explaining that the special relationship arises "from the limitations that the state has imposed upon [an individual] through a restraint on his personal liberty"
How later courts described this case
- explaining that the special relationship arises "from the limitations that the state has imposed upon [an individual] through a restraint on his personal liberty"
- noting that it would be a “funda- mental misconception” to conclude “that negligence and deliberate indifference are the same thing”
- describing Conn and Wilson as “repeating] the directive” of Lewis
Written by the judges who cited it.
The opinion
POSNER, Chief Judge,
dissenting.
There is no purpose to be served by remanding this case, since it is obvious that the district judge will have to grant the defendants immunity — indeed will have to dismiss the suit for failure to state a claim. Far from being clearly established when the events giving rise to the suit took place, Mitchell v. Forsyth, 472 U.S. 511, 524-30 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985); Zorzi v. County of Putnam, 30 F.3d 885, 891 (7th Cir.1994), the right that the plaintiff seeks to vindicate did not exist then and does not exist now. This is apparent even when the facts are viewed in the light most favorable to her, which is the view we must take in deciding an interlocutory appeal from the denial of a claim of official immunity. Johnson v. Jones, 515 U.S. 304, 313-18 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995); Burgess v. Lowery, 201 F.3d 942, 944 (7th Cir.2000); Merritt v. Shuttle, Inc., 187 F.3d 263 , 267 n. 3 (2d Cir.1999).
Melissa Kitzman-Kelley was in 1985 an eleven-year-old ward of the State of Illinois, which had placed her with foster parents. The supervisory employees of the state’s welfare department who are sued in this case hired Philip Heiden, a college student, as an intern and assigned him to work with the caseworker assigned to Melissa. (Heiden is also named as a defendant, but he is not an appellant.) Heiden was hired on the recommendation of one of his professors, and the defendants did not bother to investigate his background; had they done so, they would have discovered that he had a history of mental illness and drug abuse. After he was hired, on several occasions he took Melissa to his home and there sexually abused her. The defendants did not monitor his work with Melissa. He kept detailed notes of his sessions with her and turned them into his supervisors, but they didn’t bother to read them. Had they done so, they would have discovered that he was taking her to his home, though not that he was sexually abusing her.
The defendants were negligent in failing to investigate Heiden’s background and to monitor his work with Melissa, but negligence, as the plaintiff fails to understand but my colleagues rightly emphasize, is not a basis for liability under 42 U.S.C. § 1983 . E.g., West v. Waymire, 114 F.3d 646 , 650-52 (7th Cir.1997). Yet that is all that is charged in the original complaint, the proposed amended complaint, the statement of facts submitted to the district judge, and the statement in the plaintiffs brief in this court. The claim is not that the defendants realized they had placed Melissa in a situation of danger by assigning Heiden to her case, but that they should have taken steps to discover whether he was competent and responsible. As the statement of facts that the plaintiffs lawyer submitted to the district court explains, the defendants are guilty of “failing to check the background of the child abuser working for the state, ... failing to monitor Heiden’s performance of service, ... failing to review the reports Heiden prepared which indicated the work was done in Mr. Heiden’s home, and ... failing to establish policies with regard to any of these issues to protect children in the custody of the Defendants.” These are classic negligence allegations, and there is no more. The defendants doubtless should have been more careful and not relied entirely on a professor’s recommendation, but the failure to exercise due care is precisely what the law means by negligence. It is not as if they had entrusted Melissa to someone whom they knew to have a record as a child molester; that would be an example of conscious indifference to an obvious danger, id. at 651, but it is a far cry from hiring an intern on a professor’s recommendation and then neglecting to monitor the intern. If that is reckless indifference, I do not know what *462 it means to say that negligent misconduct is not actionable under section 1983.
Running through all the plaintiffs filings is a fundamental misconception: that negligence and deliberate indifference are the same thing. They are not, and the plaintiff has made no effort to establish the latter. At argument her lawyer disclaimed any intention of alleging new facts in the amended complaint that the district judge did not permit him to file. (In response to my question, “So we have all your allegations before us, do we not?” the lawyer answered, “Yeah, I guess you do.”) Instead he repeated what he had told the district court, that the original complaint had not been “pled as a complaint in federal court should be pled, with the federal claims first and a statement for the basis of federal jurisdiction. Plaintiff wanted to correct this and otherwise clean up. the .language in the complaint to keep the-record clear.” Period. And so I do not understand the significance that my colleagues attach to the district court’s refusal to permit the amended complaint to be. filed. They do not point to any facts, whether in the plaintiffs statement of facts or elsewhere, that might support liability or defeat immunity. The only ground for the remand that the majority opinion mentions besides the irrelevant amended complaint is the district judge’s failure to explain, why he denied the defendant’s plea of immunity. That failure may be regrettable but it is irrelevant, because .the. question whether a right upon which a suit is based is clearly established is a question of law and we do not defer to the answers that district judges give to such questions.
A remand will serve only to keep a doomed case alive for a little while longer. I don’t see the point.