FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 2/19/03

 THOMAS K. KAHN 

 CLERK

PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-------------------------------------------

No. 97-9214

--------------------------------------------

D. C. Docket No. 1:97-CV-4-JOF

YASMIN SANTAMORENA, individually and as next

friend of H.S., a minor,

Plaintiff-Appellant,

versus

GEORGIA MILITARY COLLEGE,

PETER J. BOYLAN, General, et al.,

Defendants-Appellees.

----------------------------------------------------------------

Appeal from the United States District Court

for the Northern District of Georgia

 

----------------------------------------------------------------

(July 31, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and LAWSON*, District Judge.

____________

* Honorable Hugh Lawson, U.S. District Judge for the Middle District of

Georgia, sitting by designation.
1

Plaintiff originally sued both the institution, Georgia

Military College, and several of its officials (in both their

official and individual capacities). The district court granted

Defendants’ motion to dismiss, concluding that the

institution (and the Defendants sued in their official

capacities) was entitled to sovereign immunity and that the

Defendants, sued in their individual capacities, were entitled

to qualified immunity. Plaintiff appeals only the

determination by the district court that the individual

Defendants were entitled to qualified immunity.

2

EDMONDSON, Circuit Judge:

Plaintiff appeals the district court’s dismissal of her claim

-- a claim brought on behalf of Plaintiff and Plaintiff’s minor

daughter -- that Defendants, Georgia Military College (“GMC”)

and several of its officials, violated Plaintiff’s and her

daughter’s substantive due process rights. Because we agree

with the district court that the individual Defendants are entitled

to qualified immunity, we affirm.1
2

H.S. was one of only two female students enrolled in

GMC’s high school program.

3

Background

GMC is a state-run institution that serves as both a high

school and a college. Plaintiff’s daughter, H.S., was a 13-yearold high school freshman enrolled at GMC.2

 According to GMC

policy, high school freshmen were required to stay on campus

and to live in the barracks for the first four weeks of school.

During this period, only the high school was in session; but

GMC’s college football team was on campus for pre-season

training. 

Before enrolling H.S. at GMC, H.S.’s parents inquired about

security on the campus. In response to these concerns, several

school officials represented to H.S.’s parents that H.S. would be

adequately protected. School officials specifically told H.S.’s

parents these things: that H.S. would be housed in a room near
4

a school official’s -- Defendant Major Banks’s -- living quarters;

that an adult supervisor would be assigned to H.S.’s barracks

and available at all times; that a piece of sliding cardboard

would be placed on the inside of the observation window in the

door to H.S.’s room so that she could observe visitors; that

security personnel would be present in the barracks to monitor

visitors; and that a nightly bed check would be conducted to

ensure that all students were in their rooms by 10:00 p.m.

About one week after H.S. arrived at GMC, she and her

roommate (the other female high school student at GMC) were

moved to a room in the opposite wing from the room in which

the two were originally placed. No other school personnel or

students lived in that wing of the barracks, and this new room

was some distance from Major Banks’s living quarters. In

addition, the new room had a wooden board nailed to the

observation window of the door -- not a piece of sliding
5

cardboard -- which prevented H.S. from observing and

identifying visitors. 

On 1 September 1995, after being moved to the new room,

H.S. was awakened by a knock on her door. H.S. opened the

door and allowed GMC college football player, Kareem Holmes,

to enter her room. Holmes then raped H.S.

Plaintiff, the parent of H.S., asserts that on the night of the

attack, no security personnel were present to monitor the

barracks, no bed check was conducted, and all supervisory

responsibility for the barracks had been delegated to Defendant

Major Banks. Major Banks was left in charge because Lt. Diane

Ortega, the official actually assigned to supervise the main

barracks and the female hall on the night of the incident, was

not on campus.

Plaintiff filed suit under 42 U.S.C. § 1983. Plaintiff’s claim

is based on the rape of H.S. by a private third party on the

campus of GMC while H.S. was a resident high school student
3

The alleged constitutional violations are premised on the

existence of a constitutional duty -- owed to H.S. (and

secondarily to Plaintiff) by the school officials -- to protect H.S.

from private third parties.

4

All individual Defendants were teachers or

administrators at GMC at the time of the incident.

6

there. Plaintiff alleges that GMC and GMC officials -- by failing

to protect H.S. from harm by a private actor (Holmes) -- violated

H.S.’s Fourteenth Amendment rights to personal security and

to physical integrity and violated Plaintiff’s related right to

maintain family integrity.3

 The district court dismissed the

complaint, before discovery, concluding in relevant part that

the individual Defendants were entitled to qualified immunity.

Plaintiff appeals the dismissal of her complaint against the

individual Defendants -- General Peter J. Boylan, Colonel

Frederick Van Horn, Major Walter Banks, and Sergeant Larry

Swint4

 -- challenging the district court’s conclusion that these

Defendants were entitled to qualified immunity.
5

No party disputes that Defendants were performing

discretionary functions in relation to the events of this case.

7

Discussion

“Qualified immunity protects government officials

performing discretionary functions from civil trials . . . and from

liability if their conduct violates no clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Lassiter v. Alabama A & M Univ., 28 F.3d 1146,

1149 (11th Cir. 1994) (en banc) (internal quotations and citations

omitted).5

 To overcome this immunity, Plaintiff has the burden

of pointing to case law which “pre-date[s] the offic[ial]’s alleged

improper conduct, involve[s] materially similar facts, and ‘truly

compel[s]’ the conclusion that the plaintiff had a right under
6

This statement summarizes the usual rule and the law

that applies in this case. We can imagine an exceptional

case where “the words of a federal statute or federal

constitutional provision will be specific enough to establish

the law applicable to particular circumstances clearly and to

overcome qualified immunity even in the absence of case

law,” Lassiter, 28 F.3d at 1150 n.4, or where “a general

constitutional rule already identified in the decisional law

[applies] with obvious clarity to the specific conduct in

question,” United States v. Lanier, 117 S.Ct. 1219, 1227

(1997). But these exceptional cases rarely arise. And we are

not faced with such an exceptional case: given the

circumstances of this case, the Due Process Clause does not

provide the essential, obvious clarity.

8

federal law.”6 Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir.

1998) (citing Lassiter, 28 F.3d at 1150).

Defendants “assert[ed] the defense of qualified immunity

in a Rule 12(b)(6) motion to dismiss, and they are entitled to

qualified immunity at this stage in the proceedings if [Plaintiff’s]

complaint fails to allege a violation of a clearly established

constitutional right.” Williams v. Alabama State Univ., 102 F.3d

1179, 1182 (11th Cir. 1997). Whether the complaint alleges the

violation of a clearly established right is a question of law,
7

The Due Process Clause of the Fourteenth Amendment

provides, in pertinent part, that “[n]o State shall . . . deprive

any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1.

9

which we review de novo. See id. In deciding this case, we

accept all facts alleged in the complaint as true and draw all

reasonable inferences in favor of the nonmoving party, Plaintiff.

See id.

Plaintiff recognizes that her complaint, which is premised

on a violation of the Due Process Clause,7

 is based on the rape

of her daughter, not by a school official, but by a private third

party. And, “nothing in the language of the Due Process Clause

itself requires the State to protect the life, liberty, and property

of its citizens against invasion by private actors.” DeShaney v.

Winnebago County Dep’t of Social Servs., 109 S.Ct. 998, 1003

(1989). “As a general matter, . . . a State’s failure to protect an
8

We note that the absence of a constitutional duty to

protect does not negate the possibility that state law duties

might be owed to individuals by government actors: state

tort actions might apply. 

10

individual against private violence simply does not constitute

a violation of the Due Process Clause.” Id. at 1004.8

But “in certain limited circumstances the Constitution

imposes upon the State affirmative duties of care and

protection with respect to particular individuals.” Id. Where

“the State takes a person into its custody and holds him there

against his will . . . the Constitution imposes upon [the State] a

corresponding duty to assume some responsibility for his

safety and general well-being.” Id. at 1005. Thus, a duty may

be imposed on States to protect involuntarily committed mental

patients, prisoners, and involuntarily placed foster children.

See, e.g., Youngberg v. Romeo, 102 S.Ct. 2452 (1982) (mental

patients); Estelle v. Gamble, 97 S.Ct. 285 (1976) (prisoners);
11

Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (foster

children).

The question presented in this case is whether, given the

status of the preexisting law, the Defendants, at the pertinent

time, clearly owed Plaintiff or H.S. some constitutional duty to

protect H.S. based on the voluntary, custodial relationship

between H.S. and GMC. So, we consider cases where we have

talked about the possibility of a constitutional duty when the

State has a “special relationship” with either the victim or the

perpetrator. See Wyke v. Polk County Sch. Bd., 129 F.3d 560

(11th Cir. 1997); Mitchell v. Duval County Sch. Bd., 107 F.3d 837

(11th Cir. 1997); Cornelius v. Town of Highland Lake, 880 F.2d

348 (11th Cir. 1989).

“The contours of what constitutes a ‘special relationship’

between a [State institution], acting through its officials, and its

citizens are hazy and indistinct.” Wideman v. Shallowford

Comm. Hosp., Inc., 826 F.2d 1030, 1035 (11th Cir. 1987) (quoting
12

Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir. 1985)).

During oral argument, Plaintiff’s counsel acknowledged that

whether a voluntary, instead of an involuntary, custodial

arrangement between the State and a citizen could give rise to

a special relationship, and thus a constitutional duty, remains

“unclear” in this circuit. But still Plaintiff argues that the

preexisting law was somehow so clearly established that

Defendants should not be protected by qualified immunity.

Plaintiff points us to three cases, which Plaintiff claims

clearly established that GMC owed a constitutional duty to H.S.:

Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987); Cornelius v.

Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989); and Spivey

v. Elliott, 29 F.3d 1522 (11th Cir. 1994). None of these cases,

however, provide the “bright line” necessary to delineate the

concrete circumstances in which officials will violate the

Constitution. See Lassiter, 28 F.3d at 1150 (“If case law, in

factual terms, has not staked out a bright line, qualified
9

Plaintiff argues that this circuit’s qualified immunity

analysis, generally requiring materially similar cases to

establish clearly a constitutional right, is no longer good law

after Lanier, 117 S.Ct. 1219. We have already reaffirmed our

qualified immunity analysis in the light of Lanier. See

Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 825 n.3

(11th Cir. 1997) (en banc) (specifically discussing the impact

of Lanier on the law of the circuit). “The principles of

qualified immunity set out in Lassiter v. Alabama A & M

Univ., . . . continue to be the guiding directives for deciding

cases involving the question of a state actor’s entitlement to

qualified immunity in this circuit.” Id. at 823.

13

immunity almost always protects the defendant.”) (internal

quotations and citations omitted). 

When considering whether the law applicable to

certain facts is clearly established, the facts of cases

relied upon as precedent are important. The facts

need not be the same as the facts of the immediate

case. But they do need to be materially similar. . . .

Public officials are not obligated to be creative or

imaginative in drawing analogies from previously

decided cases.9

Lassiter, 28 F.3d at 1150 (quoting Adams v. St. Lucie County

Sheriff’s Dep’t, 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmondson,

J., dissenting), approved en banc, 998 F.2d 923 (11th Cir. 1993)).
10We understand that presence at a custodial school may

not be a voluntary decision on the part of the minor student. 

But only restraints of freedom imposed by the State, not by a

student’s parents, can give rise to a constitutional duty

requiring the State to protect that student.

14

Given the facts, the cases relied on by Plaintiff are not

materially similar to the case before us and would have

required Defendants to draw inferences -- inferences of highly

debatable validity -- to reach the conclusion that H.S. (and

secondarily Plaintiff) was owed a constitutional duty. These

cases do not address the situation in this case: where an

individual is voluntarily in the custody of the State10 or where

the State represented that it would provide the individual with

security. Cf. Taylor, 818 F.2d 791 (The court wrote these words

about involuntary custody in foster homes: “The liberty interest

in this case is analogous to the liberty interest in Youngberg.

In 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.”) (emphasis added);
11In Cornelius, the court determined that a special

relationship might exist between the town and a town

employee, the town clerk, where the town knowingly placed

the town clerk in danger by allowing poorly supervised

prison labor to work near the town clerk’s place of

employment, the town hall. Later panels have questioned the

survival of Cornelius, and its special danger theory, following

the Supreme Court’s decision in Collins v. City of Harker

Heights, 112 S.Ct. 1061, 1070-71 (1992) (employment

relationship alone cannot give rise to constitutional duty to

protect). See Mitchell, 107 F.3d at 839 n.3 (“Cornelius may

not have survived Collins . . . .”); Wright v. Lovin, 32 F.3d 538,

541 n.1 (11th Cir. 1994) (same). Because Cornelius has

significantly different facts and its validity has been

expressly questioned in our later opinions, we cannot let

Cornelius be the case that clearly established H.S.’s right to

the State’s protection: Cornelius did not clarify the law to the

point that all reasonable school officials in Defendants’ place

must have known they were subject to a constitutional duty

to protect H.S.

The confusion created by the Supreme Court’s

intervening decision in Collins, and by later opinions by this

court questioning Cornelius, presents the legal possibility

that law, which may have once been clear, can become

unclear later. The nature of the law is not always to move

from unsettled to settled. Although one of our decisions may

not be expressly overruled, later cases -- at least Supreme

Court cases -- may bring its reasoning or holding into such

doubt that the elements set out in the case are no longer

clearly established for purposes of qualified immunity.

Given the confusion surrounding the soundness of

15

Cornelius, 880 F.2d 348;11 Spivey, 29 F.3d 1522, withdrawn,
Cornelius and considering its facts, we can locate no case

(and Plaintiff has pointed us to no case) that is sufficiently

factually similar to this case and that would have made it

clear to Defendants at the time (or to us now) that Defendants

placed H.S. in a position of danger which imposed upon them

a constitutional duty to protect H.S.

12Plaintiff relies on Spivey, 29 F.3d 1522. But the portion

of that opinion on which Plaintiff relies was withdrawn. See

Spivey II, 41 F.3d at 1499 (“[I]n the interest of efficiency and

collegiality on this Court, where there are differing views as

to the substantive right, this panel has chosen to withdraw all

of its prior opinion which relates to whether the complaint

alleges a constitutional right so that the opinion will serve as

no precedent on that issue.”).

16

Spivey v. Elliott, 41 F.3d 1497 (11th Cir. 1995) (Spivey II).12 Thus,

these cases did not (and do not today) clearly establish that

Defendants owed Plaintiff or H.S. a federal constitutional duty

to protect H.S. from the incident in this case. 

Given their facts, the cited precedents gave much too little

guidance. We cannot properly require Defendants in this case

to have drawn inferences when the facts of the existing cases

were considerably different from the circumstances facing

these particular Defendants. 
17

Furthermore, some preexisting case law may have

particularly suggested to Defendants (or to be more precise, to

every reasonable school official standing in Defendants’ place)

that no duty would arise in a voluntary situation, despite

representations by Defendants that protection would be

provided. See DeShaney, 109 S.Ct. at 1005-06 (“The affirmative

duty to protect arises not from the State’s knowledge of the

individual’s predicament or from its expressions of intent to

help him, but from the limitation which it has imposed on his

freedom to act on his own behalf.”) (emphasis added). “Unless

a government agent’s act is so obviously wrong, in the light of

preexisting law, that only a plainly incompetent officer or one

who was knowingly violating the law would have done such a

thing, the government actor has immunity from suit.” Lassiter,

28 F.3d at 1149. Defendants were not obviously violating

Plaintiff’s or H.S.’s clearly established rights in this case.
18

Because Plaintiff’s complaint fails to allege the violation of

a clearly established constitutional right, the district court

correctly granted Defendants’ motions to dismiss on grounds

of qualified immunity. We, given the status of the preexisting

law, view it as obvious that Defendants are entitled to qualified

immunity. 

But we do acknowledge that the existence or nonexistence

of a constitutional right (or duty) in this case presents a

perplexing question: a question that we -- in part, because it

cannot be easily answered -- decline to answer at this time. To

overcome qualified immunity, Plaintiff must show both (1) that

Defendants violated a federal constitutional right and (2) that

the right was already clearly established at the time of the

violation. See Spivey II, 41 F.3d at 1499. “[A] negative decision

on either prevents the plaintiff from going forward.” Id. So, to

answer the other question is unnecessary to decide the case.

Thus, “[o]nce there has been a determination that there is no
13We have already stated that “[t]he law cannot be

established by dicta. Dicta is particularly unhelpful in

qualified immunity cases where we seek to identify clearly

established law.” Hamilton v. Cannon, 80 F.3d 1525, 1530

(11th Cir. 1996); see also In re United States, 60 F.3d 729, 731

(11th Cir. 1995) (“Statements of dicta are not part of the law of

the case.”); United States v. Teague, 953 F.2d 1525, 1535 (11th

Cir. 1992)(“[D]icta is inherently unreliable for what a court will

do once faced with a question squarely and once its best

thoughts, along with briefs and oral argument, are focused

on the precise issue.”) (Edmondson, J., concurring). The

reasons for avoiding dicta were briefly expressed by the

Supreme Court early in our nation’s jurisprudence:

It is a maxim, not to be disregarded, that general

expressions, in every opinion, are to be taken in

connection with the case in which those

expressions are used. If they go beyond the case,

they may be respected, but ought not to control the

judgment in a subsequent suit, when the very point

is presented for decision. The reason of this maxim

is obvious. The question actually before the court

is investigated with care, and considered in its full

extent. Other principles which may serve to

illustrate it, are considered in their relation to the

case decided, but their possible bearing on all other

19

‘clearly established’ right, the parties can accomplish little in

pursuing the question of whether there is a right at all. . . .

[because t]hose who differ with the decision of the court could

write it off as dictum.” Id.13
cases is seldom completely investigated.

Cohens v. Virginia, 6 Wheat. 264, 399 5 L.Ed. 257 (1821).

20

A Supreme Court opinion recently suggested that the

“better approach” -- in cases involving the defense of qualified

immunity -- might be to decide whether the contended for

constitutional right exists at all before determining whether the

right was, at the pertinent time, clearly established. See County

of Sacramento v. Lewis, 118 S.Ct. 1708, 1714 n.5 (1998) (citing

Siegert v. Gilley, 111 S.Ct. 1789, 1793 (1991)) (“[T]he better

approach to resolving cases in which the defense of qualified

immunity is raised is to determine first whether the plaintiff has

alleged a deprivation of a constitutional right at all. Normally,

it is only then that a court should ask whether the right

allegedly implicated was clearly established at the time of the

events in question.”) (emphasis added). 

We do not understand this footnote as an absolute

requirement that lower courts must always follow this
14Several separate opinions were written in County of

Sacramento. As we understand it, four Justices did not

endorse footnote 5 or expressly stressed that footnote 5 was

no blanket rule. See County of Sacramento, 118 S.Ct. at 1722

(Breyer, J., concurring) and 118 S.Ct. at 1723 (Stevens, J.,

concurring) (specifically discussing footnote 5); see also 118

S.Ct. at 1723-25 (Scalia, J., with whom Thomas, J., joins,

concurring in judgment only). Although a majority of the

Justices did join in Justice Souter’s opinion (including

footnote 5) for the Court, we cannot say that footnote 5 is

doubtlessly a holding of the Court. See generally CrawfordEl v. Britton, 118 S.Ct. 1584, 1590 (1998) (not everything set

forth in an opinion is a holding of the case). 

We do recognize, however, that the Supreme Court has

the power to supervise lower federal courts through special

21

“normally” “better approach.” In County of Sacramento, the

district court decided the case strictly on qualified immunity

grounds, that is, on the ground of the unsettled nature of the

law; but the Supreme Court never said the district court erred.

And if the Supreme Court intended to impose an absolute

requirement on lower courts always to address the merits of

constitutional issues even where qualified immunity obviously

applies and readily resolves the case, we believe the Supreme

Court would have said so more directly.14 
statements that go beyond the holding of a case; and the

Supreme Court has, on occasion, invoked such supervisory

powers. See, e.g., Lowenfield v. Phelps, 108 S.Ct. 546, 551

n.2 (1988); Cheff v. Schnackenberg, 86 S.Ct. 1523, 1526

(1966). In footnote 5, the supervisory powers are not

specifically invoked. 

But even if footnote 5 is a binding judicial

pronouncement or a binding supervisory instruction, we --

given the footnote’s own words -- do not understand it to be

a strict rule with no exceptions.

15We do not say that the presence of these three features in the

case at hand distinguishes it from County of Sacramento. One could

argue that the same features were presented by County of

Sacramento. We just say that these features make the case a fit

subject for judicial discretion when it comes to fashioning the

analysis: the kind of cases in which sometimes to decide the

22

At least in situations like this one -- (1) where the existence

of a constitutional right (or duty) presents a perplexing

question, (2) where the alleged right obviously was not already

clearly established, and (3) where the qualified immunity

determination does end the whole case -- it remains

appropriate, and sometimes preferable, to stop at the

determination that the right, if any, was not clearly

established.15 “A fundamental and longstanding principle of
constitutional issue and sometimes not, depending on a wide array

of other considerations.

23

judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity of deciding

them.” Lyng v. Northwest Indian Cemetery Protective Ass’n,

108 S.Ct. 1319, 1323 (1988); see also Jean v. Nelson, 105 S.Ct.

2992, 2997 (1985); In re Snyder, 105 S.Ct. 2874, 2880 (1985);

Superintendent, Massachusetts Correctional Instit., Walpole v.

Hill, 105 S.Ct. 2768, 2772 (1985); Spivey II, 41 F.3d at 1499

(decided after Siegert v. Gilley) (“[A] determination of whether

a right is clearly established will always require no more, and

will often require less, analysis than is required to decide

whether the allegedly violated constitutional right actually

exists in the first place. Moreover, deciding the case on the

‘clear establishment’ element comports with the wellestablished principle disfavoring reaching substantive

constitutional issues if a case can be resolved on other
24

grounds.”). “[T]his self-imposed limitation on the exercise of

the Court’s jurisdiction has an importance to the institution that

transcends the significance of particular controversies.” City

of Mesquite v. Aladdin’s Castle, Inc., 102 S.Ct. 1070, 1077

(1982).

The Supreme Court looked at these arguments for

avoiding the merits of constitutional issues when the Court, in

County of Sacramento, said that a decision on those merits was

normally the “better approach.” Still we conclude the Supreme

Court did not mean to nullify all the traditional restraint

principles or to take away all our discretion to analyze

particular qualified immunity cases, involving perplexing

constitutional issues, without first deciding whether the

constitutional right exists. We think the Supreme Court was

telling us that, notwithstanding the usual restraint arguments,

sometimes the courts can and should decide the constitutional
16Refraining (until truly necessary) from deciding -- in

qualified immunity cases -- the more perplexing federal law

issues will not inevitably preclude the law in due course from

becoming clearly established. Suits seeking injunctions,

suits against local governments, and certain criminal

proceedings can settle the law. And, in circumstances where

the right allegedly violated is one based in federal statute,

Congress can add the necessary clarity to the law. Thus, our

avoidance of a constitutional issue in a specific case, like

this one, does not prevent the law from ever becoming

clearly established; and if we chose to address the

perplexing constitutional issue, we would not necessarily

add clarity to the law because such a decision could be

viewed as mere uncontrolling dicta.

25

issues; and we will but -- because we believe the Supreme

Court has left us with some discretion -- not today.16

Because we conclude that Plaintiff and H.S. were owed no

clearly established constitutional duty by Defendants at the

time of the incident, Defendants are entitled to qualified

immunity.

AFFIRMED.