United States Court of Appeals,

Eleventh Circuit.

Nos. 93-9158, 93-9324.

Sybille G. WOOTEN, Individually and as Administratrix of the

Estate of Daniel M. Wooten, Plaintiff-Appellee,

v.

Carol CAMPBELL, Individually, Nancy P. Gilbert, Individually,

Ruth Y. Hicks, Individually, Pat Keating, Individually, Jane Doe,

No. 1, Individually, Jane Doe, No. 2, Individually, John Doe, No.

1, Individually, John Doe, No. 2, Individually, Joanne Gaynor,

Defendants-Appellants.

Sybille G. WOOTEN, Individually and as Administratrix of the

Estate of Daniel M. Wooten, Plaintiff-Appellee,

v.

Douglas G. GREENWELL, Johnny V. Lewallen, Gerald V. Gouge, Betty

Wrights-Robinson, Gail Ormsby, John Doe No. 1, John Doe No. 2, Jane

Doe, No. 1, and Jane Doe No. 2, Defendants-Appellants.

Sybille G. WOOTEN, Individually and as Administratrix of the

Estate of Daniel M. Wooten, Plaintiff-Appellee,

v.

Carol CAMPBELL, Individually; Nancy P. Gilbert, Individually;

Ruth Y. Hicks, Individually; Pat Keating, Individually; Joanne

Gaynor, Defendants-Appellants,

Jane Doe, No. 1, Individually; Jane Doe, No. 2, Individually;

John Doe, No. 1, Individually; John Doe, No. 2, Individually,

Defendants.

Sybille G. WOOTEN, Individually and as Administratrix of the

Estate of Daniel M. Wooten, Plaintiff-Appellee,

v.

Douglas G. GREENWELL; Johnny V. Lewallen; Gerald V. Gouge;

Betty Wrights-Robinson; Gail Ormsby, Defendants-Appellants,

Jane Doe No. 1; Jane Doe No. 2; John Doe No. 1; John Doe No.

2, Defendants.

April 6, 1995.

Appeals from the United States District Court for the Northern

District of Georgia. (Nos. 1:92-cv-2047, 1:93-cv-218), Marvin H.
 *

Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

 1Defendants also allege in their motion to dismiss that they

are entitled to relief because the present litigation is barred

by the "Rooker-Feldman" doctrine, see District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d

206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44

S.Ct. 149, 68 L.Ed. 362 (1923); that Wooten's section 1983 claim

is barred by the Eleventh Amendment; and Wooten's state tort

claim is barred by sovereign immunity. 

 2

The district court erred in the first prong of its analysis

and, therefore, we need not discuss the remaining defenses raised

by the defendants. We note, however, that assuming arguendo

there is a violation of a constitutional right, the defendants

are clearly entitled to qualified immunity. See Spivey v.

Elliott, 41 F.3d 1497 (11th Cir.1995); Lassiter v. Alabama A & M

University, 28 F.3d 1146 (11th Cir.1994) (en banc); Courson v.

McMillian, 939 F.2d 1479 (11th Cir.1991). Under the qualified

immunity standards, Wooten fails to demonstrate that the

defendants violated a clearly established right. It was not

Shoob, District Judge

Before KRAVITCH and DUBINA, Circuit Judges, and GIBSON*, Senior

Circuit Judge.

DUBINA, Circuit Judge:

Appellants/defendants, officers and employees with the Georgia

Department of Human Resources ("DHR"), and the Forsyth County

Department of Family and Children Services ("DFACS"), appeal the

district court's order denying their motion to dismiss or, in the

alternative, motion for summary judgment. Defendants alleged in

their motion and contend on appeal that the plaintiff/appellee,

Sybille G. Wooten ("Wooten") fails to state a claim upon which

relief can be granted and that the defendants are entitled to

qualified immunity.1

 Because we hold that Wooten fails to

establish the violation of a constitutional right, we reverse the

order of the district court denying the defendants' motion to

dismiss or, in the alternative, motion for summary judgment.2
clearly established law then or now that these caseworkers could

expect to be liable when a child, in their legal, but not their

physical custody, is harmed by a natural parent while in the

physical custody of the other natural parent. The district

court's conclusion that the law is clearly established with

regards to this matter relied upon cases dealing with foster

care, not with a natural parent. We see a distinct difference in

the two situations. 

I. FACTS AND PROCEDURAL HISTORY

This is a tragic case. In June 1990, Wooten received a

protective order from the Superior Court of Forsyth County,

Georgia, giving her custody of her son, Daniel, and enjoining

Daniel's father, Michael Wooten ("Michael") from coming within 500

yards of Wooten or Daniel. Shortly thereafter, Michael abducted

Daniel from day care and a month later Michael was arrested for

felony interference with custody. Upon notice from the Forsyth

County Sheriff's Office, the county DFACS became involved in

Daniel's case and petitioned the county Juvenile Court for

temporary legal custody of Daniel.

In August 1990, the Juvenile Court gave custody of Daniel to

the DHR acting through the DFACS and also gave the DHR authority to

place Daniel. Both of Daniel's parents consented to this custody

arrangement. The DHR and DFACS, after an investigation, placed

Daniel in Wooten's home and allowed Michael to visit him once every

two weeks under the supervision of DFACS caseworkers. Beginning in

November 1990, the DHR and DFACS allowed Michael to have

unsupervised visits with his son. During a January 31, 1991,

unsupervised visit, Michael abducted Daniel. Nearly two months

later, when police found Daniel and Michael, they discovered that

Michael had shot and killed Daniel and then Michael had committed
suicide.

Wooten brought this action under 42 U.S.C. § 1983 alleging

that the defendants violated Daniel's constitutional rights under

the Fourteenth Amendment Due Process Clause by failing to protect

him from Michael. Wooten also asserted a state law claim for

wrongful death. Wooten alleges that the defendants were reckless

in granting Michael unsupervised visits when the evidence showed

that Michael posed a significant risk of danger to Daniel. She

also alleges that defendants of the state DHR interfered with the

county DFACS's management of Daniel's case and required the DFACS

to allow Michael to have unsupervised visits with Daniel. The

defendants filed a motion to dismiss or, in the alternative, a

motion for summary judgment asserting various grounds for

entitlement to relief, including qualified immunity. The district

court denied the motion, and the defendants appeal that order.

II. ANALYSIS

 We note at this juncture that the Rule 12(b)(6) defense and

the qualified immunity defense become intertwined. Under Rule

12(b)(6), the defendants can defeat Wooten's cause of action if her

complaint fails "to state a claim upon which relief can be

granted." Fed.R.Civ.P. 12(b)(6). Under the qualified immunity

defense, the defendants are immune from liability if Wooten's

complaint fails to state a violation of a "clearly established

statutory or constitutional right[ ] of which a reasonable person

would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). As the Supreme Court

states, "[a] necessary concomitant to the determination of whether
 3

Our court has not specifically stated which analysis comes

first—the establishment of a violation of a constitutional right

or the establishment of a violation of a "clearly established'

constitutional right (readily analogized to the question: which

came first, the chicken or the egg?). There are several cases in

our circuit and in other circuits, however, which intimate that

the first question to be answered in this analytical framework is

whether the plaintiff establishes the violation of a

constitutional right. See, e.g., Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992), cert. denied, --

- U.S. ----, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993); Burrell v.

Board of Trustees of Georgia Military Colllege, 970 F.2d 785, 792

(11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1814, 123

L.Ed.2d 445 (1993); Sivard v. Pulaski Co., 17 F.3d 185 (7th

Cir.1994); Johnston v. City of Houston, 14 F.3d 1056 (5th

Cir.1994). 

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." Siegert v. Gilley, 500 U.S. 226,

232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Accordingly, we

must first undertake an examination of Wooten's complaint to

determine if she possesses a right subject to a constitutional

violation. Id.3

 The question we must resolve is whether a substantive due

process right is implicated where a public agency is awarded legal

custody of a child, but does not control that child's physical

custody except to arrange court-ordered visitation with the

non-custodial parent. The substantive component of the Due Process

Clause protects only those rights which are fundamental. McKinney

v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (en banc), cert.

denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995).

Substantive due process rights are created only by the

Constitution, not by state laws. Id. "A finding that a right
merits substantive due process protection means that the right is

protected "against certain government actions regardless of the

fairness of the procedures used to implement them.' " Id. (quoting

Collins v. City of Harker Heights, 503 U.S. 115, ----, 112 S.Ct.

1061, 1068, 117 L.Ed.2d 261 (1992) (internal quotations omitted)).

Hence, tort law remains largely outside the scope of the

substantive due process jurisprudence. McKinney, 20 F.3d at 1556.

 The district court analogized this case to a foster care

situation when it found that Wooten stated a claim for a violation

of a constitutional right. This analysis is flawed in one major

respect: Daniel was in the physical custody of his natural mother,

not in a third-party foster home. Wooten maintained Daniel's

clothes, food, and shelter. In a foster care situation, the state

places the child, whether voluntarily or not, into the care of

persons the state has chosen. These foster families provide for

the child's physical needs on behalf of the state. The state

exercises control and dominion over the child in a foster care

situation and, accordingly, if a child is injured by a foster

family, he or she has a section 1983 claim for a violation of a

constitutional right. See Taylor by and through Walker v.

Ledbetter, 818 F.2d 791 (11th Cir.1987) (en banc), cert. denied,

489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989).

The facts of this case are very similar to the facts in

DeShaney v. Winnebago County Department of Social Services, 489

U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, a

minor child was severely beaten by his natural father despite

knowledge by state social workers of the father's violent
propensities. In rejecting the plaintiff's claims, the Supreme

Court held:

when the State by the affirmative exercise of its power so

restrains an individual's liberty that it renders him unable

to care for himself, and at the same time fails to provide for

his basic human needs—e.g., food, clothing, shelter, medical

care, and reasonable safety—it transgresses the substantive

limits on state action set by the Eighth Amendment and the Due

Process Clause. 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. In the substantive due process analysis, it is

the State's affirmative act of restraining the individual's

freedom to act on his own behalf—through incarceration,

institutionalization, or other similar restraint of personal

liberty—which is the "deprivation of liberty' triggering the

protections of the Due Process Clause, not its failure to act

to protect his liberty interest against harms inflicted by

other means.

489 U.S. at 200, 109 S.Ct. at 1005-06 (citations omitted).

The Court also noted that "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." Id. at 195, 109 S.Ct. at 1003. The purpose of the Due

Process Clause is to protect the people from the State, not to

ensure that the State protect the people from each other. Id. at

196, 109 S.Ct. at 1003. "As a general matter, then, we conclude

that a State's failure to protect an individual against private

violence simply does not constitute a violation of the Due Process

Clause." Id. at 197, 109 S.Ct. at 1004.

As in DeShaney, Michael was a private actor. Wooten had

physical custody of Daniel and had consented to visits by Michael.

Wooten took no legal action to prevent the unsupervised out of

office visits nor the overnight visit at Michael's parents' home.

R 4-7, Exh. 3 & 4. Wooten signed a case panel review which
 4

There is some question whether this court's holding in

Cornelius survived the Supreme Court's decision in Collins v.

City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d

261 (1992), which held that a voluntary employment relationship,

standing alone, does not impose a constitutional duty on

government employers to provide a reasonably safe work

environment. This panel, however, need not rely upon Cornelius

in making its decision. 

expressly stated that Michael would be allowed two hour visits away

from the office. Id. After initially placing Daniel in Wooten's

home, the state's only role was monitoring and arranging for the

visitation between Daniel and Michael. Wooten maintained the

control and dominion of Daniel and could have petitioned the court

for a change in the custody and visitation arrangements if she felt

Michael posed a risk to Daniel's well-being. Under these

circumstances, allowing a child visitation with a natural parent

does not so "shock the conscience" as to constitute a substantive

due process violation. DeShaney, 489 U.S. at 197, 109 S.Ct. at

1004.

Wooten contends that the state and her son had a "special

relationship" which imposed an affirmative duty on the state to

provide Daniel with protection. See Jones v. Phyfer, 761 F.2d 642

(11th Cir.1985); Cornelius v. Town of Highland Lake, 880 F.2d 348

(11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108

L.Ed.2d 785 (1990).4

 In Cornelius, we held that "government

officials may be held liable for the deprivation by a third party

of a private citizen's due process rights when a special

relationship is found to exist between the victim and the third

party or between the victim and the government officials." 880

F.2d at 352-53. There is no special relationship here: Daniel was
in the physical custody of his natural mother when his natural

father took him; Daniel did not rely solely upon the state for his

physical needs and safety; Wooten had access to the courts if she

was displeased with the unsupervised visitation; Wooten could have

intervened to stop the unsupervised visitation; and Wooten was

able to protect Daniel because she had physical custody of Daniel.

As noted earlier, the state's sole responsibility was to monitor

and arrange Daniel's visitation with Michael.

The Supreme Court has noted that in certain limited

circumstances the Constitution imposes upon the state affirmative

duties of care and protection with respect to particular

individuals. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50

L.Ed.2d 251 (1976), the Court recognized that the Eighth

Amendment's prohibition against cruel and unusual punishment

requires the state to provide adequate medical care to incarcerated

prisoners. The Court reasoned that because the prisoner is unable

"by reason of the deprivation of his liberty" to care for himself,

it is only fair that the state be required to care for him. Id. at

103-104, 97 S.Ct. at 290-91 (quotations omitted). In Youngberg v.

Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the

Court extended the Estelle analysis holding that the substantive

component of the Fourteenth Amendment's Due Process Clause requires

the state to provide involuntarily committed mental patients with

such services as are necessary to ensure their "reasonable safety'

from themselves and others. 457 U.S. at 314-325, 102 S.Ct. at

2457-2463. These cases, however, provide no support for Wooten in

the present case.
 The state did not so restrain Daniel's freedom or hold him

against his will to such an extent that a "special relationship"

was created. The affirmative duty to protect arises from the

limitation which the state imposes on an individual's freedom to

act on his own behalf. The state did not impose any limitation on

Daniel's personal liberty or freedom to act. The state placed

Daniel in the physical custody of his natural mother and monitored

Daniel's visitation with his natural father. The state's

obligation did not rise to the level of an affirmative duty to

protect because the state did not restrain Daniel's liberty to the

extent that it rendered him unable to care for himself. DeShaney,

489 U.S. at 200, 109 S.Ct. at 1005-06.

Several circuits have utilized DeShaney to find a distinction

between situations where a child is totally dependent upon the

state for security needs and situations where the primary

responsibility for care remains with a natural parent. See e.g.,

Maldonado v. Josey, 975 F.2d 727 (10th Cir.1992), cert. denied, ---

U.S. ----, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993); D.R. by L.R. v.

Middle Bucks Area Vocational Tech. School, 972 F.2d 1364 (3rd

Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1045, 122 L.Ed.2d

354 (1993); J.O. v. Alton Community Unit School Dist. 11, 909 F.2d

267 (7th Cir.1990). Each of these cases involved children who were

harmed by public school teachers. The plaintiffs in these cases

attempted to hold school system officials liable based upon the

custodial relationship which existed between the school system and

the child, especially in light of state compulsory attendance laws.

The courts uniformly held that substantive due process did not
 5

See also Wright v. Lovin, 32 F.3d 538 (11th Cir.1994) (a

child's voluntary school attendance did not create a custodial

relationship between himself and the school sufficient to give

rise to a constitutional duty of protection). 

furnish the plaintiffs a basis to recover against the school

systems because the state had not rendered the children totally

dependent upon the state.5

 The present case is similarly analogous to DeShaney and the

above-referenced cases to warrant our conclusion that Wooten has no

claim under substantive due process. In those cases, like here,

the children remained in the physical custody of their parents who

were free to take steps to protect them from harms perpetrated by

other persons. The key inquiry in this case is whether the county

caseworkers controlled Daniel's life to such an extent that Wooten

could not reasonably be expected to protect him. The answer is

that they did not. Accordingly, Wooten's complaint fails to state

a claim upon which relief can be granted and should have been

dismissed.

III. CONCLUSION

We are not unsympathetic to Wooten and the tragic

circumstances under which she lost her son. In applying the law,

however, we cannot be guided by emotions. The facts of this case

are similar to those in DeShaney, and it is under those principles

that we hold that Wooten's complaint fails to state a violation of

a constitutional right. We note that our decision does not

foreclose other avenues of relief available to Wooten. We must

remember that the individual truly responsible for this tragedy is

Michael, not the state, for it was Michael who shot Daniel and then
killed himself.

REVERSED.