Jones v. Dane County

• Decision Date: 20 July 1995
• Docket Number: No. 92-0946,92-0946
• Parties: Barbara A. JONES, and Douglas Kinney, Plaintiffs-Appellants-Cross Respondents, d v. DANE COUNTY and James E. Chorlton, Defendants-Respondents-Cross Appellants.
• Court: Wisconsin Court of Appeals

Page 74

537 N.W.2d 74

195 Wis.2d 892

Barbara A. JONES, and Douglas Kinney, Plaintiffs-Appellants-Cross Respondents, d v. DANE COUNTY and James E. Chorlton,

Defendants-Respondents-Cross Appellants.

No. 92-0946.

Court of Appeals of Wisconsin.

Submitted on Briefs July 9, 1993.

Opinion Released July 20, 1995.

Opinion Filed July 20, 1995.

For the plaintiffs-appellants-cross respondents the cause was submitted on the briefs of Allen D. Reuter and Amy F. Scarr of Clifford & Reuter, S.C., Madison.

For the defendants-respondents-cross appellants the cause was submitted on the briefs of Carroll Metzner, Robert J. Kasieta and David J. Pliner of Bell, Metzner, Gierhart & Moore, S.C., Madison.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge. ¹

Barbara A. Jones and her son, Douglas Kinney, appeal from an order in which the Jones and Kinney also appeal from a judgment in which a jury returned a verdict on a negligence claim in favor of Chorlton. They complain of numerous prejudicial errors and request a new trial in the interest of justice. We reject each of these asserted errors and conclude that a new trial is not warranted. Accordingly, we affirm. ⁴

trial court dismissed, on summary judgment motion, their action under 42 U.S.C. § 1983. ² Barbara Jones's [195 Wis.2d 909] stepson, Leland Robby Jones, Jr., had been adjudged delinquent and was placed out of his home and under the supervision of Dane County for one year. During that time period, he resided in three different residential homes and a hospital. Toward the end of his supervision period, James E. Chorlton, the county social worker assigned to his case, placed Robby back in Barbara Jones's home where he later shot and severely injured her and Kinney. Barbara Jones and Kinney claim that Chorlton violated their procedural and substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution when Chorlton changed Robby's placement without first providing them with notice and an opportunity to file an objection with the court as required by § 48.357(1), STATS. ³ We conclude that the trial court properly dismissed the procedural due process claim because Chorlton's actions were random and unauthorized, and adequate postdeprivation state law remedies exist to afford Jones and Kinney the process that they are due. We also conclude that the trial court properly dismissed the substantive due process claim [195 Wis.2d 910] because the state has no duty to protect persons from private violence when that person is not in custody. Accordingly, we affirm.

BACKGROUND

In April 1981, Leland Robby Jones, Jr., was found to be a child in need of protection or services (CHIPS) and delinquent. The trial court ordered him placed under county supervision for one year and returned him to his mother's home. A psychological evaluation completed by Dr. Larry W. Zuberbier that same month indicated that Robby hated his stepmother, Barbara Jones, and that he could hurt her.

In October 1981, Robby was again found delinquent and placed under county supervision for a period of one year. He was initially sent to Wyeth House, a group home in Madison, Wisconsin, where he remained until December 1981. At that time, he was sent to Kettle Moraine Hospital to obtain drug dependency treatment. In February 1982, Robby was transferred to Thoreau House in Madison where he remained until July 1982 when he was sent to Bockari House, also in Madison, after repeatedly violating his conditions of probation and house rules. He also spent two weeks in Kettle Moraine Hospital in April 1982 to obtain additional drug dependency treatment.

On August 27, 1982, without first providing notice pursuant to § 48.357(1), STATS., and over Jones's objections, Chorlton sent Robby to Jones's home to live. The court order requiring that Robby be placed outside of his home was still in effect. On September 7, 1982, Robby shot and seriously wounded Jones and Kinney.

Jones and Kinney commenced this action in October 1983 alleging negligence and violations of their constitutional rights under 42 U.S.C. § 1983. On January 7, 1991, the trial court dismissed the § 1983 claim on summary judgment motion. The case went to trial on the negligence claim and on October 28, 1991, the jury found that while Chorlton was negligent, his negligence was not a cause of Jones's and Kinney's injuries. Jones and Kinney appeal.

SECTION 1983

Jones and Kinney argue that the trial court erred when it dismissed their claim under 42 U.S.C. § 1983 on summary judgment motion. According to Jones and Kinney, they have raised genuine issues of material fact as to whether Chorlton violated their rights to procedural and substantive due process. They claim that Chorlton's failure to comply with § 48.357(1), STATS., which requires notice before a juvenile's placement may be changed, resulted in their being deprived of their rights to liberty and property without due process of law as guaranteed by the Fourteenth Amendment. We disagree.

A grant of summary judgment is an issue of law which we review de novo by applying the same standards as employed by the trial court. Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct.App.1994). We first examine the complaint to determine whether it states a claim, and then the answer to determine whether it presents a material issue of fact. Id. If they do, we then examine the documents offered by the moving party to determine whether that party has established a prima facie case for summary judgment. Id. If it has, we then look to the opposing party's documents to determine whether any material facts are in dispute which would entitle the opposing party to a trial. Id. at 372-73, 514 N.W.2d at 49-50.

To state a § 1983 claim against Chorlton, Jones and Kinney must allege: (1) that the conduct of which they complain was committed while Chorlton was acting under color of state law; and (2) that such conduct deprived them of rights, privileges or immunities secured by federal law or the United States Constitution. Hillman v. Columbia County, 164 Wis.2d 376, 402, 474 N.W.2d 913, 923 (Ct.App.1991). The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law...." The due process clause is comprised of two components: procedural and substantive due process.

Three types of § 1983 claims exist under the due process clause of the Fourteenth Amendment: (1) a claim for a violation of a specific right protected by the Bill of Rights and incorporated by the due process clause; (2) a claim under the substantive component of the due process clause which bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them; and (3) a procedural due process claim involving the deprivation of life, liberty or property without due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). Under the procedural component, Jones and Kinney must show that they were deprived of a constitutionally protected interest in life, liberty or property without due process of law. Irby v. Macht, 184 Wis.2d 831, 838, 522 N.W.2d 9, 11, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). Under the substantive component, Jones and Kinney must show that the state was constitutionally obligated, yet failed, to protect their interests in life, liberty or property. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1002-03, 103 L.Ed.2d 249 (1989). We address each claim in turn.

1. Procedural Due Process

Jones and Kinney argue that they have been deprived of their constitutionally protected interests in liberty and property without due process of law because Chorlton Jones and Kinney argue that they were not provided with the process that they were due because they were not given notice of a change in placement pursuant to § 48.357(1), STATS., before Robby was placed in their home. The disposition of this issue depends upon an examination of "the procedural safeguards built into the statutory or administrative procedure ... effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law." Zinermon, 494 U.S. at 126, 110 S.Ct. at 983. Generally, the United States Constitution requires a hearing before a deprivation occurs. Irby, 184 Wis.2d at 843, 522 N.W.2d at 13. But, when a deprivation of a right ⁶ has resulted from a random and unauthorized act of a state employee, providing meaningful predeprivation process is impracticable because the state cannot predict or anticipate when such acts will occur. Id., 522 N.W.2d at 14. In such cases, due process is satisfied when the state makes available adequate postdeprivation remedies. ⁷ Id. This rule applies "no matter how significant the private interest at stake and the risk of its erroneous deprivation, [because] the State cannot be required constitutionally to do the impossible by providing predeprivation process." Zinermon, 494 U.S. at 129, 110 S.Ct. at 985 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)).

                forced them to accept Robby back into their home without providing them with an opportunity for a hearing on the change in placement. 5 [195 Wis.2d 914] Under a procedural due process analysis, the fact that Jones and Kinney may have been deprived of a protected liberty or property right does not, alone, mean that their constitutional rights have been violated.  "The [procedural component of the] Due Process Clause does not prevent states from depriving persons of their life, liberty or property."  Irby, 184 Wis.2d at 842, 522 N.W.2d at 13.   In procedural due process claims, what is unconstitutional is the deprivation of such a right without due process of law.  Zinermon, 494 U.S. at 125, 110 S.Ct. at 983.

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