__________

No. 95-3157

__________

Bobby Davis; Lloyd Marlo Davis, *

husband of Bobby Davis, *

*

Plaintiffs - Appellants, *

*

v. *

*

Fulton County, Arkansas; Fulton *

County Arkansas Quorum Court, * Appeal from the United States

individually and as members of * District Court for the

the Quorum Court; Paul Martin, * Eastern District of Arkansas

individually and as Sheriff of *

Fulton County, Arkansas; *

*

Defendants, *

*

Charles Bost, individually and *

as Deputy Sheriff of Fulton *

County, Arkansas; Joann *

Cunningham, individually and as *

Jailer of Fulton County, *

Arkansas; Janella Cantrell, *

individually and as Jailer of *

Fulton County, Arkansas, *

*

Defendants - Appellees. *

__________

Submitted: February 12, 1996

Filed: July 26, 1996

__________

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

__________

MURPHY, Circuit Judge.

Bobby Davis brought this action after she was raped at her place of

business by a detainee in the custody of the Fulton County sheriff's

department. She sued the county, the county Quorum
 The Honorable G. Thomas Eisele, United States District 1

Judge for the Eastern District of Arkansas.

 The denial of the claim for loss of consortium is not 2

challenged on appeal. 

 In October 1991, Hull pled guilty to aggravated assault and 3

was sentenced to five years probation. In December 1991 a

petition for revocation of probation was filed based on the new

charges of burglary and theft. 

2

Court, individual members of the court, and employees of the sheriff's

department under 29 U.S.C. § 1983 and state tort theories. The district

court dismissed, for failure to state a claim, her constitutional claims 1

against several of the defendants, her state tort claims, and a loss of

consortium claim by her husband, Lloyd Marlo Davis. It later granted the 2

motion of the other defendants for summary judgment in their favor on her

remaining § 1983 claims. Davis now appeals from the judgment entered for

defendants.

Davis lives in Salem, Arkansas. She and her husband own and operate

a local dairy equipment sales and service store located near the Fulton

County Detention Center (FCDC). On May 13, 1992 she was working alone in

the store when she was assaulted and raped by Lawrence D. Hull. At that

time Hull was a detainee in the custody of the Fulton County Sheriff's

Department. He was being held at the FCDC pending disposition of criminal

charges of burglary and theft, as well as for a possible violation of

probation related to a prior charge.3

Hull had been appointed as a trustee by Paul Martin, the Fulton

County Sheriff. In this capacity he performed various tasks for the

sheriff and jailers. Several of these tasks, such as taking trash to the

dumpster or washing cars, involved Hull being outside the rear door of the

FCDC. The sheriff's department had not received any complaints about Hull

working outside, nor had
 The record does not indicate exactly when Hull was 4

appointed as a trustee, but there is evidence that he was not new

to the position. He had been detained at the FCDC for nearly

five months at the time of the attack.

 Cunningham was an employee of the sheriff's department and 5

her duties included acting as jailer and dispatcher. She also

cleaned and shopped for supplies. 

 The record is not entirely clear about Roork's role in the 6

events or whether Roork could be said to have assumed

responsibility for supervising Hull when he directed him to go

downstairs. He was never a defendant in this action.

3

Hull caused any problems as a trustee before the attack on Davis.4

On the morning of May 13, 1992 Joann Cunningham, who was the duty

jailer at the FCDC on that day, asked Deputy Sheriff Charles Bost to

5

release Hull from his cell to help her unload groceries from her car, which

was parked directly behind the jail. She asked Bost to open the cell

because she was carrying a load of groceries at the time. Bost opened

Hull's cell as instructed and then left the FCDC to work at his insurance

agency. As duty jailer, Cunningham was responsible for supervising Hull

while he was out of the cell.

Cunningham and Hull carried in the groceries together. Afterwards,

Hull washed several cars and took out the trash, which involved being

outside of the FCDC building. During this time he was not directly

supervised, but was monitored by Cunningham, who made routine checks by

viewing Hull from second story windows in the facility. After taking out

the trash, Hull returned to the FCDC and went upstairs to the office. The

Salem Police Chief, Albert Roork, told him to go back downstairs, which is

where the cell area is located. 

6

Hull went downstairs, but instead of returning to his cell, he left

the jail facility through an open door. Within a matter of minutes he had

walked down the alley to the dairy equipment store,
4

assaulted Davis, and returned to the area outside the rear of the jail. 

The FCDC is located in a building on the south side of the main

square in Salem. Other businesses and houses are nearby. The Davis store

is located on the southwest corner of the square and faces the same street

as the FCDC, but it is several businesses away. The buildings on that

street have rear doors that open into an alley. The FCDC parking lot is

also in the alley. The record shows that the Davis store entrance is

approximately 150 feet from the rear door of the FCDC, and at least 100

feet away from the outer perimeter of the FCDC parking area.

After the attack Davis went to a nearby barbershop, and the barber

called the sheriff's department. Deputy Bost had returned to the FCDC by

this time, and he and two other officers went to the barbershop. Davis

reported the rape and identified Hull as the rapist. Hull was charged in

state court with rape and first degree battery and was convicted of second

degree battery. 

Davis then brought this civil action for damages under 28 U.S.C. §

1983 and various theories of state tort liability. The original complaint

was filed on May 13, 1993 and amended on April 26, 1994. The amended

complaint stated § 1983 claims against Fulton County, Arkansas; the Fulton

County Quorum Court and the members of it; Paul Martin, individually and

as Sheriff of Fulton County; and Charles Bost, individually and as Deputy

Sheriff of Fulton County. Davis claimed that the actions of the

defendants, including the appointment of trustees in general, the decision

to appoint Hull as a trustee, and the practice of allowing Hull to be

outside of the jail unsupervised, increased her risk of danger, thus

creating an affirmative duty to protect her. She also alleged various

state law tort claims, including battery, assault, false imprisonment, and

outrage, against each of the defendants.
 The original opinion and order, filed on February 13, 1995, 7

was withdrawn by the court on April 28, 1995, and a substituted

opinion was filed nunc pro tunc.

 Janella Cantrell is an employee of the sheriff's department 8

and functions as a secretary, dispatcher, jailer, and personnel

manager. The record shows that on March 13, 1992, she worked in

the front office at the FCDC and had jailer duties that day only

if Cunningham was away from the building. Cantrell herself was

off duty at the time of the attack on Davis. She had left the

building for lunch at noon and returned after Hull had been

locked up again.

5

On February 13, 1995, the district court granted in part and denied

in part the defendants' Rule 12(b)(6) motion to dismiss the amended

complaint. It dismissed for failure to state a claim Davis' causes of

7

action under § 1983 against the county, the Quorum Court, the individual

members of the court, Sheriff Martin, in both his official and individual

capacities, and Deputy Sheriff Bost, in his official capacity. The

district court concluded that the general allegations about a policy or

practice relating to trustees at the FCDC did not make out a risk of harm

to Davis greater than that faced by members of the general public and was

therefore insufficient to state a constitutional claim. It cited Wells v.

Walker, 852 F.2d 368 (8th Cir. 1988), cert. denied, 489 U.S. 1012 (1989),

and noted that Davis had not alleged that the policy was targeted at her

in any way. The § 1983 claims against Bost in his individual capacity

survived the motion to dismiss because the complaint alleged a specific act

(releasing Hull to unload groceries behind the Davis store) that might have

been said to have exposed Davis to a unique threat of harm. The district

court also dismissed the state law claims against all of the defendants,

holding that they were entitled to tort immunity under state law. 

On May 4, 1995, with permission from the court, Davis filed a second

amended complaint. In it, she restated her § 1983 claim against Bost and

added § 1983 claims against two new defendants: Joann Cunningham,

individually and as Jailer of Fulton County, and Janella Cantrell,8

individually and as Jailer of Fulton County. 
6

She alleged that Cunningham had been involved in the decision to release

Hull on May 13, 1992, and that Cantrell had acquiesced in the decision.

She also asserted state law negligence claims against Bost, Cunningham, and

Cantrell, and she and her husband asserted claims for loss of consortium.

On June 14, 1995, the district court granted in part and denied in part the

defendants' 12(b)(6) motion to dismiss the second amended complaint. It

dismissed all of the asserted claims except the causes of action under §

1983 against Bost, Cunningham, and Cantrell in their individual capacities.

The parties had also filed cross motions for summary judgment on the

claims in the second amended complaint, and on July 21, 1995 the district

court granted summary judgment in favor of Bost, Cunningham, and Cantrell

on the remaining § 1983 claims. It held that Davis had not made a

sufficient showing to support her claims that the defendants had a duty to

protect her in particular from violent acts by Hull. It explained that

although these allegations in her complaint had been sufficient to

withstand the earlier motion to dismiss, they were not supported by the

facts. Judgment was entered the same day.

On appeal Davis argues that the district court erred in entering

summary judgment in favor of Bost, Cunningham, and Cantrell in their

individual capacities on her claims under § 1983, in dismissing her claims

against them for negligence, and in dismissing her § 1983 claims against

the other defendants. 

There is disagreement about which parties are properly before the

court on this appeal. The notice of appeal names only Bost, Cunningham,

and Cantrell in the caption, but Davis asserts issues in her briefs that

relate to other previously dismissed defendants. We will start with the

issues that all agree are before the court.

Davis argues that the undisputed facts in the record establish
7

that the actions of Bost, Cunningham, and Cantrell on May 13 gave rise to

a duty to protect her because they placed her in a position of danger that

she would not otherwise have been in that was unique from the danger posed

to the general public. She asserts that their actions were reckless and

a direct cause of Hull's assault. Davis does not claim that there are

disputed material facts to be decided by a fact finder on the issues of

liability. She claims that she is entitled to summary judgment on

liability and remand for a trial on damages.

Bost, Cunningham, and Cantrell respond that summary judgment was

properly entered in their favor. They argue that they had no special

constitutional duty to protect her, and that even if such a duty existed,

the undisputed facts show that their actions were merely negligent and not

a basis for constitutional tort liability under § 1983.

Summary judgment is appropriate if there are no disputed issues of

material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). All evidence and inferences must be viewed

in the light most favorable to the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). The non-moving party, however, may

not rest upon mere denials or allegations in the pleadings, but must set

forth specific facts sufficient to raise a genuine issue for trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). We review a grant of

summary judgment de novo. Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.

1994). 

Davis's constitutional tort claims are premised on an alleged

violation of her Fourteenth Amendment rights. She argues that Bost,

Cunningham, and Cantrell deprived her of her general liberty interest to

be free from unjustified physical assaults on her person when they failed

to protect her from Hull's violent actions. 
8

As a general rule, the Fourteenth Amendment does not impose any duty

on states to protect its citizens against violence inflicted by private

actors. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S.

189, 195-96 (1989). DeShaney recognized an exception to this rule,

however. A duty to protect an individual exists where she is in a special

custodial or other setting in which the state has limited her ability to

care for herself. Id. at 198. In these circumstances an affirmative duty

to protect arises "not from the State's knowledge of the individual's

predicament . . . but from the limitation which it has imposed on his

freedom to act on his own behalf." Id. at 200. Davis does not claim that

she was in any sort of relationship with the defendants, however, nor does

she claim that they limited her ability to care for herself.

A duty to protect has also been recognized in the circuit courts when

the state affirmatively places a particular individual in a position of

danger that she would not otherwise have faced. Dorothy J. v. Little Rock

School Dist., 7 F.3d 729, 733 (8th Cir. 1993); Gregory v. City of Rogers,

974 F.2d 1006, 1010 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 913

(1993); Wells v. Walker, 852 F.2d 368 (8th Cir. 1988), cert. denied, 489

U.S. 1012 (1989); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990).

For such a duty to arise, the actions of the state must create a unique

risk of harm to the plaintiff that is greater than the risk faced by the

general public. See Wells, 852 F.2d at 371.

Davis argues that Bost, Cunningham, and Cantrell had a constitutional

duty to protect her because they released Hull from his cell, instructed

him to perform chores outside, and allowed him to leave the premises of the

FCDC. She claims that the risk to her was unique because of the proximity

of her store to the FCDC and her status as an elderly woman. 

It is not disputed that the three defendants named in the
 The district court used a two step test to analyze whether 9

there was a constitutional duty to protect Davis. It first

considered whether the state had taken affirmative acts that

increased Davis' risk of harm, and then whether the risk was

greater for Davis than for the general public. 

9

notice of appeal played differing roles in respect to the events leading

to the rape. The actions allegedly giving rise to the duty to protect

Davis were taken primarily by Cunningham. Although the record shows that

Bost originally unlocked Hull's cell so he might assist in bringing in the

groceries, he did so at Cunningham's direction, and as duty jailer she was

solely responsible for monitoring Hull while he performed his tasks. Bost

was not at the FCDC at the time the rape occurred and had no obligation to

be there. Cantrell was not involved at all with Hull's release or

supervision. She only had jailer duties on May 13, 1992 if Cunningham were

absent, and there is no allegation that Cunningham left the building that

day. Cantrell worked in the front office during the morning and was away

at lunch during the time of the rape. The undisputed facts in the record

do not suggest that Bost or Cantrell could be held liable for violation of

any a constitutional duty to protect. Summary judgment was properly

entered in their favor. 

Whether Cunningham could be held liable for her conduct requires

additional analysis. There is no bright line test for when state action

can give rise to a particular duty to protect, but the type of factual

9

situations which may do so is suggested by Wells and Freeman. In Wells,

police officers transported a released violent criminal to a store that

also served as a bus station. They dropped him off to wait for a bus, and

he murdered the store operator. The plaintiff alleged that the police

officers took action to provide transportation for the released inmate, and

that that action had the result of "placing [the victim], unlike members

of the general public, in a unique, confrontational encounter with a person

who allegedly had exhibited violent
 Davis also asserts that allowing Hull to wash cars and 10

take out the trash were actions giving rise to the duty to

protect. It is undisputed that Hull completed these tasks

without incident and then reported to Cunningham. 

 Davis points out that Hull was never classified as an 11

escapee, but he returned to the FCDC within minutes of leaving

and before he was found to be missing.

10

propensities." Wells, 852 F.2d at 371. The court held that the plaintiff

had adequately alleged a constitutional right of protection, but that the

case was properly dismissed because the allegations sounded only in

negligence. Id. In Freeman, a woman was killed by her husband after a

restraining order had been placed against him. The police chief had

allegedly instructed other officers not to enforce the order because of his

friendship with the husband. The court stated that such facts could be

sufficient to create a constitutional duty to protect and remanded for the

filing of an amended complaint. 911 F.2d at 54.

The facts in this case are quite different. Cunningham knew Hull had

come in from the parking area and that Roork told him to go downstairs

where the cell area was located. She knew Hull was unsupervised and that

it would be possible for him to leave the building. Cunningham did not 10

send him outside again, however. It was Hull who decided to leave the

building, walk down the alley, enter the store, and assault Davis.

11

Unlike the situation in Wells, Hull was not taken to or left at the store,

and in fact, had not been authorized to leave the premises. Cunningham was

not aware that Hull had left the FCDC until after the rape was reported.

Unlike the allegations in Freeman, there is no allegation here that

Cunningham interfered with particular measures designed to protect Davis.

Since the complaint alleged that Hull had been instructed to unload

groceries and wash cars directly behind the Davis store and entered her

store while so engaged, the district court originally
11

denied the motion to dismiss. After the record was developed, the actual

sequence of events became clearer. The evidence showed that the FCDC and

the store are on the main square of town surrounded by other businesses and

homes, that Hull was instructed to work only in the area directly behind

the FCDC building, and that he had been sent back to his cell area after

completing that work. Davis did not show that the danger to her resulting

from Hull leaving the FCDC was any greater than that faced by the general

public in the area.

Davis claims that her risk of harm was greater than that faced by the

general public because she was an elderly woman and Hull allegedly had a

history of sexual violence toward elderly women. Hull's prior criminal

record consisted of one assault conviction and charges of theft and

burglary. He had not previously been convicted of a sex crime. Although

there is evidence in a police report that the assault for which Hull was

on probation may have involved a threatened rape, there was no evidence

that Cunningham or the other defendants knew about this. FCDC employees

were aware that several years prior to the Davis rape he had touched the

wives of the sheriff and his deputy on the rear, while shopping at the

local grocery store. This showing was insufficient to establish a unique

risk of harm to Davis or a special duty to protect her. Davis did not come

forward with sufficient evidence to support an inference that Cunningham's

actions increased the risk to her beyond that faced by other women, that

Cunningham knew that Hull posed a special risk to particular women, or that

they were to be found in the vicinity of the jail.

The situation here resembles Martinez v. State of California, 444

U.S. 277, 285 (1980), in that Hull was in "no sense an agent" of defendants

while engaged in the attack and the defendants were "not aware that [Davis]

as distinguished from the public at large,
 In contrast, however, the parole authorities in Martinez 12

were "fully informed" about his history of violent sex crimes and

the likelihood he would commit another. 444 U.S. at 279.

 The dissent relies on Nishiyama v. Dickson County Tenn.,

13

814 F.2d 277, 280 (6th Cir. 1987), to suggest that the state's

ability to control a trustee can give rise to a constitutional

claim. Prison officials in that case allowed a trustee they knew

to be violent to run errands unsupervised in a marked patrol car. 

They were informed that he was using its flashing lights to stop

motorists but did nothing about it, and he ultimately murdered a

young woman driver. The prison officials effectively "cloth[ed]

an inmate with the authority of the state," Nobles v. Brown, 985

F.2d 235, 238 n. 1 (6th Cir. 1992), and the holding of the case

is limited to such circumstances. See id. (dismissing § 1983

claim based on rape because prisoner was not acting under color

of state law). In this case Hull was never "cloth[ed] . . . with

the authority of the state."

12

faced any special danger." The death caused by Martinez after his parole 12

was "too remote a consequence" of the actions by the authorities, id., and

therefore there was no constitutional claim.13

Davis suffered a violent and tragic interference in her life and her

person, and the carelessness that played a role in allowing the crime to

occur is to be deplored. The record was insufficient, however, to make out

a constitutional duty to protect Davis from Hull's violent acts, and

negligence by state actors could not have deprived her of such a

constitutional right. See Wells, 852 F.2d at 371. Negligent, or even

grossly negligent, conduct by government officials cannot be the basis of

a constitutional tort claim. Daniels v. Williams, 474 U.S. 327, 330-31

(1986); Sellers v. Baer, 28 F.3d 895, 902-03 (1994), cert. denied, 115 S.

Ct. 739 (1995); Myers v. Morris, 810 F.2d 1437, 1468 (8th Cir.), cert.

denied, 484 U.S. 828 (1987). A lack of due care by an official causing

unintended injury to life, liberty or property does not implicate the due

process clause. Daniels, 474 U.S. at 330-31. Davis' claim, that

Cunningham unreasonably failed to exercise a duty to supervise Hull to

prevent him from leaving the FCDC and
13

harming her, is a claim of negligence.

 

Davis claims that Cunningham knew Hull had engaged in violent and

sexually deviant behavior in the past and that her knowledge raised her

actions to the level of recklessness. The record does not support that

claim, however. Hull had not previously been convicted of any sex crimes.

Cunningham stated at her deposition that she knew that Hull had once

grabbed a woman's purse and that he had recently been charged with theft,

but she did not know whether any of those crimes were sexually oriented.

She was aware that several years earlier Hull had inappropriately touched

two women while they were grocery shopping. This falls short of a showing

that she knew Hull was dangerous for elderly women in particular, and there

was no evidence that she even knew of Davis or her presence in the dairy

equipment store. Davis did not make a showing of recklessness or of

deliberate intent. 

To avoid summary judgment Davis was required to come forward with

evidence supporting her allegations that the individual defendants should

be liable for depriving her of a constitutional right. The record that was

developed did not satisfy that burden, and the district court did not err

in granting summary judgment in favor of the individual defendants.

Davis also argues that the district court erred in ruling that

Arkansas law provides Bost, Cunningham and Cantrell with statutory immunity

from tort liability for claims of negligence brought against them in their

individual capacity. The district court dismissed Davis's negligence

claims on the basis that § 21-9-301 of the Arkansas code affords them

immunity for suits based on the negligent performance of official duties,

whether the suits are brought against them in their official or individual

capacity. 

Arkansas law supports the district court's ruling. Ark. Code. Ann.

§ 21-9-301; Cousins v. Dennis, 767 S.W.2d 296 (Ark. 1989);
 The appellees suggest in the alternative that this court 14

lacks jurisdiction over the entire appeal because of the

insufficient notice, but they provide no legal basis for this

theory nor do they explain how the individual defendants were

prejudiced in any way.

14

Hardin v. City of Devalls Bluff, 508 S.W.2d 559 (Ark. 1974). Although

there are exceptions to the statutory grant of official immunity, they do

not apply in this case. A public official is subject to suit for the

commission of an intentional tort, see Battle v. Harris, 766 S.W.2d 431

(Ark. 1989), or for actions taken when the official is not performing a

county function. Cousins v. Dennis, 767 S.W.2d 296 (Ark. 1989); Matthews

v. Martin, 658 S.W.2d 374, 375 (Ark. 1983). Davis does not claim that

Bost, Cunningham and Cantrell acted intentionally, and she does not dispute

that they were performing official county functions when they took the

actions alleged tortious in this case. 

Davis also argues that the district court erred in dismissing her §

1983 claims against the county, the quorum court, and Sheriff Martin, and

that this court should reach these issues even though her notice of appeal

identified only Bost, Cunningham, and Cantrell as appellees. The appellees

suggest that they were prejudiced by the insufficiency of the notice of

appeal and argue that we should thus consider only the issues related to

the individual defendants.14

Although Rule 3(c) of the Federal Rules of Appellate Procedure

requires that the notice of appeal identify each appellant, and that

requirement is jurisdictional, Torres v. Oakland Scavenger Co., 487 U.S.

312, 317-18 (1988), the rule does not require that the notice of appeal

specifically name each appellee. Thomas v. Gunter, 32 F.3d 1258, 1262 (8th

Cir. 1994). Intended appellees must be provided with notice that the

appeal is being taken, however, see id., and the failure to list all in the

notice of
 This is not a case in which et al. was used in the caption 15

to refer to unnamed defendants. See Thomas, 32 F.3d at 1262 (use

of et al. in caption sufficient to include all defendants as

appellees). The notice of appeal includes the names Bost,

Cunningham, and Cantrell, and does not indicate in any way that

claims against additional defendants would be raised.

 The omission of appellees from the notice may be corrected 16

by amendment or by letter to opposing counsel. See Chathas v.

Smith, 848 F.2d 93 (7th Cir. 1988) (failure to name appellee in

notice of appeal was harmless error that could be corrected by

letter to omitted appellee's counsel).

15

appeal could suggest abandonment of the claims against them. 

15

Her notice of appeal did state that the appeal is from the final

judgment, and such an appeal permits review of previously entered non-final

orders that shaped the scope of the judgment. Berdella v. Delo, 972 F.2d

204, 208 n. 6 (8th Cir. 1992); see 15 A. Wright, Miller & Cooper, Federal

Practice & Procedure § 3905.1 (2d ed. 1992). Thus, if the dismissed

defendants had proper notice of the appeal, there would be jurisdiction to

review the order dismissing the claims against them.

 

Davis was on notice that the unnamed parties were not considered to

be appellees since she used the caption created by the clerk's office on

her briefs. That caption names only Bost, Cunningham, and Cantrell as

appellees. She did not attempt to contact the clerk to correct the

caption, nor did she attempt to amend the notice of appeal or to contact

opposing counsel to clarify the identity of the appellees. Instead, she 16

attempted to clarify the identity of the parties with a footnote in her

brief suggesting that all of the previous defendants are appellees.

Consideration of issues related to defendants not named as appellees could

in effect bypass the thirty day time limit for the filing of a notice.

Fed. R. App. P. 4(a). In this case, of course, the defendants were all

represented by the same counsel who
 The file indicates that the appellees' attorney attempted 17

to file a notice of appearance on behalf of all the defendants,

including the county, the court and the sheriff. The clerk's

office notified him that the appearance would be entered only as

to Bost, Cunningham and Cantrell because they were the only

appellees listed on the notice of appeal. 

 The complaint alleged that the policies and procedures 18

relating to the supervision of prisoners were defective, that

county authorities had failed properly to evaluate those policies

and procedures, and that the Sheriff had abused his position by

establishing and using them. She also alleged that the county,

the court and the sheriff had failed to establish appropriate and

reasonable standards and criteria for the determination and

designation of trustees and that they wrongfully allowed Hull to

be a trustee.

16

would have been aware of the arguments in her brief.17

We need not decide whether these aspects of her appeal should be

foreclosed, however, because we have considered them and find them to be

without merit. These claims alleged that the general policy of using

trustees and the practice of allowing them to perform chores outside of the

jail gave rise to a constitutional duty to protect Davis from harm. They 18

were dismissed by the district court because they failed to allege the

creation of a particularized risk of harm to Davis that was greater than

that faced by the rest of the general public, as required by Wells. On

appeal Davis essentially reasserts her allegations that the policy and

practice of having trustees gave her a constitutional right to be protected

from them and asks for judgment in her favor.

Her complaint suggests that the actions of the county and the earlier

dismissed defendants were ill-advised, but it does not allege that these

acts or policies or practices affected her in a manner different from the

general public, other than that she was the one attacked. Nor does it

allege that any of these defendants should have known that the policy or

practice put her in any special danger. The district court did not err in

dismissing the claims.
17

For the stated reasons, the judgment is affirmed.

HEANEY, Circuit Judge, dissenting.

 Lawrence Hull has an extensive history of sexually abusive behavior

toward older women. As a trusty at the FCDC, Hull was frequently permitted

to leave the jail unsupervised to perform various tasks for jail personnel.

Bobby Davis co-owns and works in a dairy equipment and sales service store

located within 100 feet of the perimeter of the parking lot of the jail.

Defendants Charles Bost, Joann Cunningham, and Janella Cantrell knew of

Hull's violent and sexually abusive history. Defendants also knew of the

location of Davis' store. The store had been at the same location since

1978, and Hull himself had been in Davis' store and spoken to Davis on two

previous occasions. Despite the defendants' knowledge of Hull's history

and the store's location, they released Hull to work unsupervised in the

jail parking lot. Their actions gave Hull the opportunity to sexually

assault Davis, who, as an elderly woman working close to the jail, was

subjected to a greater risk of harm than the general public. These facts

are sufficient to withstand the defendants' motion for summary judgment.

They support a finding that defendants engaged in reckless state action

that exposed Davis to a risk of harm greater than that faced by the general

public. Thus, I respectfully dissent.

At the time Hull attacked Davis, he was in custody at the FCDC.

During Hull's detainment, the FCDC gave him trusty status. As a trusty,

Hull spent three or four hours outside of his cell each day--often outside

the jail--performing various tasks for Fulton County law enforcement

personnel. Immediately prior to Hull's attack on Davis, FCDC personnel

released Hull to unload groceries, wash cars, and take out the trash in the

area behind the FCDC and Davis' store. Hull performed these duties

unsupervised. Defendants' understanding was that Hull would "do his jobs

and then check back" with them. (Appellant's App. at 343 (Dep. of
 The majority relies of Nobles v. Brown, 985 F.2d 235, 238 1

n. 1 (6th Cir. 1992) to suggest that a prisoner must be

"cloth[ed] with the authority of the state" in order for her

actions to give rise to a constitutional claim. In Nobles, a

prison guard was taken hostage and raped by a prisoner. The

prison officials allegedly left the prisoner's cell unlocked at a

time when it was supposed to be double-locked and failed in their

efforts at hostage negotiations. These facts, at most,

demonstrated negligence on the part of the officials. In

contrast, Hull was deliberately released as a trusty. Under the

Regulations of Fulton County Jail a trusty "work[s] for and [is]

responsible to the personnel of th[e] facility." (App. at 341). 

As a trusty working for and reporting to the state, Hull was

effectively clothed with the authority of the state in contrast

to the prisoner in Nobles, "who had no official authority of any

kind." Id. at 238 n. 1. Moreover, it is important to note,

Nobles does not establish the "clothed with the authority of the

state" test as a required test. Rather, it alternatively

concludes that the plaintiff did not demonstrate reckless

indifference to a known risk that made it highly probable that

harm would follow. Id.

18

Cunningham at 7).) Because Hull raped Davis while in the custody of the

FCDC and while performing his duties as a trusty, Davis has presented

sufficient facts to support a finding of state action on the part of the

defendants. As the Sixth Circuit has explicitly recognized, jail officials

have a custodial relationship with a trusty, in contrast to released

parolees or escapees, that provides the officials with the power and

authority to direct and control the trusty's actions. Nishiyama v. Dickson

County Tenn., 814 F.2d 277, 280 (6th Cir. 1987) (en banc).1

 The majority reasons that the defendants took no affirmative state

action as required for a due process claim because they did not send Hull

back outside after he had completed his duties, but rather Hull chose to

leave the facility himself. The majority employs an artificially narrow

understanding of an affirmative course of action by concluding that the

defendants were relieved from responsibility when Hull completed his

assigned tasks and returned to the FCDC. The fact that Hull exceeded the

limits of the duties for which he was released does not preclude a finding

of state action. Rather, the defendants' failure to supervise Hull
 I cannot believe that supervisory personnel of the Fulton 2

County Jail were not aware of the facts underlying the aggravated

assault. Under the Fulton County Jail Regulations, when an

inmate is brought into the jail, the jail personnel must ensure

that he is accompanied by the proper legal documents, including

the warrant for his arrest, and check the documents for

completeness down to the detail of signatures. (App. at 313).

19

during his entire release facilitated Hull's commission of the crime and

constituted state action that continued until the defendants ensured that

Hull returned to his cell. See Nishiyama 814 F.2d at 281 (finding state

action where officers "by their acts facilitate the crime by providing the

criminal with the specific opportunity to commit the crime . . . ."). The

defendants' failure to appropriately restrict Hull's freedom afforded Hull

the opportunity to attack Davis.

Davis also has presented facts sufficient to survive summary judgment

that defendants' conduct posed a greater danger to Davis than to the

general public. Defendants' own depositions support a finding that Hull

has a significant history of sexually assaulting older women. The

defendants admitted in their depositions that they knew Hull had sexually

assaulted both Sheriff Martin's wife and Bost's wife prior to his detention

at the FCDC. These assaults alone show a pattern of sexually violent

behavior toward older women. The depositions also reveal that each

defendant was aware of Hull's conviction for assaulting an elderly woman.

Although the defendants may not have been aware that the aggravated assault

was in fact an attempted rape, (App. at 387-8 (Aff. for Warrant of

2

Arrest), their knowledge of the assault demonstrates their awareness of

Hull's violent propensities against older women. All of the defendants

were also aware that Hull had burglary charges pending against him. During

one of the burglaries, Hull allegedly broke into an elderly woman's home,

stole her undergarments, and made numerous calls to sexually explicit 900-

numbers. Deputy Sheriff Bost was aware of the sexual aspect of this

burglary and theft because the victim was one of Bost's high school friends

who
20

lived in the house directly behind him. Bost had visited his friend

regarding the burglary and he had talked to "the city officers and the

deputies and the other people in the sheriff's office about Lawrence and

about his situation" following the burglary. (App. at 373-4 (Dep. of Bost

at 33, 35).) Bost also specifically admitted that, even before Hull had

committed any of the crimes for which he was eventually incarcerated and

before Hull violated his parole, he had been afraid another sexual assault

might occur if Hull was not properly supervised. (Appellant's App. at 371-

2 (Dep. of Bost at 31-2).) Additionally, Bost stated that Hull had a

"propensity . . . to attack a weaker person, anyone who could not offer any

resistance or pose any kind of threat to him . . . ." (Appellant's App.

at 380 (Dep. of Bost at 53).) 

 Davis has strongly documented Hull's dangerous propensities, which

posed a threat to a clearly-defined group to which Davis belonged. This

sort of specific threat is sufficient to support her section 1983 claim.

Cases in which no special danger has been found generally involve a much

broader risk than that present in the instant case. Fox v. Custis, 712

F.2d 84, 88 (4th Cir. 1983) (parolee involved in one incident of fraud and

suspected of one incident of arson did not have history that posed known

risk to murder victims); Janan v. Trammell, 785 F.2d 557, 560 (6th Cir.

1986) (targeted threat against one person did not create a special

relationship with a member of the general public); Jones v. Phyfer, 761

F.2d 642, 645-46 (11th Cir. 1985) (no special relationship between state

and rape victim as to inmate who had previously robbed victim's home, but

had posed no harm to her person and had no history of sexual assault). The

majority fails to directly address the specific focus of the danger that

Hull posed to Davis given his propensity and her proximity. Rather, it

simply minimized Hull's history of violent and sexually assaultive behavior

toward older women.

In addition to Hull's propensity for sexual violence, Davis'
21

evidence of proximity to the area where Hull was routinely released without

supervision is sufficient to support her 1983 claim. Davis and her husband

lived in Salem, Arkansas since 1966, and they owned their store since 1978.

The store is located directly behind the jail. On a daily basis, Davis

tended to her business approximately 100 feet from where Hull often worked.

The defendants knew that the store was close to the parking lot and that

the store had an accessible back entrance. Cunningham estimated that it

would take only two minutes to walk the distance between the parking lot

and the store.

Davis' demonstrated proximity supports her contention that

defendants' actions placed her at a greater risk of danger than that of the

general public. Contrary to the district court's characterization, our

court in Wells v. Walker, 852 F.2d 368 (8th Cir. 1988), cert. denied, 489

U.S. 1012 (1989), did not limit the existence of a specific danger to a

strict range of distance; rather, in Wells we held that state action

creates a specific harm if it "plac[es] [the plaintiff], unlike members of

the general public, in a unique, confrontational encounter with a person

whom plaintiffs allege had exhibited violent propensities." Id. at 371.

The limitation on Hull's activities as a trusty necessarily restricts the

group of people at risk such that they are always distinct from the general

public. Compare Nishiyama, 814 F.2d at 280 (distinguishing the more

limited risk created by a trustee as opposed to a parolee, in which "the

identity of potential victims was difficult to define.") with Fox, 712 F.2d

at 88 (finding no specific danger where state agent exposed to a virtually

unlimited set of people); Janan, 785 F.2d at 560 (same); Bowers v. DeVito,

686 F.2d 616, 618 (7th Cir. 1982) (same).

Finally, Davis' evidence of defendants' admitted knowledge of both

Hull's record and the proximity of Davis' store, supports a finding that

defendants' actions were, at a minimum, reckless. Daniels v. Williams, 474

U.S. 327, 334 n.3 (1986) (due process
22

violation requires showing of state actors' intentional or reckless

conduct). Despite their awareness of the specific danger Hull posed to

nearby citizens, particularly elderly women, the defendants released him

from his cell, permitted him to work outside the facility unattended, and

did not ensure that he promptly returned to his cell when his prison duties

were completed. The defendants' deliberate actions are clearly

distinguishable from the claims we rejected in Wells, 852 F.2d at 372.

Davis does not claim that defendants should have known Hull was dangerous

or should have known of her proximity. Rather Davis has demonstrated that

defendants did know of her proximity and the danger that Hull posed to

women of her age and nevertheless released him. Obviously, closer

supervision would have imposed some additional administrative burdens on

prison officials, but this is the price an institution must pay if it names

a sexually abusive person as a trusty.

The record in this case provides a sufficient factual basis to

support a section 1983 violation. The custodial relationship between the

defendants and Hull, as a trusty, supports a determination that defendants

undertook an affirmative state action that increased Davis' risk of harm.

Davis' proximity to the area in which Hull worked and Hull's sexually

assaultive propensities support a finding that the state's actions exposed

her to a greater risk of harm than that faced by the general public. Davis

has also presented evidence that the defendants' conduct was deliberate and

intentional, the requisite mental state for a violation of substantive due

process. For the above reasons, I dissent.

A true copy.

Attest:

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