Doe by Nelson v. Milwaukee County

Decision Date31 May 1990
Docket NumberNo. 89-2304,89-2304
Citation903 F.2d 499
PartiesS. DOE, a minor, M. Doe, a minor, both by Craig W. NELSON, their Guardian ad Litem, M.A. Doe, V. Doe and E. Doe, Plaintiffs-Appellants, v. MILWAUKEE COUNTY, Milwaukee County Department of Social Services, Thomas Brophy, Ed Konkol, Kenneth Richter, Marge Coffey, Peg McCarthy, King Taylor, John Roe and Jane Roe, individually and in their capacities as employees and officers of Milwaukee County and the Milwaukee County Department of Social Services, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Craig W. Nelson and James J. Jacobson, Piette, Nelson, Zimmerman & Dries, Milwaukee, Wis., for plaintiffs-appellants.

Robert E. Andrews, Milwaukee, Wis., for defendants-appellees.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Child abuse is always a tragedy, and that tragedy is compounded when the abuse could have been prevented by timely intervention. Federal and state governments have increasingly devoted resources to prevent child abuse, but, unfortunately, the governmental measures devised do not always accomplish their goals. The minor plaintiffs in this case, S. and M. Doe, 1 the children's father, M.A. Doe, and their grandparents, V. Doe and E. Doe, charge that the Milwaukee County Department of Social Services (the "DSS") violated federal and state law by failing to initiate an immediate investigation of their father and grandparents' report of suspected child abuse by their mother and her live-in boyfriend. The district court dismissed the Does' complaint for failure to state a federal claim. Particularly in light of the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services, --- U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), and the body of case law governing the Does' procedural due process claims, we affirm.


During the period of the alleged abuse, the Doe children were residing with their mother and her live-in boyfriend; the Doe parents were at that time engaged in divorce and custody proceedings. Pursuant to his visitation rights under the separation agreement, M.A. Doe arranged to spend time with his children at his parents' (the children's grandparents') home. E. Doe was bathing her granddaughter when she noticed that the child's genital area was "red and raw." Although the girl complained of pain in the area, she refused to tell her grandmother what had caused the soreness. M.A. Doe and his parents became acutely concerned about the possibility of child abuse when Kathy, the mother's live-in babysitter, approached them, having been fired by the mother, and informed them of her worries that the children were suffering harsh discipline and mental and emotional abuse at the hands of their mother's boyfriend. Together with Kathy and a friend who was a registered nurse, M.A. Doe and his parents went to the DSS on January 10, 1985, to file a report of suspected child abuse. 2

Both King Taylor, head of the protective services unit of the DSS, and Margaret ("Peg") McCarthy, head of the Department's child sexual abuse team, reviewed the Does' report. McCarthy concluded that the report did not contain sufficient information to warrant an investigation by her group. McCarthy and Taylor discussed the matter together and then brought it before their supervisor, Kenneth Richter. The three determined that an investigation was not warranted on the basis of the Does' report and marked the report "IO" ("information only"). King Taylor telephoned the children's grandmother, advised her of the Department's determination, and suggested that M.A. Doe contact his attorney about the children's custody arrangements.

The Does made a second report a week later, at which time the DSS took action to protect the children. The Does allege that the children suffered additional abuse by the boyfriend in the interim. The boyfriend was subsequently charged with sexual abuse, but he and the children's mother died within two months of the Does' initial report to the DSS. Presumably, then, the children are now in their father's custody, and the abuse has ceased.

The Does allege that the DSS was required by section 48.981(3)(c) of Wisconsin Statutes Annotated (West 1987) to initiate an investigation within 24 hours of their initial report of suspected child abuse. 3 Because the DSS failed to investigate that report, the Does charge that the children suffered additional physical, sexual and mental abuse. The Does sued the DSS in federal district court under 42 U.S.C. section 1983, asserting that the DSS's inaction violated the Does' rights under the First, Ninth and Fourteenth Amendments to the United States Constitution. Specifically, the Doe children alleged violations of their rights to privacy, to safety in their own personal beings, to protection from the child abuse alleged, to essential protective services, to freedom from bodily injury, to equal protection under the law and to "other liberty interests to which [they] are entitled as [ ] citizen[s] of the United States." R. 1, pp 21 and 37. The adult Does claimed that the DSS's inaction deprived them of their rights to the integrity and protection of their family relationship, to the protection of the children from the abuse alleged, to essential protective services, to equal protection under the law and to other liberty interests of United States citizens. Id. at pp 53, 69, 85. Finally, each of the Does alleged that all these deprivations violated their rights to due process. The Does each claimed $1 million in damages. 4


The district court found the Does' federal due process claims precluded by the Supreme Court's decision in DeShaney and our en banc decision in Archie v. City of Racine, 847 F.2d 1211 (7th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). We agree with this conclusion.

To the extent that the Does seek to assert a liberty interest in having the DSS investigate and protect against the abuse endured by the Doe children at the hands of their mother and her beau, they are squarely barred by DeShaney (a similar child abuse case). The mother's boyfriend, like Joshua DeShaney's father, was a private actor; according to DeShaney, the language of the due process clause "cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests [protected by the clause] do not come to harm through other means." 109 S.Ct. at 1003. The Court also declined to find that the state had formed a constitutionally cognizable "special relationship" with Joshua DeShaney by temporarily taking him out of his abusive father's custody 5; since the state itself did not inflict any harm upon Joshua--his father took care of that task--the state could not be held liable under section 1983 for the boy's severe injuries. 6 In the case before us, the DSS made no effort at all to intervene on the Doe children's behalf. Under DeShaney 's clear pronouncement, the DSS's failure to initiate an investigation, while possibly misguided, did not violate the Does' substantive due process rights.

Faced with the obstacle posed by DeShaney to their substantive due process challenge, the Does have attempted to assert a violation of their procedural due process rights. They base this change of course on footnote 2 of the DeShaney opinion, in which the Supreme Court declined to address Joshua's untimely claim of "entitlement" to receive protective services in accordance with the terms of the statute. 109 S.Ct. at 1003 n. 2. The Does argue in this court that section 48.981 has vested them with a property interest in having the DSS investigate a report of child abuse within 24 hours. We disagree.

While "the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money," Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), not every state or municipal law, regulation or ordinance creates a constitutionally protected entitlement. In resolving a claim based on procedural due process, we must be careful to distinguish the substantive right from the procedure designed to prevent its arbitrary deprivation. Justice Blackmun recently reiterated the importance of this distinction: "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, --- U.S. ----, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (citing Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 420 (1981)).

It is essential, therefore, to a proper analysis of a procedural due process claim like that urged by the Does in this case, that the court not confuse substance with process. One cannot have a "property interest" (or a life or liberty interest, for that matter) in mere procedures because

[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a claim of entitlement.... The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.

Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748-49, 75 L.Ed.2d 813 (1983); Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.) ("It is by now well-established that in order to demonstrate a property interest worthy of protection under the fourteenth amendment's due process clause, a party may not simply rely upon the procedural guarantees of state law or local ordinance."), cert. denied, --- U.S. ----, 110 S.Ct. 540, 107...

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