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

__________ Befor e McMILLIAN and BEAM, Circuit Judges, and WEBB, 1 Chief District Judge.

__________ WEBB, Chief District Judge.

In th is appeal, appellant Henry Greer (“Greer” )The Honorable Mark W. Bennett, United States District Judge for the 2 Northern District of Iowa.

-2- argues that the district court erred when it found that 2 the defend ants, all employees of the State of Iowa, were-3-

en titled to qualified immunity from Greer’s claim s pursuant to 42 U.S.C. § 1983. We affirm.

I. BACKGROUND

For purposes of resolving the summary judgment motio n befo re the district court, the defendants accepted a s true the facts stated in Greer’s amended complaint

. Neither party to this appeal has objected to the district court’s re citation of the facts. We therefore adopt the district c ourt’s recitation of the facts for purposes of
reso lving the summary judgment motion on appeal an d restate them here as background.

Plaintiff Henry Greer is the administrato r of the estate of Mora Patricia Greer

. Defendants Stanley D. Shoop, Ronald Dohrman and Tho mas L. Frisch are employed by the State o f Iowa as probation and parole officers of th e Thi rd Judicial District Department o f Corre ctional Services. In March 1991, and a t all times relevant to this act ion, Perry Stevens
was subject to the control and custody of th e Thi rd Judicial District Department o f Correctional Services due to his conviction and sente nce for the commission of one or mor e felonies in the State of Iowa. As a result o f his conviction and sentence, Stevens was unde r the c ontrol and authority of defendants due t o their positions as probation and parol e officers. On March 28, 1991, defendants placed par olee Per ry Stevens into Mora Greer’s home. At th e time, Stevens was Mora Greer’s boyfriend

. Be fore Stevens was incarcerated, he and Mor a Greer had engaged in sexual in tercourse. At the time of Stevens’ parole in Mar ch of 1991, he had-4-

been diagnosed as suffering from AIDS

. Defendants knew, or reasonably should hav e known , that Stevens was infected with the HI V vir us. Defendants knew, or reasonably shoul d ha ve known, that upon his release fro m incarceration Stevens was highly likely t o engage in sexual relations with Mora Greer.

Defen dants failed to warn Mora Greer tha t Stevens was infected-5-

with HIV. Mora Greer would not have permitte d Stevens to stay in her home if she had been informed of Stevens ’ HIV- positive status, and she would not have engaged i n sexu al relations with Stevens after his release fro m prison had she known he was HIV-positive. Steven s transmitted HIV to Mora Greer following his parole int o her h ome. As a result of this HIV transmission, Mor a Greer developed AIDS. Stevens died of AIDS i n July 1993. Mora Greer died of AIDS after this lawsuit was filed

. Gr eer v. Shoop , No. C95-4023-MWB (N.D. Iowa Jan. 29 , 1997).

The district court granted the defendants’ motion fo r summary judgment finding that the defendants wer e enti tled to qualified immunity. Greer appeals th e district court’s decision.

II. DISCUSSION
We review the district court’s grant of summary judgme nt 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. Cole man , 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 jud gment . . . against a party who fails to make a showing sufficient t o establish the existence of an element essential to that party's case, and on which tha t 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 esta blishedthe right to a judgment with such clarity as to leave no room fo r
con troversy.'" 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 re quirements must be satisfied in order to defeat a defendant’s claim o f qualified immunity at the summary judgment l evel. Rowe v. Lamb , 130 F.3d 812, 814-6-

(8th Cir. 1997). First, the plaintiff must allege a specific violation of a constitutional-7-

righ t. Id. Second, the allegedly violated constitutional right must have been clearl y 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 c ircuit. “For a constitutional right to be clearly established, the contours of that right must be su fficiently clear and specific that a reasonable official would understand th at 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 t he defendants violated Mora Greer’s due process rights by failing to warn her of the fact that Stevens was HIV-positive when he wa s paroled into her ho me in 1991. Greer argues that the defendants’ failure to warn Mora Greer of Stevens’ medical condition violate d 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 viole nce in instances such as this . Greer further alleges that it was clearly established in 1991 that the actions of the defendants wer e violative of Mora Greer’s due process rights. The district court held that Greer ha d sufficient lyalleged a violation of Mora Greer’s constitutional rights under the state

created dang er 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 en ough to find that a reasonable official would have known that failing to inform Mora Greer of Stevens’ medical condition violated he r constitutional rights.

This court first analyzed the s tate-created danger theory of constitutional liability in Wells v. Walker , 852 F.2d 368 (8th Cir. 1988) . In Wells , a store owner wa s murdered by a prisoner who was released early and dropped off by prison officials at the victim’s st ore, which also served as a bus stop. Id. at 369. The victim’s estate sued the prison officials allegingthat 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-8-

relationship between the individua l and the state or “when the state affirmatively places

aparticular 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 de cided, the United States Supreme Court addressed the state-cre ated danger theory in DeShaney v. Winnebago County Department of Socia l Service s , 489 U.S. 189 (1989). In DeShaney , the Court faced the question of whether state officials violated th e 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 afte r gaining knowledge o f the father’s violent propensities. Id. at 191. The Court held that the state did not have a const itutional 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 i n certain limited circumstances, such as where the state played a part in making a particular individual more vulnerable toprivate violence, the Constitution imposes upon the sta te affirmative duties of care or protection with respect to the individual. Id. a t 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
move d too soon to take custody of the son away from the father, the y wouldlikely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that for ms the basis for the present charge of failure to provide adequat e protection.

The people . . . may well prefer a system of liability which would plac e upon the State and its officials the responsibility for failure to act in-9-

situations such as the present one. They may create such a system. . . . But they should not have it thrust upon them by this Co urt’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 state

created danger theory of constitu tional liability. See Freeman v. Ferguson , 911 F.2d 52 (8th Cir. 1990). In Freeman , a woman and her daughter w ere murdered by the woman’s estranged hu sband. Id. at 53. The administratrix of the victims’ estates brought sui t against the chief of police and other city officials for failing to enforce an existin g 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 t o protect an i ndividual against private violence may exist in a non-custodial setting if the stat e has taken affirmative action which increases the individual’s danger of, o r vulnerabili ty to, such violence beyond the level it would have been at absent stat e 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 constituti onal duty to protect. It is clear, though, that at some p oint such actions do create such a duty.” Id. We concluded that the plaintiff had failed to al lege 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 ar e 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 violationof Mora Greer’s constitutional rights pursuant to the state-created dange r theory. However, we are not co nvinced that the law was so clearly established in 1991Greer 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.

-10- that a re asonable 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 f or a constitutional right to be cl early 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 clai m presented, they are relevant to that determination. In this case, the privacy issues that surround a person’s medical conditi on, specifically when that person is HIV-positive or has AIDS, complicate the application of the state-created danger th eory. See Iowa Code Ann. § 141.23 (West, WESTLAW through 1991) (prohibiting non-consens ual disclosure of a person’s HIV-positive status). Because of those privacy concerns, we cannot say that in 1991, a re asonable 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 statu s violated Stev ens’ right of privacy. Therefore, we hold that the contours of the state

cre ated danger theory, as applied to the unique facts of this case, were not define d 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 o f damages entered against them. SeeIowa Code §§ 669. 21-.23 (Supp. 1997). According to Greer, b ecause the defendants would be indemnified, there is no reason to provid e them with qualified immunity. In our view, the policy reasons behin d qualified immunity in § 1983 actions are much broader than simply protecting state-11-

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.

Be cause 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 qualifie d immunity.

The district court determined that under the facts extant here, Greer sufficiently alleges a Fourteenth Amendment violation under the "state-created danger theory" o f constitutional liability outlined in Wells v. Walker , 852 F.2d 368, 370-71 (8 th Cir. 1988). Althou gh the language in Wells may arguably have been dictum because th e constitutional determina

tion 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 dist rict 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 h ave been sufficiently discernible to reasonable public officials functioning in th e same or simila

r circumstances to impose liability upon the appellees. Accordingly, the district court found that the appellees were protected from suit by the-12-

doctrine of qualified immunity and were, therefore, entitled to summary judgment

. Beca use of the Supreme Court's opinion in DeShaney v. Winnebago County Dep't o f Soc. Serv. , 489 U.S. 189 (1989), I ag ree with this result and would affirm on that basis.

In the wake of the DeShan ey opinion, lower courts were unsure of the continued viability of the ories 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 creati on of danger and in the creation of vulnerability before it assumes a corresponding constitutional duty t o 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 a t 1351; Carlton , 93 F.3d at 508. At the time of the appelle es' conduct in this case, however, DeShaney was too fresh, and it s im plications were too uncertain to expect that reasonable public officials in th e defe ndants' position would understand that their conduct violated Mora Greer's du e process rights under the state-created danger theor y. Accordingly, because the contours of the right were not clearly established, I agree that the defendants are entitled t o qualified immunity. See Anderson v. Creighton , 483 U.S. 635, 640 (1897)

T he court, however, takes a different tack—one that violates at least two of our well established precedent s. 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-create d danger theory." Id. (emphasis mine). On this assumption, the court proceeds to deal with the issue of qualified immunity.

This approac h is squarely at odds with Siegert v. Gilley , a case in which th e Supreme Court granted certiorari "in order to clarify the analytical structure under-13-

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 "viola tion of a clearly established constitutional right" has been alleged at all. Id. In Siegert , as here, the circuit court had assumed, without dec iding, that Gilley's actions violated Siegert's constitutional rights. Id. at 232. Th e Supreme C ourt found this approach to be error. It stated, "We think the Court o f Appeals should not have assumed, without dec iding, this preliminary issue in this case." Id. The Court explained that "[a] necessary conc omitant to the determination of whether the cons titutional right asserted by a plaintiff is 'clearly established' at the time th e 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 i nvolves a two step process. First, this court must determine whether the plaintiff has a lleged a violation of a c onstitutional right." 28 F.3d 795, 799 (8th Cir. 1994). Judge McMillian i n 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 th e circuits with regard to the proper analytical framewor k for qualified immunity questions. However, our court has consistently interpreted Siegert to mean that we must firs t 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 th e alleged violation." 60 F.3d 505, 510 n.2 (8th Cir. 1995) (citations omitted); accor d Weiler v. Purk ett , No. 96-1022, 1998 WL 83610, at *2 (8th Cir. Mar. 2, 1998) (e n 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 no t

necessa rily convinced that the facts alleged by the plaintiff here would suffice to make-14-

out a v iolation 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.