The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2007
No. 06-15368 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-21230-CV-JAL
JORGE T.,
a minor by and through his mother and natural
guardian,
SUSAN CARCANO,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
a.k.a. Florida Department of Children and Family Services,
SARA ARIAS,
Julian as a minor,
OLIVIA WALKER,
JERMAINE IRVING,
MELVIN DOE, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 12, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jorge T. filed a complaint in district court pursuant to 42 U.S.C. § 1983,
alleging that defendants violated his substantive due process right to protection and
care as a dependent child in the Florida Department of Children and Families
(“DCF”). The defendants filed a motion to dismiss based upon qualified
immunity. The district court granted the motion, and Jorge T. timely filed this
appeal. Because Jorge T.’s complaint failed to state a claim upon which relief can
be granted, we affirm the district court’s judgment.
BACKGROUND
In 2002, the DCF placed Jorge T. and his older brother Ricardo in the foster
home of Sara Arias. Jorge T. brought a § 1983 claim against seven DCF
employees after Julian, another foster child in the Arias home, allegedly raped and
sexually assaulted him on December 14, 2002. He claims that the following facts
support the conclusion that the DCF employees violated his constitutional rights:
one DCF employee knew that, on several occasions prior to the incident, Julian had
entered the bathroom while Jorge T. was inside; one DCF employee received
reports that Jorge T. and his brother were not well-kept, were dirty and lacked
proper care; six DCF employees failed to act to ensure Jorge T.’s safety at the time
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of the alleged rape and assault; the defendants failed to respond to various
structural errors and a general increase in reports of abuse in the foster care system;
and the defendants improperly screened Jorge T.’s foster mother’s background.
The defendants filed a motion to dismiss, asserting qualified immunity. The
district court granted the motion, concluding that Jorge T.’s assertions failed to
establish a claim under § 1983.
STANDARD OF REVIEW
We review de novo the grant of a motion to dismiss under Fed. R. Civ. P.
12(b)(6) and assumes that the facts alleged in the complaint are true. Spain v.
Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004)
(quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).
Because the district court dismissed Jorge T.’s § 1983 claim on qualified immunity
grounds, however, we must also apply a heightened pleading requirement. GJR
Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998)
(citing Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (1992) (overruled
on other grounds)). Accordingly, while Fed. R. Civ. P. 8 gives plaintiffs
considerable leeway in framing complaints, we require that, in response to the
qualified immunity defense, a § 1983 complaint allege its supporting facts with
some specificity. Id.
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DISCUSSION
The facts and procedural posture of this case are similar to those we faced in
Ray v. Foltz, 370 F.3d 1079 (11th Cir. 2004). Ray involved alleged abuse of a
foster child and a § 1983 claim against DCF employees. Id. at 1080-81. There, as
here, the defendants raised the qualified immunity defense. Id. at 1081. In Ray we
reversed the district court’s denial of the defendants’ 12(b)(6) motion to dismiss,
and our reasoning there will guide us here.
Government officials are immune from suit when acting within the scope of
their discretionary authority unless they knowingly violate a clearly established
statutory or constitutional right of which a reasonable person would have known.
Id. at 1081 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)). The defendants concede that Jorge T. has alleged a violation
of his clearly established constitutional right to be free from unnecessary pain
under the Fourteenth Amendment. See id. at 1082 (“It is clearly established in this
circuit that foster children have a constitutional right to be free from unnecessary
pain and a fundamental right to physical safety.”) (citing Taylor v. Ledbetter, 818
F.2d 791, 794-95 (11th Cir. 1987) (en banc)). Under Ray, however, Jorge T.’s
complaint must also sufficiently allege that the defendants were deliberately
indifferent to the violation of Jorge T.’s rights. Id. at 1083 (citing Taylor, 818 F.2d
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at 797).
In Ray, we reasoned that the defendants could not be liable under the
deliberate indifference standard unless they (1) actually knew that an excessive risk
of abuse existed and (2) disregarded that risk. Id. (citing Farmer v. Brennan, 511
U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (requiring that a state
official be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and actually draw the inference). Jorge T.’s
complaint cannot survive the defendants’ motion to dismiss because the facts, even
when viewed in the light most favorable to Jorge T., do not support an inference
that a substantial risk of serious harm existed.
The only relevant fact that Jorge T. alleged with specificity is that one of the
seven defendants knew that Julian had previously entered the bathroom when it
was occupied by Jorge T. The defendants could not have inferred from that fact
alone that a substantial risk of serious harm to Jorge T. existed. Thus, while we
acknowledge that what Jorge T. allegedly suffered is horribly tragic, the law
clearly prevents Jorge T. from pursuing his case against the defendants as pleaded.
CONCLUSION
Jorge T.’s complaint failed to state a claim upon which relief could be
granted. Nowhere in the complaint does he allege facts that would support the
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inference that a substantial risk of serious harm existed. Accordingly, we affirm
the district court’s dismissal of Jorge T.’s complaint.
AFFIRMED.
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