NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0382n.06 No. 11-2353 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

SUZ ANNE L ANGDO N, as the Personal Represe ntative of the Estate of CAL I STA SPR I NGER, dec ease d, Plaintiff-Appellant,

v. PATRI CI A SKEL DI

NG, CYNTHIA BA RE, MARI ANNE U D O W, L AURA CHAMPAGNE, and TED F ORREST, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

OPI NI ON

Be fore : DAUGHT REY, KETHL EDGE, DO NAL D, Circuit J udg es.

BERNI CE B. DONALD, Circuit J udg e. Plaintiff-Appellant Suz anne L ang don broug h t a § 1 9 8 3 ac t i on ag ainst sever al s tate employ ees alleg ing that they violated t he due proce ss rig hts of Calista Springe r, a minor, by failing to protec t her from known, ong oing abuse that led to Calista’s death. The dist rict cour

t dismi ssed the cla ims ag ainst all defe ndants on the grounds that L ang don has not alleg ed a viable due proce ss claim and that the defe ndants wer e entitled t o q u al i fi ed immunit y . For

the following rea sons, we af firm.No. 11-2353

Langdon v. Skelding, et al. I. BACKG ROUND

I n 2008, sevente en-y ear -old Calista Springe r di ed of asphy x iation when she was una ble to

esca pe a hous e fi re b eca

use her fathe r and step-mother, Anthony and Marsha Springe r (or “the Springe rs”) , had chaine d her to a bed. Prior to this incident, the St. J oseph County Child Protective 1 Service (“CPS”), a division of the State of Michig an Depa rtment of Human Service s (“MDH S”), had develope d an extensive rec ord on Calista that dated back to 1995 when Calista was three -y ear s-old.
CPS rec eived many child abuse complaints conce rning Calista ove r the y ear s. The ear liest

wer e two complaints in 1995 t h at she had extremely high levels of lead in her blood and that the S p ri n ger s were not responding to preve ntative trea tment for the lead poisoning. CPS rec eived another two complaints in 1997, one alleg ing that Anthony hit Calista in the fac e g iving her a bloody lip, which Marsha confirme d, and one that Calista had untreated second- deg ree burns and that Marsha had hit her in the fac e and g iven her a bloody nose beca use Calista stuck out her tongue
. I n 1999, an employ ee of Michig an’s Communi ty Mental Hea lth Service s repor ted t h at C al ista was being restra ined t o her bed, a cha ir, or a pole in the kitchen by means of a belt or ropes. I n 2000, 2
Anthony and Marsha Springe r wer e both convicted of t orture and first-deg ree child abuse. See 1 People of Mich. v. Anthony John Springer , Michig an Court of Appea ls Docke t Sheet, Case No. 298386, Entry No. 2; People of Mich. v. Marsha Anne Springer , Michig an Court of Appea ls Docke t Sheet, Case No. 298385, E ntry No. 2. There are numerous, albeit vague, ref ere nces in the pleading s sug g esting that Calista suffe red from 2 an unspecifie d emotional and/or mental impairment. A CPS worker spec ulated that Calista mig ht have schizophrenia or autism. The extent of this impairment is unknown. The Springe rs maintained that they restra ined Calista at nig ht f or her own safe ty , insinuating that her impairme nt made her a dang er to he rself. This infor mation is not critical to the analy sis of the issues on appea l.

- 2 -No. 11-2353

Langdon v. Skelding, et al. a school officia l twice reported that Calista had bruises, wa s kicked by Anthony , and that she was being locked in her bedroom at night, forc ing her to wet the bed. I n 2001, someone complained that Marsha was mentally abusing Calista by threatening to put her in foster car e and by saying she hoped Calista would die. After

eac h complaint, CPS reje cted the c ase f or fur ther investig ation. Finally , in 2004, a series of three complaints trig g ere d an investiga tion. A teac her, a deputy , and a neig hbor all filed co m p l ai n t s alleg ing that Calista was chaine d to her bed at night, that she went day s without eating , that Marsha assaulted he r and slammed her he ad into the floor, a nd that M ar s h a wo u l d not let her bathe or use hy g iene products. CPS investiga tor Patricia Skeldin g interviewe d Calista and her sister Courtney , both of whom confirme d that Calista was being chaine d to her bed, and Calista soug ht Skelding’ s help. Skelding did not investigate the chains, but war ned the Springe rs that they would prese nt a dang er in case of a fire. Skelding found that there was “insuffic ient evidenc e to pr ove neg lect or abuse” and closed the investigation with the approva l of her supervisor, Cy

nthia Ba re. She noted that she could “only hope” the re straints were “nec essar y for [C alista’s] own protec tion,” but she also expressed that she was “uncomf ortable” with Calista’s treatment and that Calista was an easy targ et for abuse beca use she was not “believa

ble or cre dible.” She also noted that she did not think Calista “made up the story about [Marsha] pulling her head up by the hair.”
The last known repor

t was filed in 2005. A school officia l repor ted that Ca l i s ta was still being chaine d to her bed and beate n, that she was not being fed, and that she wore the same clothes to school for day s at a time. Ba re spoke to a school counselor who told her that this was the “same

- 3 -No. 11-2353

Langdon v. Skelding, et al. old story ” i n wh i ch Calista was “see king attention” and Ba re reje cted the case for further investigation. That same y ear , the Springe rs remove d Calista from public school in favor of homeschooling . Calista’s home ca ug ht fire in 2008, and inde ed, she die d while cha ined to the bed.
On October 7, 2010, Suz anne L ang don, Calista’s g randmother , filed a § 1 9 8 3 co m plaint ag ainst Patricia Ske l d i n g an d Cy nthia Ba re; Marianne Udow, the former Direc tor of the MDHS; L aura Champag ne, former MDHS Chief Deputy Direc tor; and Ted For rest, manag er of the State of Michig an Child P rotec tive Service s Progr am. The c omplaint alleg es that the defe ndants violated 3 Calista’s substantive and proce dural due proce ss rig hts by “fa il[ ing] t o proper ly investigate the complaints of abuse and fail[ing] to follow the mandates of the clea rly established law, including MCL722.638 of the Child Protection Act,” le adingto Calista’s death.
The defe ndants filed a motion to dismis s, or, alter natively , for judg ment on the pleading s. On September 30, 2011, the district c ourt g rante d the motion to dismiss , finding that L ang don had not alleg ed viable due p ro ce s s cl aim s and the defe ndants wer e entitled to qualified immunit y . L ang don filed a timely

appea l.
II. Stand ard of Review
Whether the district court’s decision amounts to a dismiss al und er Rule 12(b)( 6) or a judgme nt on the pleading s under Rule 12(c) , we revie w both de novo. Handy- Clay v. Mem phis , 695

The Appellant’s brief states that CPS was also a defenda nt in the p re s en t case , but the complaint 3 and the district cour

t opinion do not bear this out. - 4 -No. 11-2353

Langdon v. Skelding, et al. F.3d 531, 538 (6th Cir. 2012); Smith v. Salem , 378 F.3d 566, 570 (6th Cir. 2004). At this stag e, we must acc ept the plaintiff’s fac tual alleg ations as true and deter mine “whe ther [she] undoubtedly can prove no set of fac ts in support of [her] alleg ations that would entitle [her] to relief .” Eidson v. Tenn. Dep’ t of Children’s Servs. , 510 F.3d 631, 634 (6th Cir. 2007). Although we must rea d the complaint g ener ously , the plaintiff must alleg e more than mere labels and conclusions; “a formulaic rec itation

o f the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 55 5 (2007). L ikewise, while w e are required to acc ept as true all well-plea ded fa cts, we do not a cce pt as true le g al conc lusions couched a s fac tual alleg ations. Id. at 556-57. III. Analysi s
Sectio n 1983 provides a fede ral cause of action aga inst any one who, acting under color of state law, deprive s a person of “any rig hts, privileg es, or immunit ies secur ed by the Constit ution and laws” of the United States. 42 U.S.C. § 1983. The threshold require ment for a § 1983 claim is that t h e plaintiff must have been deprive d of some rig ht that orig inates in fede ral s t at u t o ry o r constitutional law. Lewellen v. Metro. Gov’ t , 34 F.3d 345, 347 (6th Cir. 1994). The rig hts alleg edly violated here are Calista’s due proce ss rig hts guara nteed by the Four

teenth Amendment to the United States Consti tution. 4

There was some discussion at ora l argument about whethe r we should decline to re ach the merits 4 of these claims beca

use of a prior ruling in the Michig an Court of Claims on L ang don’s para llel state claims. See E

state of Calista Springer , No. 10-000103-MM ( Ing ham Cnty . Ct. J an. 26, 2011). I n L ang don’s appea l, howeve r, the Michig an Court of Appea ls made clea r that the Michig an Court of Clai m s d o es n ot have jurisdiction over the parties in their i ndividual capa city

. Estate of Braman , 2012 WL 676393, at *4 (Mar

. 1, 2012) (af firming Court of Claims decision). Thus, the prese nt due - 5 -No. 11-2353

Langdon v. Skelding, et al. The doctrine of qualified immunit y shields g overnme nt officia ls from liability "insofa r as their conduct does not violate clea rly established

. . . constitutio n al ri gh t s of which a rea sonable person would have k n o wn . " Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). We have the d is c retion to decide whether to addre ss qualified immunit y or the underly ing claim of a constitut io n a l deprivation first, considerin g t h e ci rcumstanc es of the particula r case . Pearson v. Callahan , 555 U.S. 223, 236 (2009).
The Four teenth Amendment prov id es that a state shall not “depr ive any person of life, liberty ,
or proper ty , without due proce ss of law.” U.S. C O N S T . amend. XI V, § 1. As i nterpre ted by the courts, the Due Process Clause protec ts substantive due proce ss, which is the rig ht to be fre e fr om g overnme nt infring ement ag ainst cer tain liberties such as persona l secur ity reg ardle ss of the proce ss used, as well as proce dural due proce ss, which is the rig ht to a fair proce dure when the g overnme nt deprive s a person of protec ted liberties. E JS P r o p s . , LLC v. Toledo , 698 F.3d 845, 855 (6th Cir. 2012); Kallst rom v. Columbus , 136 F.3d 1055, 1062-63 (6th Cir. 1998). L ang don allege s t hat a violation of both occur

red when the defe ndants failed to follow state law to proper ly investigate the complaints of abuse and that Calista’s death would have been avoided if the defe ndants had fulfilled their duty to protect Calista fr om abuse a nd neg lect.

proc ess claims ag ainst these individuals could not have been broug ht in the Michig an Court of Claims and res judicata does not apply

. See Adair v. State , 6 8 0 N. W.2d 386, 396 (Mich. 2004) (h o l d i ng that Michig an claim prec lusion applies only when the prese nt claim could have been broug ht in the ear lier action); see also Migra v. W arren C ity Sch. Dist

. Bd. of Educ. , 465 U.S. 75, 81 (1984) (holding that a fede ral cour t m u s t ap p ly state prec lusion law to deter mine whether a prese nt claim is res judicata ). - 6 -No. 11-2353

Langdon v. Skelding, et al. A. Sub stantive Due P roce ss Claim Nothing in the Due Process Clause require s a state to protec t citizens from invasion ag ainst persona l secur ity by private actors. DeShane y v. W innebago C

nty. Dep’t of S

o c. S er vs . , 489 U.S. 189, 195 (1989). Nor does it impose an aff irmative obligation on states to rende r aid. Id

. at 195-96. The purpose of subs tantive due proce ss is “to protect the people from the State, not to ensure that the State protec t[ s] them from eac h other.” Id

. at 196. This, of course , means that there may be no

rec ourse a g ainst the g overnme nt in circumstance s as trag ic as those pr esente d here

. I n DeShane

y , a four- y ear -old child was sever ely beate n and rende red comatose by his fathe r afte r local officia ls had rec eived complaints of abuse but had decide d not to remove the child from his fathe r’s home. Id. at 191-93. The Court held that the p l ai n t i ff h ad n o t alleg ed a due proce ss claim ag ainst the local officia ls beca use the Due Process Clause is “a limit ation on the State’s power to act, not
. . . a g uara

ntee of cer

tain minimal levels of safe ty and secur ity ” or a rig ht of g overnme nt aid. Id. at 195-96, 203. The ref ore, the Due Proc ess Clause does not cre ate a claim aga inst a st ate for injuries that might have been aver ted if it had voluntarily chosen to provide g overnme nt aid. Id

. at 196-97.
This court, howeve r, has rec og nized a “state- cre ated- dang er” exception to the DeShane y rule in which a state may be held li ab l e u n d er the Due Process Clause when the state either cre ates or incre ases the r isk that a person w ill be exposed to private acts of violence. Kallst rom , 136 F.3d at 1066; see also Ewolski v. Brunswick , 287 F.3d 492, 509 (6th Cir. 2002). To establish a violation,

- 7 -No. 11-2353

Langdon v. Skelding, et al. the pl aintiff mus t do more than show a causal connection betwee n the s tate actio n and the private act of violence or neg lige nce; she must identify an aff irmative state action that is so eg reg ious as to be “arbitrar

y in the constitutional sense” a nd “shocks the conscie nce.” Ewolski , 287 F.3d at 510. To state a c laim under the state -cr eate d dang er the ory , a plaintiff must alleg e: (1) a n aff irmative ac t by the state which either cre ated or incre ased the risk that the plaintiff would be exposed to an act of violence by a third party ; (2) a specia l dang er to the plaintiff wher ein the state’s actions place d the plaintiff specific ally at risk, as d i s t i n gu ished from a risk that aff ects the public at larg e; and (3) the state knew o r should have known that its actions specifica lly endang ere d the plaintiff.
Cartw right v. Marine City , 336 F.3d 487, 493 (6th Cir. 2003). L ang don argues that the state-c reateddang er e x ception applies he re be cause the dang ers to Calista were so obvious that the defe ndants’ failure to act re flec ts deliberate indiffer ence that incre ased the risk of har m.
We have explained that a failure to act does not satisfy the aff irmative-a ct prong . Cartw right , 336 F.3d at 493. For

example, while rele asing private infor mation is an affirmative act, failing to

remove a child from a foster home is an not aff irmative act under the state-c reated-da ng er exception. Id

. (citing Kallst rom , 136 F.3 d at 1 0 67; Ree d v. Knox Cnty. Dep’ t of Human Servs. , 968 F.Supp. 1212, 1220-22 (S.D. Ohio 1997)). Our dispositi on in Cartw right further explains this point. There , the police picked up an intox icated man who was walking along the highw ay to g ive him a ride and later left the man at a convenie nce store wher e they arr ested a prisoner. Id

. at 489. The intox icated

man was run over by a truck along the same highw ay an hour later. Id

. We held that this, too, was

mere ly a failure to act. Id

. at 493. “The question is

. . . whether he was safe r before the state action than he wa s after

it.” Id

. - 8 -No. 11-2353

Langdon v. Skelding, et al. He re , we cannot say that the state took an aff irmative action that made Calista less s af e. L andon’s al leg ations in the complaint that the defe ndants “made matters worse for Calista and incre ased the dang er she was alre ady subjected to by her pare nts” is conclusory and cer tainly cannot withstand a motion to dismiss

. She argues on appea l that th e d ef endants’ decision to close the i n vestig ation in the fac e of such obvious dang ers was an aff irmative act that amounted to an endorse ment of t he S pring ers’ private acts t here by embold en i ng them, but we are not convince d. The fac ts alleg ed mere ly show that the defe ndants did not do enoug h to inve stigate the complaints of abuse, and this is a mere failure to act. The Springe rs regularly chaine d Calista to the bed befor e the CPS investigation and continued doing so afte rwa rd. Nothing the state did incre ased the dang er,

so we are bound by our decision in Cartw right to c onclude that the state-c rea ted-da ng er exception does not apply

here . Dismissal of the substantive due proc ess claim wa s proper . B. Pr ocedural Due P roce ss Claim
The rig ht of proce dural due proce ss only imposes proce dural constraints when g overnme nt decisions deprive a person of cer tain life, liberty , and proper ty interests that are protec ted under the Du e P ro ce ss Clause. Mathews v. Eldri dge , 424 U.S. 319, 332 (1976). To establish a viol ation, a plaintiff must show that (1) she had one of these protec ted interests; (2) s h e wa s deprive d of this protec ted interest; and (3) the state did not aff ord her adequate proce dural rig hts pr ior to de priving her of the interest. W

omen’ s Med. Prof’l Corp. v. Baird , 438 F.3d 595, 611 (6th Cir. 2006). Thus,

as a threshold matter, L an gd on must first establish that she—or in this case , the dece dent, Calista—possessed a pr otected liber ty or prope rty

interest. W

ojcik v. Romulus , 257 F.3d 600, 609
- 9 -No. 11-2353

Langdon v. Skelding, et al. (6th Cir. 2001). Only afte r identifying such a rig ht do we consider “whe ther the deprivation of that interest contr avene d the notions of due proc ess.” Id. Property interests ar e n o t created by the Constit ution, but rathe r “‘a re cre ated and their dimensions are define d by exis ting rules o r understanding s that stem from an independe nt source such as state law—rule s or unders t an dings that secur e cer tain benef

its and that support claims of entitlement to those benef its.’” Baird , 438 F.3d at 611 (quoting Bd. of Rege nts v. Roth , 408 U.S. 564, 577 (1972)) ; see also W ojcik , 257 F.3d at 609. “[E] x plicitly mandatory

lang uag e” is r equire d to cre ate such an interest. Tony L. v. Childers , 71 F.3d 1182, 1185 (6th Cir. 1995). L ang don argues that Michig an law imposes a mandatory duty on CPS employ ees to file a petition with the court once it conclude s that a child is being abused, cre ating a proper ty interes t p ro t ec ted by proce dural due proce ss. The per

tinent statute provides in rele vant par t as follows: (1) The depar

tment shall submit a petition for a uthorization by the court

. . . if 1 or more of the following apply : (a) The depar

tment deter

mines that a pare nt, g uardia n, or custodian, or a person who is 18 y ear s of ag e or older and who resides for any leng th of time in the child’s home, has abused the child or a sibling of the child and the abuse included 1 or more of the following :
*** (iii) Battering , torture, or

other seve re phy sical abuse

. M I C H . C O M P . L A W S § 722.638 (2010). The provision that CPS “shall submit a petition” is mandatory

lang uag e, but this does not complete our a naly sis.

- 10 -No. 11-2353

Langdon v. Skelding, et al. The Michig an statute mandates a proc ess base d on a substantive predic ate, not a particula r outcome. We have noted befor e that “[s] tate-c reated proce dural rig hts that do not gu ar an t ee a particula r subs tantive out come are not protec ted by the Fo u rt ee n t h Amendment, even where such proce dural rig hts are mandatory .” Childers

. 71 F.3d at 1185. I n Childers , we considere d whether

a simil ar Kentucky child-we lfare statute cre ated a protec ted interest in state action. Id

. at 1185-86. The re levant provision re ad: Upon rec eipt of a repor

t of an abused, neg lected or depende nt child pursuant to this chapte r, the cabine t as the desig nated ag ency or its del egated repr esentative shall initiate a prom p t i n v est igation, take nece ssary action and shall offe r protec tive service s toward sa feguardingthe welf are of the c hild.

Id

. (quoting Ky

. Rev. Stat. § 620.050(3) (1995))

. We conclude d that the statute “mandate[d] action based upon substantive predic ates,” but t h e s t atut e did not cre ate a protec ted interest beca use the statute g rante d only an expectation of a proce ss, not a particula r outcome. Id

. “An expectation that

some sort of action will be taken is not enoug h. Rather, a plaintiff must have an expectation that a particula r re sult will follow from a particula r, re quired a ction.” Id. Additionally , the substantive predic ate is discr etionary , not ma ndatory

. For the mandatory lang uag e requiring CPS to file a petition with the court to apply , CPS must first make a finding that

a pare nt has abused the child with “[b] attering , torture, or other sever e phy sical abuse.” M I C H . C O M P . L A W S § 722.638(1)( a)( iii). Michig an law does not define the terms “batter ing” or “torture ,”

nor does i t d es cr i b e what conduct amounts to “seve re phy sical abuse.” M I C H . C O M P . L A W S § 7 2 2

. 622 (def

ining cer tain terms for the purposes of the child protec tion law). I t mere ly d ef i n es - 11 -No. 11-2353

Langdon v. Skelding, et al. “c h i l d abuse,” g ener ally , as “har m or threatened harm to a child’s health or welfa re that occur s throug h nonacc idental phy sical o r me nta l in ju r y , s e xu a l a b u s e , s e xu a l e xp loitation, or maltreatment.” M I C H . C O M P . L A W S § 722.622(f)

. The decision nece ssarily involves “a broad amount of discretion” just like that involved in Childers

. 71 F.3d at 1186. As we noted there , proper ty interests do not arise unless “a state place s substantive limit ations on officia l discretion.” Id

. at 1185. L ang don expressly 5 acknow ledg es that CPS made no finding of abuse, and, there fore , the mandatory provision was never trig g ere d. Whether this panel would have found “insuff icient evidenc e to pr ove neg lect or abuse” is not rele vant to our analy sis. What matters is that CPS had the discretion to find none. Dismissal of the proce dural due proce ss claim was proper , and, as such, it is not nece ssary to rea ch the question of qualified immunity

.

There is a distinct, but analog ous, line of ca s es an al y z i n g proce dural due proce ss claims in the 5 context of the alleg ed failure of police office rs to protec t victims of threatened or suspected acts of domestic violence. See, e.g. , Castle Rock , Colo. v. Gonzales , 5 4 5 U. S

. 7 48, 749, 766 (2005) (holding that a state statute providing that “a peac e office r s h al l arr est” a person whom he has probable cause to believe has violated a domestic restra ining order does not g ive rise to a protec ted interest); Estate of Sm ithers e x rel. Norris v. Flint , 602 F.3d 758, 762 ( 6th Cir. 2010) (finding that “eve n assuming that the office rs hear d [sus pect] make a threat, they had discretion not to arr est her on char g es of domestic violence” ); Hudson v. Hudson , 475 F.3d 741, 744 (6th Cir. 2007) (“[S] eeming ly mandatory statutes
. . . and police discretion coexist fre quently

. Although calling for mandatory arr ests (‘sha ll’), the statute also require s the police office r to have ‘re asonable cause ’ to arr est, which require s a police office r to exercise at least some discretion.”) ; Howard ex rel. Estate of H oward v

. Baye

s , 457 F.3d 568, 575-76 (6th Cir. 2006) (holdingthat statute requiring police to “use a ll reasona

ble means to pre vent furthe r [domestic] abuse,” up to and i ncluding arr est g rante d office rs di scre tionary authority to arr est and, therefor e, did not confe r an en t itlement protec ted by due proc ess). - 12 -No. 11-2353

Langdon v. Skelding, et al. III. Conclusi on Whil e this case is undeniably trag ic, L ang don has not alleg ed fac ts that would establish that the defe ndants violated Calista’s substantive o r p roce dural due proce ss rig hts. Acc ording ly , the district court’s dismissal of her c ivil rights complaint is AFF I RMED.

- 13 -