Kitzman-Kelly v. Warner

• Decision Date: 10 February 2000
• Docket Number: No. 98-2139,P,KITZMAN-KELLE,G,98-2139
• Citation: 203 F.3d 454
• Parties: (7th Cir. 2000) THERESAuardian for and on behalf of MELISSAlaintiff-Appellee, v. DONALD WARNER, GARY T. MORGAN, and GORDON JOHNSON, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 454

203 F.3d 454 (7th Cir. 2000)

THERESA KITZMAN-KELLEY, Guardian for and on behalf of MELISSA KITZMAN-KELLEY, Plaintiff-Appellee, v. DONALD WARNER, GARY T. MORGAN, and GORDON JOHNSON, Defendants-Appellants.

No. 98-2139

In the United States Court of Appeals For the Seventh Circuit

Argued September 27, 1999

Decided February 10, 2000

Appeal from the United States District Court for the Central District of Illinois. No. 96 CV 4080--Michael M. Mihm, Judge. [Copyrighted Material Omitted] Before POSNER, Chief Judge, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Melissa Kitzman-Kelley, through Theresa Kitzman-Kelley, brought this sec. 1983 action against employees of the Illinois Department of Children and Family Services ("DCFS"). She claims that in 1985, while a ward of the DCFS, she was sexually abused by a DCFS intern hired and supervised by the defendants. The original action was brought in state court, and the case later was removed to the district court. The defendants then moved for dismissal on the pleadings, contending that they were entitled to qualified immunity. The district court denied the motion. An interlocutory appeal was then taken to this court. See Johnson v. Fankell, 520 U.S. 911, 915 (1997); Mitchell v. Forsyth, 472 U.S. 511 (1985). For the reasons set forth in this opinion, we now remand this case to the district court with instructions to address Ms. Kitzman-Kelley's motion to amend her complaint and then to decide again whether defendants are entitled to qualified immunity.

I BACKGROUND

A.

When considering a motion to dismiss a complaint on the basis of qualified immunity, we must accept all allegations in the complaint as true, construing them in the light most favorable to the plaintiff. See Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999); Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998).

In 1981, Melissa Kitzman-Kelley, then 7 years old, was placed in the custody of the DCFS. According to the allegations of the complaint, between early March and late May 1985, Philip Keith Heiden, an intern in the Rock Island County DCFS office, subjected her to a pattern of sexual abuse. Heiden had been taken on as an intern at DCFS despite a history of mental illness and drug problems. The defendants,¹ the complaint alleges, did nothing to investigate his background before hiring him, and did not train him in the proper behavior toward his charges. Nor were there any department policies requiring anyone to do such a background investigation or perform such training. Heiden's notes reported that he had picked Kitzman-Kelley up at school, and also stated that he had taken her to his home. Despite these disclosures in his records, the defendants did not take Melissa out of his care.

B.

Although clearly recognizing that the issue of qualified immunity may, in some instances, be resolved at the pleadings stage of the litigation, the district court determined that such an adjudication would be inappropriate on the present record. In reaching that decision, the district court acknowledged that there are situations in which the state, by virtue of its special relationship with an individual, has a special responsibility, protected by the Due Process Clause of the Constitution, for the welfare of an individual. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 201 n.9 (1989). In denying the motion to dismiss on the ground of qualified immunity, the district court somewhat laconically stated:

The factual allegations in this case remain somewhat cloudy. Based on the DeShaney court's recognition that certain relationships between a state and a child may place a constitutional duty on the state, this Court finds that it would be premature at this juncture to dismiss the claims. In this case the issue of qualified immunity will have to be finally resolved at the summary judgment stage.

Order of March 30, 1998, at 5.

II DISCUSSION

A.

Qualified immunity protects government officials from monetary liability when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides not only a "mere defense to liability" but also "immunity from suit." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). This protection is afforded public officials in order to protect them from the expenses of litigation and the diversion of official energy from pressing public issues, and the deterrence of able citizens from accepting public office. Id.

In County of Sacramento v. Lewis, 118 S. Ct. 1708, 1714 n.5 (1998), the Supreme Court of the United States set forth the appropriate methodology for adjudicating a motion to dismiss on the ground of qualified immunity at the complaint stage of the litigation. Lewis counsels that the "better approach" is for the district court to consider first the question of whether the complaint states a cause of action. If the district court determines that a cause of action has been stated, it must then determine whether qualified immunity nevertheless shields a defendant from trial and possible liability.

See also Siegert v. Gilley, 500 U.S. 226, 232 (1991). Since the Court's pronouncement in Lewis, it has twice repeated this directive. In Conn v. Gabbert, 119 S. Ct. 1292 (1999), the Court said, "Thus a court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Id. at 1295. This language was quoted in Wilson v. Layne, 119 S. Ct. 1692, 1697 (1999).

B.

To state a claim under section 1983, a plaintiff must allege that the defendant has acted under the color of state law and has deprived him of a right secured by the Constitution or laws of the United States. There is no dispute, in this case, that the alleged conduct of the defendants is under the color of state law. They claim, however, that their actions violated no constitutionally protected rights.

1.

In DeShaney, the Supreme Court of the United States, affirming a decision of this court, held that a state's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause. That clause, reasoned the Supreme Court, imposes no duty on the state to provide members of the general public with adequate protective services. Rather, the Due Process Clause is a limitation on the states' power to act; it is not a minimum guarantee of certain levels of safety and security. The court did acknowledge, however, that a narrow exception to the DeShaney doctrine does exist in those instances in which the state has created a "special relationship" with the victimized individual. That affirmative duty arises, the Supreme Court emphasized, not simply from the state's knowledge of the individual's predicament but from the limitations that the state has imposed upon him through a restraint on his personal liberty.

Our court, in dealing with the "special relationship" exception to the DeShaney doctrine, has remained faithful to the Supreme's Court's rationale that this exception must be grounded in a prior restriction of the individual's liberty that places that person in a danger that would not have been encountered, at least to the same order of magnitude, in the absence of the state's action. For instance, in Ross v. United States, 910 F.2d 1422 (7th Cir. 1990), the City of Waukegan was determined to be not liable for failing to save the drowning plaintiff because the city had no duty to provide rescue services. Id. at 1428. By contrast, the claim against Lake County was reinstated because the plaintiff had alleged that the county had a custom of requiring officers to prevent unauthorized persons from trying to rescue the drowning. The court distinguished DeShaney, holding that the alleged policy would constitute an active imposition that put people at harm, not a refusal to provide services. Similarly, in J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267 (7th Cir. 1990), the plaintiffs argued that school children had a special relationship with school employees, requiring the employees to protect the children from a molester. See id. at 271-72. The court noted that, although "prisoners and mental patients are [not] an exhaustive list of all persons to whom the state owes some affirmative duties," school children were not in state custody. See id. at 272. The court reasoned that people in state custody "are unable to provide for basic human needs like food, clothing, shelter, medical care, and reasonable safety," id., and that school children did not fit that description, see id. at 272-73.

Our most recent cases continue to adhere to the principles enunciated in DeShaney. In Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), cert. denied, 120 S. Ct. 43 (1999), the court discussed the history of the "special relationship" doctrine: "The basis of a special relationship is that the state has some sort of control or custody over the individual, as in the case of prisoners, involuntarily committed mentally ill persons, or foster children. The state's duty to protect those persons or to provide services for them arises from that custody or control." Id. at 517. In Hutchinson v. Spink, 126 F.3d 895 (7th Cir. 1997), we acknowledged that "the State has a 'special relationship' with those it has taken into custody. In K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990), this court held that once the State removes a child from her natural parents, it assumes at least a rudimentary duty of safekeeping." Id. at 900 (citations omitted). That suit involved a suit by a child's mother after her child died while in foster care, and the court found that the mother had stated a claim.

2.

In addition to alleging a "special...