S.S. v. McMullen

• Decision Date: 14 January 2000
• Docket Number: No. 98-1732,98-1732
• Citation: 225 F.3d 960
• Parties: (8th Cir. 2000) S.S., BY AND THROUGH HER NEXT FRIEND AND GUARDIAN AD LITEM, ELLEN D. JERVIS, APPELLANT, v. MICHELLE MCMULLEN, SHERRY JACOBY, AND KATHLEEN BARNETT, APPELLEES, AND CYNTHIA M. MONTGOMERY, PH.D., DEFENDANT NATIONAL ASSOCIATION OF COUNTIES, ASSOCIATION OF MINNESOTA COUNTIES, MINNESOTA COUNTY ATTORNEYS ASSOCIATION, AND COUNTY OF HENNEPIN, AMICI CURIAE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 960

225 F.3d 960 (8th Cir. 2000)

S.S., BY AND THROUGH HER NEXT FRIEND AND GUARDIAN AD LITEM, ELLEN D. JERVIS, APPELLANT, v. MICHELLE MCMULLEN, SHERRY JACOBY, AND KATHLEEN BARNETT, APPELLEES AND CYNTHIA M. MONTGOMERY, PH.D., DEFENDANT

NATIONAL ASSOCIATION OF COUNTIES, ASSOCIATION OF MINNESOTA COUNTIES, MINNESOTA COUNTY ATTORNEYS ASSOCIATION, AND COUNTY OF HENNEPIN, AMICI CURIAE.

No. 98-1732

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 14, 2000

Filed: September 13, 2000

Appeal from the United States District Court for the Western District of Missouri.

Before Wollman, Chief Judge, and McMILLIAN, Richard S. Arnold, John R. Gibson, Bowman, Beam, Loken, Hansen, Morris Sheppard Arnold, and Murphy, Circuit Judges.¹

Morris Sheppard Arnold, Circuit Judge

This is an action to recover damages under 42 U.S.C. § 1983 for the violation of substantive due process rights. When S.S. appealed from the district court's dismissal of her complaint for failure to state a claim, a panel of our court reversed. See S.S. ex rel. Jervis v. McMullen, 186 F.3d 1066 (8th Cir. 1999), vacated (8th Cir. Sept. 30, 1999). We granted rehearing and vacated the panel opinion. We now affirm the order of the district court.²

I.

S.S. alleged in her complaint that three employees of the Missouri Division of Family Services acted unconstitutionally when they released her from state custody and returned her to her father, although they had notice that her father was allowing her to have contact with the known pedophile who subsequently sodomized her on at least two occasions. S.S. also alleged that, before her return to her father, the known pedophile himself called one of the defendants to complain that it was unfair to try to limit his contact with S.S.

The locus classicus for determining whether these facts, if proved, would give rise to liability for a constitutional tort is DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). In that case, the Court approved summary judgment against Joshua DeShaney, who claimed that although the state removed him temporarily from the custody of his abusive father, it did not do so permanently, and that his father finally beat him so severely that he suffered permanent brain damage. Id. at 193. The Court emphasized that the constitutional right to be free from bodily harm is a right secured only against state actors, not against private ones: The purpose of the fourteenth amendment "was to protect the people from the State, not to ensure that the State protected them from each other." Id. at 196. In denying Joshua a recovery, the Court remarked that while the state may have been aware of the dangers that Joshua faced, "it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201.

It is perhaps this last asseveration in DeShaney, namely, that the state did nothing to render the plaintiff more vulnerable to risks created by others, that has led some courts, including ours, to conclude that if the state acts affirmatively to place someone in a position of danger that he or she would not otherwise have faced, the state actor, depending on his or her state of mind, may have committed a constitutional tort. See, e.g., Gregory v. City of Rogers, Arkansas, 974 F.2d 1006, 1010 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993). While the correctness of that principle as a general matter is indisputable, we hold that it cannot give rise to liability in the present case for the simple reason that in returning S.S. to her father, the state did not increase the danger of significant harm to S.S.: It merely placed her back into the situation from which it had originally retrieved her.

We think that DeShaney in fact speaks specifically to this kind of situation. The Court held there that the state was not liable to Joshua, because "when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by once having offered him shelter." 489 U.S. at 201. Our previous cases have emphasized this aspect of DeShaney. For instance, in Wells v. Walker, 852 F.2d 368 370 (8th Cir. 1988), cert. denied, 489 U.S. 1012 (1989), we adverted to the proposition that a plaintiff in an action like the present one had to establish that "the state affirmatively place[d]" the plaintiff "in a position of danger [that he or she] would not otherwise have been in." It is true that two and a half years elapsed between the time that S.S. was taken from her father's custody and the time when she was returned to it, but we discern nothing in that interval that created a greater risk of abuse than the one that she would have faced had she never been taken from her father in the first place. In other words, the complaint contains no allegations that would justify a conclusion that by returning S.S. to her father the state created greater risks to her than the ones to which she was originally exposed.

We are aware that a leading case involving arguably similar circumstances in another circuit reached a contrary result, see K.H. through Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990), but we think that its facts serve to distinguish it from our case. In K.H., 914 F.2d at 849, the plaintiff sought compensation for injuries received when she was removed from her parents and placed in the custody of a foster parent who was known to be a child abuser. The court, relying on DeShaney, concluded that K.H.'s complaint stated a claim because the state had, if K.H. proved her case, placed her in a situation of danger. Id. The court did not advert to the statement in DeShaney that liability cannot be predicated on the state's deliberate act that returns a child to a risk that he or she was previously subject to, but we think that that is because that part of the holding in DeShaney was inapposite. In K.H., 914 F.2d at 848-49, the state affirmatively exposed the plaintiff to a different danger from the one from which she was removed, that is, the state placed her in a foster home, and it was that act that was held to be actionable.

We are mindful that drawing a distinction between exposing a child to a dangerous environment and returning her to an equally dangerous one may seem to some to be gratuitous. The line between action and inaction has been important in the law for centuries, but it has proven to be an elusive and thin one; so it is perhaps not surprising that cases on either side of that line will be so close factually that drawing a legal distinction between them will often seem hard to justify. But we see the distinction nevertheless. While the state did do something here, or at least in the present procedural posture we assume that it did, in the peculiar circumstances of this case the state's act is the same as if it had done nothing. The distinction is one, moreover, that we think DeShaney requires us to draw. The district court was therefore correct in dismissing S.S.'s complaint.

II.

We see another insuperable difficulty lying in S.S.'s way to a recovery. Even if the state in this case had acted affirmatively to create a danger to S.S., we think that the district court would nevertheless have been obliged to dismiss her complaint because the state's action did not rise to the level of egregiousness that is required to support an action for a substantive due process violation.

Assuming, as we must for present purposes, that the allegations in S.S.'s complaint are true, we think that they make out a case for negligence only. We come to this view not only because of the level of risk that a reasonable person would have assumed S.S. might be exposed to, but also because it was her father who was seeking custody of her. This last fact is one that must rest heavy in the balance in deciding the egregiousness of the defendants' conduct, because of the state's obligation to reunite children with their parents if possible; and we think that it serves to distinguish the case sharply from one in which the state delivered a child to, say, as in K.H., a foster home that presented the same level of risk that S.S. alleges here.

In order to succeed, a complaint for a violation of substantive due process rights must allege acts that shock the conscience, and merely negligent acts cannot, as a constitutional matter, do that: To hold otherwise "would trivialize the centuries-old principle of due process of law." Daniels v. Williams, 474 U.S. 327, 332 (1986). Even if the state's activities could be said to have been grossly negligent or even reckless in the circumstances present here, we believe that S.S.'s constitutional claim must fail. We have held more than once that gross negligence "is not actionable ... under § 1983." See Sellers by and through Sellers v. Baer, 28 F.3d 895, 902-03 (8th Cir. 1994), cert. denied, 513 U.S. 1084 (1995). While deliberate indifference, depending on the circumstances and the kind of deliberation and indifference involved, might well shock the conscience, see County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998), we see no similarity between our case and the Supreme Court cases in which a complaint was held to state a claim for the deprivation of substantive due process rights.

The Supreme Court's most recent pronouncement on relevant matters emphasizes that actionable cases must demonstrate a "level of ... abuse of power," id. at 846, or activity that was "so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency," id. at 847, quoting Breithaupt v. Abram, 352 U.S. 432, 435 (1957), itself quoting Rochin v. California, 342 U.S. 165, 174 (1952). Viewing the plaintiff's allegations in a light most favorable to her recovery, we cannot say that they describe the kind of conduct that violates substantive due process rights. W...