Doe v. Rosa

• Decision Date: 28 July 2015
• Docket Number: Nos. 14–1748,14–1749.,s. 14–1748
• Citation: 795 F.3d 429
• Parties: John DOE 2, Plaintiff–Appellant, v. President John W. ROSA, individually, Defendant–Appellee. Mother Doe, on behalf of John Doe 3, Plaintiff–Appellant, v. President John W. Rosa, individually, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

795 F.3d 429

John DOE 2, Plaintiff–Appellant

v.President John W. ROSA, individually, Defendant–Appellee.

Mother Doe, on behalf of John Doe 3, Plaintiff–Appellant

v.President John W. Rosa, individually, Defendant–Appellee.

Nos. 14–1748

14–1749.

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2015.

Decided: July 28, 2015.

ARGUED:Jacqueline LaPan Edgerton, McLeod Law Group, LLC, Charleston, South Carolina, for Appellants. Morris Dawes Cooke, Jr., Barnwell Whaley Patterson & Helms, LLC, Charleston, South Carolina, for Appellee. ON BRIEF:W. Mullins McLeod, Jr., James B. Moore III, McLeod Law Group, LLC, Charleston, South Carolina, for Appellants. John W. Fletcher, Randell C. Stoney, Jr., Jeremy E. Bowers, Barnwell Whaley Patterson & Helms, LLC, Charleston, South Carolina, for Appellee.

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Opinion

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge SHEDD and Judge DUNCAN joined.

AGEE, Circuit Judge:

The appellants in this consolidated appeal were the plaintiffs below, John Doe 2 and Mother Doe, on behalf of John Doe 2's younger brother, Doe 3 (together, “the Does”).¹ Beginning in 2005 and continuing through July or August 2007, Louis “Skip” ReVille provided childcare for the Doe family and sexually abused the two minor boys. ReVille, a graduate of The Citadel, The Military College of South Carolina (“The Citadel”), had previously worked as a counselor at The Citadel's youth summer camp.

Defendant John W. Rosa was the president of The Citadel during the time period relevant in this case. In April 2007, his office received a phone call from the father of a former camper, who reported that a counselor at the summer camp—later identified to be ReVille—had molested his son in 2002. Rosa did not report the complaint to law enforcement and instead, the Does contend, took steps to conceal the allegations. The Does argue that Rosa's actions allowed ReVille to continue his abuse of Doe 2 and Doe 3 during the summer of 2007.

The Does brought suit against Rosa under 42 U.S.C. § 1983, alleging that Rosa had violated an affirmative duty to protect them under the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment in favor of Rosa on the ground that Rosa had no duty to protect the Does from a pre-existent danger. For the reasons explained below, we affirm the judgment of the district court.

I. Background

The Citadel is a public military college in Charleston, South Carolina. From 1957 to 2006, it operated The Citadel Summer Camp for young children, employing current and former Citadel cadets to serve as staff and camp counselors. The Citadel housed the camp counselors on campus in rooms near the campers. In 2001, The Citadel learned that a former cadet named Michael Arpaio had sexually abused campers while working as a camp counselor from 1995 through 2001. Several victims sued the Citadel based on Arpaio's abuse and collected damages.²

A. Camper Doe Allegations

On April 23, 2007, Rosa's office received a phone call from the father of a former Citadel Summer Camp camper (“Camper Doe,” unrelated to the plaintiffs and not a party in this case). Rosa was not present that day, and his administrative assistant referred the call to The Citadel's general counsel, Mark Brandenburg.

When Brandenburg returned the call, Camper Doe's father “asked whether [Brandenburg] was calling on behalf of President Rosa,” because the family “did not want anything to fall through the cracks.” J.A. 1753. The father told Brandenburg that Camper Doe had been sexually abused by a counselor known as “Skip” while attending the Citadel Summer Camp in 2002. Skip had allegedly shown Camper Doe pornography and masturbated with him and showered with the campers. The father also identified a second camper who was similarly victimized. Brandenburg then spoke on the phone with Camper Doe himself, who explained that Skip abused him and other campers in this way for over a year. J.A. 1830, 1862, 1865–1867.

Brandenburg reviewed camp records for the 2001 and 2002 years and found that Camper Doe's description matched a counselor named Louis “Skip” ReVille, who had been a Citadel cadet from 1998 to 2002. ReVille had worked as a camp counselor at the Citadel Summer Camp during the summers of 2000 to 2004 and as a tutor in The Citadel's Writing Center from August 2006 until sometime in April 2007.

Brandenburg called ReVille at the Writing Center on April 24, 2007, the day after talking with Camper Doe's father. According to ReVille, Brandenburg arranged to meet with him and Rosa's Executive Assistant, Colonel Trez. At the meeting, Brandenburg and Colonel Trez told ReVille about Camper Doe's accusations, all of which he denied. They explained to ReVille that “from the Citadel's standpoint their main concern was to protect the institution” and that during their investigation he should “lay low and stay off the campus.” J.A. 2416–17, 4622.

The Does suggest that Brandenburg then terminated ReVille's employment at the Writing Center, but ReVille's time records as a Citadel tutor indicate that he last worked at the Writing Center on April 19, 2007, four days before Camper Doe's father called the Citadel. See J.A. 280. Similarly, a form that ReVille's supervisor at the Writing Center completed on March 22, 2007 lists the “Effective Date” of ReVille's “Resignation” as April 20, 2007. J.A. 279. The conflict between ReVille's testimony that he was at the Writing Center when he received Brandenburg's call on April 24, 2007 and the contradictory employment forms is not resolved in the record, but we must credit the Does' account for summary judgment purposes.

Brandenburg also met with the former director of The Citadel Summer Camp, Jennifer Garrott, on April 24, 2007, who disclosed that ReVille had been asked to leave his prior job at a prep school. In addition, Garrott told Brandenburg that in the summer of 2003, she caught ReVille in his barracks room alone with a camper rubbing Icy Hot on the camper's leg, which is against camp policy forbidding counselors from being alone in a room with campers—a terminable offense.

Brandenburg reported back to Rosa by May 6, 2007 about his investigation of the allegations against ReVille. The Does contend that Brandenburg “memorialized ... his and President Rosa's intentions” to conceal the Camper Doe complaint in a May 8, 2007 email, Appellant's Br. 9, and quote a portion of the email that states, “I am hopeful that by conducting an investigation on behalf of the school, no ‘formal’ investigation—criminal or civil—will occur.” J.A. 1005. However, the Does appear to take the email out of context as it was written to provide a background explanation to a potential witness in advance of an interview by Brandenburg. Further, the Does offer no evidence that Rosa was aware of the contents of the email or ever saw it.

On July 1, 2007, Brandenburg went to Dallas, Texas to personally speak to Camper Doe and his parents. During the interview, which was recorded and transcribed, Camper Doe provided a detailed account of the abuse, including that it happened to “about five other” boys. J.A. 3591. Asked whether he reported the complaint to law enforcement, Camper Doe replied, “Well, I mean, I've talked to you,” and “Most of all, the thing I want the most is just to make sure that [ReVille] doesn't have a chance to do this to anyone else.” J.A. 3659–61. Camper Doe later testified, “I would have absolutely reported it to police had I known that the Citadel didn't.” J.A. 2399.

At the close of the July 1 interview, Camper Doe's father mentioned that The Citadel had not accepted Camper Doe for admission as a cadet. He stated that The Citadel had been “part of the root cause” of Camper Doe's problems and by admitting him could “be part of the root cause to fix him.” J.A. 288. The father considered this “a very inexpensive way for The Citadel to say, do you know what—we'll fix our own.” J.A. 288.³

B. The Alleged Cover–Up

The Does contend that Rosa “deliberately conspired to conceal” the allegations by Camper Doe against ReVille. J.A. 35, 61 (Compls. ¶ 25). Jennifer Shiel, an administrative assistant who worked in Rosa's office, testified that “President Rosa [was] in charge” of a “conscious effort to cover up or conceal [the] report of sexual abuse.” J.A. 975. She testified that Rosa used the term “close hold,” which she interpreted to mean that “only people that needed to know about it were supposed to know about it.” J.A. 985. Further, Shiel testified that Brandenburg and Rosa had nearby offices and met on business at least three times a week. Brandenburg was deferential to Rosa and “there was no way that [Brandenburg] would have done something on his own without running it past [Rosa] first.” J.A. 970.

The Does posit that Rosa ignored policies of both The Citadel and its summer camp that required him to report the Camper Doe claim to the Citadel Public Safety Department. J.A. 35, 61 (Compls. ¶ 29); see also Serious Incidents, Memorandum No. 39, J.A. 1376–88 (directing that when criminal activity involving someone affiliated with The Citadel as a suspect or victim occurs, the “first member of the Citadel community learning of the occurrence” is responsible for reporting it to the Public Safety Department); Summer Camp Official Camp Policies Regarding Sexual Misconduct Issues , J.A. 1389 (mandating that “[r]egardless of validity of the violation, any sexually inappropriate conduct reports concerning any camper or employee of the camp will be turned over to the Citadel Public Safety Department”). Shiel testified that Rosa “made sure that did not happen.” J.A. 976.

The Does also assert that Rosa violated The Citadel's Employee Misconduct Policy by allowing ReVille to resign his position at the Writing Center and to leave with a clean record. J.A. 37, 63 (Compls. ¶ 37). According to the Does, The Citadel policy forbids expunging molestation findings from an employee's...