United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2011

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Sharon Lee, Individually and as *

Administratrix of the estate of *

Courtney Fisher, Deceased, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas. 

Pine Bluff School District; *

Darrell McField, Individually and as *

agent and employee of the Pine Bluff *

School District, * 

*

Appellees. * 

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Submitted: September 27, 2006

Filed: January 8, 2007

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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Sharon Lee appeals the decision of the district court dismissing her lawsuit

against the Pine Bluff School District and Darrell McField, an employee of the school

district. We affirm.
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I.

This case involves the tragic death of Courtney Fisher, Lee’s son and a former

student in the Pine Bluff School District. According to Lee’s complaint, in January

2004, Courtney was an eighth-grade student at Jack Robey Junior High School in Pine

Bluff, and a member of the school band. McField was the director of the band, and

he supervised band activities and trips.

The complaint alleges that the band and its members were invited to participate

in a competition in Atlanta, Georgia, on or about January 16-20, 2004, and Lee

permitted Courtney to make the trip to Atlanta. Lee completed a “medical form,”

which listed Courtney’s grandmother as an “emergency contact person,” and which

also provided a name and telephone number for the family doctor, and a health

insurance policy number. Lee checked a box stating that Courtney had no physical

problems that would prohibit exercise, and then signed her name to a statement that

“I give my consent to the band director to secure treatment at the best medical facility

available if an injury does occur.” The complaint alleged that because parents and

teachers were chaperones on the tour, Lee was confident that Courtney would be

provided “reasonable care and supervision,” and that Courtney’s grandmother would

be contacted immediately “in the event an emergency occurred and Courtney became

ill or injured.”

According to the complaint, Courtney became ill on Saturday, January 17, after

arriving in Atlanta. McField held Courtney out of the band competition on that date

due to the severity of the symptoms, and “for the duration of the trip, Courtney was

confined to a bed in his hotel room, making occasional trips to the bathroom to

vomit.” The complaint asserts that Courtney could not eat, and that his only source

of sustenance was juice and water. Lee alleges that although the adults recognized

that Courtney was extremely ill, and did not allow him to participate in functions or
1

The Honorable J. Leon Holmes, Chief United States District Judge for the

Eastern District of Arkansas.

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sightseeing excursions, they failed to seek medical attention, and did not notify his

family or physician of the illness.

The complaint alleges that when the band returned home in the early morning

of January 20, Lee drove Courtney directly to a regional medical center, where

medical personnel determined that he should be transported to a children’s hospital

in Little Rock. Courtney suffered cardiac arrest upon his admission to the hospital,

and he died on January 21. The death was attributed to undiagnosed diabetes. Lee’s

complaint alleges that Courtney’s death could have been prevented if the chaperones,

including McField, had sought medical care for Courtney.

Lee brought several state-law claims of negligence against McField and the

school district, and also included an allegation, read generously, that the Pine Bluff

School District and McField are liable under 42 U.S.C. § 1983 for violating

Courtney’s constitutional rights. The constitutional claim asserted that based on the

consent form signed by Lee, McField and other representatives of the school district

assumed “care, custody, and control” of Courtney, and had a corresponding duty to

care for his medical needs. The complaint asserts that these state officials were

“deliberately indifferent” to Courtney’s medical needs, and “willfully and

deliberately” failed to provide adequate care. Lee alleges that the inaction of these

state actors would “shock the consc[ience]” of the court.

The district court1

 dismissed the constitutional claim with prejudice, holding

that “to assume federal jurisdiction over this case would require the Court to disregard

the admonition in Dorothy J. [v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993)],

that common law torts should not be converted into constitutional violations merely

because the actor was employed by a subdivision of the state.” The court declined to
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exercise supplemental jurisdiction over the remaining state-law claims and dismissed

them without prejudice. We review the district court’s decision de novo, recognizing

that a complaint is properly dismissed “if it is clear that no relief can be granted under

any set of facts that could be proven consistent with the allegations.” Casino Res.

Corp. v. Harrah’s Entm’t, Inc., 243 F.3d 435, 437 (8th Cir. 2001).

II.

The Due Process Clause of the Fourteenth Amendment is not a “font of tort

law.” Paul v. Davis, 424 U.S. 693, 701 (1976). The Supreme Court has written that

neither the text nor the history of the Clause supports the proposition that the State

must “guarantee certain minimal levels of safety and security.” DeShaney v.

Winnebago County Dept. of Social Servs., 489 U.S. 189, 195-96 (1989). The Due

Process Clause is principally a restraint on the power of government to act, and it

“generally confer[s] no affirmative right to government 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.” Id. at 196. 

In “certain limited circumstances,” however, when the State restrains an

individual’s liberty “through incarceration, institutionalization, or other similar

restraint,” the Constitution does impose a corresponding duty on the State “to assume

some responsibility for [the individual’s] safety and general well-being,” because the

State has rendered the person unable to care for himself. Id. at 198-200. The

substantive component of the Due Process Clause, for example, requires a State to

provide involuntarily committed mental patients with such services as are necessary

to ensure their “reasonable safety,” Youngberg v. Romeo, 457 U.S. 307, 324 (1982),

and to provide suspects in police custody with medical care required by injuries

suffered during their apprehension. Revere v. Massachusetts Gen. Hosp., 463 U.S.

239, 244 (1983).
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The district court dismissed Lee’s constitutional claim against the Pine Bluff

School District without delving into these principles, because the complaint alleged

no policy or custom of the district that caused an alleged constitutional violation. We

agree with this conclusion. It is well settled that a municipality may not be found

liable under § 1983 “unless action pursuant to official municipal policy of some nature

caused a constitutional tort.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 691

(1978). A school district cannot be held liable under § 1983 on a respondeat superior

theory, i.e., simply because it employs a tortfeasor. Id. at 691. Lee’s complaint

alleged no unconstitutional policy of the Pine Bluff School District, and it asserted no

widespread unconstitutional practices that might constitute a “custom or usage with

the force of law.” See McMillian v. Monroe County, 520 U.S. 781, 796 (1997)

(quoting St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)).

Accordingly, the district court properly dismissed Lee’s constitutional claim against

the school district.

Whether McField, the band director, may be liable under § 1983 does require

consideration of whether the complaint identifies one of the “limited circumstances”

in which a state official may have a constitutional duty to attend to the medical needs

of a citizen. As noted, DeShaney defined those circumstances as situations in which

the State restrains an individual’s liberty “through incarceration, institutionalization,

or other similar restraint.” 489 U.S. at 200. We conclude that the scenario alleged

here does not meet the stringent requirements for substantive due process liability.

We previously have considered whether compulsory attendance at public

schools places a student within the limited category of individuals to whom the State

owes a special duty of care. In Dorothy J., we joined three other circuits in holding

that “state-mandated school attendance does not entail so restrictive a custodial

relationship as to impose upon the State the same duty to protect it owes to prison

inmates, or to the involuntarily institutionalized.” 7 F.3d at 732 (internal citation

omitted). In Dorothy J., therefore, we held that school officials did not have a
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constitutional duty to protect a mentally retarded student from violent acts of another

student. See also, e.g., Maldonado v. Josey, 975 F.2d 727, 731-33 (10th Cir. 1992)

(holding that a public school teacher had no constitutional duty to supervise a fifth

grade student who, left unsupervised in cloakroom, became caught on his bandana and

died of strangulation). Not long after Dorothy J., the Supreme Court indicated

agreement with our holding, saying “we do not, of course, suggest that public schools

as a general matter have such a degree of control over children as to give rise to a

‘duty to protect.’” Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995). Cf.

Hasenfus v. LaJenuesse, 175 F.3d 68, 72 (1st Cir. 1999) (reserving whether schools

may have a “specific” duty of care in certain “narrow circumstances”).

Given that even mandatory school attendance generally does not give rise to a

constitutional duty of care that could trigger liability based on substantive due process,

it is not surprising that the weight of authority also holds that school officials have no

such duty with respect to students participating in voluntary school-related activities

that are not required by state law. For if a citizen voluntarily exercises his liberty to

enter into the custody of a state official or to participate in a state-sponsored activity,

it is difficult to conclude that the State has deprived the citizen of liberty. See

Zinermon v. Burch, 494 U.S. 113, 117 n.3 (1990) (“If only those patients who are

competent to consent to admission are allowed to sign themselves in as ‘voluntary’

patients, then they would not be deprived of any liberty interest at all.”); Torisky v.

Schweiker, 446 F.3d 438, 446 (3d Cir. 2006) (“[A] custodial relationship created

merely by an individual’s voluntary submission to state custody is not a ‘deprivation

of liberty’ sufficient to trigger the [substantive due process] protections of

Youngberg.”); cf. Parham v. J.R., 442 U.S. 584, 604 (1979) (holding that parents

retain a substantial, if not the dominant, role in the decision to commit a child

voluntarily to a state mental hospital, absent a finding of neglect or abuse).

In the educational context, for example, the Fifth Circuit determined that no

“special relationship” existed between a public school district and its students during
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a school-sponsored dance held outside of the time during which students were

required to attend school for non-voluntary activities. Leffall v. Dallas Indep. Sch.

Dist., 28 F.3d 521, 529 (5th Cir. 1994). That court also held that a student attending

a residential school for the deaf was not “within the narrow class of persons who are

entitled to claim from the state a constitutional duty of protection from harm,” because

the student “attended the school voluntarily with the option of leaving at will, an

option that was never withdrawn.” Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir.

1995) (en banc). In a case that bears some factual similarity to ours, the Sixth Circuit

concluded that where no state law or rule required students to travel to school by bus,

a school district had no special relationship with a student who was riding home on

a bus, and the district thus had no constitutional duty to administer medical care when

the student collapsed due to heart failure. Sargi v. Kent City Bd. of Educ., 70 F.3d

907, 911 (6th Cir. 1995). See also Stevens v. Umsted, 131 F.3d 697, 703 (7th Cir.

1997) (school superintendent had no constitutional duty to protect student at state

school for students with disabilities where student was voluntarily admitted with

signed consent of his parents, and parent and guardian could have requested student’s

discharge at any time.).

Applying the principles articulated in DeShaney and Dorothy J., we hold that

Courtney likewise was not within the limited class of persons to whom the State owes

a constitutional duty to provide some degree of medical care. The complaint makes

no allegation that the band trip was compulsory and, indeed, acknowledges that

Courtney’s mother voluntarily consented to the student’s participation. There is no

assertion that Courtney was prohibited from leaving the band activity at any time if,

for example, his mother or grandmother arranged for him to be picked up in Atlanta.

Lee does not allege that McField or any chaperone denied Courtney an opportunity

to contact his mother or grandmother by telephone, or that anyone prevented

Courtney’s family from communicating with him at the hotel during the four-day

excursion. There is no claim that Courtney’s voluntary participation evolved into an
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involuntary commitment during the course of the trip. Cf. Kennedy v. Schafer, 71

F.3d 292, 294-95 (8th Cir. 1995).

We acknowledge Lee’s allegations that she was confident, based on her

completion of the medical form and the presence of adult chaperones, that the school

district would provide Courtney with reasonable care and supervision, and that

McField was well aware that Courtney became ill during the stay in Atlanta. In a

common-law tort action, these factors might well support Lee’s claim that McField

was negligent. DeShaney makes clear, however, that the State’s constitutional duty

to protect or care for an individual “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.” 489 U.S.

at 200 (emphasis added). As with compulsory public school attendance in Dorothy

J., we cannot say that voluntary participation in an out-of-town extracurricular activity

is analogous to confinement in a prison or mental institution, such that the

Constitution imposes on state officials an affirmative duty to care for individuals who

are participating in the event. 

DeShaney recognized that in tragic cases like this one, “judges and lawyers, like

other humans,” are moved by natural sympathy to try to compensate a mother for her

loss, id. at 202, but that the Fourteenth Amendment was not designed to provide relief

in all cases where the State’s functionaries fail to take action that might have averted

a serious harm. The constitutional duties derived from substantive due process

analysis are carefully circumscribed, and the events alleged here do not implicate the

limited circumstances in which the Constitution obligates a State to care for an

individual’s medical needs. The State of Arkansas, of course, may fashion a system

of tort liability that would hold school officials accountable for negligence or

deliberate indifference leading to the death of a student on a school-sponsored trip.

The parties have disputed whether a cause of action against school officials is
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available under Arkansas law on the facts of this case, and that claim remains

available for Lee to pursue in the Arkansas courts.

For the foregoing reasons, the judgment of the district court is affirmed.

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