Sivan Sheree Walker v. Donna Tennison

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10391

Non-Argument Calendar

________________________

D.C. Docket No. 4:19-cv-00058-CDL

SIVAN SHEREE WALKER,

SARAH N. DIXON,

DINAH D. DIXON,

CRYSTAL A. DIXON,

M.A.,

N.W.,

A.W.,

N.R.,

Plaintiffs-Appellants,

versus

ANTHONY DIXON

Individual capacity,

DONNA TENNISON,

KALEN JONES,

ANGELIQUE LUDLAM,

BOBBY CAGLE,

Defendants-Appellees.

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________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(December 7, 2020)

Before MARTIN, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

This is a tragic case about a man who physically and sexually abused his wife

and children. Sivan Walker, her adult children, and her minor children sued Anthony

Dixon1 (the children’s father) and four employees of the Georgia Division of Family

and Children Services (Donna Tennison, Kalen Jones, Angelique Ludlam, and

Bobby Cagle).2 The Walkers brought 42 U.S.C. section 1983 claims against Dixon

and the agency employees alleging violations of their Fourteenth Amendment

substantive due process rights. The Walkers appeal the district court’s order

dismissing their complaint for failure to state a claim. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Dixon was the elections supervisor for Marion County, Georgia. His official

duties included publishing election notices, overseeing elections, calculating

election returns, and reporting election results. Dixon lived on a rural polygamist

1

The Walkers’ appeal against Dixon has been dismissed as to his official capacity but

remains as to his individual capacity.

2

We will refer to the Georgia Division of Family and Children Services as the agency and

to Tennison, Jones, Ludlam, and Cagle as the agency employees.

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compound. One of Dixon’s three wives was Walker, who he met when she was

fifteen and he was thirty-two. Walker lived with Dixon for over twenty years and

they had eleven children together.

Dixon physically abused Walker and his minor children. He also sexually

abused his minor daughters over the course of several years. Walker witnessed

Dixon sexually abusing his daughters from one of his other wives three times. The

first incident occurred in 2012, the second in 2013, and the third in November 2014.

Dixon denied each time that anything inappropriate had happened and told Walker

that “no one would believe her anyways.” In January 2015, Walker fled the

compound with her minor children because of the ongoing abuse. Walker then went

to the sheriff to report Dixon.

The agency investigated Dixon three times. In 2010, the agency investigated

an allegation that Dixon drove recklessly with minor children in the car without

seatbelts. In 2013, the agency investigated an allegation made by one of Dixon’s

teenage daughters to a teacher accusing Dixon of inappropriately touching her. And

in 2015, the agency investigated Walker’s report that she had witnessed

inappropriate behavior in 2014 between Dixon and one of his minor daughters.

The agency “screened out” the 2010 and 2013 investigations, meaning that it

“peremptorily” closed them in violation of its own policies. The agency then failed

to conduct “second level review” of these screen-outs, even though this procedure

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was “mandatory.” As for the 2015 allegation, the agency did not interview all of

Dixon’s children and did not interview Walker in detail. Nor did the agency

interview Dixon, who “evaded” the investigators when they arrived at his

compound. Tennison, the agency’s county director, later conceded this was a “pretty

big mistake.” Although three of Dixon’s minor children gave forensic investigators

graphic accounts of sexual abuse committed by Dixon, the agency closed the 2015

investigation as “unsubstantiated” despite the “ample evidence of sexual abuse.”

Dixon pointed to the agency’s “clearance” of him as proof of his innocence. The

agency later acknowledged that it “got it wrong,” given the “widespread” and

“systematic” evidence of Dixon’s abuse.

In August 2015, Dixon filed a civil petition in state court against Walker

seeking custody over their minor sons. Dixon did not seek custody over his minor

daughters due to a “personal preference.” After a bench trial, the state court denied

Dixon’s petition in October 2016 and found there was substantial evidence that

Dixon physically abused his wives and sexually abused his minor daughters.

In November 2016, following the custody trial, state law enforcement opened

a criminal investigation into Dixon. During the investigation, a local magistrate

refused to sign a warrant for a search of Dixon’s property until after Dixon had

presided over an upcoming election. Dixon was ultimately charged with eleven

counts of sexual and physical abuse of a child. At his first trial, the sheriff’s office

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brought Dixon to court in his jail clothes and caused a mistrial. Dixon pleaded guilty

at his second trial and is currently serving a multi-decade sentence.

The Walkers sued Dixon and the agency employees under section 1983. As

to Dixon, the Walkers alleged that he used his authority to impede the investigations

into his crimes, allowing him to keep abusing the Walkers. As to the agency

employees, the Walkers alleged that the agency failed to adequately investigate

Dixon and conspired with him to violate the Walkers’ constitutional rights.

The agency employees moved to dismiss the Walkers’ complaint for failure

to state a claim. Dixon filed an answer to the complaint from prison and denied its

allegations.

The district court granted the agency employees’ motion and dismissed the

Walkers’ complaint. As to the section 1983 claim against Dixon, the district court

concluded that the Walkers had not plausibly alleged that Dixon acted under color

of state law or pursuant to his powers as the county elections supervisor when he

abused them or allegedly obstructed the investigations. The district court concluded

that even if it could infer that Dixon had used his office in 2016 to coerce the

magistrate into not immediately issuing the search warrant against him, this could

not support a section 1983 claim because the Walkers had already fled Dixon’s

compound by this point and were not injured by the delay in issuing the warrant.

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As to the Walkers’ section 1983 claim against the agency employees, the

district court concluded that the Walkers “did not suffer abuse at the hands of” the

state because: (1) the agency had no affirmative obligation under the due process

clause to protect them; and (2) Dixon was not a state actor when he abused his

family. This was fatal to the Walkers’ conspiracy allegation, the district court

concluded, because “there cannot be [section] 1983 liability for such a conspiracy

without an underlying violation of constitutional rights,” and neither Dixon nor the

agency violated the Walkers’ constitutional rights. 3

The Walkers timely appeal the district court’s dismissal of their complaint.4

STANDARD OF REVIEW

We review de novo the district court’s dismissal of a complaint for failure to

state a claim. Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). A “complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This “requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will

3

The district court alternatively concluded that the agency employees were entitled to

qualified immunity.

4

The Walkers also brought federal and state RICO claims against Dixon and the agency

employees, and state law claims against Dixon for battery and intentional infliction of emotion

distress. The district court dismissed the federal RICO count for failure to state a claim and

declined to exercise supplemental jurisdiction over the remaining state claims. The Walkers do

not appeal the dismissal of the federal and state RICO counts and the other state law claims.

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not do.” Twombly, 550 U.S. at 555. A plaintiff must plead “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. Our review is therefore “two-

pronged”: (1) we “eliminate any allegations in the complaint that are merely legal

conclusions”; and (2) for any “well-pleaded factual allegations, [we] ‘assume their

veracity and then determine whether they plausibly give rise to an entitlement to

relief.’” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)

(quoting Iqbal, 556 U.S. at 679).

DISCUSSION

The Walkers argue that their complaint plausibly alleged that: (1) Dixon acted

under color of law and used his state authority to facilitate their abuse; and (2) the

agency employees conspired with Dixon to violate their rights.

The Section 1983 Claim Against Dixon

The Walkers argue that they plausibly alleged that Dixon acted under color of

law and used his authority to facilitate their abuse. They contend that they

sufficiently established Dixon’s authority to impede the state abuse investigations

because: (1) the agency’s investigations were a “sham”; (2) the magistrate refused

to immediately sign a warrant against him; and (3) the sheriff’s office caused a

mistrial during Dixon’s first trial.

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A plaintiff raising a section 1983 claim must show that “she was deprived of

a federal right by a person acting under color of state law.” Griffin v. City of Opa-

Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). But not all wrongful acts by state

employees are acts under color of law. Almand v. DeKalb Cnty., 103 F.3d 1510,

1513 (11th Cir. 1997). Rather, section 1983 seeks to prevent misuses of power

“made possible only because the wrongdoer is clothed with the authority of state

law[.]” Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1268 (11th Cir. 2012)

(citation omitted); Griffin, 261 F.3d at 1303 (a person “acts under color of state law

when he acts with authority possessed by virtue of his employment with the state.”).

The question is whether the government employee has “abuse[d] the position given

to him” by the state, id., or instead “act[ed] only as a private individual,” Edwards

v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir. 1995). As the Supreme Court

has explained, “‘acts of officers in the ambit of their personal pursuits are plainly

excluded’ from being under color of law[.]” Butler, 685 F.3d at 1266 (quoting

Screws v. United States, 325 U.S. 91, 111 (1945)).

The Walkers generally alleged in their complaint that Dixon victimized them

through his “political” and “governmental authority,” and used the power of his

office and “influence under state law” to “immunize himself from investigation,

arrest, and prosecution.” These allegations are legal conclusions “couched” as

factual allegations, which we are not bound to accept as true. See Twombly, 550

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U.S. at 555. We must therefore “eliminate” them and turn to the factual allegations

in the Walkers’ complaint. See Am. Dental Ass’n, 605 F.3d at 1290.

As for the specific acts the Walkers attributed to Dixon, they were not enough

to suggest that he acted under color of law to facilitate his crimes. First, the Walkers

alleged that the agency failed to properly investigate Dixon because of “political

considerations” caused by “Dixon’s power and personal relationship with” the

agency. The preexisting relationship between Dixon and the agency, according to

the Walkers, “could” have compromised the investigators’ objectivity. But these

“speculative” could-have allegations do not plausibly suggest that Dixon exercised

his official power or authority as the county elections supervisor to thwart the

agency’s investigations. See Twombly, 550 U.S. at 555.

Second, the Walkers alleged that other officials besides the agency were

uncooperative with Dixon’s investigation and prosecution. They gave two examples

of Dixon’s “cooperative relationship with and influence over” local officials: (1) a

magistrate refused to sign a warrant for the search of Dixon’s property until after

Dixon presided over an election; and (2) the sheriff’s office brought Dixon to his

trial in jail clothes and caused a mistrial. But, as the district court explained, both

incidents occurred after the Walkers had fled Dixon’s compound. Thus, neither

allegation plausibly suggested that Dixon acted under color of law to facilitate his

prior crimes against his family. Although the Walkers argue that these incidents—

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viewed in the light most favorable to them—reflect Dixon’s ability to obstruct

investigations through his official status, it remains “speculative” that Dixon had

previously used his authority to impede any investigation when the Walkers lived

with him.

The Walkers’ allegations are similar to those where we held that state

employees did not act under color of law. In Almand, a police officer did not act

under color of law when he broke into a woman’s apartment and raped her because

his forcible entry had “no bearing” on “his status as a police officer.” 103 F.3d at

1515. Once the officer “resorted to sheer force” to enter the apartment, we

explained, “he was no different from any other ruffian.” Id. And in Butler, a

corrections officer did not act under color of law when she came home early from

work in uniform, found her daughter’s beau hiding naked in a closet, handcuffed

him, and held him at gunpoint with her service weapon. 685 F.3d at 1263, 1267.

This officer was not “exercising her authority” or abusing her law enforcement

position in doing so; she was simply “acting as an enraged parent.” Id. at 1267.

As in Almand and Butler, Dixon’s “conduct, or misconduct, was not

accomplished because of” his official status. See id. His abuse of the Walkers was

not “made possible only” because of his authority as the county elections supervisor

to publish election notices, calculate election returns, or report election results. See

id. at 1268. Nor did the Walkers plausibly allege that Dixon used his authority to

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“create the opportunity” to abuse them or conceal the abuse. See Griffin, 261 F.3d

at 1303–04 (holding that city manager acted under color of law when he used his

authority “to create the opportunity to be alone with” the plaintiff following a private

function, “to take her home, and then to rape her.”). When Dixon harmed his wives

and children behind the closed doors of his polygamist compound, “he was no

different from any other” abuser who preys upon his own family. See Almand, 103

F.3d at 1515. Because the Walkers did not plausibly allege that Dixon’s official

position had any bearing on his reprehensible actions, the district court did not err in

dismissing their section 1983 claim against him.

The Section 1983 Claim Against the Agency Employees

The Walkers argue that they plausibly alleged that the agency employees

conspired with Dixon to permit his continued abuse or to protect him from

investigation. This established a section 1983 substantive due process claim against

the agency employees, the Walkers argue, because conspiring to violate a person’s

constitutional rights violates section 1983. The Walkers maintain that they alleged

sufficient circumstantial proof of a conspiracy because Dixon had a preexisting

relationship with Tennison, the agency’s county director, and her office deviated

from mandatory policies when it investigated Dixon.

“Conspiring to violate another person’s constitutional rights violates section

1983.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). But

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the conspiracy must “result[] in the actual denial of some underlying constitutional

right.” Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir. 2010). Because

“the conspiratorial acts must impinge upon [a] federal right,” a plaintiff “must prove

an actionable wrong to support the conspiracy.” Bendiburg v. Dempsey, 909 F.2d

463, 468 (11th Cir. 1990) (citations omitted).

The Walkers failed to plausibly allege that Dixon violated their constitutional

rights. As discussed above, there is nothing more than speculation that Dixon acted

under color of law when he abused the Walkers. See Almand, 103 F.3d at 1515.

Thus, Dixon’s actions cannot establish the denial of a constitutional right necessary

for the Walkers’ section 1983 conspiracy claim against the agency employees. See

Grider, 618 F.3d at 1260.

The Walkers likewise failed to plausibly allege that the agency employees

violated their constitutional rights. In DeShaney v. Winnebago County Department

of Social Services, 489 U.S. 189, 195 (1989), the Supreme Court observed that

“nothing in the language” of the due process clause “requires the State to protect the

life, liberty, and property of its citizens against invasion by private actors.” This

constitutional provision is instead “a limitation on the State’s power to act, not as a

guarantee of certain minimal levels of safety and security.” Id. Thus, as a “general

matter,” a state’s “failure to protect an individual against private violence simply

does not constitute” a substantive due process violation. Id. at 197.

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No one disputes that the agency’s 2015 investigation into Dixon was woefully

inadequate. But that investigation occurred after the Walkers had fled Dixon’s

compound and therefore did not cause or contribute to their injuries. As for the 2010

investigation, it only involved an allegation that Dixon drove recklessly with his

children in the car. It did not involve allegations of sexual abuse. That just leaves

the agency’s 2013 investigation, which involved an allegation that Dixon had

inappropriately touched one of his teenage daughters. “[T]hough calamitous in

hindsight,” the agency’s failure to properly investigate this case and uncover Dixon’s

abuse in 2013 was not a substantive due process violation. See id. at 202.

The Walkers maintain that DeShaney does not control for two reasons. First,

the Walkers argue that the agency employees, on top of being negligent, “knowingly

conspired with Dixon to protect him from investigation or facilitate his continued

abuse.” But the Walkers did not plausibly allege that Dixon and the agency had an

agreement to violate their rights. See Bailey v. Bd. of Cnty. Comm’rs of Alachua

Cnty., 956 F.2d 1112, 1122 (11th Cir. 1992) (“[T]he linchpin for conspiracy is

agreement.”). The Walkers merely alleged that the agency failed to adequately

investigate Dixon, which “could” have been caused by his “pre-existing

relationship” with the agency. These speculative allegations, without more, are not

enough to plausibly “suggest [a] conspiracy.” See Twombly, 550 U.S. at 557.

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Second, the Walkers argue that the agency employees’ conduct independently

violated their due process rights because it was “arbitrary or conscience shocking in

the constitutional sense.” White v. Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999).

But “only the most egregious official conduct” rises to this level. Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citation and quotation marks

omitted). This standard “is to be narrowly interpreted and applied,” White, 183 F.3d

at 1259, such that “even intentional wrongs seldom violate” due process, Waddell v.

Hendry Cnty. Sheriff’s Office, 329 F.3d 1300, 1305 (11th Cir. 2003).

The Walkers did not plausibly allege that the agency’s conduct met this

demanding standard. The 2010 investigation dealt only with Dixon’s reckless

driving. The 2015 investigation, while inadequate, occurred after the Walkers’

abuse had ended. And as for the 2013 investigation, a single negligent investigation

is not “the most egregious official conduct” that shocks the conscience and violates

substantive due process. See Lewis, 523 U.S. at 846 (holding that a highspeed chase

where a police officer ran over and killed the passenger on a fleeing motorcycle did

not violate substantive due process); DeShaney, 489 U.S. at 198 (holding that

negligence by a county social services department which left a child permanently

brain damaged by his abusive father did not shock the conscience); Nix v. Franklin

Cnty. Sch. Dist., 311 F.3d 1373, 1377–79 (11th Cir. 2002) (rejecting a substantive

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due process claim against a teacher where a classroom demonstration with a live

wire electrocuted a student to death).

In sum, the Walkers did not plausibly allege that the agency employees

conspired with Dixon to violate their constitutional rights or independently violated

their substantive due process rights. We therefore affirm the district court’s order

dismissing the Walkers’ section 1983 claim against the agency employees.5

AFFIRMED.

5

Because the Walkers did not state a plausible claim for relief against the agency

employees, we need not decide whether these defendants were entitled to qualified immunity.

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