United States Court of Appeals

For the Eighth Circuit

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No. 15-1540

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Tamela Montgomery,

lllllllllllllllllllll Plaintiff - Appellant,

v.

City of Ames; Suzanne Owens, individually and in her official capacity as a Law

Enforcement Officer for the City of Ames Police Department; Heath Ropp,

individually and in his official capacity as a Law Enforcement Officer for the City

of Ames Police Department; Christine Crippen, individually and in her official

capacity as a Law Enforcement Officer for the City of Ames Police Department;

John Doe, individually and in his official capacity as a Law Enforcement Officer

for the City of Ames Police Department; State of Iowa; John Baldwin, individually

and in his official capacity as Director of the Iowa Department of Corrections;

Curt Forbes Residential Center; John McPherson, individually and in his official

capacity as Manager of Curt Forbes Residential Center,

lllllllllllllllllllll Defendants - Appellees.

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: January 12, 2016

 Filed: July 20, 2016

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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Angenaldo Bailey seriously injured Tamela Montgomery when he broke into

her house and shot her several times before killing himself. At the time, Bailey was

a resident of the Curt Forbes Residential Center, a halfway house facility operated by

the State of Iowa in Ames. Montgomery sued the City of Ames, several Ames police

officers, the Center, John McPherson (the Center’s manager), the State of Iowa, and

John Baldwin (the director of the Iowa Department of Corrections). We previously

affirmed the district court’s grant of summary judgment for the City of Ames and its

police officers and remanded for further proceedings on the other claims. 

Montgomery v. City of Ames, 749 F.3d 689 (8th Cir. 2014). On remand, the district

court granted summary judgment for McPherson, Baldwin, the Center, and the State. 1

Montgomery appeals that order, and we affirm.

I.

As we are reviewing a grant ofsummary judgment, we describe the facts in the

light most favorable to Montgomery. Bailey had a history of abusing Montgomery.

On November 12, 2008, Bailey was arrested for domestic abuse after he assaulted

Montgomery. She stated that Bailey had struck her in the face, started to strangle her,

and threatened to kill her. The following day, an Iowa state court issued an order of

protection prohibiting Bailey from contacting Montgomery.

Bailey disobeyed the order and continued to contact Montgomery. In February

2009, authorities arrested Bailey at Montgomery’s residence in Ames. Bailey, armed

with a baseball bat, returned the following day, slapped Montgomery, and threatened

to rape her. Police arrested Bailey and brought him to jail. After he was placed in a

The Honorable John A. Jarvey, now Chief Judge, United States District Court

1

for the Southern District of Iowa.

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holding cell, Bailey hit his head against the walls and tried to wrap his belt around his

neck in an apparent attempt to harm himself. The next month, after his release,

Bailey forced a door open at Montgomery’s residence and threatened to kill her. 

Montgomery told police that if they did not catch Bailey, she believed that he would

come back and attack her. Police arrested Bailey on charges of aggravated

interference with official acts and third-degree burglary.

An Iowa state court issued a second order of protection in June 2009, noting

that Bailey previously had been convicted of a domestic abuse assault. Despite the

order, Montgomery’s neighbors reported seeing Bailey drive by Montgomery’s

residence in July 2009. By then, Bailey had been released from jail and was assigned

to reside at the Curt Forbes Residential Center in Ames. Bailey continued to contact

Montgomery in September 2009.

On September 28, 2009, Montgomery called the Ames police. Montgomery

informed an officer, John Mueller, that Bailey was contacting her and coming to her

residence, in violation of the protective order. Mueller informed Montgomery that

he would locate Bailey and talk with him about the situation. Mueller went to the

Center and spoke with a probation officer. The probation officer told Mueller that

Bailey had “stepped out,” and that Bailey might be found at a local workforce

development office.

Mueller went to the workforce office, found Bailey, and discussed

Montgomery’s complaint against Bailey. Bailey claimed that Montgomery had

contacted him by telephone. Mueller warned Bailey not to contact Montgomery in

any way, and Bailey promised not to do so. Mueller then returned to Montgomery’s

residence and informed her of Bailey’s statements. Montgomery admitted that she

recently had called Bailey. Mueller warned her not to make such calls and then

departed.

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Around the same time that Montgomery called the police, she also contacted

the Center. She told an unidentified man who answered the telephone that she felt

threatened by Bailey. She requested that the Center not allow Bailey to leave on

outings because he was contacting her when he left the facility.

Bailey returned to the Center from the workforce office. Later that afternoon,

Bailey was allowed to leave the Center to go shopping at Walmart. At around 5:00

p.m., police received reports from Montgomery’s neighbors that Bailey had been

riding his bicycle around the neighborhood. Bailey returned to the Center. At 7:50

p.m., Bailey was allowed to leave to go to a Hy-Vee store for one hour. When Bailey

did not return by 8:50 p.m., a staff member at the Center called the police to file a

“run report” on Bailey. Rather than return to the Center, Bailey broke into

Montgomery’s home, shot her, and then shot himself. Montgomery sustained serious

injuries from gunshot wounds.

Montgomery brought suit, alleging constitutional due process claims and statelaw negligence claims against the City, several police officers, the Center, John

McPherson (the manager of the Center), the State of Iowa, and John Baldwin (the

director of the Iowa Department of Corrections). The constitutional claim against

McPherson alleged that he acted with deliberate indifference to Bailey’s history of

violating protective orders and thus violated Montgomery’s due process right to

bodily integrity. Montgomery further alleged that Baldwin, the Center, and the State

had maintained “official policies. . . of failing to prevent individuals in custody from

violating protective orders” and “failed to establish an adequate and sufficient policy

. . . for training supervisors and officers within the Department and Center relating

to individuals in custody violating protective orders.”

The district court granted summary judgment for all defendants. We affirmed

the judgment in favor of the City and its police officers. Because Montgomery did

not have notice that the district court would consider granting summary judgment for

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the other defendants, we remanded for further proceedings on the remaining claims. 

Montgomery, 749 F.3d at 697. On remand, the district court granted summary

judgment for McPherson, Baldwin, the Center, and the State on the federal claims,

and dismissed the remaining state-law claims without prejudice. The court concluded

that Montgomery presented insufficient evidence to establish a constitutional

violation.

We review the grant of summary judgment de novo, viewing the record in the

light most favorable to Montgomery. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). We may uphold a grant of summary judgment for any reason supported

by the record. Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013).

II.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o

State shall . . . deprive any person of life, liberty, or property, without due process of

law.” “The Clause is phrased as a limitation on the State’s power to act, not as a

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

Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). As a general matter, therefore,

“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.

Montgomery relies on one recognized exception to this general rule. A State

owes a duty to protect a citizen “when the state affirmatively places a particular

individual in a position of danger the individual would not otherwise have faced.”

Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc); see K.B.

v. Waddle, 764 F.3d 821, 824 (8th Cir. 2014). To succeed under this theory, a

plaintiff must prove that the defendant affirmatively created a significant risk of

serious, immediate, and proximate harm, that the risk was obvious or known to the

defendant, that the defendant acted recklessly in conscious disregard of the risk, and

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that the defendant’s conduct “shocksthe conscience.” Hart v. City of Little Rock, 432

F.3d 801, 805 (8th Cir. 2005). Montgomery argues that the defendants created or

increased a danger to her by authorizing Bailey to leave the Center to visit the HyVee, despite his history of violence and Montgomery’s cautionary telephone call to

the Center earlier in the day.

As to Montgomery’s claim against McPherson, the manager of the Center, we

see several shortcomings. First, there is no evidence in the record that McPherson

knew about Bailey’s history of abusing Montgomery or Montgomery’s telephone call

to the Center on the afternoon of the shooting. Montgomery cites an Iowa statute

directing a county attorney to give the director of the judicial district department of

correctional services “a detailed statement ofthe facts and circumstancessurrounding

the crime committed and the record and history of the defendant as may be known to

the county attorney.” Iowa Code § 907.8(3). But the record does not include

testimony or documents showing what the relevant county attorney gave to the

directorin McPherson’s judicial district or what the director gave to McPherson. Nor

is there evidence that the unidentified man at the Center with whom Montgomery

spoke by telephone in the afternoon communicated to McPherson about

Montgomery’s concern for her safety. McPherson cannot be held liable under § 1983

for constitutional violations of a subordinate based on a respondeat superior theory. 

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Negligence or even gross negligence is

insufficient to establish a violation of the Due Process Clause. Daniels v. Williams,

474 U.S. 327, 328 (1986); Hart, 432 F.3d at 805. Montgomery must present

sufficient evidence to show that McPherson, through his own actions, violated the

Constitution. That proof is lacking here.

Second, as the district court observed, there is also insufficient evidence to

show that McPherson’s subordinates at the Center were deliberately indifferent to a

known or obvious substantial risk of harm to Montgomery when they authorized

Bailey to visit the Hy-Vee. The Center’s employees did not know whether Bailey

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recently had violated the order of protection by contacting Montgomery. The Ames

Police Department was investigating a report from Montgomery that Bailey had

violated the no-contact order. But that investigation was in progress, and the police

had received conflicting information about whether Bailey or Montgomery had

initiated the forbidden contact. Montgomery eventually admitted that she had

contacted Bailey. Nor, as the district court explained, is there evidence that the

Center’s employees were deliberately indifferent to Montgomery’s well being. The

record does not show that the unknown staff member who authorized Bailey to visit

the Hy-Vee consciously disregarded a known or obvious risk to Montgomery.

Third, Montgomery has not established that McPherson or employees of the

Center created a new danger to Montgomery or increased the danger that Bailey

posed to Montgomery, because the danger to Montgomery existed before Bailey

resided at the Center and would have continued to exist thereafter. Allowing Bailey

to visit the Hy-Vee did not create a greater risk to Montgomery than what she would

have faced if Bailey had never been assigned to the Center in the first place. See S.S.

v. McMullen, 225 F.3d 960, 962-63 (8th Cir. 2000) (en banc). That Bailey was able

to leave the Center during the evening of September 28 simply placed Montgomery

back in the same situation that she occupied before Bailey was in custody or resided

at the halfway house. Montgomery was not an institutionalized person to whom the

State owed a duty, cf. Youngberg v. Romeo, 457 U.S. 307, 317 (1982), and the

Supreme Court has rejected the notion that a State has an affirmative duty,

enforceable through the Due Process Clause, to protect an identified victim when it

knows that a person in custody poses a special danger to that victim. DeShaney, 489

U.S. at 197-98 & n.4. Montgomery has not presented evidence comparable to the

allegations in Wells v. Walker, 852 F.2d 368, 371 (8th Cir. 1988), where state officials

took action under state law to provide post-release transportation for a prisoner, used

a citizen’s store as the closest commercial transportation pick-up point, and thus

affirmativelyplaced the citizen in a “unique, confrontational encounter” with a person

known to have exhibited violent propensities.

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Montgomery’s claim against Baldwin, the director of the Iowa Department of

Corrections, also fails for insufficient evidence. Baldwin had no personal

involvement with events at the Center, and he cannot be held liable under a

respondeatsuperiortheory. Montgomery’s complaint alleged that Baldwin failed to

implement appropriate policies or adequately to train employees who worked at the

Center, but because there is insufficient proof of a constitutional violation, Baldwin

cannot be liable on these theories. See Carpenter v. Gage, 686 F.3d 644, 651 (8th

Cir. 2012). The Eleventh Amendment bars Montgomery’s claims against the State

and the Center, because the State and its agencies are immune fromsuits for damages. 

Quern v. Jordan, 440 U.S. 332, 337 (1979); Edelman v. Jordan, 415 U.S. 651, 663

(1975).

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

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