Hasenfus v. LaJeunesse

• Citation: 175 F.3d 68
• Decision Date: 05 April 1999
• Docket Number: No. 98-2149,98-2149
• Parties: 134 Ed. Law Rep. 826 Alfred HASENFUS and Gale Hasenfus, Individually and o/b/o Jamie Hasenfus, Plaintiffs, Appellants, v. L. Roger LaJEUNESSE, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 68

175 F.3d 68

134 Ed. Law Rep. 826

Alfred HASENFUS and Gale Hasenfus, Individually and o/b/o Jamie Hasenfus, Plaintiffs, Appellants, v. L. Roger LaJEUNESSE, et al., Defendants, Appellees.

No. 98-2149.

United States Court of Appeals, First Circuit.

Heard April 5, 1999.

Decided April 29, 1999.

Tracie L. Adamson with whom Susan V. Wallace, Sumner H. Lipman, Robert J. Stolt, and Lipman & Katz, P.A. were on brief for appellants.

Deirdre M. Smith with whom Melissa A. Hewey and Drummond Woodsum & MacMahon were on brief for appellees L. Roger LaJeunesse, Paul Knowles, Carlo Kempton and Winthrop Board of Education.

Edward R. Benjamin, Jr. with whom Thompson & Bowie was on brief for appellee Town of Winthrop.

Before SELYA, BOUDIN and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

This is an appeal from the district court's dismissal of a complaint filed by Alfred and Gale Hasenfus, on behalf of themselves and their minor child Jamie Hasenfus, arising out of Jamie's attempted suicide at school. The complaint set forth claims under 42 U.S.C. § 1983 and state law against the Town of Winthrop, Maine, and others. The facts alleged in the complaint are as follows.

In the spring of 1996, Jamie was a 14-year-old student in the 8th grade of the Winthrop Middle School. On May 2 of that year, Jamie was reprimanded by her teacher, Carlo Kempton, for misconduct during a physical education class on the school softball field. Kempton told Jamie to return to the locker room. No one from the school staff was supervising the locker room. After returning to the locker room, Jamie tried to hang herself. Classmates found Jamie and called for emergency help. Jamie survived but, at first in a coma, spent several weeks in the hospital and was left with permanent impairments.

The complaint describes two other incidents as background to the attempted suicide. One was that Jamie had been raped when she was 13 and later underwent the further trauma of testifying against the rapist. School officials were aware of the rape. Jamie had reported it to the school nurse, Jackie Kempton (wife of the gym teacher, Carlo Kempton), and was later counseled by the school nurse and school guidance counselor. According to the complaint, Carlo Kempton knew or should have known of the rape and should not have sent Jamie "alone and unsupervised away from the area he was monitoring when he knew or should reasonably have known that she was despondent or distressed."

The other background event was that seven other students in the Winthrop Middle School had also attempted suicide in the three months prior to May 1996. Several of those attempts had occurred at school or school events, and Jamie apparently knew or was associated with at least two of those students. According to the complaint, the school failed to take various possible measures to cope with the epidemic, such as offering special counseling and monitoring programs within the school and providing more information to parents about the outbreak.

On April 30, 1998, just short of two years after Jamie's suicide attempt, the Hasenfus parents brought suit in the district court on behalf of Jamie and themselves. The defendants, in addition to the town and its board of education, included three individuals: the superintendent of schools, the principal of Jamie's school, and the gym teacher (Carlo Kempton). The counts with which we are centrally concerned were based upon section 1983; they charged that specific acts and omissions by defendants acting under color of state law deprived Jamie of her Fourteenth Amendment rights, including, inter alia, rights to life and physical safety. The parents alleged the infringement of their right to family integrity.

The gist of the wrongful acts charged to the town, school board, superintendent, and principal were the failure to take a range of preventive actions listed in the complaint to cope with the suicide epidemic and, specifically as to Jamie, three narrower failures or mistakes discussed at the end of this opinion. Carlo Kempton's alleged wrongful acts were reprimanding Jamie in front of her classmates and sending her alone to the locker room. The same facts were alleged as violations of the Maine Constitution and as common law torts of negligence and negligent infliction of emotional distress.

The defendants moved to dismiss the section 1983 counts for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and asked that the state claims then be dismissed for lack of federal jurisdiction, Wagner v. Devine, 122 F.3d 53, 57-58 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 880, 139 L.Ed.2d 869 (1998). The magistrate judge recommended this course (with one variation irrelevant here), and the district court thereafter approved the recommendation. This appeal followed. On review, we take the factual allegations of the complaint as true, drawing reasonable inferences in favor of the plaintiffs. Garita Hotel L.P. v. Ponce Fed. Bank, FSB, 958 F.2d 15, 17 (1st Cir.1992).

The central question for us on this appeal is whether the conduct attributed to the defendants violates the federal Constitution so far as it protects against state action depriving one of life or liberty without "due process of law." The most familiar dimension of due process is protection of procedural rights, but the due process concept has been extended by the Supreme Court to incorporate substantive protections. See Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997). These include not only a selected set taken from the Bill of Rights but also a generalized protection sometimes labeled "substantive due process." Nowak and Rotunda, Constitutional Law §§ 11.3-11.4, at 374-93 (5th ed.1995).

In the district court and in their opening brief on appeal, the Hasenfuses argued forcefully that--contrary to the district court's view--the school had an affirmative duty to protect Jamie as a student entrusted to its care. In their reply brief, the Hasenfuses suddenly purport to abandon reliance on this theory, saying that they prefer to concentrate their appeal on Kempton's alleged danger-creating conduct. But elsewhere the reply brief itself returns to the allegation that school officials acted recklessly "by standing by throughout the suicide epidemic and doing nothing to identify at-risk students or to train personnel to effectively deal with these students at risk."

In the complaint, the principal conduct charged against the defendants--apart from Kempton--was their failure to take measures to cope with the rash of attempted suicides at the school. Under common law, inaction rarely gives rise to liability unless some special duty of care exists. Restatement (Second) of Torts § 314 & cmt. a (1965). In DeShaney v. Winnebago County, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court took the same view of substantive due process obligations, holding that ordinarily a state's failure to intervene to prevent harm to an individual by a private actor is not a constitutional violation.

The main exceptions to this proposition are incarcerated prisoners or involuntarily committed mental patients for whom a set of unique rules has developed. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In such cases, failures to act--e.g., to provide medical care or to stop one inmate from assaulting another--may comprise a due process or other constitutional violation because the state-imposed circumstance of confinement prevents such individuals from helping themselves. ¹ Liability then arises under section 1983 if the plaintiff shows that the inaction was malicious or reflected the official's "deliberate indifference" to the welfare of the prisoner or inmate. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

The plaintiffs urge that Jamie is similar to the prisoners and patients because school attendance is compulsory and because in some measure the school authorities act in loco parentis. The circuits that have confronted this issue have uniformly rejected this argument, holding that school children are not captives of the school authorities and the basic responsibility for their care remains with their parents. ² The Hasenfuses' position is especially difficult to accept outright since the Supreme Court has come pretty close to rejecting it in a recent dictum which specifically contrasted DeShaney:

[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional "duty to protect."

Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). See also Wyke, 129 F.3d at 569.

Nevertheless, we are loath to conclude now and forever that inaction by a school toward a pupil could never give rise to a due process violation. From a commonsense vantage, Jamie is not just like a prisoner in custody who may be owed broad (but far from absolute) "duty to protect." But neither is she just like the young child in DeShaney who was at home in his father's custody and merely subject to visits by busy social workers who neglected to intervene. For limited purposes and for a portion of the day, students are entrusted by their parents to control and supervision of teachers in situations where--at least as to very young children--they are manifestly unable to look after themselves.

Thus, when Vernonia says that the schools do not "as a general matter" have a constitutional "duty to protect," perhaps in narrow circumstances there might be a "specific" duty. If Jamie had suffered a heart attack in the classroom, and the teacher knew of her peril, could the teacher merely leave her there to die without summoning help? If a six-year old child fell down an elevator shaft, could the school principal ignore the matter? Of course, school...