newman that Newman should not return the baby to the mother‘s custody.
The next day, August 30, 1993, the baby‘s case was assigned to appellee Jane Doe, an unknown DFCS caseworker with the initials M.D.S. No action was taken that day on the baby‘s case. On August 31, 1993, Jane Doe called Newman, who told Jane Doe that the baby had returned to the mother‘s home, despite Rosen‘s instructions to the contrary. During this conversation, Jane Doe learned that the mother and Loren lived with Loren‘s sister and her boyfriend in an environment of excessive drinking. Newman, in another telephone conversation with Jane Doe later that same day, also told Jane Doe that she believed that someone who lived in the baby‘s home had dropped the baby. The mother and Loren failed to meet with Jane Doe that day as scheduled to discuss the baby‘s care.
Jane Doe took no further action on the baby‘s case. She made an entry in the baby‘s file on September 16, 1993, stating: “Another intake. Due to excessive # of intakes and [caseworker] trying to get case load in order to be out on [leave] starting 9/17/93, [caseworker] unable to make another contact.”
The baby, who was not yet five months old, died that day. The official cause of the baby‘s death was “blunt force trauma to the head.” For over two weeks prior to his death, the baby had been severely abused and neglected. The baby‘s injuries included innercranial bleeding, retinal bleeding, abra-
Powell sued the appellees under
The only issue before us in this appeal is whether Powell has stated a claim against the individual appellees in their individual capacities. Powell asserts only two claims on appeal: a substantive due process claim and a procedural due process claim.3
II. ANALYSIS
Before analyzing Powell‘s claims, we pause to note that the circumstances alleged by Powell are troubling and tragic. However, Powell has elected to sue in federal court and thus has undertaken to prove more than merely wrongful acts on the part of the appellees or a constitutional violation; rather, in order to surmount the appellees’ qualified immunity shield, Powell must prove that the appellees violated clearly established constitutional rights of which a reasonable person would have known.
Qualified immunity shields government officials performing discretionary duties from civil litigation and liability if their conduct violates no “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We readily conclude in this case that the appellees were performing discretionary duties,4 and thus the burden shifts to Powell to demonstrate that the appellees violated clearly established constitutional rights of which a reasonable person would have known. McCoy v. Webster, 47 F.3d 404, 407 (11th Cir.1995). As the Supreme Court most recently stated in United States v. Lanier, “[Q]ualified immunity seeks to ensure that defendants ‘reasonably can anticipate when their conduct may give rise to liability’ by attaching liability only if ‘[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.‘” --- U.S. ----, ----, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) (alteration in original) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984), and Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), respectively). When analyzing a claim of qualified immunity in a case which is in a
We turn first to Powell‘s substantive due process claim and then to his procedural due process claim.
A. Substantive Due Process Claim
Powell argues that the appellees violated his son‘s substantive due process rights by
In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), Joshua DeShaney and his mother brought a
The relevant Eleventh Circuit case is Wooten v. Campbell, 49 F.3d 696 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995). In Wooten, after a child was abducted by his father, the state agency comparable to the one involved in this case was awarded legal custody of the child and given the authority to place the child. With the consent of the child‘s parents, the agency placed the child with the mother and allowed unsupervised visits by the father. During an unsupervised visit, the father again abducted the child, killed the child, and then committed suicide. The mother brought a
Comparing the facts of the instant case to the facts in DeShaney, it is true that caseworker Jane Doe gave the baby‘s case very little attention after taking over responsibility from Rosen on August 30, 1993. She merely had two telephone conversations with Newman, in whose custody Rosen had left the baby. During one of these conversations, Jane Doe learned that Newman had permitted the mother to take the baby back to the mother‘s home, the environment in which it was suspected that previous child abuse might have occurred. Jane Doe apparently did schedule a meeting with the mother and her husband, Loren, for that day, but they failed to appear at the meeting. Jane Doe took no further action.
While we do not condone Jane Doe‘s neglect, we nevertheless readily conclude that it is indistinguishable from the caseworker‘s failure to act in DeShaney. Indeed, the danger signals in DeShaney (including one hospitalization and two emergency room visits, all indicating suspected child abuse) were more pronounced than in the instant case. In an attempt to distinguish DeShaney, Powell points to the fact that the Supreme Court noted that the State in that case did not “do anything to render [the abused child] any more vulnerable” to abuse. DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. Powell argues that a plaintiff can make out a viable substantive due process claim by proving that the officials created or increased the danger to the child. Powell contends that the increase in danger occurred in the instant case on August 29, 1993, when caseworker Rosen permitted the baby to be removed from the safe haven of Odum‘s home.6 Recalling the facts, that night Newman and the mother, accompanied by a deputy sheriff, went to Odum‘s home and demanded that the baby be returned. The deputy telephoned Rosen, and Rosen actually went to Odum‘s home. After discussions in which the mother denied child abuse and related the explanation that the baby had fallen off the bed, Rosen allowed the baby to be released into Newman‘s custody at Newman‘s home. By allowing the baby to leave the safe haven of Odum‘s home, Powell argues that caseworker Rosen affirmatively increased the danger to which the baby was exposed.
We can assume arguendo, without deciding, that in some circumstances, a plaintiff might be able to establish a substantive due process violation upon proof that a state actor created or increased the danger to a child or rendered a child more vulnerable to abuse.7 However, both DeShaney and Wooten indicate that Rosen‘s allowing the baby to leave the safety of Odum‘s home cannot be the basis for a substantive due process claim in this case. The language in DeShaney upon which Powell relies (i.e., about rendering the child more vulnerable) is followed immediately by language rejecting an argument precisely like Powell‘s:
While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any
more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father‘s custody, it placed him in no worse position than that in which he would have been had it not acted at all....
DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006 (emphasis added). Although in this
We recognize that the facts of DeShaney and Wooten are not identical to the instant facts. In DeShaney, the agency‘s decision to permit Joshua to return to his home environment was apparently in the nature of a recommendation to the juvenile court, which followed the agency‘s recommendation. In Wooten, the similar decision was with the consent of the parents. However, caseworker Rosen‘s decision clearly constituted an exercise of judgment very similar to that of the officials in DeShaney and Wooten. Moreover, as in Wooten, Powell and Odum “had access to the courts if [they were] displeased” with Rosen‘s decision. Wooten, 49 F.3d at 700.
Because the appellees in the instant case claim qualified immunity, we need only decide that the appellees violated no clearly established constitutional rights.8 We readily conclude that the appellees’ actions are sufficiently similar to the actions of the comparable officials in DeShaney and Wooten that it cannot be said that a reasonable official would have understood that the actions at issue in this case violated constitutional rights. Accordingly, we hold that the appellees are shielded by qualified immunity, and we affirm as to this claim.
B. Procedural Due Process Claim
Powell alleges that the appellees’ failure to follow the Richmond County Child Abuse
Powell argues that Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), shows that the appellees violated his son‘s clearly established procedural due process rights. In Zinermon, the plaintiff, a former state mental hospital patient, alleged that the State violated his due process rights by failing to have in place appropriate precommitment safeguards ensuring that state mental hospital patients are in fact competent to sign forms authorizing their voluntary admission and treatment. The Supreme Court held that the plaintiff stated a procedural due process claim because the deprivation of the plaintiff‘s liberty was predictable and predeprivation process was feasible. Id. at 136, 110 S.Ct. at 989. Powell argues that Zinermon applies to this case. He asserts that the State should have provided predeprivation process in this case because the State should have anticipated that caseworkers might be so overloaded with cases that they would neglect their duties. He further contends that the value of predeprivation safeguards is high in child abuse cases and the State is in the position to provide predeprivation process.
The appellees, however, argue that Powell cannot state a claim for a violation of his son‘s procedural due process rights.10 The appellees assert that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), control this case. In Parratt and Hudson, the Supreme Court held that there is no procedural due process violation when the act complained of is the random and unauthorized act of a state employee for which adequate postdeprivation process is available. Hudson, 468 U.S. at 533, 104 S.Ct. at 3203-04; Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. The Parratt-Hudson reasoning applies when the official action complained of is of a type that the State cannot reasonably foresee and for which predeprivation process thus is not feasible. Hudson, 468 U.S. at 533, 104 S.Ct. at 3203; Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. See also Zinermon, 494 U.S. at 128-30, 110 S.Ct. at 985-86. The appellees argue that in this case, the State could not reasonably foresee that the caseworkers would fail to follow the Protocol. The appel-
The crux of Powell‘s claim is his contention that predeprivation process was feasible in this case and was not provided, thus violating the baby‘s procedural due process rights. In Zinermon, the Court found that a predeprivation procedure was feasible and would avert the problem of incompetent people signing voluntary admission forms before receiving treatment for mental illness. The Court explained that “had the State limited and guided petitioners’ power to admit patients, the deprivation might have been averted.” Zinermon, 494 U.S. at 137, 110 S.Ct. at 989. The Court indicated that the State could provide such guidance by having “a specific requirement that petitioners determine whether a patient is competent to consent to voluntary admission.” Id. at 135-36, 110 S.Ct. at 988-89.12
By contrast, in the instant case, the Protocol already provides predeprivation procedures for caseworkers to follow. There is no other feasible predeprivation procedure that is readily apparent to us. It is clear from the Protocol that a caseworker must make a judgment decision “[i]n determining the appropriate action to be taken.” Appellees’ Brief at 13 (quoting the Protocol). The caseworker must make an initial assessment and must determine on an ongoing basis whether or not there is “reasonable cause to believe that abuse has occurred.” Compl. at 12 (quoting the Protocol). We readily conclude that it would not be feasible to require a hearing before every such judgment decision by a caseworker. Indeed, the Protocol established by the appellees in the instant case would seem to be precisely the kind of procedure contemplated in Zinermon because it guides caseworkers’ decision-making. We do not understand Powell to be challenging the adequacy of the Protocol itself; rather, he argues that caseworkers Rosen and Jane Doe did not follow the Protocol.
The only specific procedure suggested by Powell is that the officials should have provided more staffing, supervision, and training so that neglect of duty would not result from excessive caseloads.13 However, we know of no case which has held that the Constitution requires a government to provide more personnel or more training in order to reduce the risk of random and unauthorized acts of neglect of duty. The Parratt decision suggests just the opposite. The deprivation there, as here, resulted from a failure to follow applicable procedures. Parratt, 451 U.S. at 531, 543, 101 S.Ct. at 1910, 1917. Although not mentioned by the Court, additional money, personnel, or training might well have averted the prison officials’ negligence in failing to follow the policies and losing plaintiff‘s hobby kit.
Because the appellees have invoked the defense of qualified immunity, Powell must prove a violation of a clearly established constitutional right. Under the circumstances of this case, we cannot conclude that there was a clearly established constitutional right to some additional predeprivation procedure in
III. CONCLUSION
We are not without sympathy for Powell‘s situation. His son‘s death was an unquestionably cruel loss. For the foregoing reasons, however, we conclude that Powell has failed to surmount the appellees’ qualified immunity shield with respect to either of his claims.14
AFFIRMED.
ANDERSON
Circuit Judge
Notes
When a report of child abuse/neglect is received by DFCS, the case shall be assigned to a caseworker to make an initial assessment/investigation (including whether the case is that of a caretaker or noncaretaker). In determining the appropriate action to be taken by DFCS, the caseworker shall go to where the child is located to conduct an interview with the child to establish that the child is in fact alleging abuse/neglect.
Appellees’ Brief at 13. The Protocol, as quoted in Powell‘s complaint, further provides:
If there is reasonable cause to believe that abuse has occurred, DFCS shall take the following action or actions:
- Seek protective custody of the child. (See Juvenile Court Section).
- If appropriate, allow the child to remain with its family and provide ongoing monitoring and treatment.
- Immediately notify the appropriate law enforcement agency pursuant to
O.C.G.A. § 19-7-5 . (See Law Enforcement Section). - File any and all Juvenile Court proceedings necessary for the protection of the child.
- If there is reasonable cause to believe abuse has occurred, DFCS will seek a physical examination in those instances where a medical test will be needed to substantiate the same, or will photograph evidence of physical abuse where a medical examination is not necessary. Any physical examination will be conducted as expeditiously as possible.
... [I]f a report of child abuse ... is made to DFCS ... and it has reasonable cause to believe such report is true, then the agency shall immediately notify the appropriate authority or District Attorney and forward the proper reports within a timely manner.
... Every abused child should have a physical examination as soon as possible following disclosure of the abuse. Typically, the child will be examined at one of the local hospitals according to accepted hospital procedure.
Compl. at 12-13.