Yasmin SANTAMORENA, individually and as next friend of H.S., a minor, Plaintiff-Appellant, v. GEORGIA MILITARY COLLEGE, Peter J. Boylan, General, et al., Defendants-Appellees.
No. 97-9214.
United States Court of Appeals, Eleventh Circuit.
July 31, 1998.
Because all of the claims in the district court have not been finally decided, FCC‘s appeal must fit within an exception to the finality rule for us to have jurisdiction. FCC claims that the appeal falls within the Jetco exception. See Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). Jetco allows an exception to the finality rule when “a series of court orders, considered together, terminate[d] the litigation as effectively as a formal order.” Mesa, 61 F.3d at 21. In Jetco, the plaintiff appealed an order dismissing his claim against one of three defendants, but before the appeal was heard, his claims against the other defendants were dismissed with prejudice. See Jetco Elec. Indus., 473 F.2d at 1231.
Again, Mesa (and its ancestor Ryan) guides our resolution of this argument. Mesa and Ryan rejected the use of the Jetco exception because, in Jetco, the plaintiff had no claims left if his appeal failed. Mesa, 61 F.3d at 22; see also Jetco Elec. Indus., 473 F.2d at 1230-31. In Mesa and Ryan, however, the plaintiff‘s claims were dismissed without prejudice. See Mesa, 61 F.3d at 21; Ryan, 577 F.2d at 302. If the appeal failed in Mesa or Ryan, therefore, the plaintiff could re-file other claims. For this reason, the Mesa and Ryan courts rejected the use of the Jetco exception. See Mesa, 61 F.3d at 22; Ryan, 577 F.2d at 302. FCC, if its appeal fails, still has a claim for actual damages available because the district court dismissed FCC‘s claim without prejudice. As in Mesa and Ryan, this remaining claim precludes the use of the Jetco exception.
We are without jurisdiction to hear this appeal.
APPEAL DISMISSED.
Carol Atha Cosgrove, Atlanta, GA, for Defendants-Appellees.
Before EDMONDSON and BIRCH, Circuit Judges, and LAWSON*, District Judge.
EDMONDSON, Circuit Judge:
Plaintiff appeals the district court‘s dismissal of her claim—a claim brought on behalf of Plaintiff and Plaintiff‘s minor daughter—that Defendants, Georgia Military College (“GMC“) and several of its officials, violated Plaintiff‘s and her daughter‘s substantive due process rights. Because we agree with the district court that the individual Defendants are entitled to qualified immunity, we affirm.1
GMC is a state-run institution that serves as both a high school and a college. Plaintiff‘s daughter, H.S., was a 13-year-old high school freshman enrolled at GMC.2 According to GMC policy, high school freshmen were required to stay on campus and to live in the barracks for the first four weeks of school. During this period, only the high school was in session; but GMC‘s college football team was on campus for pre-season training.
Before enrolling H.S. at GMC, H.S.‘s parents inquired about security on the campus. In response to these concerns, several school officials represented to H.S.‘s parents that H.S. would be adequately protected. School officials specifically told H.S.‘s parents these things: that H.S. would be housed in a room near a school official‘s—Defendant Major Banks‘s—living quarters; that an adult supervisor would be assigned to H.S.‘s barracks and available at all times; that a piece of sliding cardboard would be placed on the inside of the observation window in the door to H.S.‘s room so that she could observe visitors; that security personnel would be present in the barracks to monitor visitors; and that a nightly bed check would be conducted to ensure that all students were in their rooms by 10:00 p.m.
About one week after H.S. arrived at GMC, she and her roommate (the other female high school student at GMC) were moved to a room in the opposite wing from the room in which the two were originally placed. No other school personnel or students lived in that wing of the barracks, and this new room was some distance from Major Banks‘s living quarters. In addition, the new room had a wooden board nailed to the observation window of the door—not a piece of sliding cardboard—which prevented H.S. from observing and identifying visitors.
On 1 September 1995, after being moved to the new room, H.S. was awakened by a knock on her door. H.S. opened the door and allowed GMC college football player, Kareem Holmes, to enter her room. Holmes then raped H.S.
Plaintiff, the parent of H.S., asserts that on the night of the attack, no security personnel were present to monitor the barracks, no bed check was conducted, and all supervisory responsibility for the barracks had been delegated to Defendant Major Banks. Major Banks was left in charge because Lt. Diane Ortega, the official actually assigned to supervise the main barracks and the female hall on the night of the incident, was not on campus.
Plaintiff filed suit under
Discussion
“Qualified immunity protects government officials performing discretionary functions from civil trials and from liability if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc) (internal quotations and citations omitted).5 To overcome this immunity, Plaintiff has the burden of pointing to case law which “predate[s] the offic[ial]‘s alleged improper conduct, involve[s] materially similar facts, and ‘truly compel[s]’ the conclusion that the plaintiff had a right under federal law.”6 Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998) (citing Lassiter, 28 F.3d at 1150).
Plaintiff recognizes that her complaint, which is premised on a violation of the Due Process Clause,7 is based on the rape of her daughter, not by a school official, but by a private third party. And, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep‘t of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989). “As a general matter, ... a State‘s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 1004.8
But “in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” Id. Where “the State takes a person into its custody and holds him there against his will ... the Constitution imposes upon [the State] a corresponding duty to assume some responsibility for his safety and general well-being.” Id. at 1005. Thus, a duty may be imposed on States to protect involuntarily committed mental patients, prisoners, and involuntarily placed foster children. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (mental patients); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (prisoners); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (foster children).
The question presented in this case is whether, given the status of the preexisting law, the Defendants, at the pertinent time, clearly owed Plaintiff or H.S. some constitutional duty to protect H.S. based on the voluntary, custodial relationship between H.S. and GMC. So, we consider cases where we have talked about the possibility of a constitutional duty when the State has a “special relationship” with either the victim or the perpetrator. See Wyke v. Polk County Sch. Bd., 129 F.3d 560 (11th Cir. 1997); Mitchell v. Duval County Sch. Bd., 107 F.3d 837 (11th Cir. 1997); Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989).
“The contours of what constitutes a ‘special relationship’ between a [State institution], acting through its officials, and its citizens are hazy and indistinct.” Wideman v. Shallowford Comm. Hosp., Inc., 826 F.2d 1030, 1035 (11th Cir. 1987) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir. 1985)). During oral argument, Plaintiff‘s counsel acknowledged that whether a voluntary, instead of an involuntary, custodial arrangement between the State and a citizen could give rise to a special relationship, and thus a constitutional duty, remains “unclear” in this circuit. But still Plaintiff argues that the preexisting law was somehow so clearly established that Defendants should not be protected by qualified immunity.
these exceptional cases rarely arise. And we are not faced with such an exceptional case: given the circumstances of this case, the Due Process Clause does not provide the essential, obvious clarity.
When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. ... Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.9 Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County Sheriff‘s Dep‘t, 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir. 1993)).
Given the facts, the cases relied on by Plaintiff are not materially similar to the case before us and would have required Defendants to draw inferences—inferences of highly debatable validity—to reach the conclusion that H.S. (and secondarily Plaintiff) was owed a constitutional duty. These cases do not address the situation in this case: where an individual is voluntarily in the custody of the State10 or where the State represented that it would provide the individual with security. Cf. Taylor, 818 F.2d 791 (The court wrote these words about involuntary custody in foster homes: “The liberty interest in this case is analogous to the liberty interest in Youngberg. In both cases, the state involuntarily placed the person in a custodial environment, and in both cases, the person is unable to seek alternative living arrangements.“) (emphasis added); Cornelius, 880 F.2d 348;11 Spivey, 29 F.3d 1522, withdrawn, Spivey v. Elliott, 41 F.3d 1497 (11th Cir. 1995) (Spivey II).12 Thus, these cases did not (and do not today) clearly establish that Defendants owed Plaintiff or H.S. a federal constitutional duty to protect H.S. from the incident in this case.
Furthermore, some preexisting case law may have particularly suggested to Defendants (or to be more precise, to some reasonable school official standing in Defendants’ place) that no duty would arise in a voluntary situation, despite representations by Defendants that protection would be provided. See DeShaney, 109 S.Ct. at 1005-06 (“The affirmative duty to protect arises not from the State‘s knowledge of the individual‘s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.“) (emphasis added). “Unless a government agent‘s act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit.” Lassiter, 28 F.3d at 1149. Defendants were not obviously violating Plaintiff‘s or H.S.‘s clearly established rights in this case.
Because Plaintiff‘s complaint fails to allege the violation of a clearly established constitutional right, the district court correctly granted Defendants’ motions to dismiss on grounds of qualified immunity. We, given the status of the preexisting law, view it as obvious that Defendants are entitled to qualified immunity.
But we do acknowledge that the existence or nonexistence of a constitutional right (or duty) in this case presents a perplexing question: a question that we—in part, because it cannot be easily answered—decline to answer at this time. To overcome qualified immunity, Plaintiff must show both (1) that Defendants violated a federal constitutional right and (2) that the right was already clearly established at the time of the violation. See Spivey II, 41 F.3d at 1499. “[A] negative decision on either prevents the plaintiff from going forward.” Id. So, to answer the other question is unnecessary to decide the case. Thus, “[o]nce 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 ... [because t]hose who differ with the decision of the court could write it off as dictum.” Id.13
We do not understand this footnote as an absolute requirement that lower courts must always follow this “normally” “better approach.” In County of Sacramento, the district court decided the case strictly on qualified immunity grounds, that is, on the ground of the unsettled nature of the law; but the Supreme Court never said the district court erred. And if the Supreme Court intended to impose an absolute requirement on lower courts always to address the merits of constitutional issues even where qualified immunity obviously applies and readily resolves the case, we believe the Supreme Court would have said so more directly.14
At least in situations like this one—(1) where the existence of a constitutional right (or duty) presents a perplexing question, (2) where the alleged right obviously was not already clearly established, and (3) where the qualified immunity determination does end the whole case—it remains appropriate, and sometimes preferable, to stop at the determination that the right, if any, was not clearly established.15
“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439, 108 S.Ct. 1319, 1323, 99 L.Ed.2d 534 (1988); see also Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985); In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985); Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 2772, 86 L.Ed.2d 356 (1985); Spivey II, 41 F.3d at 1499 (decided after Siegert v. Gilley) (“[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 disfavoring reaching substantive constitutional issues if a case can be resolved on other grounds.“). “[T]his self-imposed limitation on the exercise of the Court‘s jurisdiction has an importance to the institution that transcends the significance of particular controversies.” City of Mesquite v. Aladdin‘s Castle, Inc., 455 U.S. 283, 294, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982).
Because we conclude that Plaintiff and H.S. were owed no clearly established constitutional duty by Defendants at the time of the incident, Defendants are entitled to qualified immunity.
AFFIRMED.
EDMONDSON
UNITED STATES CIRCUIT JUDGE
Notes
Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257 (1821).It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
We do recognize, however, that the Supreme Court has the power to supervise lower federal courts through special statements that go beyond the holding of a case; and the Supreme Court has, on occasion, invoked such supervisory powers. See, e.g., Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 551 n. 2, 98 L.Ed.2d 568 (1988); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966). In footnote 5, the supervisory powers are not specifically invoked.
But even if footnote 5 is a binding judicial pronouncement or a binding supervisory instruction, we—given the footnote‘s own words—do not understand it to be a strict rule with no exceptions.