Tony L. By and Through Simpson v. Childers

Decision Date20 December 1995
Docket NumberNo. 94-5333,94-5333
Citation71 F.3d 1182
Parties''TONY'' L. and ''Joey" LL., (Minor children By and Through their next friend, Bruce SIMPSON), Plaintiffs-Appellants, v. Masten CHILDERS, II, in his official capacity as Secretary of the Cabinet for Human Resources; Cabinet For Human Resources, Department for Social Services, Commonwealth of Kentucky; Sally Bowzer, in her individual capacity; Unknown State Official I, in his or her individual capacity; Unknown State Official II, in his or her individual capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

T. Bruce Simpson (argued and briefed), Anggelis, Gordon & Simpson, Lexington, KY, Joe F. Childers, Lexington, KY, for Tony L. and Joey L.

E. D. Klatte, Staff Atty. (argued and briefed), Office of the Counsel, Frankfort, KY, for Cabinet for Human Resources, Sally Bowzer, Unknown State Official I, Unknown State Official II and Masten Childers, II.

Before: NELSON, RYAN, and McKAY, * Circuit Judges.

McKAY, Circuit Judge.

The Plaintiffs appeal the dismissal of their 42 U.S.C. Sec. 1983 action on qualified immunity grounds. The facts as alleged by Plaintiffs are as follows. Tony and Joey L., brothers and plaintiffs in this action, experienced from an early age onward some of the most despicable acts of sexual and physical abuse imaginable. The mother and her various boyfriends were the main perpetrators of these acts.

The rank abuse and neglect of these children did not go unnoticed. From 1985 to 1991, the Franklin County, Kentucky office of the Cabinet for Human Resources received at least forty-three reports indicating that Tony and Joey were being abused or neglected. These reports came from school teachers, day care center workers, neighbors, and police. Virtually all who came into contact with Tony and Joey recognized that the aberrant behavior of the boys was probably the result of abuse or neglect.

Cabinet social workers investigated many, if not most, of these reports over this six-year period. Despite the growing evidence of abuse and neglect, the Cabinet did not separate the boys from their mother until 1991. By then, the emotional damage Tony and Joey incurred was tremendous and probably irreparable.

Plaintiffs brought this Sec. 1983 action asserting that Defendants violated their federal due process rights by not enforcing various Kentucky child protection statutes. Plaintiffs also asserted that the Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. Sec. 5101 et seq., creates rights which plaintiffs can enforce in a Sec. 1983 action.

The district court dismissed both claims of the complaint because of qualified immunity. It held that no legal authority "clearly established in the plaintiffs a fundamental right and entitlement to the enforcement of Kentucky's child protective statutes during the period from 1985 to 1991." Dist. Ct. Op. (Aug. 9, 1993), J.A. at 226. Similarly, the court held that no legal authority clearly established that CAPTA creates enforceable rights. Id. at 227. Plaintiffs appeal the district court's grant of qualified immunity on both claims. We affirm the district court, but for different reasons.

When considering the question of qualified immunity, the court should first ask "whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Only after the court makes this determination, does it consider whether this right was clearly established. See id.; Christophel v. Kukulinsky, 61 F.3d 479, 484-85 (6th Cir.1995). Thus, we must first ask whether the facts as alleged by plaintiffs state a claim under Sec. 1983. See, e.g., Siegert, 500 U.S. at 233-34, 111 S.Ct. at 1793-94 (examining whether facts as alleged by plaintiff stated a claim for violation of a constitutional right).

I. Procedural Due Process

Plaintiffs first allege that their Fourteenth Amendment due process rights were violated when Defendants failed to enforce various Kentucky statutes providing for the welfare of minors. On appeal, Plaintiffs only argue that their procedural due process rights were violated. 1 Appellant Br. at 12, 14.

We begin our analysis by examining whether plaintiffs have any protected interests at all. Only if we find a protected interest do we ask whether the deprivation of that interest was in accordance with due process. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). Of the life, liberty, and property interests protected by the Due Process Clause, only liberty is implicated in this case. Liberty interests " 'may arise from two sources--the Due Process Clause itself and the laws of the States.' " Id. (citation omitted). Under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195, 109 S.Ct. 998, 1002-03, 103 L.Ed.2d 249 (1989), plaintiffs cannot successfully argue and have not argued that they have a protected liberty interest arising from the Due Process Clause itself. Thus, if plaintiffs have a protected liberty interest, it must be a liberty interest created by state law.

State-created liberty interests arise when a state places "substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Kentucky Dep't of Corrections, 490 U.S. at 462, 109 S.Ct. at 1909-10. A state substantively limits official discretion "by establishing 'substantive predicates' to govern official decisionmaking ... and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Id. (citation omitted). The state statutes or regulations in question also must use "explicitly mandatory language" requiring a particular outcome if the articulated substantive predicates are present. Id. at 463, 109 S.Ct. at 1910. But see Sandin v. Conner, --- U.S. ----, ----, 115 S.Ct. 2293, 2299, 132 L.Ed.2d 418 (1995) (reasoning that, in the prison context, the analysis should focus on the nature of the deprivation rather than the language of the regulation involved). Finally, the statute or regulation must require a particular substantive outcome. State-created procedural rights that do not guarantee a particular substantive outcome are not protected by the Fourteenth Amendment, even where such procedural rights are mandatory. Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir.1993) (holding that victim impact law, requiring prosecutor to give notice of trial or guilty plea entry to victim, does not create an interest protected by the Due Process Clause because it only creates expectation of process and not expectation of a particular substantive result), cert. denied, --- U.S. ----, 114 S.Ct. 2742, 129 L.Ed.2d 862 (1994).

Here, Plaintiffs have referred the court to Kentucky's Unified Juvenile Code, comprising forty-five chapters of the Kentucky Revised Statutes. 2 In reviewing these code sections, only two provisions potentially embody state-created liberty interests which would benefit Plaintiffs in this case. 3 First, K.R.S. Sec. 620.050(3) provides:

Upon receipt of a report of an abused, neglected or dependent child pursuant to this chapter, the cabinet as the designated agency or its delegated representative shall initiate a prompt investigation, take necessary action and shall offer protective services toward safeguarding the welfare of the child.

The language of this statute is undoubtedly mandatory. Furthermore, the statute mandates action based upon substantive predicates. 4

The claim of a state-created liberty interest fails, however, because no particular substantive outcome is mandated. The requirement that an investigation be initiated only gives plaintiffs an expectation of receiving a certain process. See Pusey, 11 F.3d at 656. 5 The statute also requires the Cabinet to take "necessary action" and to offer "protective services." Nowhere does the Unified Juvenile Code define these terms. Nor does the Code set forth the options available to the Cabinet. It does not explain, for example, whether the Cabinet should take the child from the home, provide the parent with counseling, or simply monitor the family situation on a regular basis. Each of these actions, and a myriad other possibilities, appears to be a reasonable response to a report of child abuse. Yet, the Unified Juvenile Code does not specifically require the Cabinet to take any one of them. An expectation that some sort of action will be taken is not enough. Rather, a plaintiff must have an expectation that a particular result will follow from a particular, required action. This statute simply does not provide Plaintiffs with such an expectation.

Second, K.R.S. Sec. 620.040 requires the Cabinet to take certain actions upon receiving a report of child abuse. For example, K.R.S. Sec. 620.040(1) requires the Cabinet, upon receiving a report of abuse or neglect, to investigate the matter and to report the matter to the state or county attorney, as well as to the local enforcement agency or the state police. K.R.S. Sec. 620.040(2) requires similar action for reports of dependency. 6 Again, these requirements do not mandate any particular substantive result. Rather, they only give Plaintiffs an expectation that a certain procedure will be followed. This is not sufficient to give rise to a state-created liberty interest.

Finally, Plaintiffs refer us to K.R.S. Sec. 200.100(2). This statute requires the Cabinet to "discover dependent, neglected, delinquent and defective children, and shall secure for them the benefits of law...." This statute fails to create a liberty interest for the same reasons as the others. It requires no particular substantive outcome and leaves the Cabinet with a broad amount of discretion.

To some, the conclusion that Plaintiffs have no state-created liberty interest may seem to thwart the very purpose for...

To continue reading

Request your trial
61 cases
  • Olivia Y. ex rel. Johnson v. Barbour, No. CIV.A.3:04 CV 251LN.
    • United States
    • U.S. District Court — Southern District of Mississippi
    • November 18, 2004
    ...and not expectation of a particular substantive result), cert. denied, 512 U.S. 1237, 114 S.Ct. 2742, 129 L.Ed.2d 862 (1994). 71 F.3d 1182, 1185 (6th Cir.1995). The statute at issue in Tony L. provided [u]pon receipt of a report of an abused, neglected or dependent child pursuant to this ch......
  • Jordan v. City of Philadelphia, Civ.A. 99-0016.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • September 14, 1999
    ... ... , plaintiffs have alleged that defendants violated this statute through their failure to act and that this violation proximately caused the ... Tony L. v. Childers, 71 F.3d 1182 (6th Cir.1995) (McKay, J., 10th Cir. Judge, ... ...
  • Hutchinson on Behalf of Baker v. Spink
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 23, 1997
    ...do not have a private right to enforce it. See Doe v. District of Columbia, 93 F.3d 861, 865 (D.C.Cir.1996); Tony L. By and Through Simpson v. Childers, 71 F.3d 1182 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996). We have no need to reach that question (......
  • Thomas v. Cohen
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 23, 2002
    ...424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir.1997); Tony L. v. Childers, 71 F.3d 1182 (6th Cir.1995). Property interests are not created by the Constitution. Cleveland v. Bd. of Educ. of Loudermill, 470 U.S. 532, 538, 105 S.Ct. 148......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT