John Doe, as Next Friend of Jane Doe, a Child v. Hillsboro Independent School District, Larry Zabcik

EMILIO M. GARZA, Circuit Judge,

dissenting:

Today we are faced with yet another tragic case involving the sexual assault of a child by a school employee. Despite the horrific nature of this case, I dissent from the majority’s holding that the school officials are not entitled to qualified immunity. 1 The question before us is not whether a school janitor should be punished for committing rape— clearly he should. Rather, we are confronted with the question of whether he is a state actor pursuant to Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451-52 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 70 , 130 L.Ed.2d 25 (1994). The majority argues that it is irrelevant whether the custodian was a state actor when he raped Jane. Instead, the majority concludes that the school officials violated Jane’s right to bodily integrity because they “instituted and conducted the process that put [Jane] in harm’s way.” The majority’s decision creates a new cause of action and an unwarranted expansion of Doe v. Taylor, from which I dissent.

*1408 Doe alleges that the Hillsboro Independent School District and several school officials are liable under 42 U.S.C. § 1983 for the violation of her right to bodily integrity under a supervisory theory of liability. Doe v. Taylor held that “a supervisory school official can be held personally liable for a subordinate’s violation of an elementary or secondary school student’s constitutional right to bodily integrity in a physical sexual abuse case,” when “the official, by action or inaction, demonstrates a deliberate indifference to [a student’s] constitutional rights that results in the molestation of school children.” Id. at 454 . The school officials counter that they are entitled to qualified immunity for their actions. “The defense of qualified immunity protects a public official from liability in the performance of his duties' unless he violates a clearly established statutory or constitutional right of another known to or knowable by a reasonable person.” Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303, 305 (5th Cir.1987). Therefore, the first step in analyzing whether a defendant is entitled to qualified immunity, is to determine whether the plaintiff has alleged a constitutional violation. Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1404 (5th Cir.1995) (citing Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir.1994)).

Before determining whether a supervisory official can be held liable under § 1983, we must first find that (1) a rights violation occurred (2) under color of state law. Rains, 66 F.3d at 1407 . Jane Doe alleges that her Fourteenth Amendment right to bodily integrity was violated. She relies on our decision in Taylor, 15 F.3d 443 , which stated that “bodily integrity is necessarily violated when a state actor sexually abuses a schoolchild.” (emphasis added). 2 Therefore, to state a claim under § 1983 based on a violation of her Fourteenth Amendment right to bodily integrity, Jane must establish (1) that a state actor (2) sexually abused her (3) under color of state law. However, “in § 1983 suits alleging a violation of the Due Process Clause of the Fourteenth Amendment, we have collapsed the state action and color of state law inquiries into a single” step because the inquires are identical. Rains, 66 F.3d at 1406 ; Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 , 102 S.Ct. 2744, 2749 , 73 L.Ed.2d 482 (1982) (stating that the “color of state law” requirement under § 1983 and the “state action” requirement of the Fourteenth Amendment are identical). Therefore, Jane *1409 will simply have to prove that she was deprived of her protected liberty or property interest, here her right to bodily integrity, under color of state law. Rains, 66 F.3d at 1406 . This will require us to determine whether the custodian was acting under color of state law when he sexually assaulted Jane. If we find that the custodian did not act under color of state law when he sexually assaulted Jane, then Jane will not have been deprived of a constitutional right, and the school officials cannot be liable as supervisors under § 1983. See id. at 1407 (“After finding that (1) a rights violation occurred (2) under color of state law, only then do we ask a third and final question: Who are the state actors responsible for the constitutional violation” other than “the immediate perpetrator?”).

The majority fails to adequately address the color of state law requirement, despite its conclusion that Doe has alleged a violation of a constitutional right. The majority first states that the “color of state law” requirement is not at issue in this appeal, 3 but nevertheless, concludes that the plaintiff satisfied the “color of state law” requirement under § 1983, because the Custodian was a state employee who was “on the clock” when he raped Jane Doe. Even more confusing, the majority opines that to focus on whether the Custodian was a state actor is “to follow the proverbial red herring.” Instead, the majority concludes that once we find that the school officials acted under color of state law, then they are liable for violations that were proximately caused by their actions. This has never been the law of the Fifth Circuit. See Rains, . 66 F.3d at 1407 (noting that there must be an underlying constitutional violation before a court can consider who besides “the immediate perpetrator” can be held liable under § 1983).

I can perceive of no difference between the majority’s analysis and that employed under the state-created danger theory, which the majority specifically rejected in Part E.3.a. 4 The state-created danger theory holds state actors liable for the foreseeable injuries that result from their conduct when they “knowingly place a person in danger.” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 , 200 (5th Cir.1994). To be liable under this theory, the state actor must create a dangerous environment; “they must know it is dangerous; and ... they must have used their authority to create an opportunity that would not otherwise have existed for the third party’s crime to occur. Put otherwise, the defendants must have been at least deliberately indifferent to the plight of the plaintiff.” Id. *1410 at 201. The Fifth Circuit has not “yet predicated relief on a state-created danger theory.” Johnson, 38 F.3d at 201.

In this case, the majority concludes that because the school officials were deliberately indifferent in instituting and conducting the process that “put Doe in harm’s way,” they are liable for her injuries under § 1983. In reaching this conclusion, the majority focuses on the dangerous environment that the school officials were deliberately indifferent in creating. The majority alleges that the officials created this environment by inadequately hiring and indifferently supervising a custodial staff one-third of whom were criminals, “giving them the keys to the schoolhouse, and authorizing them to roam the halls when and where vulnerable students are likely to be encountered, and despite prior reports of sexual abuse, to do so in the absence of adequate supervision.” Given this dangerous environment, the majority concludes that there is “obviously” a “ ‘real nexus’ between the rape of Doe and the deliberately indifferent performances of the School Officials’ duties and obligations.” According to the majority, the school officials, therefore, acted under color of state law and are liable under § 1983 for the harm that Doe suffered regardless of whether the person who raped her was a state actor. The majority, in essence, concludes that the school officials, not the custodian, violated Jane’s right to bodily integrity.

This interpretation is a complete abrogation of Doe v. Taylor. On the one hand, the majority accepts Taylor’s bodily integrity theory, but on the other hand, it rejects the premise — that to constitute a constitutional violation, it must be an employee state actor who sexually assaults the student. Taylor specifically found that the Taylor Doe’s right to bodily integrity was violated by a person acting under color of state law. Taylor, 15 F.3d at 452 n. 4. The court stated that a “real nexus” existed between the teacher’s' duties and obligations as a teacher and the activity out of which the violation occurred. Id. It was only after the court established that Doe had suffered a violation of her right to bodily integrity by a person acting under color of state law, the teacher/coaeh, that the court proceeded to address which, if any, supervisory officials could.also be liable to Doe under § 1983. The majority today skips this first step, implicitly creating a new cause of action similar to the state-created danger theory.

I respectfully dissent from the majority opinion on this issue and would hold that because the custodian was not a state actor when he raped Jane, there is no underlying constitutional violation for which to hold the supervisory officials liable under § 1983. Not all unlawful actions taken by state officials are taken under color of law. When acting pursuant to a.general grant of authority, a state official acts under “color of state law” either when he acts within that general grant of authority or when he exceeds the general grant of authority given. See id. at 485 (Garza, J. dissenting) (citing relevant case law). However, a state official does not act under “color of state law” when he acts in the complete absence of any authority. Id.; see Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961) (searches of homes); Fee v. Herndon, 900 F.2d 804 (5th Cir.) (classroom discipline), cert. denied, 498 U.S. 908 , 111 S.Ct. 279 , 112 L.Ed.2d 233 (1990); see also Barney v. City of New York, 193 U.S. 430, 433-38 , 24 S.Ct. 502, 503 , 48 L.Ed. 737 (1904) (holding that there is no state action when the offending act was not authorized by the state and was forbidden by the state legislature).

The Supreme Court has employed different standards for determining state action, but has emphasized that it is necessarily a fact intensive inquiry. Lugar, 457 U.S. at 939 , 102 S.Ct. at 2755 . In determining state action and color of state law in the context of public schools, federal courts have focused on whether there was a “real nexus” between the school employee’s duties and obligations to the school and the activity out of which the violation occurs. Rains, 66 F.3d at 1406-07 ; Taylor, 15 F.3d at 452 n. 4; D.T. by M.T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176 , 1188 (10th Cir.), cert. denied, 498 U.S. 879 , 111 S.Ct. 213 , 112 L.Ed.2d 172 (1990). It is a far leap from the school teacher in Taylor , who used his position and authority as a teacher to sexually abuse a student, to a custodian who, lacking any authority over the students, *1411 commits an atrocious crime on the school premises. In Taylor , the school district established the relationship between the teacher and the student which the teacher used to coerce the Taylor Doe into having sexual relations with him. See Taylor, 15 F.3d at 452 n. 4 (describing ways in which teacher/coach used his position to effectuate the sexual assault); id. at 461-62 (Higginbotham, J., concurring) (explaining why the teacher’s actions were under color of state law). In this case, the school district did not establish a relationship between the custodian and Jane Doe which he was able to use to sexually assault her. The school district neither placed the custodian in a position of authority over Doe, nor did the district grant him any official influence over her that he could use to coerce her into having sexual relations with him. In raping Jane Doe, the custodian committed an act of violence which was completely outside the scope of any authority he may have held in his position as a custodian at the school. Despite the fact that the custodian may have been legitimately on the school premises, nothing about the crime that he committed bore any relation to his status as a state employee.

If the custodian’s actions constitute state action, then every intentional tort or criminal act committed by a state official or employee could result in a constitutional violation, actionable under § 1988. The Supreme Court has rejected this approach. See Parratt v. Taylor, 451 U.S. 527, 544 , 101 S.Ct. 1908, 1917 , 68 L.Ed.2d 420 (1981) (concluding that the drafters of the Fourteenth Amendment did not intend the Amendment to be “ ‘a font of tort law to be superimposed upon whatever systems may already be administered by the States’ ”) (quoting Paul v. Davis, 424 U.S. 693, 701 , 96 S.Ct. 1155, 1160 , 47 L.Ed.2d 405 (1976)); Baker v. McCollan, 443 U.S. 137, 146 , 99 S.Ct. 2689, 2695 , 61 L.Ed.2d 433 (1979) (“Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”). By shifting the focus from the individual state actor to the supervisory officials, the majority has made the school officials liable for private conduct that proximately results from the officials’ actions. The Supreme Court has also rejected this approach. See DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004 (stating that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause”).

Because the actions of the custodian in this case fall completely outside of the scope of his employment with the school district, and are proscribed by the state of Texas, I would hold that the custodian was not a state actor when he raped Doe. Therefore, Doe has not alleged a constitutional violation, and the defendants are entitled to qualified immunity. 5

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

ORDER

June 17, 1996

BY THE COURT:

A majority of the judges in active service having determined, on the court’s own motion, to rehear this case en banc,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

. I concur in Parts X, XI. A., B., and E.3a. and b. of the majority opinion.

. Although we are bound by Fifth Circuit precedent, I note that the Supreme Court has yet to rule on whether the right to bodily integrity includes the right to be free from sexual assault. See Planned Parenthood v. Casey, 505 U.S. 833, 849-51 , 112 S.Ct. 2791, 2806 , 120 L.Ed.2d 674 (1992) (citing cases defining the contours of the substantive due process right to bodily integrity). I find this troubling because the Court has stated on several occasions that it “has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125 , 112 S.Ct. 1061, 1068 , 117 L.Ed.2d 261 (1992); Albright v. Oliver, • — • U.S. -, --, 114 S.Ct. 807, 812 , 127 L.Ed.2d 114 (1994).

I also note that only one other circuit has definitively held that the substantive due process right to bodily integrity includes the right to be free from sexual abuse or rape. See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 , 727 (3d Cir.1989) ("[A] student’s right to bodily integrity, under the Due Process Clause, [encompasses] a student’s right to be free from sexual assaults by his or her teachers.”), cert. denied, 493 U.S. 1044 , 110 S.Ct. 840 , 107 L.Ed.2d 835 (1990); cf. Doe By and Through Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir.1995) (citing Taylor, 15 F.3d 443 with approval but as inapplicable to the case before the court). ,

Recently, the Sixth Circuit, sitting en banc, commented on our conclusion that the right to bodily integrity includes the right to be free from sexual assault. The court stated;

All of these civil decisions, rather than pointing to precedent establishing the right, make assertions such as: "surely the Constitution protects a schoolchild from physical abuse ... by a public schoolteacher,” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.1994) (en banc); or “the notion that individuals have a fundamental substantive due process right to bodily integrity is beyond debate,” Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir.1995) (Parker, J., concurring). These broad statements are not supported by precedent indicating that a general constitutional right to be free from sexual assault is part of a more abstract general right to "bodily integrity.”

United States v. Lanier, 73 F.3d 1380, 1388 (6th Cir.1996) (en banc) (concluding that “sexual assaults may not be prosecuted as violations of a constitutional substantive due process right to bodily integrity” under 18 U.S.C. § 242 ).

. In making this assertion, the majority relies on the fact that although the district court denied the defendants' motion to dismiss for failure to state a claim and qualified immunity, only the qualified immunity defense is subject to interlocutory appeal. Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 , 304 (5th Cir.1987). However, the majority’s approach ignores the fact that to establish a constitutional violation, Doe must prove state action which is identical to proving "color of state law” under § 1983. Rains, 66 F.3d at 1406 .

. The majority’s analysis is also similar to that employed under the special relationship theory of liability. The special relationship theory imposes on the state "affirmative obligations of care and protection ... when the state ‘takes a person into its custody and holds him there against his will.' ” Johnson, 38 F.3d at 202 (quoting DeShaney v. Winnebago County Dept. of Social Serv’s., 489 U.S. 189, 199-200 , 109 S.Ct. 998, 1005-06 , 103 L.Ed.2d 249 (1989)). Where a special relationships exists, the state can be liable for harm inflicted by a private party. See DeShaney, 489 U.S. at 199-200 , 109 S.Ct. at 1005 -06 (citing Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982) as holding that Fourteenth Amendment requires state to use reasonable measures to protect involuntarily committed mental patients from themselves and others). The majority explicitly rejects the special relationship theory in this case, stating that the doctrine only applies in cases where third parties inflict the harm. Since the custodian was a state actor, the majority concludes, the special relationship theory is not applicable in this case. However, as indicated earlier, this conclusion is difficult to reconcile with the majority’s assertion in Part III that "In this opinion, we hold nothing more than that Doe has adequately pled that the School Officials (as distinguished from the Custodian, who is not even a defendant in this action) acted under color of state law." To the extent that the majority opinion does not hold that the custodian was a state actor or acting under color of state law, yet the state is still liable for the harm he inflicted, this is similar to the duty of care and protection required in special relationship cases. However, this is disturbing since neither the Fifth Circuit nor the majority opinion has ever held that a special relationship exists between the state and public school students. Johnson, 38 F.3d at 203; see also Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir.1995) (en banc) (holding that there is no “special relationship” when a student voluntarily resides at a state school).

. For the foregoing reasons, I would also dissent from the majority’s opinion in Part II. C holding that Doe's amended complaint meets the heightened pleading requirement of Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985). The complaint states that the custodian was a state actor because he was a school employee and because he was able to accomplish the assault solely because of the actions and omissions of the School Officials. This does not constitute “detailed facts supporting the contention that the plea of immunity cannot be sustained.” Id. at 1482 . I would therefore hold that Doe also failed to satisfy the heightened pleading requirement, and thus that her complaint should be dismissed.