The Honorable Rodney S. Webb, Chief United States District Judge for the 1

District of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 97-1565

__________

Henry Greer, Administrator of the *

Estate of Mora Patricia Greer, *

 *

Appellant, *

 * Appeal from the

United States

vs. * District

Court for

the Northern

 * District of Iowa

Stanley D. Shoop; Ronald Dohrman; *

Thomas L. Frisch, *

 *

Appellee. *

__________

 

Submitted: October 24, 1997

 

Filed: April 2, 1998

__________

Before McMILLIAN and BEAM, Circuit Judges, and WEBB,1

Chief District Judge.

__________

WEBB, Chief District Judge.

In this appeal, appellant Henry Greer (“Greer”)
The Honorable Mark W. Bennett, United States District Judge for the 2

Northern District of Iowa.

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argues that the district court erred when it found that 2

the defendants, all employees of the State of Iowa, were
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entitled to qualified immunity from Greer’s claims

pursuant to 42 U.S.C. § 1983. We affirm.

I. BACKGROUND

For purposes of resolving the summary judgment motion

before the district court, the defendants accepted as

true the facts stated in Greer’s amended complaint.

Neither party to this appeal has objected to the district

court’s recitation of the facts. We therefore adopt the

district court’s recitation of the facts for purposes of

resolving the summary judgment motion on appeal and

restate them here as background. 

Plaintiff Henry Greer is the administrator

of the estate of Mora Patricia Greer.

Defendants Stanley D. Shoop, Ronald Dohrman and

Thomas L. Frisch are employed by the State of

Iowa as probation and parole officers of the

Third Judicial District Department of

Correctional Services. In March 1991, and at

all times relevant to this action, Perry Stevens

was subject to the control and custody of the

Third Judicial District Department of

Correctional Services due to his conviction and

sentence for the commission of one or more

felonies in the State of Iowa. As a result of

his conviction and sentence, Stevens was under

the control and authority of defendants due to

their positions as probation and parole

officers.

On March 28, 1991, defendants placed parolee

Perry Stevens into Mora Greer’s home. At the

time, Stevens was Mora Greer’s boyfriend.

Before Stevens was incarcerated, he and Mora

Greer had engaged in sexual intercourse. At the

time of Stevens’ parole in March of 1991, he had
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been diagnosed as suffering from AIDS.

Defendants knew, or reasonably should have

known, that Stevens was infected with the HIV

virus. Defendants knew, or reasonably should

have known, that upon his release from

incarceration Stevens was highly likely to

engage in sexual relations with Mora Greer.

Defendants failed to warn Mora Greer that

Stevens was infected
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with HIV. Mora Greer would not have permitted Stevens to

stay in her home if she had been informed of Stevens’

HIV-positive status, and she would not have engaged in

sexual relations with Stevens after his release from

prison had she known he was HIV-positive. Stevens

transmitted HIV to Mora Greer following his parole into

her home. As a result of this HIV transmission, Mora

Greer developed AIDS. Stevens died of AIDS in July 1993.

Mora Greer died of AIDS after this lawsuit was filed.

Greer v. Shoop, No. C95-4023-MWB (N.D. Iowa Jan. 29,

1997).

The district court granted the defendants’ motion for

summary judgment finding that the defendants were

entitled to qualified immunity. Greer appeals the

district court’s decision.

II. DISCUSSION

We review the district court’s grant of summary judgment on qualified immunity

grounds de novo. Parrish v. Mallinger, Nos. 96-3876, 97-1529, 1998 WL 3580, at *1

(8th Cir. Jan. 7, 1998) (citing Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th

Cir. 1992)). We apply the same legal standard at the summary judgment level as the

district court. Rule 56 of the Federal Rules of Civil Procedure "mandates the entry

of summary judgment . . . against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and on which that

party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). "Summary judgment 'should not be granted unless the moving party has

established the right to a judgment with such clarity as to leave no room for

controversy.'" Vacca v. Viacom Broadcasting, Inc., 875 F.2d 1337, 1339 (8th Cir.

1989) (quoting Snell v. United States, 680 F.2d 545, 547 (8th Cir. 1982)). 

Two requirements must be satisfied in order to defeat a defendant’s claim of

qualified immunity at the summary judgment level. Rowe v. Lamb, 130 F.3d 812, 814
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(8th Cir. 1997). First, the plaintiff must allege a specific violation of a constitutional
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right. Id. Second, the allegedly violated constitutional right must have been clearly

established at the time of the alleged violation. Id. The standard for whether a

constitutional right is clearly established is objective and well-defined by the case law

of this circuit. “For a constitutional right to be clearly established, the contours of that

right must be sufficiently clear and specific that a reasonable official would understand

that what he is doing violates that right.” See McMorrow v. Little, 103 F.3d 704, 706

(8th Cir. 1997); Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). 

In this case, Greer alleges that the defendants violated Mora Greer’s due process

rights by failing to warn her of the fact that Stevens was HIV-positive when he was

paroled into her home in 1991. Greer argues that the defendants’ failure to warn Mora

Greer of Stevens’ medical condition violated her due process rights by way of the statecreated danger theory of constitutional liability, which according to Greer, requires state

officials to protect citizens from private violence in instances such as this. Greer further

alleges that it was clearly established in 1991 that the actions of the defendants were

violative of Mora Greer’s due process rights. The district court held that Greer had

sufficiently alleged a violation of Mora Greer’s constitutional rights under the statecreated danger theory, thus satisfying the first prong of our analysis. The district court

went on to hold, however, that the state-created danger theory as applied to these facts

in 1991 was not clearly established enough to find that a reasonable official would have

known that failing to inform Mora Greer of Stevens’ medical condition violated her

constitutional rights.

This court first analyzed the state-created danger theory of constitutional liability

in Wells v. Walker, 852 F.2d 368 (8th Cir. 1988). In Wells, a store owner was murdered

by a prisoner who was released early and dropped off by prison officials at the victim’s

store, which also served as a bus stop. Id. at 369. The victim’s estate sued the prison

officials alleging that they violated the victim’s constitutional rights by not warning her

of the prisoner’s violent nature. Id. at 369-70. We noted that an individual’s

constitutional due process rights may be implicated when there is a special
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relationship between the individual and the state or “when the state affirmatively places

a particular individual in a position of danger the individual would not otherwise have

been in” absent the state action. Id. We held that the plaintiff had adequately alleged

a violation of a constitutional right under the state-created danger theory. Id. at 370. We

went on to hold, however, that the prison officials’ conduct was merely negligent, and

therefore, could not be a source of constitutional liability. Id.

 

Shortly after Wells was decided, the United States Supreme Court addressed the

state-created danger theory in DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989). In DeShaney, the Court faced the question of whether

state officials violated the constitutional rights of a child who was physically abused by

his father when the officials did not remove the child from the father’s custody after

gaining knowledge of the father’s violent propensities. Id. at 191. The Court held that

the state did not have a constitutional duty to protect the child from his father’s attacks.

Id. The Court reasoned that states do not have a general constitutional duty to protect

their citizens from private violence. Id. at 198. The Court stated, however, that in

certain limited circumstances, such as where the state played a part in making a

particular individual more vulnerable to private violence, the Constitution imposes upon

the state affirmative duties of care or protection with respect to the individual. Id. at

201. The Court went on to state that:

The most that can be said of the state functionaries in this case is that they

stood by and did nothing when suspicious circumstances dictated a more

active role for them. In defense of them it must also be said that had they

moved too soon to take custody of the son away from the father, they

would likely have been met with charges of improperly intruding into the

parent-child relationship, charges based on the same Due Process Clause

that forms the basis for the present charge of failure to provide adequate

protection.

The people . . . may well prefer a system of liability which would place

upon the State and its officials the responsibility for failure to act in
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situations such as the present one. They may create such a system. . . . But they should

not have it thrust upon them by this Court’s expansion of the Due Process Clause of the

Fourteenth Amendment. 

Id. at 202-03.

Following DeShaney, this court had another opportunity to address the statecreated danger theory of constitutional liability. See Freeman v. Ferguson, 911 F.2d 52

(8th Cir. 1990). In Freeman, a woman and her daughter were murdered by the woman’s

estranged husband. Id. at 53. The administratrix of the victims’ estates brought suit

against the chief of police and other city officials for failing to enforce an existing

restraining order which restricted the husband’s contact with the victims. Id. at 53-54.

We noted that as of 1990, the Supreme Court had found the state-created danger theory

of liability applicable only in a custodial setting. Id. at 55. We recognized, however,

that the DeShaney opinion established “the possibility that a constitutional duty to

protect an individual against private violence may exist in a non-custodial setting if the

state has taken affirmative action which increases the individual’s danger of, or

vulnerability to, such violence beyond the level it would have been at absent state

action.” Id. But we went on to note that “it is not clear, under DeShaney, how large a

role the state must play in the creation of danger and in the creation of vulnerability

before it assumes a corresponding constitutional duty to protect. It is clear, though, that

at some point such actions do create such a duty.” Id. We concluded that the plaintiff

had failed to allege a constitutional violation under DeShaney, but allowed the plaintiff

to amend the complaint in an effort to satisfy the DeShaney standard. Id. at 54.

We are of the view that the state-created danger theory was an emerging rule of

law in this circuit in 1991. Therefore, we assume without deciding, based on the facts

accepted for purposes of summary judgment, that Greer has sufficiently alleged a

violation of Mora Greer’s constitutional rights pursuant to the state-created danger

theory. However, we are not convinced that the law was so clearly established in 1991
Greer argues that cases in other circuits further define the application of the 3

state-created danger theory and show that it was clearly established in 1991. 

Although it is true that decisions from other circuits are helpful in determining

whether a constitutional right is clearly established, in this case they are of no help. 

Johnson-El, 878 F.2d at 1049. Our research has turned up no decisions addressing

the state-created danger theory in a situation such as this. 

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that a reasonable official under these factual circumstances would have known that his

or her actions were violative of Mora Greer’s constitutional rights. Although a precise

factual correspondence with precedents has never been required for a constitutional right

to be clearly established, Boswell v. Sherburne County, 849 F.2d 1117, 1121 (8th Cir.

1988), when the distinguishing facts are such that they change the nature of the claim

presented, they are relevant to that determination. In this case, the privacy issues that

surround a person’s medical condition, specifically when that person is HIV-positive or

has AIDS, complicate the application of the state-created danger theory. See Iowa Code

Ann. § 141.23 (West, WESTLAW through 1991) (prohibiting non-consensual disclosure

of a person’s HIV-positive status). Because of those privacy concerns, we cannot say

that in 1991, a reasonable official would have known that failing to inform Mora Greer

of Stevens’ HIV-positive status violated her due process rights. It is just as likely that

a reasonable official would have thought that disclosing Stevens’ HIV-positive status

violated Stevens’ right of privacy. Therefore, we hold that the contours of the statecreated danger theory, as applied to the unique facts of this case, were not defined

clearly enough in 1991 to remove the defendants’ qualified immunity protection.3

Greer next argues that the defendants should not be entitled to qualified immunity

because they would be indemnified, pursuant to Iowa state law, for any award of

damages entered against them. See Iowa Code §§ 669.21-.23 (Supp. 1997). According

to Greer, because the defendants would be indemnified, there is no reason to provide

them with qualified immunity. In our view, the policy reasons behind qualified immunity

in § 1983 actions are much broader than simply protecting state
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employees from having to pay damages. Therefore, we are not convinced by Greer’s

argument and find no compelling reason to further comment on this issue.

III. CONCLUSION

For the aforementioned reasons, we affirm the judgment of the district court.

BEAM, Circuit Judge, concurring specially.

Because the analytical structure employed by the court is contrary to both

Supreme Court and Eighth Circuit precedent, I concur only in the result reached. The

opinion adds needless uncertainty to the law of this circuit on issues of qualified

immunity.

The district court determined that under the facts extant here, Greer sufficiently

alleges a Fourteenth Amendment violation under the "state-created danger theory" of

constitutional liability outlined in Wells v. Walker, 852 F.2d 368, 370-71 (8th Cir. 1988).

Although the language in Wells may arguably have been dictum because the

constitutional determination was not necessary to the final holding in the case, we have

since affirmed the existence of the theory in this circuit. See Gregory v. City of Rogers,

974 F.2d 1006, 1010 (8th Cir. 1992) (relying on Wells); Doe v. Wright, 82 F.3d 265,

268 (8th Cir. 1996) (same); Davis v. Fulton County, 90 F.3d 1346, 1351 (8th Cir. 1996)

(same); and Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir. 1996) (same).

The district court then determined that given the facts advanced by Greer, taken

as true for purposes of summary judgment, the contours of the constitutional right would

not have been sufficiently discernible to reasonable public officials functioning in the

same or similar circumstances to impose liability upon the appellees. Accordingly, the

district court found that the appellees were protected from suit by the
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doctrine of qualified immunity and were, therefore, entitled to summary judgment.

Because of the Supreme Court's opinion in DeShaney v. Winnebago County Dep't of

Soc. Serv., 489 U.S. 189 (1989), I agree with this result and would affirm on that basis.

In the wake of the DeShaney opinion, lower courts were unsure of the continued

viability of theories of liability based on the state's duty to protect citizens from private

harm. See, e.g., Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990) ("It is not clear,

under DeShaney, how large a role the state must play in the creation of danger and in the

creation of vulnerability before it assumes a corresponding constitutional duty to

protect."). It is now clear that the state-created danger theory survives DeShaney as a

theory of constitutional liability in the Eighth Circuit. See Gregory, 974 F.2d at 1010;

Wright, 82 F.3d at 268; Davis, 90 F.3d at 1351; Carlton, 93 F.3d at 508. At the time of

the appellees' conduct in this case, however, DeShaney was too fresh, and its

implications were too uncertain to expect that reasonable public officials in the

defendants' position would understand that their conduct violated Mora Greer's due

process rights under the state-created danger theory. Accordingly, because the contours

of the right were not clearly established, I agree that the defendants are entitled to

qualified immunity. See Anderson v. Creighton, 483 U.S. 635, 640 (1897)

The court, however, takes a different tack—one that violates at least two of our

well established precedents. The court announces that the "state-created danger theory

was an emerging rule of law in this circuit in 1991," ante at 6, even though Wells clearly

recognized the doctrine in 1988. The court then "assume[s] without deciding, based on

the facts accepted for purposes of summary judgment, that [appellant] has sufficiently

alleged a violation of Mora Greer's constitutional rights pursuant to the state-created

danger theory." Id. (emphasis mine). On this assumption, the court proceeds to deal

with the issue of qualified immunity.

This approach is squarely at odds with Siegert v. Gilley, a case in which the

Supreme Court granted certiorari "in order to clarify the analytical structure under
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which a claim of qualified immunity should be addressed." 500 U.S. 226, 231 (1991).

The Supreme Court established that the "first inquiry in the examination of [a claim of

qualified immunity]" is whether a "violation of a clearly established constitutional right"

has been alleged at all. Id. In Siegert, as here, the circuit court had assumed, without

deciding, that Gilley's actions violated Siegert's constitutional rights. Id. at 232. The

Supreme Court found this approach to be error. It stated, "We think the Court of

Appeals should not have assumed, without deciding, this preliminary issue in this case."

Id. The Court explained that "[a] necessary concomitant to the determination of whether

the constitutional right asserted by a plaintiff is 'clearly established' at the time the

defendant acted is the determination of whether the plaintiff has asserted a violation of

a constitutional right at all." Id. 

This court has repeatedly construed Siegert as requiring a two-stage approach.

In Munz v. Michael, Judge Magill stated, "The qualified immunity inquiry involves a two

step process. First, this court must determine whether the plaintiff has alleged a violation

of a constitutional right." 28 F.3d 795, 799 (8th Cir. 1994). Judge McMillian in

Manzano v. South Dakota Dep't of Soc. Serv., stated, "We recognize that the Supreme

Court's decision in Siegert v. Gilley has caused considerable disagreement among the

circuits with regard to the proper analytical framework for qualified immunity questions.

However, our court has consistently interpreted Siegert to mean that we must first

address the question whether the plaintiff has asserted the violation of a constitutional

right, and then consider whether the right was clearly established at the time of the

alleged violation." 60 F.3d 505, 510 n.2 (8th Cir. 1995) (citations omitted); accord

Weiler v. Purkett, No. 96-1022, 1998 WL 83610, at *2 (8th Cir. Mar. 2, 1998) (en

banc); Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir. 1994); Get Away Club, Inc.

v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); Cross v. City of Des Moines, 965 F.2d

629, 631-32 (8th Cir. 1992).

Were we to undertake the constitutional analysis required by Siegert, I am not

necessarily convinced that the facts alleged by the plaintiff here would suffice to make
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out a violation of Mora Greer's constitutional rights. I am content, however, to concur

based on the opinion of the district court, and in the result reached by the court today.

A true copy.

Attest:

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