### 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 v. * * [UNPUBLISHED] City of Wellston, and * Robert Powell, * * Appellees.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.

Pl aintiffs appeal the order of the District Court grantin g 2 defendants’ motion for summary judgment in this 42 U.S.C. § 1983 action. Defendants-appellees are the City of Wellston an d 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. -2- The case, which arises out of tragic circumstances, is, as succ inctly stated by the District Court, as follows:

On Sat urday February 6, 1993 defendant Sterling Wood s murdered nine-year-old Christian Kuwebin at the home of hi s grandmother, Corabelle Street. Corabelle Street re ceived meals delivered to her home through the Meals on Wheels p rogram which was operated by the Mid-East Area Agency on Aging (MEAAA)
. MEAAA is a not-for-profit corporation operating a senio r citizens center located in the Wellston community center. The City of Wellston provides a van and a driver for the mea l del ivery, and the MEAAA prepares the meals and provides a volunteer to deliver the meals from the van to the recipients’ hom es. Woods sometimes served as a volunteer delivering th e me als to the homes. Before the attack, Woods had done yar d work for Corabelle Stree t and had delivered meals to her home. Woods was not employed by the City of Wellston. He bega n volunteering at the community center in 1989 after hi s probation officer told h im that he needed to perform community service work or attend school. Plaintiffs allege that Woods gained access to Corabell e Street ’s residence through his participation in the Meals o n Wheels program. As a result, plaintiffs argue that the Cit y pl aced Kuwebin in a position of danger which gave rise to a dutyto protect Kuwebin from the harm inflicted by Woods. In response, defendants argue that the City had no affirmativ e dut yto 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 Distr ict Court determined that the evidence pointed to only one conclusio n: that Woods was acting in a purely private capacity when h e murdered the child, and thus was not acting under color of state law. The 3 court further determined that plaintiffs’

### -3-

substantive due process failure-to-protect claim under DeShaney v
. Winnebago County Dep’t of Soc. Servs. , 489 U.S. 189 (1989), must b e rejected because, as a matter of law, the murder of the child was to o remote a consequence of allowing Woods to participate as a volunteer in th e Mea ls on Wheels program, even assuming for purposes of summary judgmen t that th e City defendants in fact played a role in placing Woods in thi s 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. Cal ifornia , 444 U.S. 277, 285 (1980) (holding that murder committed by parolee five months after hi s rele ase from prison was too remote a consequence of parole officers ’ decision to release him to make officers liable). Seeking reversal, plaintiffs argue t hat the District Court (1) erred
as a matter of law in granting summary judgment for defendants on the basi s of temporal remotenes s, and (2) abused its discretion in granting summary judgment even though defendants had not responde d to plaintiffs’ discovery requests. Having car efully 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 voluntee r 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 summar y judgment before discovery had been completed, since the discovery sought by pla intiffs had no relevance to the court’s ruling on the issue o f remoteness. The judgment of the District Court is affirmed.

### -4- A true copy.

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