*Chief Judge of the Eastern District of Texas, sitting by

designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-7313.

Joseph WALTON, as next friend of Christopher Walton, a minor,

Plaintiff-Appellee,

v.

Alma ALEXANDER, et al., Defendants,

Alma Alexander, Defendant-Appellant.

May 19, 1994.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before POLITZ, Chief Judge, GARWOOD, Circuit Judge, and PARKER*,

District Judge.

ROBERT M. PARKER, District Judge:

Plaintiff-appellee Joseph Walton filed this action on behalf

of his son Christopher Walton (Walton), a student at the

Mississippi School for the Deaf, against Defendant-appellant Dr.

Alma Alexander (Alexander), former superintendent of the

Mississippi School for the Deaf, alleging violations of 42 U.S.C.

§ 1983. Alexander moved for summary judgment on the basis of

qualified immunity. The District Court denied her motion, and she

is before this Court on interlocutory appeal of that order as is

her right under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,

86 L.Ed.2d 411 (1985). For the reasons set out below, we REVERSE.

STANDARD OF REVIEW

Review of a district court's ruling on a motion for summary
2

judgment is plenary. Lodge Hall Music, Inc. v. Waco Wrangler Club,

Inc., 831 F.2d 77, 79 (5th Cir.1987). Although review is de novo,

the court of appeals applies the same standards as those that

govern the district court's determination. Jackson v. Federal

Deposit Ins. Corp., 981 F.2d 730, 732 (5th Cir.1992). Summary

judgment must be granted if the court determines that "there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).

To determine whether there are any genuine issues of material fact,

the court must first consult the applicable substantive law to

ascertain what factual issues are material. The moving party bears

the burden of coming forward with proof of the absence of any

genuine issues of material fact through the identification of those

portions of the pleadings, depositions, answers to the

interrogatories, and admissions on file, together with any

affidavits which it believes demonstrates the absence of any

genuine issues of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The

nonmovant is then required to counter the motion for summary

judgment. FED.R.CIV.P. 56(e). "[M]ere general allegations which

do not reveal detailed and precise facts will not prevent the award

of summary judgment." Nicholas Acoustics, Etc. v. H & M Const.

Co., Inc., 695 F.2d 839, 844 (5th Cir.1983) (quoting Liberty

Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1051 (5th

Cir.1967)). The court must then review all evidence bearing on

those issues, viewing the facts and inferences in the light most
 

1Civil Action No. DC-75-31-S (N.D.Miss.1979). 

3

favorable to the nonmoving party. Lavespere v. Niagara Mach. &

Tool Works, Inc., 910 F.2d 167 (5th Cir.1990).

FACTS

During the latter part of 1987, while he was a student at the

Mississippi School for the Deaf (the School), Walton was sexually

assaulted by a fellow student. This assault was reported to school

officials, including Alexander, who filed a report with the

Mississippi Department of Welfare. Pursuant to the School's

policies implemented by Alexander, both the School and the

Mississippi Department of Welfare investigated the assault. The

School called its discipline committee to counsel both students and

to contact each student's parents regarding the assault. Walton

was also provided with medical treatment by the School's physician.

Walton and his assailant were suspended from the School campus for

three days, which Alexander believed to be the maximum punishment

allowed under a consent decree from an unrelated class action

settlement, Mattie T. v. Holiday1.

Upon return from suspension, Alexander contends both Walton

and his assailant were given psychological consultation by the

School's psychologist. On the other hand, Walton contends that

after returning to the School he did not receive any counseling or

instructions as to how to protect himself from further assault.

Alexander recalls that in addition to counseling, the two students

were placed in separate dormitories. Walton alleges, however, that

Alexander took insufficient measures to shield him from the
4

assailant after returning from suspension. The law is clear that

the court cannot consider mere general allegations of fact in

response to a motion for summary judgment. Therefore, we find

Alexander's efforts to separate Walton from his assailant to be

undisputed. By the fall of 1988, budgetary constraints imposed by

the State of Mississippi forced the School to close all but one

male dormitory. Consequently, Walton and his assailant were placed

in the same dormitory. Walton was assigned a special dormitory

room with a private bath, which was intended to keep Walton out of

the bathrooms with other male students. Walton contends that the

assailant was allowed unrestricted access to him in 1988, and he

was again sexually assaulted by the same student. However,

Alexander was not informed of the second assault. Thereafter,

Walton filed the present action under 42 U.S.C. § 1983, alleging a

Fourteenth Amendment violation based on Alexander's failure to

protect Walton from the sexual assault of the offending fellow

student.

QUALIFIED IMMUNITY

Appellant contends that the district court erred in denying

her summary judgment because she was entitled to qualified immunity

as a matter of law.

State officials are protected by qualified immunity for

alleged constitutional torts if their conduct does not violate

clearly established law effective at the time of the alleged tort.

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396

(1982). Therefore, the first step in examining a defendant's claim
5

of qualified immunity is to determine whether the plaintiff has

"alleg[ed] the violation of a clearly established constitutional

right." Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114

L.Ed.2d 277 (1991). For a constitutional right to be clearly

established, "[t]he contours of the right must be sufficiently

clear that a reasonable official would understand that what he is

doing violates that right." Anderson v. Creighton, 483 U.S. 635,

640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987).

Walton's amended complaint alleges that he was deprived of

his "right to be free from sexual assault while attending school at

the Mississippi School For the Deaf " in violation of his

substantive due process right to bodily integrity. A substantive

due process right, as opposed to a procedural due process right, is

one either listed in the Bill of Rights or one held to be so

fundamental that a state may not take it away. See generally,

Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28

(1982).

Although the Due Process Clause of the Fourteenth Amendment

provides that "[n]o State shall ... deprive any person of life,

liberty, or property, without due process of law," nothing in the

language of the clause itself requires a state, or its officials,

to protect the life, liberty, and property of persons within its

borders against the actions of private actors. Courts have

declined to recognize as a general rule a person's affirmative

right to state protection, even when such protection may be

necessary to secure life, liberty, or property interests. See
 

2The U.S. Supreme Court's use of the term "State" is meant

to refer to state and local governmental entities and their

agents. DeShaney v. Winnebago County Dept. of Social Services,

489 U.S. at 195, n. 1, 109 S.Ct. at 1002, n. 1. 

6

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S.

189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989); see also

Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 2458, 73

L.Ed.2d 28 (1982). Following this reasoning, the U.S. Supreme

Court has concluded that, as a general matter, "a State's2 failure

to protect an individual against private violence simply does not

constitute a violation of the Due Process Clause." DeShaney v.

Winnebago County Dept. of Social Services, 489 U.S. at 197, 109

S.Ct. at 1004.

 However, in certain limited circumstances, when a "special

relationship" exists between a state official and a particular

individual, the state official is imposed with a duty to protect

that particular individual, thereby creating a constitutional right

to care and safety. See generally Estelle v. Gamble, 429 U.S. 97,

97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that the State is

required to provide adequate medical care to incarcerated

prisoners). For example, in Youngberg v. Romeo, supra, the U.S.

Supreme Court held that the Due Process Clause of the Fourteenth

Amendment requires a state, through its officials, to provide for

the reasonable safety and care of involuntarily committed mental

patients. Id. at 314-325, 102 S.Ct. at 2457-2463. Estelle and

Youngberg stand for the proposition that when a state holds a

person against his will, the Constitution imposes a duty upon the
 

3Some courts have also imposed a constitutional duty to

protect foster children by analogy to involuntary

institutionalized individuals. See Yvonne L., By and Through

Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883, 893

(10th Cir.1992); Taylor By and Through Walker v. Ledbetter, 818

F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct.

1337, 103 L.Ed.2d 808 (1989); Doe v. New York City Dept. of

Social Services, 649 F.2d 134 (1981), after remand, 709 F.2d 782

(2d Cir.), cert. denied sub nom., Catholic Home Bureau v. Doe,

464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). A special

relationship is also recognized in cases involving a child

removed from his home and placed under state supervision. See

Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir.1990), cert.

denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). 

7

state and its officials to assume the responsibility for that

person's safety and well-being. DeShaney v. Winnebago County Dept.

of Social Services, 489 U.S. at 200, 109 S.Ct. at 1005. This duty

arises from the limitations that have been imposed on the

individual's freedom to act on his own behalf. Id. at 200, 109

S.Ct. at 1006; see also Estelle v. Gamble, supra at 103, 97 S.Ct.

at 290.3 These cases leave open "the possibility that the duty

owed by a state to prisoners and the institutionalized might also

be owed to other categories of persons in custody by means of

"similar restraints of personal liberty.' " D.R. by L.R. v. Middle

Bucks Area Vo. Tech. School, 972 F.2d 1364, 1370 (3d Cir.1992) (en

banc), cert. denied, --- U.S. ----, 113 S.Ct. 1045, 122 L.Ed.2d 354

(1993) (quoting DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. at 200, 109 S.Ct. at 1006).

Appellant contends that no "special relationship" exists

between herself and Walton because his voluntary enrollment at the

School does not place him within a category of persons recognized

by law in 1987 and 1988 as involuntarily committed to state
8

custody. Appellant primarily relies on the opinion in D.R. By L.R.

v. Middle Bucks Area Vo. Tech. School, supra, in which the Third

Circuit held that a school official's authority over a special

education day student does not create the type of physical custody

necessary to establish a special relationship between the official

and the student due to the fact that both the student and her

parents retain substantial freedom to act. D.R. by L.R., 972 F.2d

at 1373. The Court reasoned that because the students were able to

return home at the end of the school day, their parents remained

their primary caretakers. Id. The Court noted, however, that in

those cases in which a duty was imposed, the state assumed "an

important, continuing, if not immediate, responsibility for the

child's well-being" due to the fact that the child's placement in

state custody rendered him or her dependent upon the state to meet

the child's basic needs. Id. at 1372.

There are several factors that exist in this residential

special education school which distinguish this case from those

cases involving students who attend day classes, as in D.R. by L.R.

v. Middle Bucks Area Vo. Tech. School, supra. For example, the

School had twenty-four (24) hour custody of Walton, a handicapped

child who lacks the basic communications skills that a normal child

would possess. Because its students are handicapped, the School

has to enforce strict rules that impact on what the students can

and cannot not do. Obviously, Walton was not free to leave when he

resided at the School. In addition, the economic realities of most

Mississippi families are such that there is no other viable option
 

415 F.3d 443 (5th Cir.1994). 

9

to them if they want their handicapped children to receive an

education. The residential special education program provided by

the State of Mississippi had a significant custodial component

wherein Walton was dependent on the School for his basic needs and

lost a substantial measure of his freedom to act. Therefore, we

find that Walton falls within a category of persons in custody by

means of "similar restraints of personal liberty," thereby

establishing the existence of a "special relationship" between

Alexander and Walton sufficiently clear by law in 1987 and 1988 to

impose Alexander with a duty to provide Walton with reasonable

conditions of safety. No reasonable superintendent in 1987 could

have assumed she could have failed to take reasonable steps to

protect the bodily integrity of one of her "special relationship"

students.

Having established that Walton's constitutional right to

bodily integrity and Alexander's duty with respect to that right

were clearly established in 1987, when the first incident of sexual

molestation occurred, we must determine whether, on the record

before us, Alexander's failure to act or actions amounted to

"deliberate indifference." In Doe v. Taylor Ind. School Dist.4,

this Court held that a school official's liability arises only at

the point when the student shows that the official, by action or

inaction, demonstrates a deliberate indifference toward his or her

constitutional rights. Taylor, 15 F.3d at 454. The standard to be

applied is not one of a guarantor or insurer of Walton's safety,
10

but whether Alexander's actions provided reasonable conditions of

safety, so as not to rise to a level of deliberate indifference.

Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745, 761 (5th

Cir.1993); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th

Cir.1988) (rehearing denied) (holding that in order to violate a

constitutional right, a defendant must act either knowingly or with

deliberate, reckless indifference).

In Taylor, this Court adopted a test for determining personal

liability of officials in physical sexual abuse cases. Although

Taylor involved the physical sexual abuse of a student by an

employee of the school, we can apply the same test to a "special

relationship" student who is sexually molested or abused by a third

party, which in this case is another student. A supervisory school

official can be held personally liable for the violation of a

"special relationship" student's constitutional right to bodily

integrity in sexual molestation cases if the student establishes

that:

(1) the defendant learned of facts or a pattern of sexual

molestation or abuse by a third party pointing plainly

toward the conclusion that the third party was sexually

molesting or abusing the "special relationship" student;

and

(2) the defendant demonstrated deliberate indifference toward

the constitutional rights of the "special relationship"

student by failing to take action that was obviously

necessary to prevent or stop the abuse; and

(3) such failure caused a constitutional injury to the

"special relationship" student.

Taylor, 15 F.3d at 454.

The evidence submitted by the plaintiff in this case clearly
11

establishes that soon after Walton was first molested in 1987,

Alexander received a report from Walton of the incident. Alexander

learned of facts sufficient to satisfy the first prong of the test.

The evidence submitted also shows that Alexander did not respond

with deliberate indifference. She filed a report to the

Mississippi Department of Welfare; she personally investigated the

assault; she provided Walton with medical treatment administered

by the School's physician; she called the School's discipline

committee to counsel both students and notify each student's

parents; she suspended both students from the School campus for

three days; and she separated Walton from his assailant as best

she could under the circumstances created by the School's budgetary

constraints. Alexander's actions may have been ineffective in

halting the molestation, but her actions did not reflect that she

was deliberately indifferent. Alexander provided reasonable

conditions of safety to protect the bodily integrity of Walton.

Therefore, as to the third prong of the test, no failure to act or

action on her part had a causal connection with the second assault

which occurred in 1988. Summary judgment should have been granted

to Alexander on the grounds of qualified immunity.

CONCLUSION

The District Court's Order denying the Motion for Summary

Judgment filed by superintendent Alexander is REVERSED.

GARWOOD, Circuit Judge, concurring specially:

I agree with the judgment of reversal, but am unable to join

in the majority opinion.
12

This suit under 42 U.S.C. § 1983 seeks recovery of damages

from appellant, now retired but then superintendent of the

Mississippi School for the Deaf, for injuries suffered by one of

its students, Christopher Walton (Walton), when sexually assaulted

at the school by a fellow student, a private individual not acting

under color of law or with any authorization, approval, or

condonation by appellant or any other state actor. Appellant

challenges the denial of her motion for summary judgment based on

qualified immunity as well as on the assertion that there was no

constitutional violation. In this setting, even if Walton were in

such a "special relationship" to the state that the Constitution

imposed on it (and appellant) the duty to take affirmative action

to protect him from assault by private individuals not acting under

color of law, see DeShaney v. Winnebago County, 489 U.S. 189, 109

S.Ct. 998, 103 L.Ed.2d 249 (1989), nevertheless it is plain that

appellant would not have violated any constitutional right of

Walton's absent "deliberate indifference" on her part to his

safety.

I agree with the majority's obviously correct holding that the

absence of evidence sufficient to sustain a finding that appellant

was deliberately indifferent to Walton's safety entitles her to

summary judgment. And that is plainly true whether or not the

state had a DeShaney "special relationship" to Walton while he

attended its School for the Deaf. This case could, and should,

have easily and simply been disposed of on that basis alone.

However, the majority, quite unnecessarily, goes further and
 

1See also, e.g., Jean v. Nelson, 472 U.S. 846, 854, 105

S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985):

" "Prior to reaching any constitutional questions,

federal courts must consider nonconstitutional grounds

for decision.' [citations omitted]....' [i]f there is

one doctrine more deeply rooted than any other in the

process of constitutional adjudication, it is that we

ought not to pass on questions of constitutionality ...

unless such adjudication is unavoidable.' [citation

omitted]." 

13

purports to hold that Walton was in a DeShaney "special

relationship" and that this was clearly established constitutional

law in 1988. These rulings are, as a practical matter, largely

insulated from further challenge because neither appellant nor

Walton has any incentive to contest them.

I emphatically disagree both with the wholly unnecessary

reaching of such constitutional issues and with the majority's

resolution of them.

As to the former, it is settled that federal courts have a

"strong duty to avoid constitutional issues that need not be

resolved in order to determine the rights of the parties to the

case under consideration." County Court of Ulster County v. Allen,

442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979).

This "responsibility to avoid unnecessary constitutional

adjudication" is "a fundamental rule of judicial restraint." Three

Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 157, 104 S.Ct.

2267, 2279, 81 L.Ed.2d 113 (1984).1 All this, of course, applies

not only to the Supreme Court but to the lower federal courts as

well. See Bowen v. United States, 422 U.S. 916, 920, 95 S.Ct.

2569, 2573, 45 L.Ed.2d 641 (1975) (in light of the proper
14

"reluctance to decide constitutional questions unnecessarily," the

Court of Appeals, "having correctly decided that Almeida-Sanchez

[v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596

(1973) ] did not apply to a 1971 search, ... should have refrained

from considering whether our decision in that case applies to

searches at checkpoints"). See also Jean v. Nelson, 472 U.S. 846,

854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985). The majority

should not have disregarded the wise counsel of those and like

cases.

As the majority has spoken—albeit unnecessarily—to whether

this case presents a DeShaney special relationship, I feel

compelled to likewise address that issue.

The key to the DeShaney "special relationship" is that it

arises "when the State takes a person into its custody and holds

him there against his will" and thus "by the affirmative exercise

of its power so restrains an individual's liberty that it renders

him unable to care for himself." Id. 489 U.S. at 200, 109 S.Ct. at

1005. That is not the situation here. The State of Mississippi

did not force Walton to attend the School for the Deaf or hold him

there against his will. There is no evidence or allegation that

attendance at the School for the Deaf is other than voluntary (or

even that boarding there is something that the School requires of

all who wish to enroll as students). Indeed, the record reflects

that at all relevant times Walton had passed the age at which
 

2Walton's affidavit states that the first incident (as to

which, apparently, recovery is not sought) occurred "in late

1987" and the other "in October 1988." Walton was born September

5, 1971, as reflected by the attachment to his affidavit, and was

hence fifteen years of age on September 1, 1987, and sixteen

years of age on September 1, 1988. For the school year 1987-

1988, when the first incident occurred, Mississippi compulsory

attendance applied only to those who had "not attained the age

of" thirteen years "on or before September 1," 1987; for the

school year 1988-1989, when the second incident occurred,

Mississippi compulsory attendance applied only to those who had

"not attained the age of" fifteen years "on or before September

1," 1988. Miss.Code § 37-13-91(2)(f)(ii) & (iii). Since Walton

had attained the age of fifteen before September 1, 1987, he was

not subject to compulsory school attendance during either the

1987-1988 or the 1988-1989 school years. It was not until the

1989-1990 school year that the compulsory attendance age included

(as it does now) those who had "not attained the age of seventeen

(17) years on or before September 1," 1989; however, by that

time Walton would not have been covered because he had attained

the age of seventeen on September 5, 1988. 

 

3"... [O]ur cases have recognized that the Due Process

Clauses generally confer no affirmative right to

governmental aid, even where such aid may be necessary

to secure life, liberty, or property interests of which

the government itself may not deprive the individual. 

See, e.g., Harris v. McRae, 448 U.S. 297, 317-318, 100

S.Ct. 2671, 2688-2689, 65 L.Ed.2d 784 (1980) (no

obligation to fund abortions or other medical services)

(discussing Due Process Clause of Fifth Amendment); 

15

Mississippi required attendance at any school.2

The majority infers that the School for the Deaf was the only

educational opportunity practically available to Walton. That

reasoning goes far beyond the DeShaney rationale, which is focused

on compulsion "by the affirmative exercise of" state "power."

Indeed, in this respect the majority seems to suggest that the

state's failure to act—its supposed failure to provide other

educational opportunities for the deaf—furnishes the required

compulsion. But that is contrary to the very heart of DeShaney's

rationale. Id. at 196, 109 S.Ct. at 1003.3 See also, e.g., Dawson
Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874,

31 L.Ed.2d 36 (1972) (no obligation to provide adequate

housing) (discussing Due Process Clause of Fourteenth

Amendment); see also Youngberg v. Romeo, supra, 457

U.S., at 317, 102 S.Ct., at 2458 ("As a general matter,

a State is under no constitutional duty to provide

substantive services for those within its border"). As

we said in Harris v. McRae: "Although the liberty

protected by the Due Process Clause affords protection

against unwarranted government interference ..., it

does not confer an entitlement to such [government aid]

as may be necessary to realize all the advantages of

that freedom.' 448 U.S., at 317-318, 100 S.Ct. at

2688-2689 (emphasis added)." Id. 

16

v. Milwaukee Housing Authority, 930 F.2d 1283, 1284-85 (7th

Cir.1991). Moreover, the record simply does not support the

majority. Appellant's supplemental affidavit filed below states:

"the Mississippi School for the Deaf was not the only public

deaf education facility in the State of Mississippi. In fact,

handicapped educational facilities were available throughout

the state, including deaf education facilities. The local

school districts were obligated to provide handicapped

educational facilities, including deaf educational facilities,

so long as at least five handicapped students could be found

in their district. Consequently, many such facilities were

spread around the state.

In addition, there were private deaf education

institutions in the State of Mississippi.

Indeed, students at the Mississippi School for the Deaf

were there voluntarily. They and their parents were free to

place them in either public or private educational facilities

throughout the state and they were not obligated to attend the

Mississippi School for the Deaf. They were free to enroll at

the Mississippi School for the Deaf and they could withdraw at

their option."

Mississippi law provides for special education programs in local

schools for children with defective hearing, as well as for

financial assistance for this purpose to such students attending

private schools. See Miss.Code §§ 37-23-1—37-23-9; 37-23-61—37-

23-73.
 

4In Taylor By and Through Walker v. Ledbetter, 818 F.2d 791

(11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 403

L.Ed.2d 808 (1989), a court order removed the child from the

custody of her natural parents and put her in the custody of the

state department, which then placed her with foster parents who

injured her. Id. at 792. The Eleventh Circuit held this was

analogous to Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73

L.Ed.2d 28 (1982), because "[i]n both cases, the state

involuntarily placed the person in a custodial environment, and

in both cases, the person is unable to seek alternative living

arrangements." Id. at 795 (emphasis added). Ledbetter went on

to say "[w]e hold that a child involuntarily placed in a foster

home is in a situation so analogous to a prisoner ... that the

foster child may bring a section 1983 action...." Id. at 797

(emphasis added). The same sort of situation was before the

Tenth Circuit in Yvonne L. v. New Mexico Department of Human

Services, 959 F.2d 883, 892 (10th Cir.1992), where the court

quoted this very language from Ledbetter. In Doe v. New York

City Department of Social Services, 649 F.2d 134, 137 (2d

Cir.1981), the child "when she was two years old, was placed in

foster care ... in the legal custody of the New York City

17

The majority looks to DeShaney's footnote 9 and the foster

home case cited in the majority's footnote 3. Again, however, the

majority fails to observe the crucial distinguishing factor, made

plain by the DeShaney footnote, namely state coercion: "Had the

State by the affirmative exercise of its power removed Joshua from

free society and placed him in a foster home operated by its

agents, we might have a situation sufficiently analogous to

incarceration or institutionalization to give rise to an

affirmative duty to protect." Id. 489 U.S. at 201, 109 S.Ct. at

1006, n. 9. Here, Walton attended the School for the Deaf

voluntarily and/or by the choice of his parents. Similarly, the

cases cited in the majority's note 3 are all ones in which the

state, by the affirmative exercise of its powers, has taken the

child from its parents and involuntarily placed it in state custody

and in the setting in which the injury arose.4 In contrast, where
Commissioner of Welfare," which subsequently placed her in foster

homes where she was injured.

This was also the basis for the Seventh Circuit's

decision in K.H. ex rel Murphy v. Morgan, 914 F.2d 846 (7th

Cir.1990), where the court observed with respect to the

female plaintiff that "The juvenile court ... ordered her

removed from the custody of her parents ... [and] placed her

with a foster parent." 914 F.2d 846 at 848. The court went

on to say "Here ... the state removed a child from the

custody of her parents; and having done so it could no more

place her in a position of danger, deliberately and without

justification ... than it could deliberately and without

justification place a criminal defendant in a jail or prison

in which his health or safety would be in danger...." Id.

at 849. Morgan expressly recognizes that a different

situation is presented, in which the state lacks

responsibility, where there is a "voluntary placement by the

natural parents." Id.

The special relationship that was referred to in dicta

in our opinion in Griffith v. Johnson, 899 F.2d 1427, 1439

(5th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712,

112 L.Ed.2d 701 (1991), similarly was that which arose when

the state involuntarily terminated the natural parent-child

relationship by court proceedings and thereafter was

appointed by the court as managing conservator for the

child. Id. at 1431. 

 

5Declining to find a "special relationship," the Third

Circuit states:

"In this case, Walter Fialkowski's personal

18

the placement is voluntary many courts—and all since DeShaney —have

held that there is no such "special relationship." See, e.g.,

Milburn v. Anne Arundel County Department of Social Services, 871

F.2d 474, 476 (4th Cir.1989) (declining to find a "special

relationship" because "[t]he State of Maryland by the affirmative

exercise of its power had not restrained the plaintiff's liberty;

he was voluntarily placed in the foster home by his natural

parents"); Fialkowski v. Greenwich Home For Children, Inc., 921

F.2d 459, 465-66 (3d Cir.1990);5 Monahan v. Dorchester Counseling
liberty was not substantially curtailed by the state in

any way. His parents voluntarily placed him at the

Greenwich Home CRRS; indeed, they specifically sought

such a facility because they were not satisfied that he

was making sufficient progress at the training facility

in which he was previously placed. Not only were the

Fialkowskis free to remove their son from the CRRS if

they wished, but Walter Fialkowski himself enjoyed

considerable freedom of movement. He was thus not

deprived of freedom "through incarceration,

institutionalization or other similar restraint of

personal liberty.' DeShaney, 489 U.S. at 189, 109

S.Ct. at 998." Id. at 465-66 (footnote omitted). 

 

6Monahan finds no special relationship, stating:

"The complaint alleges that Monahan "voluntarily

committed himself to the care and custody [of DMH and

Millie's Cottage].' Because the state did not commit

Monahan involuntarily, it did not take an "affirmative

act' of restraining his liberty, an act which may

trigger a corresponding due process duty to assume a

special responsibility for his protection.... Monahan

attempts to distinguish this case because, unlike

Joshua DeShaney, who lived at home with his father,

Monahan lived for six days in a facility administered

by (or under contract to) the Commonwealth of

Massachusetts.... Although Monahan may have had closer

contacts with the state than did Joshua DeShaney, he

was not being held "against his will,' nor had the

state used its sovereign power to "render[ ] him unable

to care for himself.' " 

19

Center, Inc., 961 F.2d 987, 991 (1st Cir.1992).6 See also K.H. ex

rel Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir.1990) (citing

Milburn with approval).

Post-DeShaney, there are no appellate decisions of which I am

aware that have found a "special relationship" where the State is

not holding the plaintiff "against his will." Id. 489 U.S. at 198,

109 S.Ct. at 1005. Even compulsory school attendance laws—not

present here—have not sufficed for this purpose. See Maldonado v.

Josey, 975 F.2d 727, 730-733 (10th Cir.1992), cert. denied, ---
 

7Thus, Goodman states "[a]lthough there is nothing in the

Constitution which requires the state of Missouri to admit all

patients seeking treatment, once [plaintiff] Rachel was admitted

as a patient, voluntary or involuntary, she had a constitutional

right to a basically safe and humane living environment." Id. at

804. In Society for Good Will, the same thought was expressed: 

"Even granting that the State of New York was not required to

build schools for the mentally retarded or admit voluntary

residents, once it chose to house those voluntary residents, thus

making them dependent on the state, it was required to do so in a

manner that would not deprive them of constitutional rights." 

Id. at 1246. 

20

U.S. ----, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. v. Middle

Bucks Area Vocational Technical School, 972 F.2d 1364, 1371-72 (3d

Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1045,

122 L.Ed.2d 354 (1993); J.O. v. Alton Community Unit Sch. Dist.

II, 909 F.2d 267, 272 (7th Cir.1990). Pre-DeShaney, there are a

few appellate decisions—none by this Court—indicating that those

"voluntarily committed" to a state mental hospital or facility for

the retarded may stand in what amounts to a "special relationship"

to the state institution. See Goodman v. Parwatikar, 570 F.2d 801,

804 (8th Cir.1978); Society for Good Will To Retarded Children v.

Cuomo, 737 F.2d 1239, 1244 (2d Cir.1984). It is doubtful that

these cases survive DeShaney as they are directly contrary to its

held "against his will" rationale. Moreover, they seem to rely on

the idea that by accepting custody of the individual the state

assumed the duty to take affirmative action to protect him from

fellow inmates.7 This, however, runs counter to DeShaney's

rejection of the analogous contention made there, viz:

"It may well be that, by voluntarily undertaking to

protect Joshua against a danger it concededly played no part

in creating, the State acquired a duty under state tort law to

provide him with adequate protection against that danger. See
21

Restatement (Second) of Torts § 323 (1965) ...; see generally

W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton

on the Law of Torts § 56 (5th ed. 1984) (discussing "special

relationships' which may give rise to affirmative duties to

act under the common law of tort). But the claim here is

based on the Due Process Clause of the Fourteenth Amendment,

which, as we have said many times, does not transform every

tort committed by a state actor into a constitutional

violation.... A State may, through its courts and

legislatures, impose such affirmative duties of care and

protection upon its agents as it wishes. But not "all

common-law duties owed by government actors were ...

constitutionalized by the Fourteenth Amendment." Id. 489 U.S.

at 201-02, 109 S.Ct. at 1006-07.

Moreover, even if Goodman or Society for Good Will survive

DeShaney, they would not control the result here. There is no

reason to believe that Walton's status at the School for the Deaf

was comparable, in terms of his ability to act for himself and his

general freedom, to that of a patient in a mental hospital or a

retarded child in a state home. There is nothing to indicate that

Walton was not competent mentally and, except for his deafness,

physically. At the time of the first incident he was sixteen years

old and at the time of the second—the one as to which recovery is

sought—he was seventeen. The age of consent for sexual contact is

generally not greater than sixteen. See 18 U.S.C. § 2243(a);

Model Penal Code § 213.3(1)(a). See also id. § 213.4, comment 1.

At common law, the age of consent to marry was fourteen for males.

52 AM.JUR.2D Marriage § 14; 55 C.J.S. Marriage § 111. At all times

Walton was in the legal custody of his parents, and apparently

resided with them during vacations and the like. They were free to

withdraw him from the School for the Deaf at any time or,

presumably, to change his status from that of boarder to day

student. He was not subject to any compulsory school attendance.
 

8Cserr was the principal authority relied on in Goodman. 

Id. at 804.

22

Whatever restrictions he might have been under while he—on the

basis of his parents' voluntary decision (and, for all we know, his

own)—attended the school as a boarder are not shown to be

significantly different from those which might be expected at a

private boarding school. In contrast, in Society for Good Will,

more than 75 percent of the residents were " "profoundly retarded

(IQ below 20).' " In Goodman it was said that a constitutional

violation might be found "[i]f plaintiff can establish ... a

sufficient helplessness on the part of [the injured mental patient]

Rachel," who had been involuntarily committed on at least two other

occasions. Id. at 804 (emphasis added). In Harper v. Cserr, 544

F.2d 1121 (1st Cir.1976), the court said that its conclusion that

"a voluntary inmate in a state institution, or her personal

representative, may in some circumstances have a cause of action

under § 1983 for malicious or wanton maltreatment or neglect,

cannot be regarded as more than tentative in the present state of

the law." Id. at 1122. It went on to observe that the

"constitutional basis" for a duty to inmates of state institutions

such as mental hospitals "has yet to be defined, especially with

respect to inmates whom the state claims no right to confine. In

the case of voluntarily committed persons, it would seem limited to

those who by reason of disability are to a great degree helpless;

and, if not confined de jure, are at least confined de facto." Id.

at 1123.8 Here, it can hardly be said that Walton was "to a great
We further observe that in Spence v. Staras, 507 F.2d

554 (7th Cir.1974), cited in Cserr (id. at 1123), the

"nonverbal" inmate at the state hospital was described as a

"person confined under state authority." Spence at 557

(footnote omitted). 

 

9And, it is settled that an official's violation of state

law—no matter how well established and plain to one in his

position—does not deprive him of section 1983 qualified immunity

if under the circumstances it was not clearly established that

his conduct violated the federal right sued on. Davis v.

Scherer, 468 U.S. 183, 193-95, 104 S.Ct. 3012, 3019-20, 82

L.Ed.2d 139 (1984). 

23

degree helpless." There is nothing to indicate that he was

incapable of living on his own or with his parents.

The majority's finding of a "special relationship" here is

without support in reason or authority and is contrary to DeShaney.

Unfortunately, the worst is yet to come. Appellant, whose

position as superintendent of the School unquestionably involved

the exercise of discretion, moved for summary judgment in part on

the basis of qualified immunity. It then became plaintiff's burden

"to rebut this defense by establishing that the official's

allegedly wrongful conduct [here, inaction] violated clearly

established law." Salas v. Carpenter, 980 F.2d 299, 306 (5th

Cir.1992). We do "not require that an official demonstrate that he

did not violate clearly established federal rights; our precedent

places that burden upon plaintiffs." Id.9 The federal right must

have been clearly established in a sufficiently "particularized"

sense so that it was then "clear that a reasonable official would

understand that what he is doing violates that right." Anderson v.

Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523
 

10See also, e.g., Barts v. Joyner, 865 F.2d 1187, 1194 (11th

Cir.1989) ("Harlow's "clearly established' standard demands that

a bright line be crossed. The line is not to be found in

abstractions—to act reasonably, to act with probable cause, and

so forth—but in studying how these abstractions have been applied

in concrete circumstances."); Colaizzi v. Walker, 812 F.2d 304,

308 (7th Cir.1987) ("whether the law was clear in relation to the

specific facts confronting the public official when he acted")

(emphasis added); K.H. Through Murphy v. Morgan, 914 F.2d 846,

851 (7th Cir.1990) (although to defeat qualified immunity, a

plaintiff need not "point to a previous case that differs only

trivially from his case," nevertheless "[i]t is not enough, to

justify denying immunity, that liability in a particular

constellation of facts could have been, or even that it was,

predicted from existing rules and decisions.... Liability in

that particular set [of facts] must have been established at the

time the defendant acted."). 

24

(1987) (emphasis added).10

Not only does the majority unjustifiably decree a

constitutional "special relationship" here, but it goes on to say

that this was "clearly established law" in 1988. In other words,

the majority holds that any reasonable superintendent of the

Mississippi School for the Deaf must have realized in 1988 that an

institution of that kind, at which attendance was voluntary, stood

in the same relationship to its seventeen-year-old boarding

students, who were past compulsory school age, were mentally and

physically competent apart from their deafness, and remained in

their parents' legal custody, as did a state prison or state mental

hospital to its involuntary convicted or incompetent inmates. This

must have been realized despite the total absence of any decision

of the United States Supreme Court, or of this Court, or of any

district court in this Circuit, tending to support such an analogy,

with no case from this or any other circuit addressing the deaf (or

blind or competent but physically ill, etc.), with numerous cases
25

holding voluntary custody insufficient, and with the few

pre-DeShaney cases from other circuits suggesting such a

relationship in the case of voluntary commitment dealing only with

those so mentally ill or retarded as to be essentially helpless.

The majority may not approve of the "clearly established law"

requirement, or the way it was interpreted in Anderson, but surely

they are bound by it, and may not drain it of all meaning and

content. And that, surely, they have done here.

For these reasons, though I agree that there was no showing

that appellant was deliberately indifferent to Walton's safety and

that reversal is required, I am unable to join the majority

opinion. I hence concur in the result.