The Honorable Richard G. Kopf, United States District Judge 1

for the District of Nebraska, sitting by designation.

The Honorable Carol E. Jackson, United States District 2

Judge for the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2647

___________

Christian Kuwebin, Deceased, by *

and through his mother and *

next friend Karen Street, and *

Karen Street, individually, *

* Appeal from the United States

Appellants, * District Court for the

* Eastern District of Missouri.

v. *

* [UNPUBLISHED]

City of Wellston, and *

Robert Powell, *

*

Appellees. *

___________

 Submitted: February 14, 1997

 Filed: March 17, 1997

___________

Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF, District Judge. 1

___________

PER CURIAM.

Plaintiffs appeal the order of the District Court granting

2

defendants’ motion for summary judgment in this 42 U.S.C. § 1983 action.

Defendants-appellees are the City of Wellston and Mayor Robert Powell. We

affirm.
The District Court entered a default judgment against Woods 3

in the amount of $10,000,000. No appeal has been taken from this

judgment.

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The case, which arises out of tragic circumstances, is, as succinctly

stated by the District Court, as follows:

On Saturday February 6, 1993 defendant Sterling Woods

murdered nine-year-old Christian Kuwebin at the home of his

grandmother, Corabelle Street. Corabelle Street received meals

delivered to her home through the Meals on Wheels program which

was operated by the Mid-East Area Agency on Aging (MEAAA).

MEAAA is a not-for-profit corporation operating a senior

citizens center located in the Wellston community center. The

City of Wellston provides a van and a driver for the meal

delivery, and the MEAAA prepares the meals and provides a

volunteer to deliver the meals from the van to the recipients’

homes. Woods sometimes served as a volunteer delivering the

meals to the homes. Before the attack, Woods had done yard

work for Corabelle Street and had delivered meals to her home.

Woods was not employed by the City of Wellston. He began

volunteering at the community center in 1989 after his

probation officer told him that he needed to perform community

service work or attend school.

Plaintiffs allege that Woods gained access to Corabelle

Street’s residence through his participation in the Meals on

Wheels program. As a result, plaintiffs argue that the City

placed Kuwebin in a position of danger which gave rise to a

duty to protect Kuwebin from the harm inflicted by Woods. In

response, defendants argue that the City had no affirmative

duty to protect Kuwebin from the violence committed by a

private actor; therefore, the City is not liable under § 1983

for Woods’ actions.

Memorandum Opinion pp. 1-2 (footnotes omitted).

The District Court determined that the evidence pointed to only one

conclusion: that Woods was acting in a purely private capacity when he

murdered the child, and thus was not acting under color of state law. The 3

court further determined that plaintiffs’ 
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substantive due process failure-to-protect claim under DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989), must be

rejected because, as a matter of law, the murder of the child was too

remote a consequence of allowing Woods to participate as a volunteer in the

Meals on Wheels program, even assuming for purposes of summary judgment

that the City defendants in fact played a role in placing Woods in this

community-service activity. The court noted that Woods had worked as a

volunteer at the community center, without incident, for over three years

before the murder occurred. See Martinez v. California, 444 U.S. 277, 285

(1980) (holding that murder committed by parolee five months after his

release from prison was too remote a consequence of parole officers’

decision to release him to make officers liable).

Seeking reversal, plaintiffs argue that the District Court (1) erred

as a matter of law in granting summary judgment for defendants on the basis

of temporal remoteness, and (2) abused its discretion in granting summary

judgment even though defendants had not responded to plaintiffs’ discovery

requests. Having carefully considered the briefs and record, we conclude

that summary judgment was correctly entered. We agree with the District

Court that even if defendants played a role in placing Woods in a volunteer

position at the community center, Kuwebin’s death over three years later

was, as a matter of law, too remote a consequence of defendants’ conduct

to impose liability upon them under the Fourteenth Amendment. As to the

discovery issue, the court did not abuse its discretion in entering summary

judgment before discovery had been completed, since the discovery sought

by plaintiffs had no relevance to the court’s ruling on the issue of

remoteness.

The judgment of the District Court is affirmed.
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A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT