Powell v. GA Dept./Human Resources

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 96-8359

D. C. Docket No. CV195-128

BRUCE JAMES POWELL, SR., individually

as Natural Father of BRUCE JAMES POWELL, JR.,

and as Administrator of the Estate of BRUCE

JAMES POWELL, JR.,

Plaintiff-Appellant,

versus

GEORGIA DEPARTMENT OF HUMAN RESOURCES,

JAMES G. LEDBETTER, individually and as

the Commissioner of the Department of

Human Resources of the State of Georgia,

DOUG GREENWELL, individually and as Director

of the Department of Human Resources of the

State of Georgia Division of Family and Children

Services, PAT FITZGERALD, individually and as

the Director of the County Department of Family

and Children Services, MIGNON ROSEN, individually

and as an employee of the Richmond County

Department of Family and Children Services, JANE

DOE, a DFCS Caseworker known and identified with the

initials M.D.S., individually and as an employee of

the Richmond County Department of Family and

Children Services,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Georgia

(May 29, 1997)

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior

Circuit Judges.

ANDERSON, Circuit Judge:

Appellant Bruce James Powell, Sr., appeals the

district court's order dismissing his complaint for

failure to state a claim upon which relief can be

granted. We affirm.

I. FACTS1 AND PROCEDURAL HISTORY

This case involves the tragic death of Powell's

infant son. Powell's son, Bruce James Powell, Jr.,

was born on April 26, 1993. Approximately one

month after the baby's birth, Powell, age 18, and the

baby's mother, age 15, ended their relationship. The

mother retained primary physical custody of the

baby, with Powell exercising visitation rights. On

1

Because we are reviewing the district court's

dismissal of Powell's complaint for failure to state

a claim, we accept the factual allegations of the

complaint as true, construe them in the light most

favorable to Powell, and determine whether it

appears beyond doubt that Powell can prove no

facts that would entitle him to relief. Conley v.

Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957);

Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995).

2

July 22, 1993, the mother married James Loren, age

20.

On August 29, 1993, the baby's maternal

grandmother, Janice Newman, took the baby to the

home of the baby's maternal great aunt, Jeannette

Odum. Odum noticed bruises on the baby, became

concerned, and took the baby to Powell's workplace

to show him the baby's bruises. At Powell's request,

Odum called the Richmond County Department of

Family and Children Services ("DFCS") and reported

that she suspected the baby was being abused.

Appellee Mignon Rosen, a DFCS caseworker,

met Powell and Odum at Powell's workplace and

examined the baby. Rosen noticed that the baby had

a scrape across his forehead, discoloration over his

left ear with slight swelling, broken blood vessels in

his right ear, and three bruises on the back of his

thigh. She noted these injuries in her initial report.

Rosen was informed that the baby's mother was very

young and immature and that Loren, the baby's

stepfather, was a heavy drinker who handled the

baby roughly.

3

Rosen contacted her supervisor at DFCS, who

advised Rosen that a doctor should examine the

baby. Rosen did not follow this advice and did not

have the baby examined by a doctor. Rosen gave

Odum protective custody of the baby and promised

to speak with the mother and Loren the next day

about the baby's situation.

Later that same night, Rosen received a

telephone call from Odum. Odum reported that

Newman was going to call the sheriff's department

and obtain custody of the baby. Rosen told Odum

that the baby could be taken into protective custody.

After her conversation with Odum, Rosen called

"Ask a Nurse" to inquire about the possible causes

of the baby's injuries. Rosen was informed that

there was no medical condition that would cause the

observed injuries. Rosen then called an emergency

shelter and was told that the shelter could house the

baby for the night. Rosen, however, took no action

to place the baby in the shelter.

The mother and Newman arrived later that night

at Odum's home with a deputy sheriff and demanded

4

the return of the baby. After learning of Rosen's

involvement with the baby's case, the deputy called

Rosen to advise her of the situation. Rosen, acting

on the instructions of her supervisor, went to

Odum's home. Discussions occurred in which the

mother indicated that Loren had explained the baby's

injuries by saying that the baby had fallen off the

bed. Rosen allowed the baby to be released into

Newman's custody, although protective custody at

the emergency shelter was available. Rosen

instructed Newman that Newman should not return

the baby to the mother's custody.

The next day, August 30, 1993, the baby's case

was assigned to appellee Jane Doe, an unknown

DFCS caseworker with the initials M.D.S. No action

was taken that day on the baby's case. On August

31, 1993, Jane Doe called Newman, who told Jane

Doe that the baby had returned to the mother's

home, despite Rosen's instructions to the contrary.

During this conversation, Jane Doe learned that the

mother and Loren lived with Loren's sister and her

boyfriend in an environment of excessive drinking.

5

Newman, in another telephone conversation with

Jane Doe later that same day, also told Jane Doe that

she believed that someone who lived in the baby's

home had dropped the baby. The mother and Loren

failed to meet with Jane Doe that day as scheduled

to discuss the baby's care.

Jane Doe took no further action on the baby's

case. She made an entry in the baby's file on

September 16, 1993 stating: "Another intake. Due to

excessive # of intakes and [caseworker] trying to get

case load in order to be out on [leave] starting

9/17/93, [caseworker] unable to make another

contact."

The baby, who was not yet five months old, died

that day. The official cause of the baby's death was

"blunt force trauma to the head." For over two

weeks prior to his death, the baby had been severely

abused and neglected. The baby's injuries included

innercranial bleeding, retinal bleeding, abrasions,

and over 100 bruises on his body. The baby's

treating physicians described the baby's case as one

of the worst instances of child abuse they had ever

6

seen. The mother and Loren were convicted of the

baby's murder.

Powell sued the appellees under 42 U.S.C. §

1983, seeking monetary damages and claiming that

the appellees violated his son's substantive and

procedural due process rights and his son's Eighth

Amendment rights. He also alleged a state law claim

against the appellees under the Georgia Tort Claims

Act. The appellees moved to dismiss Powell's

complaint. The district court held pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure that

Powell failed to state a federal claim upon which

relief can be granted. Consequently, the district

court dismissed Powell's federal claims and declined

to exercise its jurisdiction over Powell's state law

claim.2

The only issue before us in this appeal is

whether Powell has stated a claim against the

individual appellees in their individual capacities.

Powell asserts only two claims on appeal: a

2

The district court dismissed the state law claim

without prejudice.

7

substantive due process claim and a procedural due

process claim.3

II. ANALYSIS

Before analyzing Powell's claims, we pause to

note that the circumstances alleged by Powell are

troubling and tragic. However, Powell has elected to

sue in federal court and thus has undertaken to

prove more than merely wrongful acts on the part of

the appellees or a constitutional violation; rather, in

order to surmount the appellees' qualified immunity

shield, Powell must prove that the appellees violated

clearly established constitutional rights of which a

reasonable person would have known.

Qualified immunity shields government officials

performing discretionary duties from civil litigation

3

Powell has not appealed the district court's

determination that the Department of Human

Resources and the individual appellees in their

official capacities are immune from suit under the

Eleventh Amendment. Powell also has not

appealed the district court's dismissal of his claim

that the appellees violated his son's Eighth

Amendment rights.

8

and liability if their conduct violates no "clearly

established statutory or constitutional rights of

which a reasonable person would have known."

Harlow v. Fitzgerald, 475 U.S. 800, 818, 102 S. Ct.

2727, 2738 (1982). We readily conclude in this case

that the appellees were performing discretionary

duties,4 and thus the burden shifts to Powell to

demonstrate that the appellees violated clearly

established constitutional rights of which a

reasonable person would have known. McCoy v.

Webster, 47 F.3d 404, 407 (11th Cir. 1995). As the

Supreme Court most recently stated in United States

v. Lanier, "[Q]ualified immunity seeks to ensure that

defendants 'reasonably can anticipate when their

conduct may give rise to liability' . . . by attaching

liability only if '[t]he contours of the right [violated

are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.'"

4

The appellees' actions in the instant case are

indistinguishable from those which we held in

McCoy v. Webster, 47 F.3d 404 (11th Cir. 1995), to

be discretionary. We summarily reject Powell's

argument to the contrary.

9

___ U.S. ___, ___, 117 S. Ct. 1219, 1227 (1997)

(alteration in original) (quoting Davis v. Scherer, 468

U.S. 183, 195, 104 S. Ct. 3012, 3019 (1984), and

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.

3034, 3039 (1987), respectively). When analyzing a

claim of qualified immunity in a case which is in a

Rule 12(b)(6) posture, we determine "'whether, under

the most favorable version of the facts alleged,

defendant's actions violate clearly established law.'"

Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir.

1993) (quoting Bennett v. Parker, 898 F.2d 1530, 1535

n.2 (11th Cir. 1990) (Tjoflat, J., concurring), cert.

denied, 111 S. Ct. 1003 (1991)).

We turn first to Powell's substantive due process

claim and then to his procedural due process claim.

A. Substantive Due Process Claim

Powell argues that the appellees violated his

son's substantive due process rights by removing

the baby from Odum's safe care and allowing the

baby to return to a known zone of danger with an

10

abusive mother and stepfather. Powell must prove

more than negligent or wrongful acts on the part of

the appellees or an abuse of power rising to the level

of a constitutional violation. In order to strip the

appellees of their qualified immunity defense, Powell

must demonstrate that the appellees violated clearly

established constitutional rights of which a

reasonable person would have known. Two cases

involving facts very similar to the instant facts, one a

Supreme Court case and one an Eleventh Circuit

case, persuade us that Powell cannot prove a

violation of a clearly established constitutional right.

In DeShaney v. Winnebago County Department

of Social Services, 489 U.S. 189, 109 S.Ct. 998 (1989),

Joshua DeShaney and his mother brought a §1983

claim against social workers and other officials who

failed to protect Joshua, despite suspecting that

Joshua's father was abusing him. The Supreme

Court held that there was no substantive due

process violation under the following circumstances.

After Joshua's parents divorced, the father was

awarded legal custody of Joshua. The first

11

complaint of child abuse occurred in January 1982.

The Department of Social Services ("DSS")

interviewed the father, who denied the accusations.

DSS did not pursue the matter. In January 1983,

Joshua was hospitalized with multiple bruises and

abrasions. DSS was notified that child abuse was

suspected, and custody was temporarily withdrawn

from the father. The appropriate team of county

officials considered the matter, determined there was

insufficient evidence of child abuse, and decided to

recommend that Joshua be returned to the father's

custody. Based on this recommendation, the

juvenile court returned Joshua to his father's

custody. Thereafter, the following additional

warning signals came to the attention of the

defendant officials. A month later, Joshua was

treated at the emergency room for suspicious

injuries. During monthly visits in the next six

months, the caseworker observed suspicious

injuries on Joshua's head. In November 1983,

Joshua was again treated at the emergency room for

injuries believed to be caused by child abuse.

12

During the next two home visits, the caseworker was

told that Joshua was too ill to see her. DSS took no

action. In March 1984, Joshua was severely beaten

by his father. As a result of this beating, Joshua

sustained severe brain damage, which required that

Joshua be permanently institutionalized. The

Supreme Court held that "[a]s a general matter, . . .

we conclude that 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, 109 S. Ct. at 1004. The Court also rejected

Joshua's argument that a "special relationship"

existed because the officials knew that Joshua faced

a special danger of abuse at his father's hands, and

had specifically proclaimed an intention to protect

him against that danger. Id. at 197-98, 109 S. Ct. at

1004.5

5

The Court distinguished the relationship

created when a state restrains an individual's

liberty such that it renders him unable to care for

himself. See DeShaney, 489 U.S. at 198-200, 109 S.

Ct. at 1004-06 (citing Estelle v. Gamble, 429 U.S. 97,

97 S.Ct. 285 (1976) (incarceration); Youngberg v.

Romeo, 457 U.S. 307, 102 S.Ct. 2452 (1982)

(involuntarily committed mental patients)).

13

The relevant Eleventh Circuit case is Wooten v.

Campbell, 49 F.3d 696 (11th Cir.), cert. denied, 116 S.

Ct. 379 (1995). In Wooten, after a child was abducted

by his father, the state agency comparable to the one

involved in this case was awarded legal custody of

the child and given the authority to place the child.

With the consent of the child's parents, the agency

placed the child with the mother and allowed

unsupervised visits by the father. During an

unsupervised visit, the father again abducted the

child, killed the child, and then committed suicide.

The mother brought a §1983 claim against the

agency and its involved employees, alleging that the

defendants were reckless in allowing the father to

have unsupervised visits with the child when the

evidence showed that the father posed a significant

risk of danger to the child. The district court

dismissed the complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. Noting that the

facts were very similar to those in DeShaney, this

court affirmed, holding that there was no substantive

due process violation. Id. at 701. Although the state

14

agency had legal custody of the child, this court

emphasized that the mother herself had physical

custody of the child and also had access to the

courts had she wanted to challenge the

unsupervised visitation. Id. at 700. As in the

DeShaney case, this court stressed that the child

had been killed by a private actor, the father, and not

by the State. Id.

Comparing the facts of the instant case to the

facts in DeShaney, it is true that caseworker Jane

Doe gave the baby's case very little attention after

taking over responsibility from Rosen on August 30,

1993. She merely had two telephone conversations

with Newman, in whose custody Rosen had left the

baby. During one of these conversations, Jane Doe

learned that Newman had permitted the mother to

take the baby back to the mother's home, the

environment in which it was suspected that previous

child abuse might have occurred. Jane Doe

apparently did schedule a meeting with the mother

and her husband, Loren, for that day, but they failed

to appear at the meeting. Jane Doe took no further

15

action.

While we do not condone Jane Doe's neglect, we

nevertheless readily conclude that it is

indistinguishable from the caseworker's failure to act

in DeShaney. Indeed, the danger signals in

DeShaney (including one hospitalization and two

emergency room visits, all indicating suspected

child abuse) were more pronounced than in the

instant case. In an attempt to distinguish DeShaney,

Powell points to the fact that the Supreme Court

noted that the State in that case did not "do anything

to render [the abused child] any more vulnerable" to

abuse. DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006.

Powell argues that a plaintiff can make out a viable

substantive due process claim by proving that the

officials created or increased the danger to the child.

Powell contends that the increase in danger

occurred in the instant case on August 29, 1993,

when caseworker Rosen permitted the baby to be

removed from the safe haven of Odum's home.6

6

In his brief on appeal, Powell acknowledges

that the "substantive claim does not hang on the

two weeks of inactivity which triggers the

16

Recalling the facts, that night Newman and the

mother, accompanied by a deputy sheriff, went to

Odum's home and demanded that the baby be

returned. The deputy telephoned Rosen, and Rosen

actually went to Odum's home. After discussions in

which the mother denied child abuse and related the

explanation that the baby had fallen off the bed,

Rosen allowed the baby to be released into

Newman's custody at Newman's home. By allowing

the baby to leave the safe haven of Odum's home,

Powell argues that caseworker Rosen affirmatively

increased the danger to which the baby was

exposed.

We can assume arguendo, without deciding, that

in some circumstances, a plaintiff might be able to

establish a substantive due process violation upon

proof that a state actor created or increased the

danger to a child or rendered a child more vulnerable

procedural claim. Instead, the substantive claim is

triggered by the active and forcible abuse of Power

[sic] by the state officials on one day, August 29,

1993." Appellant's Brief at 46 (emphasis omitted).

17

to abuse.7 However, both DeShaney and Wooten

indicate that Rosen's allowing the baby to leave the

safety of Odum's home cannot be the basis for a

substantive due process claim in this case. The

language in DeShaney upon which Powell relies (i.e.,

about rendering the child more vulnerable) is

followed immediately by language rejecting an

argument precisely like Powell's:

While the State may have been aware of the

dangers that Joshua faced in the free world,

it played no part in their creation, nor did it

do anything to render him any more

vulnerable to them. That the State once took

temporary custody of Joshua does not alter

the analysis, for when it returned him to his

father's custody, it placed him in no worse

position than that in which he would have

been had it not acted at all . . . .

7

For cases discussing such claims, see, e.g.,

Mitchell v. Duval County Sch. Bd., 107 F.3d 837,

838-39 (11th Cir. 1997) (assuming

arguendo that a plaintiff might be able to state a

substantive due process claim if the state's actions

placed the plaintiff in "special danger"); Kneipp v.

Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)

(discussing "state-created danger" theory); Uhlrig

v. Harder, 64 F.3d 567, 572-73 & nn.6-7 (10th Cir.

1995) (discussing "creation of danger" theory),

cert. denied, 116 S. Ct. 924 (1996); Leffall v. Dallas

Indep. Sch. Dist., 28 F.3d 521, 530-31 (5th Cir. 1994)

(discussing "state-created danger" theory).

18

DeShaney, 489 U.S. at 201, 109 S. Ct. at 1006

(emphasis added). Although in this Rule 12(b)(6)

posture, we do indulge the inference that Newman's

home was less safe than Odum's, the danger signals

apparent to Rosen in this case certainly do not

exceed those apparent to the team which decided to

return Joshua to his father in the DeShaney case.

That team knew that Joshua had just been admitted

to the hospital with multiple bruises and abrasions

and that the examining physician suspected child

abuse. The team also knew of the allegation of

abuse one year earlier. In this case, we note that

Rosen merely permitted the baby's grandmother,

Newman, to take custody of the baby. Rosen

specifically instructed that the baby was not to be

returned to the mother in whose home the suspected

abuse occurred. In this respect, the instant facts are

more favorable to the appellees than those in

DeShaney. We also note that Rosen's decision was

made during an actual visit to the scene and

followed her discussion with the mother, Newman,

Odum, and the deputy sheriff, during which the

19

mother denied any abuse and gave an explanation

for the baby's injuries. Finally, we note that the

subsequent removal of the baby to the mother's

home was without the appellees' permission, and

thus is a mere failure to act similar to that in

DeShaney. The government officials in DeShaney

had greater dominion and control over Joshua (i.e.,

temporary legal custody) than did the appellees here.

Similarly, the agency in Wooten had legal custody of

the child, allowed the child to return to the mother's

custody, and permitted unsupervised visits by the

father, who was the alleged source of danger to the

child. In neither DeShaney nor Wooten did the

affirmative act of permitting the child's return to the

home environment rise to the level of a substantive

due process violation. In evaluating the asserted

increased danger in DeShaney, the Court seemed to

focus on the totality of the agency's actions, and in

any event declined to place much significance on a

single judgment call in returning Joshua to his home

environment.

We recognize that the facts of DeShaney and

20

Wooten are not identical to the instant facts. In

DeShaney, the agency's decision to permit Joshua to

return to his home environment was apparently in

the nature of a recommendation to the juvenile court,

which followed the agency's recommendation. In

Wooten, the similar decision was with the consent of

the parents. However, caseworker Rosen's decision

clearly constituted an exercise of judgment very

similar to that of the officials in DeShaney and

Wooten. Moreover, as in Wooten, Powell and Odum

"had access to the courts if [they were] displeased"

with Rosen's decision. Wooten, 49 F.3d at 700.

Because the appellees in the instant case claim

qualified immunity, we need only decide that the

appellees violated no clearly established

constitutional rights.8 We readily conclude that the

8

As this court has explained previously,

Since a plaintiff must show both that there

is a constitutional right that is allegedly

violated and that the right was clearly

established at the time, a negative decision

on either prevents the plaintiff from going

forward. Once it is determined that there is

no clearly established right, the Court

could well leave for another day the

21

appellees' actions are sufficiently similar to the

actions of the comparable officials in DeShaney and

Wooten that it cannot be said that a reasonable

official would have understood that the actions at

issue in this case violated constitutional rights.

Accordingly, we hold that the appellees are shielded

by qualified immunity, and we affirm as to this claim.

B. Procedural Due Process Claim

Powell alleges that the appellees' failure to

follow the Richmond County Child Abuse Protocol

("the Protocol") violated his son's procedural due

process rights.9 In their defense, the appellees

determination as to whether there is such

a right, albeit not one that a reasonable

person would have known. It is the

plaintiff's burden to show that when the

defendants acted, the law established the

contours of a right so clearly that a

reasonable official would have understood

his acts to be unlawful.

Spivey v. Elliott, 41 F.3d 1497, 1499 (11th Cir. 1995).

9

As quoted in the appellees' brief, the Protocol

provides as follows:

22

When a report of child abuse/neglect is

received by DFCS, the case shall be

assigned to a caseworker to make an initial

assessment/investigation (including

whether the case is that of a caretaker or

noncaretaker). In determining the

appropriate action to be taken by DFCS,

the caseworker shall go to where the child

is located to conduct an interview with the

child to establish that the child is in fact

alleging abuse/neglect.

Appellees' Brief at 13. The Protocol, as quoted in

Powell's complaint, further provides:

If there is reasonable cause to believe that

abuse has occurred, DFCS shall take the

following action or actions:

1. Seek protective custody of the child.

(See Juvenile Court Section).

2. If appropriate, allow the child to remain

with its family and provide ongoing

monitoring and treatment.

3. Immediately notify the appropriate law

enforcement agency pursuant to

O.C.G.A. § 19-7-5. (See Law Enforcement

Section).

4. File any and all Juvenile Court

proceedings necessary

for the protection of the child.

5. If there is reasonable cause to believe

abuse has occurred, DFCS will seek a

physical examination in those instances

where a medical test will be needed t o

substantiate the same, or will photograph

evidence of physical abuse where a

medical examination is not

necessary. Any physical examination will

23

invoke the protections of qualified immunity.

Powell argues that Zinermon v. Burch, 494 U.S.

113, 110 S. Ct. 975 (1990), shows that the appellees

violated his son's clearly established procedural due

process rights. In Zinermon, the plaintiff, a former

state mental hospital patient, alleged that the State

violated his due process rights by failing to have in

place appropriate precommitment safeguards

ensuring that state mental hospital patients are in

fact competent to sign forms authorizing their

be conducted as expeditiously as

possible.

...

[I]f a report of child abuse . . . is made to

DFCS . . . and it has reasonable cause to

believe such report is true, then the agency

shall immediately notify the appropriate

authority or District Attorney and forward

the proper reports within a timely manner.

...

Every abused child should have a physical

examination as soon as possible following

disclosure of the abuse. Typically, the

child will be examined at one of the local

hospitals according to accepted hospital

procedure.

Compl. at 12-13.

24

voluntary admission and treatment. The Supreme

Court held that the plaintiff stated a procedural due

process claim because the deprivation of the

plaintiff's liberty was predictable and predeprivation

process was feasible. Id. at 136, 110 S. Ct. at 989.

Powell argues that Zinermon applies to this case. He

asserts that the State should have provided

predeprivation process in this case because the

State should have anticipated that caseworkers

might be so overloaded with cases that they would

neglect their duties. He further contends that the

value of predeprivation safeguards is high in child

abuse cases and the State is in the position to

provide predeprivation process.

The appellees, however, argue that Powell

cannot state a claim for a violation of his son's

procedural due process rights.10 The appellees

10

As a threshold matter, the appellees argue that

the Protocol did not vest Powell's son with a

legitimate claim of entitlement such that a failure to

follow the Protocol constituted a procedural due

process violation. Because we ultimately conclude

that the appellees are entitled to qualified immunity

in any event, we can assume arguendo, without

deciding, that Powell's son had such a liberty

interest.

25

assert that Parratt v. Taylor, 451 U.S. 527, 101 S. Ct.

1908 (1981), and Hudson v. Palmer, 468 U.S. 517, 104

S. Ct. 3194 (1984) control this case. In Parratt and

Hudson, the Supreme Court held that there is no

procedural due process violation when the act

complained of is the random and unauthorized act of

a state employee for which adequate postdeprivation

process is available. Hudson, 468 U.S. at 533, 104 S.

Ct. at 3203-04; Parratt, 451 U.S. at 541, 101 S. Ct. at

1916. The Parratt-Hudson reasoning applies when

the official action complained of is of a type that the

State cannot reasonably foresee and for which

predeprivation process thus is not feasible. Hudson,

468 U.S. at 533, 104 S. Ct. at 3203; Parratt, 451 U.S. at

541, 101 S. Ct. at 1916. See also Zinermon, 494 U.S.

at 128-30, 110 S. Ct. at 985-86. The appellees argue

that in this case, the State could not reasonably

foresee that the caseworkers would fail to follow the

Protocol. The appellees also contend that providing

predeprivation process, such as a hearing, for child

abuse cases is not feasible because caseworkers

often must make quick judgment calls in such cases.

26

Furthermore, the appellees argue that the State has

provided Powell with adequate postdeprivation

process because Powell may pursue a damage claim

in the Georgia state courts under the Georgia Tort

Claims Act.11

The crux of Powell's claim is his contention that

predeprivation process was feasible in this case and

was not provided, thus violating the baby's

procedural due process rights. In Zinermon, the

Court found that a predeprivation procedure was

feasible and would avert the problem of incompetent

people signing voluntary admission forms before

receiving treatment for mental illness. The Court

explained that "had the State limited and guided

petitioners' power to admit patients, the deprivation

11

Powell argues that this post-deprivation

process is inadequate because the State has

invoked sovereign immunity as to any possible

claims under the Georgia Tort Claims Act.

However, assuming arguendo that the State is

immune, Powell's argument is foreclosed by our

decision in Rittenhouse v. DeKalb County, 764 F.2d

1451, 1459 (11th Cir. 1985) ("the sovereign

immunity enjoyed by [the county and the

government official] [does] not render appellant's

state law remedy inadequate under Parratt"), cert.

denied, 475 U.S. 1014, 106 S. Ct. 1193 (1986).

27

might have been averted." Zinermon, 494 U.S. at

137, 110 S. Ct. at 989. The Court indicated that the

State could provide such guidance by having "a

specific requirement that petitioners determine

whether a patient is competent to consent to

voluntary admission." Id. at 135-36, 110 S. Ct. at 988-

89.12

By contrast, in the instant case, the Protocol

already provides predeprivation procedures for

caseworkers to follow. There is no other feasible

predeprivation procedure that is readily apparent to

us. It is clear from the Protocol that a caseworker

must make a judgment decision "[i]n determining the

appropriate action to be taken." Appellees' Brief at

13 (quoting Protocol). The caseworker must make

12

At several places, the Court referred to such a

procedure. For example, the Court noted that

"[t]here is, however, no specified way of

determining, before a patient is asked to sign

admission forms, whether he is competent."

Zinermon, 494 U.S. at 136, 110 S. Ct. at 989. See

also id. at 135, 110 S. Ct. at 988 ("But the statutes

do not direct any member of the facility staff to

determine whether a person is competent to give

consent, nor to initiate the involuntary placement

procedure for every incompetent patient.").

28

an initial assessment and must determine on an

ongoing basis whether or not there is "reasonable

cause to believe that abuse has occurred." Compl.

at 12 (quoting Protocol). We readily conclude that it

would not be feasible to require a hearing before

every such judgment decision by a caseworker.

Indeed, the Protocol established by the appellees in

the instant case would seem to be precisely the kind

of procedure contemplated in Zinermon because it

guides caseworkers' decision-making. We do not

understand Powell to be challenging the adequacy of

the Protocol itself; rather, he argues that

caseworkers Rosen and Jane Doe did not follow the

Protocol.

The only specific procedure suggested by

Powell is that the officials should have provided

more staffing, supervision, and training so that

neglect of duty would not result from excessive

caseloads.13 However, we know of no case which

13

In his brief, Powell asserts that "the State was

in a position to provide the requisite predeprivation

process by oversight, supervision, adequate

staffing and caseload distribution, management

and training." Appellant's Brief at 26-27.

29

has held that the Constitution requires a government

to provide more personnel or more training in order

to reduce the risk of random and unauthorized acts

of neglect of duty. The Parratt decision suggests

just the opposite. The deprivation there, as here,

resulted from a failure to follow applicable

procedures. Parratt, 451 U.S. at 531, 543, 101 S. Ct.

at 1910, 1917. Although not mentioned by the Court,

additional money, personnel, or training might well

have averted the prison officials' negligence in

failing to follow the policies and losing plaintiff's

hobby kit.

Because the appellees have invoked the defense

of qualified immunity, Powell must prove a violation

of a clearly established constitutional right. Under

the circumstances of this case, we cannot conclude

that there was a clearly established constitutional

right to some additional predeprivation procedure in

this case. In other words, we cannot conclude that it

was clearly established at the time of the appellees'

actions in this case that an additional predeprivation

procedure was feasible. Although the appellees'

30

actions were disastrous in hindsight, Powell has not

demonstrated that the contours of his son's

procedural due process rights were sufficiently clear

that a reasonable official would understand that the

conduct at issue here violated constitutional rights.

Accordingly, we hold that the appellees are shielded

by qualified immunity from Powell's procedural due

process claim. We affirm the district court as to this

claim.

III. CONCLUSION

We are not without sympathy for Powell's

situation. His son's death was an unquestionably

cruel loss. For the foregoing reasons, however, we

conclude that Powell has failed to surmount the

appellees' qualified immunity shield with respect to

either of his claims.14

AFFIRMED.

14

Because the district court properly dismissed

Powell's federal claims, it did not err by dismissing

without prejudice his state law claim.

31