The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15241 OCTOBER 13, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 3:09-cv-01246-HLA-JRK
K.A.,
and their adopted parents,
M.A.,
and their adopted parents, et al.,
Plaintiffs-Appellants,
versus
RENEE WATERS,
LAJOSHA HAYNES, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 13, 2011)
Before TJOFLAT, CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Through their adoptive parents, minors K.A., M.A., and T.A. (collectively,
“Plaintiffs”) appeal the district court’s dismissal of their 42 U.S.C. § 1983 action
for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Plaintiffs also appeal the
district court’s refusal to allow them to amend their complaint a second time. We
affirm.
Plaintiffs argued that their constitutional right to be free from harm was
violated by Renee Waters, Lajosha Haynes, Lisa Blackford, and Curtis Bennett
(collectively, “Defendants”), all of whom are employees of Family Integrity
Program (“FIP”), a subcontractor for the Department of Children and Families of
St. Johns County, Florida. Plaintiffs had been taken into foster care by FIP in
2006 but were reunited with their mother and her boyfriend in late November
2007. Plaintiffs were almost immediately subjected to emotional, physical, and
sexual abuse at the hands of the boyfriend.
Plaintiffs filed suit, alleging that Defendants had failed to protect Plaintiffs
by returning them to their mother and her boyfriend, who lived without electricity
or water in a trailer allegedly infested with maggots and dead animals. Defendants
had not conducted a “home study” to determine whether the house, mother, or
boyfriend were suitable for Plaintiffs’ return.
The district court determined that Plaintiffs had failed to make out a claim
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under 42 U.S.C. § 1983 because Plaintiffs’ facts showed that they had been injured
while in the custody of their own mother and her boyfriend, rather than while in
the custody of the state or its agencies. Thus, Plaintiffs could not make a showing
that Defendants had violated a constitutional right. The district court also
determined that Defendants would be immune from suit anyway because their
actions did not violate a clearly established constitutional right.
We review de novo a district court’s order granting a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.
1999). Defendants’ claim of qualified immunity means that we need only to
decide whether Defendants violated any “clearly established constitutional rights.”
Powell v. Georgia Dep’t of Human Resources, 114 F.3d 1074, 1080 (11th Cir.
1997) (emphasis added).
Despite Plaintiffs’ arguments to the contrary, their case is not
distinguishable from DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189, 109 S. Ct. 998 (1989). DeShaney held that there could not
be a § 1983 action where a child was severely injured while in the custody of his
natural father, even though the state had previously taken custody of the child and
had strong reason to believe that the father was continuing to abuse the child.
DeShaney, 489 U.S. at 192-93, 200-03, 109 S. Ct. at 1001-02, 1005-07.
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Plaintiffs contend that DeShaney does not apply here because the
government in DeShaney “never had custody of the child,” whereas Defendants
here had legal and physical custody over Plaintiffs for almost two years before
returning them to their mother. However, in DeShaney, the government did
previously have custody over the child. Id. at 201, 109 S. Ct. at 1006. And even if
that were not the case, the extent of the government’s past custody is not a
meaningful factor. 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.” Id. at 200, 109 S. Ct. at 1005-06. Accordingly, the government may have
a duty to protect when it “takes a person into its custody and holds him there
against his will.” Id. at 199-200, 109 S. Ct. at 1005. Typical cases are where the
person is incarcerated or involuntarily institutionalized. Id. at 200, 109 S. Ct. at
1006. The government owes these people a duty because the government has
taken away their “freedom to act on [their] own behalf,” which is the “‘deprivation
of liberty’ triggering the protections of the Due Process Clause.” Id.
But where the government merely returns a child to his home–placing “him
in no worse position than that in which he would have been had it not acted at
all”–there is no duty for the government to protect the child and thus there can be
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no constitutional violation if the child is injured. Id. at 201, 109 S. Ct. at 1006; see
also Camp v. Gregory, 67 F.3d 1286, 1293 (7th Cir. 1995) (holding that the
government may face liability under § 1983 when a child is taken from his home
and placed in a state-chosen foster home, where he is subsequently injured).
In the current case, Plaintiffs were injured by their mother’s boyfriend at
their own house. The boyfriend “was in no sense a state actor,” DeShaney, 489
U.S. at 201, 109 S. Ct. at 1006, nor were Plaintiffs “totally dependent upon the
state,” Wooten v. Campbell, 49 F.3d 696, 701 (11th Cir. 1995). They had been
placed with their natural mother and were no longer in the custody of the
government or its agents. The government’s “failure to protect an individual
against private violence simply does not constitute a violation of the Due Process
Clause.” DeShaney, 489 U.S. at 197, 109 S. Ct. at 1004. Accordingly,
Defendants had no duty to protect Plaintiffs from the boyfriend’s actions, and a
violation of § 1983 cannot be made out under these facts. DeShaney, 489 U.S. at
201-02, 109 S. Ct. at 1006-07.
As DeShaney noted, “the State does not become the permanent guarantor of
an individual’s safety by having once offered him shelter.” Id. at 201, 109 S. Ct.
at 1006. The district court was proper in dismissing the complaint for failure to
state a claim upon which relief can be granted. Id. at 202-03, 109 S. Ct. at 1006-
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07; Wooten, 49 F.3d at 699.
Plaintiffs also appeal the district court’s refusal to let them amend their
complaint a second time. This normally is reviewed for an abuse of discretion, but
where the district court denied a plaintiff leave to amend on account of futility, we
review the denial de novo because the district court concluded as a matter of law
that “an amended complaint ‘would necessarily fail.’” Freeman v. First Union
Nat’l, 329 F.3d 1231, 1234 (11th Cir. 2003) (quoting St. Charles Foods, Inc. v.
America’s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999)). Since we
agree with the district court that Plaintiffs could not make out a valid § 1983 claim
under their own version of the facts, as discussed above, it would have been futile
to allow further amendments on the subject. It was not error for the district court
to refuse Plaintiffs’ subsequent amendments. Freeman, 329 F.3d at 1235.
We are sympathetic to Plaintiffs’ plight. They were subjected to unlivable
conditions and abuse, perhaps as the result of Defendants’ failure to conduct an
evaluation of the suitability of Plaintiffs’ mother, boyfriend, and home. But the
Due Process Clause “does not transform every tort committed by a state actor into
a constitutional violation.” DeShaney, 489 U.S. at 202, 109 S. Ct. at 1006. In a
case like this, the court’s initial focus is not on whether Defendants were derelict
or negligent, but on whether Defendants owed Plaintiffs a constitutional duty at
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all. The answer under DeShaney and Wooten is that Defendants did not, and this
necessarily means that Plaintiffs’ claims fail under § 1983. Id. at 202, 109 S. Ct. at
1006-07; Wooten, 49 F.3d at 701. Plaintiffs may be able to seek damages against
Defendants under state tort law, DeShaney, 489 U.S. at 201-02, 109 S. Ct. at 1006,
but the district court here properly dismissed Plaintiffs’ complaint for failure to
state a claim upon which a federal court could grant relief.
AFFIRMED.1
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Plaintiffs’ request for oral arguments is DENIED.
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