Petition for Writ of Certiorari — Maldonado v. Josey

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

F I D

92-100 (0) BEC “—-

In The

Supreme Court of the United States

October Term, 1992

LeROY MALDONADO, Personal Representative of the

Estate of MARK P. MALDONADO, Deceased,

Petitioner,

vs.

ANN JOSEY, Personal Representative of the

Estate of Margaret Berry,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen E. Tinkler, Esq. JOHN B. ROESLER, Esq.

425 Sandoval Street Of Counsel to

Santa Fe, NM 87501 Roth, VanAmberg, Gross,

(505) 982-8533 Rogers & Ortiz

and 347 East Palace Avenue

Ernesto J. Romero, Esq. Post Office Box 1447

3602 Campus Blvd. N.E. Santa Fe, NM 87504-1447

Albuquerque, NM 87106 (505) 983-7319

CE) reer Counsel of Record

Co-Counsel for Petitioner for Petitioner

December 10, 1992

COCKLE LAW BRIEF PRINTING CO., (800) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I. Does the Estelle, Youngberg and DeShaney “special rela-

tionship” affirmative duty of care apply to public school

students?

II. If so, what is the scope of duty owed?

III. As of March 6, 1987, and presently, is there clearly

established substantive due process protection from

deliberate indifference to reasonably safe conditions of

care while in the functional custody of state officials?

IV. Did the Court of Appeals for the Tenth Circuit err in

requiring strict factual correspondence between the gen-

eral legal principle or “establishing cases” and the fact

pattern of the presenting case?

V. To what extent are conflicts of decisions within the

same circuit, between circuits, and “unpublished” deci-

sions determinative in the qualified immunity inquiry?

VI. Should knowledge of the general legal principle and

the method of application to the facts be imputed to state

officials via their “reasonably competent” legal advisors?

VII. If acircuit court of appeals proceeds to the underly-

ing legal issue in a qualified immunity case, and renders

a decision on the merits, then in the same opinion dis-

poses of the case on qualified immunity grounds, holding

that the party is “therefore entitled to qualified immu-

nity,” has the underlying substantive issue been decided,

or is that issue permanently shrouded in a state of

“unclear law” as in most qualified immunity decisions?

PARTIES

The parties to the Tenth Circuit appeal are the same

as those listed on the caption to this petition for writ of

certiorari. However, because the Court of Appeals for the

Tenth Circuit has listed all three defendants originally

named in U.S. district court in the full caption of the

reported Tenth Circuit decision, and there is some discus-

sion of these parties vis a vis supervisory, “failure to

train” liability in the Tenth Circuit opinion, their names

are set forth herein: Butch McGowen, and Paul Malano.

TABLE OF CONTENTS

Page

RPMPRPEMUONMOD © MURPESIN EES 0.0... cc cece ces ceeessencs i

a aad Fo Wh ess esos essere ees ans’ ii

eg 8 | iv

Wikies eek ee de Cis es veseecceeces 2

ee LAL sie kes 64064 08h Ais eee see evese 2

CONSTITUTIONAL PROVISIONS AND STATUTES

era inca s es kha este evan ed seen 3

ope ae i a Ge 4

REASONS FOR GRANTING THE WRIT ........... 6

I. THE U.S. COURT OF APPEALS FOR THE

TENTH CIRCUIT’S DECISION IN THIS CASE

IS IN CONFLICT WITH DECISIONS OF THE

U.S. COURT OF APPEALS FOR THE FIFTH

CIRCUIT AND U.S. DISTRICT COURT DECI-

SIONS FROM OTHER CIRCUITS ON THE

SAME MATTER, NAMELY WHETHER

ESTELLE, YOUNGBERG AND DESHANEY SPE-

CIAL RELATIONSHIP CUSTODIAL DUTY

PROTECTION EXTENDS TO PUBLIC SCHOOL

CHILDREN WHILE THEY ARE AT SCHOOL

UNDER SUPERVISION AND CONTROL OF

PUBLIC SCHOOL OFFICIALS PURSUANT TO

COMPULSORY EDUCATION LAWS.......... 6

Il. THE U.S. COURT OF APPEALS FOR THE

TENTH CIRCUIT HAS DECIDED AN IMPOR-

TANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT, NAMELY WHETHER CHIL-

DREN WHO ARE REQUIRED TO ATTEND

SCHOOL AND THEREBY ORDERED INTO

TEMPORARY DAYTIME CUSTODY OF STATE

OFFICIALS BY COMPULSORY EDUCATION

LAWS ARE CONSTITUTIONALLY ENTITLED

III.

TABLE OF CONTENTS - Continued

Page

TO SOME LEVEL OF PROTECTION FROM

HARM AND TO CARE FOR BASIC SAFETY

DURING SCHOOL HOURS, AND TO WHAT

6 | eT reer re ey rey ery Per y rere ry

THE U.S. COURT OF APPEALS FOR THE

TENTH CIRCUIT HAS DECIDED A FEDERAL

QUESTION, APPLICATION OF THE HARLOW

QUALIFIED IMMUNITY DOCTRINE, IN A

WAY WHICH CONFLICTS WITH DECISIONS

OF OTHER CIRCUITS ON THE SAME MAT-

TER, AND IN A WAY WHICH CONFLICTS

WITH THIS COURT’S DECISIONS IN HARLOW

Fre SIT ca ok oan sed conan cou eee a kn es

i Ape ee 8 KA ca LN ENG AK OR ERE OR aoa eek

APPENDIX A-— Maldonado v. Josey, 975 F.2d 727

(MN te BOND occ vce ck

APPENDIX B- Maldonado v. Josey, Tenth Circuit

PUNE sh diis nus bb eaos beceaan

APPENDIX C - U.S. District Court Summary Judg-

ment Opinion and Order.........

APPENDIX D-—- Application and Order regarding

Extension of Time to File Petition

for Writ of Certiorari to and

including December 24, 1992.....

APPENDIX E- Excerpts from Petitioner’s Tenth

Circuit Brief of Appellant........

APPENDIX F- New Mexico Compulsory School

AUSERGANCS LAW. 2. 20.565 c cis snes

TABLE OF AUTHORITIES

CASEs:

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 17

Arroyo v. Pla, 748 F.Supp. 56 (D.Puerto Rico 1990) . .8, 16

Bell v. City of Milwaukee, 746 F.2d 2305 (7th Cir.

oo SR re pe ee ter rep esr irr rem rey are 19

pen © Worren, 641 US. 3o0 (1979) 2. oi sec ksna cin 11

Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir.

| er rs Pee ree ee Tree errr eT Te Terre 15

Bonacci v. King, No. 91-3849, “unpublished” Court

of Appeals for the Eighth Circuit decision (May

Se WE occu th bas eter ere een 10

Calkins v. Cox Estates, 100 N.M. 59, 792 P.2d 36

SRM ce Lancs eek We cave senses as eck eee es 15

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ..... 7

D.R. By L.R. v. Middle Bucks Area Vo. Tech. School,

972 F.2d 1364 (3rd Cir. 1992) (en banc), cert.

pending, U.S. Sup. Ct. No. 92-816....... 9, 12, 13, 16

DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489

ae ME PE bck oN xo 035.45 40-4 san eae sanenes passim

Doe v. Douglas School Dist. Re-1, 770 F.Supp. 591

nS REE 80s SiN GCG wapcehas ceeedaaer eeeenys 10

Doe v. Taylor Independent School Dist., 975 F.2d 137

(Sth Cir. 1992), cert. pending, U.S. Sup. Ct. No.

Eee yy re een nr er ye re 6, 7, 16

Doe “A” v. Special Sch. Dist. of St. Louis, 637

Pomme. Tide GE1P eo. THOS) nsec occa n sie e sass 8, 20

Dorothy F. v. Little Rock School Dist., 794 F.Supp.

ere re Pere err ere ee reer 10

TABLE OF AUTHORITIES — Continued

Page

Estelle v. Gamble, 429 U.S. 97 (1976)........... 6, 12, 14

Garcia By Garcia v. Micra, 817 F.2d 650 (10th Cir.

1987), cert. denied, 108 S.Ct. 1220 (1988)........ 16, 18

Goodman v. Parwatikar, 570 F.2d 801 (8th Cir. 1978).... 12

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 17

Horton v. Goose Creek Ind. School Dist., 690 F.2d 470

(5th Cir. 1982), cert. denied, 463 U.S. 1207 (1983) .. .6, 7

Ingraham v. Wright, 430 U.S. 651 (1977)....... 13, 14, 19

J.O. v. Alton Community Unit School Dist. 11, 909

Rae -26P Cth Cin. 1990)... 05 cc eccesasan cess 10, 13

Lopez v. Houston Independent School Dist., 817 F.2d

ee ee rr 6, 7, 16

Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992),

cert. pending, U.S. Sup. Ct. Ne... .s...5...... passim

Ney v. Hargrave, No. 91-1831A, “unpublished”

decision from the U.S. District Court for the

Eastern District of Virginia, Alexandria Division

a POePe RTT Teer ere ee ye ek eee 10

Pagano By Pagano v. Massepequa Public Schools, 714

Pee. Ge CUARIN. Y. FUDD... oes ekiceagenscd eens 8

Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E.

errr er km. 15

Russell By Russell v. Fannin County School Dist., 784

Pon. bare CU ADAGG. TORE) 6 oicsis cts cexecchwen 10

Vil

TABLE OF AUTHORITIES — Continued

Page

Stoneking v. Bradford Area School Dist., 882 F.2d 720

eo 8 At Se rn er rae Pe Pe

Tinker v. Des Moines Independent Community School

Ae Rk) ee 19

Waechter v. School District No. 14-030, 773 F.Supp.

SE COP CURER scx ck hard esd onshe ext aeanane 9

Youngberg v. Romero, 457 U.S. 307 (1982)......... passim

CONSTITUTIONAL PROVISION

Fourteenth Amendment, Section 1................. a

STATUTES:

tee £0 USS... Section 179401) ........55.. NP ee RD FA for 2

Be es areas | I NE + 6 ne nc 0h sy eke ees .4

2 a Sn NR SOP GRAS Cos Cader ea kee eenees 4

Ph ee ER a ee passim

Section 22-12-2 1978 N.M.S.A., as amended...... passim

MISCELLANEOUS:

Comment, Harlow v. Fitzgerald: The Lower Courts

Implement The New Standard For Qualified Immu-

nity Under Section 1983, 132 U.Pa.L.Rev. 901,

ey rs ee ana ...18

In The

Suprenie Court of the United States

October Term, 1992

LeROY MALDONADO, Personal Representative of the

Estate of MARK P. MALDONADO, Deceased,

Petitioner,

12 5 y

ANN JOSEY, Personal Representative of the

Estate of Margaret Berry,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner LeRoy Maldonado, Personal Representa-

tive of the Estate of Mark P. Maldonado, Deceased,

respectfully prays that a writ of certiorari issue to review

the Judgment and Opinion of the Court of Appeals for

the Tenth Circuit entered in the above entitled proceeding

September 16, 1992.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Tenth

Circuit is reported in 975 F.2d 727 (10th Cir. 1992),

reprinted in the APPENDIX hereto, Al-A21; the Tenth

Circuit Judgment, also filed September 16, 1992, is

reprinted in the APPENDIX hereto, B1-B2.

The U.S. District Court, District of New Mexico, Sum-

mary Judgment Opinion and Order, filed July 8, 1991, has

not been reported. It is reprinted in the APPENDIX

hereto, C1-C3.

JURISDICTION

The dates of entries of the Opinion and Judgment of

the Tenth Circuit Court of Appeals sought to be reviewed

herein are September 16, 1992. (Al-A21 and B1-B2)

Application of No. A-423 for extension of time to file

Petition for a Writ of Certiorari was filed in this Court on

November 27, 1992, and ruled upon by Justice Byron R.

White November 30, 1992, Order granting extension of

time within which to file this Petition for Writ of Cer-

tiorari to and including December 24, 1992. See APPEN-

DIX hereto, D1-D3.

The statutory provision conferring jurisdiction on the

Court to review the decision in question by writ of cer-

tiorari is 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Fourteenth Amendment:

Section 1

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or inforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of laws.

Title 42 U.S.C. Section 1983

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected, any citi-

zen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purpose of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

New Mexico Compulsory School Attendance Law,

Section 22-12-2 1978 N.M.S.A., as amended, see APPEN-

DIX F, infra.

STATEMENT OF THE CASE

On March 16, 1987, Mark Maldonado, while attend-

ing Kearney Elementary School, a public grade school in

Raton, New Mexico, pursuant to state compulsory educa-

tion law, while unsupervised during class for nearly half

of the period (twenty minutes), became caught on his

bandanna in the cloakroom adjacent to his classroom and

died of strangulation. Margaret Berry, now deceased, was

the classroom teacher responsible for supervision of the

fifth grade class.

On August 7, 1990, LeRoy Maldonado, natural father

of the deceased Mark Maldonado, as Personal Represen-

tative of the Estate of Mark P. Maldonado, Deceased, filed

the First Amended Complaint to Recover Damages for

Wrongful Death, Violation of Civil Rights in U.S. District

Court, District of New Mexico, pursuant to district court

order permitting the filing of same. Monetary damages

were requested under Title 42 U.S.C. Section 1983 for

violation of the decedent’s Fourteenth Amendment sub-

stantive due process rights, wrongful death resulting

from alleged “deliberate indifference” to supervision,

failure of the classroom teacher to monitor the where-

abouts of said fifth grade students.

Jurisdiction of the district court was predicated on

Title 28 U.S.C. Sections 1331 and 1343.

The district court granted summary judgment on July

8, 1991, holding:

This Court cannot find the law well established

as to the supervisory duty of a teacher in a

classroom. At the time of Mark Maldonado’s

death, the law was not clearly established that

eel

grossly negligent, reckless or grossly reckless

failure to supervise a public school student may

give rise to a Section 1983 Fourteenth Amend-

ment substantive due process violation. Marga-

ret Berry, deceased, is therefore entitled to

qualified immunity.

APPENDIX, C2.

Appeal was timely taken to the Tenth Circuit Court

of Appeals on the issues of qualified immunity and the

deceased’s substantive due process rights to life and lib-

erty. APPENDIX, E1-E2.

The Court of Appeals for the Tenth Circuit rendered

its decision on September 16, 1992, APPENDIX, A1-A2]

and B1, affirming the district court, as follows:

[W]e conclude that compulsory attendance laws

do not impose the severe restraints on individ-

ual liberty that implicate the Due Process Clause

of the Fourteenth Amendment. . . . Therefore,

appellee is entitled to qualified immunity.

APPENDIX, A15.

REASONS FOR GRANTING THE WRIT

I. THE U.S. COURT OF APPEALS FOR THE TENTH

CIRCUIT’S DECISION IN THIS CASE IS IN CON-

FLICT WITH DECISIONS OF THE U.S. COURT OF

APPEALS FOR THE FIFTH CIRCUIT AND USS.

DISTRICT COURT DECISIONS FROM OTHER

CIRCUITS ON THE SAME MATTER, NAMELY

WHETHER ESTELLE, YOUNGBERG AND

DESHANEY SPECIAL RELATIONSHIP CUSTO-

DIAL DUTY PROTECTION EXTENDS TO PUBLIC

SCHOOL CHILDREN WHILE THEY ARE AT

SCHOOL UNDER SUPERVISION AND CONTROL

OF PUBLIC SCHOOL OFFICIALS PURSUANT TO

COMPULSORY EDUCATION LAWS.

The following Fifth Circuit decisions are in direct

conflict with the Tenth Circuit’s decision in Maldonado v.

Josey, 975 F.2d 727 (10th Cir. 1992), APPENDIX, A1-A21.

These cases hold that the Estelle, Youngberg and DeShaney,

infra, “special relationship” affirmative duty of care

applies to public school children.

1. Doe v. Taylor Independent School Dist., 975

F.2d 137 (5th Cir. 1992), cert. pending, U.S. Sup.

Ct. No. 92-908;

2. Lopez v. Houston Independent School Dist.,

817 F.2d 351 (5th Cir. 1987); and

3. Horton v. Goose Creek Ind. School Dist.,

690 F.2d 470 (5th Cir. 1982), cert. denied, 463 U.S.

1207 (1983).

Taylor raised the question of whether public “school

officials” have a constitutional duty to protect students

from sexual molestation by a teacher when there is rea-

sonable notice to suspect such abuse. The Court of

ieee

Appeals for the Fifth Circuit answered affirmatively,

analyzing the case under two alternative standards, City of

Canton, Ohio v. Harris, 489 U.S. 378 (1989) supervisory

“failure to train” liability and the DeShaney “special rela-

tionship” affirmative duty of care, finding liability, inde-

pendently, under both theories. (Insofar as the holding is

dependent upon knowledge of the specific risk, “known

or reasonably foreseeable risks,” 975 F.2d at 144, Taylor

conflicts with DeShaney v. Winnegabo Cty. Soc. Servs. Dept.,

489 U.S. 189, 200 (1989), where this Court held that the

“affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament.”) The Canton

theory would only be available as against the entity and

supervisory personnel. The DeShaney rule, however,

would pertain to any “school official,” including class-

room teachers. (The Taylor court did not specifically

address DeShaney liability of the teacher (sexual moles-

ter)). Taylor, cites two “primary liability” cases, Horton

and Lopez, supra, for the proposition that “school officials

can be held liable under §1983 for the harms suffered by

school children based on a breach of their duty to protect

school children,” 975 F.2d at 145. “[T]he state cultivates a

special relationship with that child and thus owes... an

affirmative duty of protection. ** * [W]e .. . find a school

child to be in the ‘functional custody’ of school offi-

cials. . . . Separated from his or her parents (guardian),

the child’s safety and well-being are entrusted to school

officials.” (Emph. Supp.) Taylor, 975 F.2d at 145.

In Horton, a Fourth Amendment school case, the Fifth

Circuit held that “school officials have both a right and a

duty to provide a safe environment conducive to educa-

tion,” 690 F.2d at 480; and in Lopez, 817 F.2d at 356, the

Fifth Circuit held that a school bus driver was “entrusted

with the care of students attending school under Texas’

compulsory education statute . . . [and that h]is alleged

failure to protect... or to render emergency care [when a

student was beaten by other students on the bus] abuses

state power, and supports a Section 1983 action if the jury

finds it rose to the level of callous and indifference and

was the cause of injury.”

Reported U.S. District Court decisions applying

DeShaney “custodial duty” protection to public school

children are: Doe “A” v. Special Sch. Dist. of St. Louis, 637

F.Supp. 1138 (E.D.Mo. 1986) (where a Section 1983 liberty

interest claim was stated against a school bus driver who

sexually molested a handicapped student, “this Court

does not doubt that the constitutional rights of children

to be free from harm is commensurate with the rights of

adults in state custody,” id. at 1145); Arroyo v. Pla, 748

F.Supp. 56 (D.Puerto Rico 1990) (shooting of one student

by another, where the court found that DeShaney applies

within the public school context, but then incorrectly

applied DeShaney by requiring that the harm be commit-

ted literally at the hands of the teacher, this in spite of the

general “special relationship” custodial duty respon-

sibility under DeShaney, 489 U.S. at 200, students were

bringing guns to school and it was alleged that no reason-

able affirmative action was taken to periodically check for

firearms); Pagano By Pagono v. Massepequa Public Schools,

714 F.Supp. 641 (E.D.N.Y. 1989) (where failing to stop

repeated abuse by students upon another student rose to

the level of abuse of official responsibility and “deliberate

indifference” triggering Section 1983 liability, the court

found that the Section 1983 cause was analogous to

claims by prison inmates, 1.e., “[g]overnment owes a duty

to protect a person from harm if there exists a ‘special

relationship’ between that person and the government,”

id. at 643. “We consider elementary school students who are

required to attend school, the truancy laws still being in effect,

to be owed some [Constitutional] duty of care by defen-

dants ...,” emph. supp., id.); Waechter v. School District

No. 14-030, 773 F.Supp. 1005 (W.D.Mich. 1991) (A fifth

grade handicapped boy was forced to run the punish-

ment two minute 350 yard “gut run” at school, contrary

to medical restriction of no forced exertion due to con-

genital heart defect. The student collapsed and died

attempting to follow the teacher’s command. The

DeShaney “custodial duty” rationale for establishing a

Fourteenth Amendment liberty interest violation was

argued, inter alia, to the court upon defendants’ motion to

dismiss. The court denied the motion and applied

DeShaney as follows: “DeShaney is explicit that the protec-

tions of the due process clause are triggered when the

state’s affirmative action ‘restrains the individual’s free-

dom to act on his own behalf.’ DeShaney, 489 U.S. at

200... . Applying this reading of DeShaney as a general

rule in substantive due process analysis, it is clear that

decedent was in a custodial relationship with defen-

dant . .. [, who] was his teacher .. . [,] aware of

decedent’s physical limitations [,] and as recess mon-

itor . . . undertook to supervise decedent's activities. [The

teacher’s] affirmative action led to decedent’s death,”

emph. supp., id. at 1009).

The following cases, going in the opposite direction

along with Maldonado, illustrate the seriousness of the

divergence on this issue in our federal courts: D.R. By

L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364

(3rd Cir. 1992) (en banc), cert. pending, U.S.Sup.Ct. No.

92-816 (because children are free to leave school no

DeShaney constitutional duty of care is owed); J.O. v.

Alton Community Unit School Dist. 11, 909 F.2d 267 (7th

Cir. 1990) (school children are not like prisoners or men-

tal patients, therefore DeShaney does not apply); Doe v.

Douglas School Dist. Re-1, 770 F.Supp. 591 (D.Colo. 1991)

(schools have not rendered students helpless, therefore

no DeShaney custodial duty of care is owed); Bonacci v.

King, No. 91-3849, “unpublished” Court of Appeals for

the Eighth Circuit decision (May 15, 1992) (the “State

custody”) requirement is not met by compulsory school

attendance); Ney v. Hargrave, No. 91-1831A,

“unpublished” decision from the U.S. District Court for

the Eastern District of Virginia, Alexandria Division

(April 10, 1992) (because of alleged delay and deliberate

indifference in not calling “911,” a student died of severe

allergic and asthma attack; the district court held that

there was no constitutional duty of care involved; in the

opinion the judge conceded that the girl was “helpless”);

Russell By Russell v. Fannin County School Dist., 784

F.Supp. 1576 (N.D. Ga. 1992) (compulsory attendance in

school did not impose upon the state any affirmative

duty to protect); and Dorothy F. v. Little Rock School Dist.,

794 F.Supp. 1405 (E.D.Ark. 1992) (no constitutional duty

to protect a handicapped student from sexual molestation

by another student; no custodial relationship existed

between the attacked student and the state sufficient to

impose on the state an affirmative constitutional duty to

protect him, and “[e]ven if the [c]ourt were to conclude

that a constitutional duty to protect exists based on the

alleged facts, the defendants would likely prevail by vir-

tue of qualified immunity,” id. at 1422).

Il. THE U.S. COURT OF APPEALS FOR THE TENTH

CIRCUIT HAS DECIDED AN IMPORTANT QUES-

TION OF FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT, NAMELY, WHETHER CHILDREN WHO

ARE REQUIRED TO ATTEND SCHOOL AND

THEREBY ORDERED INTO TEMPORARY DAY-

TIME CUSTODY OF STATE OFFICIALS BY COM-

PULSORY EDUCATION LAWS ARE

CONSTITUTIONALLY ENTITLED TO SOME

LEVEL OF PROTECTION FROM HARM AND TO

CARE FOR BASIC SAFETY DURING SCHOOL

HOURS, AND TO WHAT EXTENT.

The DeShaney substantive due process duty to pro-

vide a “reasonably safe” place for persons who are in a

custodial relationship with the state, through “institu-

tionalism, or other similar restraint,” 489 U.S. at 200, was

clearly established by Youngberg v. Romero, 457 U.S. 307

(1982) (involving fact pattern of a mentally retarded child

involuntarily committed to “Penhurst State School and

Hospital,” emph. supp.), where this Court found that the

liberty interest was implicated, and a section 1983 cause

of action stated, by alleged failure to provide reasonably

safe conditions of confinement, referring to Bell v. Wolfish,

441 U.S. 520 (1979) “detainees” who were entitled to such

protection. “The State .. . has the unquestioned duty to

provide reasonable safety for all residents and personnel

within the institution. . . . Respondent thus enjoys consti-

tutionally protected interests of reasonable care and

safety.” Youngberg, 457 U.S. at 324. Youngberg does not

turn on a voluntary versus involuntary distinction. (The

Eighth Circuit specifically does not require “involuntary”

confinement in a mental hospital for purposes of Estelle v.

Gamble, 429 U.S. 97 (1976) protection, see Goodman v.

Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978).)

To focus on any degree of voluntary submission to

public school, vis a vis the “choice” of attending a private

‘ of public school students

in their schools overnight, as do cases holding that the

school, or the “non-residency’

“special relationship” constitutional duty does not exist

within the school context, is to miss the point of Estelle,

Youngberg, and DeShaney. State actors who undertake the

care and “functional custody” of individuals have a cor-

responding duty to provide a reasonably safe environ-

ment. The case for DeShaney “custodial duty” application

is only bolstered by compulsory attendance or confine-

ment (including temporarily restrained or detained per-

sons).

The concurring (“dissenting”) opinion of Seymour,

C.J., in Maldonado, points out part of the irony in this area

of the law: “Under . . . [D.R.’s] analysis, school children,

as residents in their parents’ homes, are not in custody of

the state. Therefore, parents retain responsibility for pro-

viding for the children’s basic needs, including protection

during school hours,” emph. supp., 975 F.2d at 734,

APPENDIX, A18. “The Third Circuit further stated that to

provide this protection, parents may remove their chil-

dren from public school in favor of home education or

private schools . . . [, moreover] the student ‘could

... leave the school building ... ,” 1d., A18-A19.

How many parents have the time, let alone the skill,

to home-educate their children, if that is even an option

in the state? In a great number of families both parents

must work. What about single parent families? How

many parents in this country have the resources to pay

for private education? “For the vast majority of children

of school age, [there] is no choice at all.” D.R., 972 F.2d at

1380 (Sloviter, C.J., dissenting). Decisions such as Mal-

donado, D.R. and Alton, supra, not only are impractical,

they have not been decided within the context of the real

world. This unfair and illogical state of the law cries out

for a “reality check” by the highest Court of our land.

“Younger children are incapable of providing for

their own basic needs [, as if this even has to be said];

they depend on... [their] caretakers [, including day-

time caretakers,] to provide for them. Even the Third

Circuit recognized the difference between younger and

older school children. . . . [T]he court in Middle Bucks

stated: ‘[e]xcept perhaps when very young, the child is not

physically restrained from leaving school during school

hours.’ Id. at 1372 (quoting Ingraham v. Wright, 430 U.S.

651, 670. . . [((1977)] (emphasis supplied).” Maldonado, 975

F.2d at 735 & n.2, APPENDIX, A19 (Seymour, C.J., concur-

ring, “dissenting” opinion). Nevertheless, D.R. went on

to sweep grade school children in with high school stu-

dents.

“Even older children may be forced by school disci-

plinary procedures and rules [, including closed campus

restraint,] to rely on authority figures at school to protect

them from harm. | cannot fathom who, other than a teacher

or other school staff member, 1s capable of ensuring the ‘reason-

able safety’ of schoolchildren during the school day and class

periods,” emph. supp., Maldonado, 975 F.2d at 735, APPEN-

DIX, A19-A20, concurring, “dissenting” opinion.

Although such restraint and control as corporal pun-

ishment has been constitutionally sanctioned in Ingraham,

supra, there is no concomitant constitutional substantive

due process duty, according to the “Maldonado” line of

cases, to provide a “reasonably safe” school environment,

this in spite of the Court’s teaching in Ingraham, 430 U.S.

at 672, that the liberty interest may be implicated vis a vis

bodily integrity within the public schools. (In the context

of procedural due process, Ingraham held that traditional

common law remedies are fully adequate to afford pro-

cedural due process. The Maldonado court ignored pro-

cedural due process argument. There is no state remedy

against an educator in New Mexico. Maldonado, 975 F.2d

at 735 n. 4., APPENDIX, A21, concurring, “dissenting”

opinion.)

Although Judge Seymour disagrees in Maldonado

with the majority’s refusal to apply Estelle, Youngberg, and

DeShaney custodial protection in public schools, she con-

curred in the holding, because, applying DeShaney protec-

tion, the way that Mark Maldonado died in the

cloakroom (unsupervised for half of the class period,

becoming entangled and strangling to death) was not a

“foreseeable risk,” thus the classroom teacher was not

“deliverately indifferent,” thus no Section 1983 claim was

stated. Maldonado, 975 F.2d at 735, APPENDIX, Al6 &

A20. In this regard, Judge Seymour’s concurring opinion

also conflicts with DeShaney, 489 U.S. at 200, where this

Court held that “[t]he affirmative duty to protect arises

not from the State's knowledge of the individual's predica-

ment... . ” (Emph. Supp.)

Maldonado presents this Court with an examination of

the scope of DeShaney protection, within the public

schools, which is critically in need of definition given the

disparate and ever-increasing school cases stemming

from the violence in our society, as it found more and

more often within the schools. To what extent would the

DeShaney constitutional duty of care be owed when the

harm is inflicted by one student upon another, e.g., Pla,

supra, where firearms were brought onto school grounds?

Maldonado is a “Palsgraf” test for the Court to evalu-

ate the limits of the DeShaney language that a specific

predicament need not be known by the state actor. How

does this fit with the Section 1983 threshold of “deliberate

indifference,” Berry v. City of Muskogee, 900 F.2d 1489,

1494 n.5, 1495 (10th Cir. 1990), defined in Berry, 900 F.2d

1495-96 & n.9, in terms of negligence “foreseeability” and

“known or obvious risk”. See also Calkins v. Cox Estates,

100 N.M. 59, 62, 792 P.2d 36, 39 (1990): “In determining

duty, it must be determined that the injured party was a

foreseeable plaintiff —- that he was within the zone of

danger created by the respondent’s actions. ** * A duty

to an individual is closely intertwined with the fore-

seeability of injury to that individual, resulting from an

activity conducted with less than reasonable care by the

alleged tort-feasor. * * * Palsgraf v. Long Island R.R., 248

N.Y. 139, 162 N.E. 99 (1928).”

In Maldonado, although the specific “predicament”

was not known, Mark Maldonado was within the “zone

of danger” — the classroom teacher had a duty not to be

“deliberately indifferent” to the supervision of her fifth

grade class, of which Mark Maldonado was a member,

particularly as to Knowing the whereabouts of the stu-

dents for half of the class period, knowing at least con-

structively that one key reason for supervision of grade

school-aged students is to prevent physical harm and

accidents.

Another related issue for Supreme Court decision in

this case is whether “inaction” may suffice to state a

DeShaney public school case, as in Lopez, supra, or

whether the harm must result from infliction by the

school official, as in Pla, supra.

Ill. THE U.S. COURT OF APPEALS FOR THE TENTH

CIRCUIT HAS DECIDED A FEDERAL QUES-

TION, APPLICATION OF THE HARLOW QUALI-

FIED IMMUNITY DOCTRINE, IN A WAY WHICH

CONFLICTS WITH DECISIONS OF OTHER CIR-

CUITS ON THE SAME MATTER, AND IN A WAY

WHICH CONFLICTS WITH THIS COURT'S

DECISIONS IN HARLOW AND ANDERSON.

The Maldonado, D.R. and Taylor Petitions for Writs of

Certiorari, all currently pending before this Court, arrive

in qualified immunity wrappers. This seems to be the

“state of the art” in constitutional tort appellate practice,

where the underlying constitutional “right” cannot be

clearly established and the issue is preserved, in perpetu-

ity, where “there looms the . . . unpalatable possibility of

multiple bites of a constitutionally forbidden fruit.” Gar-

cia By Garcia v. Miera, 817 F.2d 650, 656 n.8 (10th Cir.

1987), cert. denied, 108 S.Ct. 1220 (1988).

The qualified immunity holding in Maldonado is an

enigma. The Court of Appeals for the Tenth Circuit

“conclude[d] that compulsory attendance laws do not

impose the severe restraints on individual liberty that

implicate the Due Process Clause of the Fourteenth

Amendment,” 975 F.2d at 733, APPENDIX, A15, yet later,

on the same concluding page of the majority opinion,

Circuit Judge Tacha finds: “Therefore, appellee is entitled

to qualified immunity.” The court was aware of conflict-

ing decisions which factored into the qualified immunity

holding. Is the first conclusion pertaining to application

of DeShaney to public schools of precedential value on the

merits, or is Maldonado merely precedent that qualified

immunity may successfully be invoked by educators in

the Tenth Circuit whenever a DeShaney type claim is

advanced for alleged “deliverate indifference” to a public

school child’s safety —- because the law is not “clearly

established”?

Both the Court of Appeals for the Tenth Circuit and

the U.S. District Court, District of New Mexico, incor-

rectly combined the two elements of the qualified immu-

nity inquiry into a singular “clearly established” probe,

using the “strict factual correspondence” rule, discussed

infra.

“(Qualified immunity] requires . . . [the court] to

undertake ‘an inquiry into the general legal principles

governing analogous factual situations, if any, and a subse-

quent determination whether the official should have

related this established law to the instant situation’ [cita-

tions omitted].” (Emph. Supp.) Stoneking v. Bradford Area

School Dist., 882 F.2d 720, 726 (3rd Cir. 1989) (“Stoneking

II”). Cf. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), and

Anderson v. Creighton, 483 U.S. 635, 639-41 (1987). In Stone-

king II, 882 F.2d at 726, the constitutional right, the first

aspect of the qualified immunity inquiry, was the general

constitutional protection of “freedom from invasion

of . . . personal security.” The second part of the Harlow

inquiry in Stoneking II involved the more fact-specific

legal analysis of whether or not the facts of the “estab-

lishing cases” were sufficiently analogous to the present-

ing facts so as to give the state actor cause to hesitate in

the commission of a potential constitutional tort.

Is the state official’s “objectively reasonable knowl-

edge” of the law and application to the facts imputed via

“a reasonably competent legal advisor” (Garcia By Garcia,

817 F.2d at 658)?

The second part of the qualified immunity inquiry,

application of the legal right, may be accomplished in one

of three divergent ways, depending upon the circuit in

which the case originates: (i) strict factual correspondence

between the constitutional right “establishing case” and

the instant case, (ii) application of the general legal prin-

ciple to an analogous fact pattern, or (iii) requirement

that public officials anticipate legal developments. See

Comment, Harlow v. Fitzgerald: The Lower Courts Imple-

ment The New Standard For Qualified Immunity Under Sec-

tion 1983, 132 U. Pa. L.Rev. 901, 923-32 (1984), and cases

cited therein. This Court has not yet settled the question

of which of these various approaches should be taken.

What may be an enforceable constitutional right varies

depending upon the circuit, 1.e., qualified immunity may

or may not shield a Section 1983 constitutional tort claim,

depending upon which approach the circuit takes.

Neither has this Court decided the related questions

of whether or not a split of authorities from different

circuits gives rise to qualified immunity, or if a split of

authority within one jurisdiction clearly establishes an

unclear state of the law in that circuit, whether knowl-

edge of “unpublished” or unreported decisions may be

imputed to public officials, and, as already questioned,

whether the official’s “objective knowledge of the law” is

to be imputed to the state actor via his/her “reasonably

competent” legal advisor.

In Maldonado, the general legal right not to be

deprived of life without due process of law, by “deliberate

indifference” or “recklessness” of a state official who has

functional custody of the individual, was “clearly estab-

lished” by March 16, 1987, see Bell v. City of Milwaukee, 746

F.2d 2305 (7th Cir. 1984). The federal common law Section

1983 deprivation of life claim was presented to the Court

of Appeals for the Tenth Circuit in Maldonado, APPEN-

DIX, E1-E2, however the court did not address this

branch of the substantive due process claim in its opin-

ion.

Regarding the liberty interest claim, the first part of

the qualified immunity inquiry should also have been

successfully surmounted in Maldonado, referencing the

constitutional right “establishing cases” which were in

effect in 1987: “there is a constitutionaily protected liberty

interest in reasonable care and safety of one .. . under the

control of state actors,” Youngberg, 457 U.S. at 317-19;

“students do not shed their constitution rights at the

school house gate,” Tinker v. Des Moines Independent Com-

munity School District, 393 U.S. 503, 506 (1969); bodily

integrity of public school students implicates a constitu-

tionally protected liberty interest, Ingraham v. Wright, 430

U.S. at 672; “the constitutional rights of children to be

free from harm is commensurate with the rights of

adults . . . given the helplessness and blamelessness of

the victims,” Doe “A”, 637 F.Supp. at 1145.

CONCLUSION

For the above stated reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

JOHN B. ROESLER, Esq.

Of Counsel to

Roth, VanAmberg, Gross,

Rogers & Ortiz

347 East Palace Avenue

Post Office Box 1447

Santa Fe, NM 87504-1447

(505) 988-8979

Counsel of Record

for Petitioner

and

Stephen E. Tinkler, Esq.

425 Sandoval Street

Santa Fe, NM 87501

(505) 982-8533

Ernesto J. Romero, Esq.

3602 Campus Blvd. N.E.

Albuquerque, NM 87106

(505) 562-2131

Co-Counsel for Petitioner

December 10, 1992

APPENDIX A

Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992)

Leroy MALDONADO, Personal Representative

of the Estate of Mark P. Maldonado, Deceased,

Plaintiff-Appellant,

Vv.

Anne JOSEY, Personal Representative of the

Estate of Margaret Berry, Deceased; Butch

McGowen; Paul Malano, in their individual

capacities only, Defendants-Appellees.

No. 91-2176.

United States Court of Appeals,

Tenth Circuit.

Sept. 16, 1992.

Parent brought action for wrongful death of child,

arising from child’s accidental death in school cloakroom

adjacent to his grade school classroom. Complaint

asserted that death of child from strangulation after he

was Caught on bandana in cloakroom occurred as direct

result of teacher’s failure to supervise her students. The

United States District Court for the District of New Mex-

ico, John E. Conway, J., entered summary judgment in

favor of teacher, principal, and superintendent, and

plaintiff appealed. The Court of Appeals, Tacha, Circuit

Judge, held that: (1) state compulsory school attendance

law did not give rise under the due process clause to

affirmative duty to protect school children who attend

state-run schools from constitutional deprivations by pri-

vate actors, and (2) teacher was entitled to qualified

immunity, as plaintiff failed to establish a constitutional

deprivation with regard to teacher’s liability.

Affirmed.

Seymour, Circuit Judge, filed concurring opinion.

Stephen E. Tinkler (John B. Roesler, Of Counsel to

Roth, VanAmberg, Gross, Rogers & Ortiz, Santa Fe, N.M.,

and Ernesto J. Romero, of The Romero Law Firm, Albu-

querque, N.M., with him on the briefs), Santa Fe, N.M.,

for plaintiff-appellant.

Kevin M. Brown (Stephen M. Williams, of Miller,

Stratvert, Torgerson & Schlenker, P.A., with him on the

brief), Albuquerque, N.M., for defendants-appellees.

Before SEYMOUR and TACHA, Circuit Judges, and

BENSON, District Judge.*

TACHA, Circuit Judge.

Appellant LeRoy Maldonado appeals an order of the

district court granting summary judgment in favor of

appellees. On appeal, Maldonado contends that the dis-

trict court erred in granting summary judgment in favor

of appellees on the basis of qualified immunity. We exer-

cise jurisdiction under 28 U.S.C. § 1291 and affirm on

different grounds.

BACKGROUND

On March 16, 1987, Mark Maldonado, while attend-

ing Kearney Elementary School in Raton, New Mexico,

became caught on his bandana in a cloakroom adjacent to

* The Honorable Dee V. Benson, District Judge for the

United States District Court for the District of Utah, sitting by

designation.

his classroom and died of strangulation. Mark Mal-

donado was eleven years old and in the fifth grade when

he died. According to the complaint, Mark Maldonado

was unsupervised in the adjacent cloakroom for approx-

imately twenty minutes. During this period, his teacher,

Margaret Berry, was conducting class in the classroom

and was responsible for a class of fifth grade students,

including Mark Maldonado. The record does not disclose

the reason for Mark Maldonado’s absence from the class-

room.

On August 7, 1990, LeRoy Maldonado filed an action

for monetary damages under 42 U.S.C. § 1983 in the

United States District Court for the District of New Mex-

ico for the wrongful death of Mark Maldonado. The com-

plaint asserted that the death of Mark Maldonado

occurred as a direct result of Margaret Berry’s failure to

supervise her students and principal Paul Malano’s and

superintendent Butch McGowen’s deliberate indifference

to training and supervision requirements.

The district court granted summary judgment as to

all defendants on July 8, 1991. With regard to defendants

Malano and McGowen, the district court found that the

plaintiff did not show “that the need for more or different

training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights that the

school administrators can reasonably be said to have

been deliberately indifferent.” With regard to the teacher,

the district court concluded that “[o]n March 16, 1987, the

law was not clearly established as to a teacher’s duty to

observe every student in class for the time the students

are in class.” This appeal followed.

DISCUSSION

" We review summary judgment orders de novo, using

the same standards the district court applies. Osgood v.

State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th

Cir.1988). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty

Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91

L.Ed.2d 202 (1986).

On appeal, Maldonado challenges only the district

court’s judgment with regard to the teacher’s liability.!

Maldonado argues that the district court erred in grant-

ing summary judgment in favor of the appellee on the

basis of qualified immunity. He asserts that qualified

immunity was improper because the law was clearly

established on March 16, 1987. The district court con-

cluded that it could not “find the law well established as

to the supervisory duty of a teacher in a classroom.”

Maldonado contends that a Fourteenth Amendment lib-

erty interest and a Fourteenth Amendment protection

from deprivation of life without due process of law were

implicated by the failure to provide reasonable care and

safety for public grade school children and by reckless

1 Appellant’s brief states: “This appeal pertains only to the

defendant-appellee classroom teacher’s liability.”

indifference to supervision requirements in a public

grade school.

As a threshold inquiry to qualified immunity, we first

must determine whether Maldonado’s allegations, even if

accepted as true, state a claim for violation of any rights

secured under the United States Constitution. See Siegert

v. Gilley, __ U.S. __, __, 111 S.Ct. 1789, 1793, 114

L.Ed.2d 277 (1991). The Due Process Clause of the Four-

teenth Amendment provides that no state may “deprive

any person of life, liberty, or property, without due pro-

cess of law.” Pursuant to 42 U.S.C. § 1983, Maldonado’s

claim invokes the substantive component of the Due Pro-

cess Clause in that he asserts that, under the circum-

stances, the state was under a categorical obligation to

protect Mark Maldonado. The Supreme Court’s decision

in DeShaney v. Winnebago County Department of Social Ser-

vices, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989),

guides our determination of whether this categorical

obligation arose.

In DeShaney, the Supreme Court held that the Due

Process Clause did not impose a duty on a state to protect

the life, liberty, and property of citizens from depriva-

tions by private actors absent the “State’s affirmative act

of restraining the individual’s freedom to act in his own

behalf.” Id. at 200, 109 S.Ct. at 1006. In that case, a state

agency repeatedly received reports of the abuse of Joshua

DeShaney by his father and, even after receiving these

reports, did not remove the child from his father’s cus-

tody. Eventually, the child suffered permanent brain dam-

age as a result of his father’s repeated beatings. The child

and his mother brought an action under 42 U.S.C. § 1983

against the state officials alleging that the state agency’s

A6é

inaction deprived Joshua DeShaney of his liberty in viola-

tion of the Due Process Clause. ‘

The Supreme Court began its analysis by noting that

the Due Process Clause “forbids the State itself to deprive

individuals of life, liberty, or property without ‘due pro-

cess of law.’ ” Id. at 195, 109 S.Ct. at 1003. However, the

Court stated that the Due Process Clause “cannot fairly

be extended to impose an affirmative obligation on the

State to ensure that those interests do not come to harm

through other means.” Id. The Court found that only “in

certain limited circumstances [does] the Constitution

impose[] upon the State affirmative duties of care and

protection with respect to particular individuals.” Id. at

198, 109 S.Ct. at 1004-05.

The Court recognized that this affirmative duty nas

been found to exist in only a few, limited situations. The

state must provide adequate medical care to prisoners, see

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8

L.Ed.2d 758 (1962); the state must provide involuntarily

committed mental patients with services that are neces-

sary to ensure their reasonable safety from themselves

and others, see Youngberg v. Romeo, 457 U.S. 307, 314-25,

102 S.Ct. 2452, 2457-58, 78 L.Ed.2d 28 (1982); and suspects

in police custody who have been injured while being

apprehended by the police must be given medical care by

the state, see City of Revere v. Massachusetts Gen. Hosp., 463

U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).

The Court explicitly left open the possibility that this

affirmative duty to protect could arise if “the State by the

affirmative exercise of its power removed Joshua from

free society and placed him in a foster home operated by

its agents.” DeShaney, 489 U.S. at 201 n. 9, 109 S.Ct. at

1006 n. 9. The Court indicated that such “a situation

[might be] sufficiently analogous to incarceration or insti-

tutionalization to give rise to an affirmative duty to pro-

tect.” Id. Since DeShaney, we have held that a child in the

state’s legal and physical custody who is placed in a

private foster care facility is in a sufficiently analogous

position to fall within this limited class of situations

where an affirmative duty does exist. Yvonne L. v. New

Mexico Dep’t of Human Servs., 959 F.2d 883 (10th

Cir.1992).2

In declining to find an affirmative duty in DeShaney,

the Court noted that the incarceration and institutionaliz-

ation cases only demonstrate “that when the State takes a

person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and

general well-being.” Id. 489 U.S. at 199-200, 109 S.Ct. at

1005. Most importantly, explaining the rationale behind

this principle, the Court stated that “when the State by

the affirmative exercise of its power so restrains an indi-

vidual’s liberty that it renders him unable to care for

himself, and at the same time fails to provide for his basic

human needs - e.g., food, clothing, shelter, medical care,

and reasonable safety — it transgresses the substantive

limits on state action set by the Eighth Amendment and

2 Three other circuits have reached the same conclusion. See

K.H. ex rel. Murphy v. Morgan. 914 F.2d 846 (7th Cir.1990); Taylor

ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987) (en banc),

cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989);

Doe v. New York City Dep’t of Soc. Servs., 649 F.2d 134 (2d Cir.

1981).

the Due process Clause.” Id. at 200, 109 S.Ct. at 1005-06.

The Court concluded that

[i]Jn the substantive due process analysis, it is

the State’s affirmative act of restraining the indi-

vidual’s freedom to act on his own behalf -

through incarceration, institutionalization, or

other similar restraint of personal liberty -

which is the “deprivation of liberty” triggering

the protections of the Due Process Clause, not

its failure to act to protect his liberty interests

against harms inflicted by other means.

Id. at 200, 109 S.Ct. at 1006 (footnote omitted). Thus, in

light of DeShaney, we must decide on this appeal whether

New Mexico State compulsory attendance laws? so

restrain a school child’s personal liberty that the Due

Process Clause imposes upon the state an affirmative

obligation to protect that child. _

We emphasize that Mark Maldonado’s situation does

not fall within the cases holding that extreme corporal

punishment, or sexual abuse and harassment by a school

teacher or counselor, can violate the substantive due pro-

cess rights of school children. In Ingraham v. Wright, 430

U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977),

the Supreme Court held that “where school authorities,

acting under color of state law, deliberately decide[] to

punish a child for misconduct by restraining the child

and inflicting appreciable physical pain,” Fourteenth

3 The New Mexico Constitution, art. XII, § 6 provides that

“[e]very child of school age and of sufficient physical and men-

tal ability shall be required to attend a public or other school

during such a period and for such time as may be prescribed by

law.” See also N.M.Stat.Ann. §§ 22-12-1 to 22-12-7 (Michie 1978).

Amendment liberty interests are implicated. In Garcia v.

Miera, 817 F.2d 650, 654 (10th Cir.1987), cert. denied, 485

U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988), we held

that Ingraham “clearly signaled that, at some degree of

excessiveness or cruelty, the meting out [of] such punish-

ment violates the substantive due process rights of the

pupil.” Similarly, the Third Circuit has held that school

authorities could be found liable for establishing and

maintaining a policy, practice, or custom with deliberate

indifference to the consequences when a student was

sexually abused by her teacher. Stoneking v. Bradford Area

Sch. Dist., 882 F.2d 720 (3d Cir.1989) (en banc), cert. denied,

493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990) (Stone-

king II). The court expressly distinguished DeShaney and

stated that “[nJothing in DeShaney suggests that state

officials may escape liability arising from their policies

maintained in deliberate indifference to actions taken by

their subordinates.” Id. at 725.

In the corporal punishment and sexual abuse con-

texts, a state actor directly inflicts the harm on the stu-

dent and thereby implicates the Due Process Clause

which itself imposes limitations on state conduct. In con-

trast, this case does not directly implicate these substan-

tive due process concerns because regardless of whether

the school teacher could have prevented the harm, she

did not directly inflict Mark Maldonado’s injury. Thus,

this case bears a closer resemblance to DeShaney, where

the harm was inflicted by a private actor, than to Garcia,

where a state actor inflicted the injury on a student. The

resemblance between this case and DeShaney explains

why our discussion of the relationship between the state

and public school students in Hilliard v. City and County of

A10

Denver, 930 F.2d 1516 (10th Cir.), cert. denied, _. ~ U.S. __,

112 S.Ct. 656, 116 L.Ed.2d 748 (1991), is inapposite.

In Hilliard, the police arrested the driver of an auto-

mobile and left the female passenger stranded in the

automobile. The police left the passenger without keys to

the automobile due to her intoxicated state; a third per-

son subsequently robbed and sexually assaulted her. We

reviewed Ingraham and concluded that “it was not clearly

established in 1988 that someone whose person was not

under some degree of physical control by the state or

who was not involved in a fourth amendment search or

seizure would have a clearly established, constitutionally

protected liberty interest.” Id. at 1520.

In reaching this conclusion, we briefly discussed the

relationship between school children and the state. We

stated that

[p]ublic school students, although not restricted

to the same degree as arrestees, convicts and

patients involuntarily committed to state mental

hospitals, are similarly involved in an environ-

ment where the state has some lawful control

over their liberty. Students are required by state

law to attend school and thus are prevented by

the state from voluntarily withdrawing from sit-

uations posing the risk of personal injury.

Id. Read in context, our discussion in Hilliard suggests

only that a party pursuing a substantive due process

claim under Ingraham must allege that she was subject to

at least the same degree of restraint that the state

imposed upon public school children. As we have already

noted, however, the present case does not implicate the

concerns that were addressed in either Ingraham or this

All

court’s decision in Garcia - namely, affirmative acts of

excessive or cruel punishment. Therefore, our discussion

in Hilliard about the relationship between the state and

public school students has little bearing on the question

that we must decide here.

This case presents us squarely with an issue that we

did not address in Hilliard - that is, whether a com-

pulsory state attendance law sufficiently restrains a

school child’s liberty so that the state incurs, under the

Due Process Clause, an affirmative duty to protect school

children who attend state-run schools from deprivations

by private actors. We hold that compulsory attendance

laws in no way restrain a child’s liberty so as to render

the child and his parents unable to care for the child’s

basic needs. Thus, no affirmative duty arises merely on

the basis of compulsory attendance laws.

This Third Circuit faced this precise issue in D.R. v.

Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364

(3d Cir.1992) (en banc). In Middle Bucks, public high

school students sued Pennsylvania school authorities

under 42 U.S.C. § 1983 for harm suffered when they were

physically, verbally, and sexually molested by several

male students. The recurring assaults occurred through-

out the 1989-90 school year while the students attended a

graphic arts class. The plaintiffs argued that a special

relationship. existed between students and the school

authorities during the school day because the State’s

compulsory education laws so restrained the children’s

liberty interests that they should be deemed to be in the

State’s custody during school hours for purposes of the

Fourteenth Amendment. That special relationship, they

argued, gave rise to an affirmative constitutional duty on

Al2

the part of state officials to protect students from serious

harm. The court held that no special relationship based

upon a restraint of liberty existed, stating that “[b]y

requiring D.R. to attend assigned classes at Middle Bucks

as part of her high school educational program, and

authorizing officials to engage in disciplinary control

over the students, the school defendants did not restrict

D.R.’s freedom to the extent that she was prevented from

meeting her basic needs.” Id. at 1372.

The court distinguished the incarceration and institu-

tionalization cases from those involving school students

because the former involve “full time severe and contin-

uous state restriction[s] of liberty” and render the institu-

tionalized “wholly dependant upon the state . . . to meet

their basic needs.” Id. at 1371. In contrast, parents decide

where their children will be educated, and public school

children “remain resident in their homes [and] may turn

to persons unrelated to the state for help on a daily

basis.” Id. at 1372. The court also contrasted the school

student context with the foster care cases:

A relationship between the state and foster chil-

dren arises out of the state’s affirmative act in

finding the children and placing them with

state-approved families. By so doing, the state

assumes an important continuing, if not imme-

diate, responsibility for the child’s well-being.

In addition, the child’s placement renders him

or her dependent upon the state, through the

foster family, to meet the child’s basic needs.

Students, on the other hand, do not depend

upon the schools to provide for their basic

human needs.

Id. (citations omitted).

Al13

The Seventh Circuit reached the same conclusion in

J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267

(7th Cir.1990). In Alton, parents of various students

brought an action against Illinois school authorities under

§ 1983 for violation of their children’s liberty interest as a

result of the alleged sexual molestation of their children

by a school teacher.* The plaintiffs argued that “the

school defendants had a ‘special relationship’ to the

school child», imposing an affirmative duty to provide

for their sa.cty and to prevent the child abuse that

occurred in this case.” Id. at 272. The Seventh Circuit

concluded that “the government, acting through local

school administrations, has not rendered its school-

children so helpless that an affirmative constitutional

duty to protect arises.” Id. The Seventh Circuit based this

conclusion on the fact that school children, unlike pris-

oners and mental patients, are able to provide for their

basic human needs and that “parents still retain primary

responsibility for feeding, clothing, sheltering, and caring

for the child.” Id.

After reviewing DeShaney, Middle Bucks, and Alton,

we agree with the Third and Seventh Circuits and con-

clude that compulsory attendance laws do not create an

affirmative constitutional duty to protect students from

the private actions of third parties while they attend

4 Despite the fact that the school teacher is a state actor, the

court distinguished Stoneking II because the plaintiffs argued

that the authorities were liable only because of their special

relationship with the students, not because they established or

maintained policies allowing the action to occur. Id. at 271-72.

Al4

school. Under DeShaney, an affirmative duty to protect

arises only when the state “so restrains an individual's

liberty that it renders him unable to care for himself, and

at the same time fails to provide for his basic human

needs.” DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005. This

type of restraint simply does not occur under New Mex-

ico compulsory attendance laws. Although a child may

well be in the “custody” of the school authorities during

school hours, this custody does not amount to a restraint

that prohibits the child and his parents from caring for

the basic needs of the child. Compulsory attendance laws

do not alter the fact that parents retain ultimate respon-

sibility for their child’s food, shelter, clothing, medical

care, and reasonable safety.

Further, the state does not confine school children in

the same way that it confines prisoners, the institu-

tionalized, or children in foster homes. These individuals

depend completely on the state to satisfy their basic

human needs; the state restrains their liberty to such an

extent that it renders them unable to care for their own

basic needs. School children, on the other hand, can leave

school at the end of the day. The compulsory education

> Two recent district court opinions, relying on Alton,

reached the same conclusion. See Dorothy J. v. Little Rock, Sch.

Dist., 794 F.Supp. 1405 (E.D.Ark.1992) (holding that state laws

regarding compulsory education and in loco parentis authority

do not give rise to special relationship between school district

and student sexually assaulted by another student); Doe v. Dou-

glas County Sch. Dist. RE-1, 770 F.Supp. 591 (D.Colo.1991) (con-

cluding that special relationship did not exist between county

school district and student where school psychologist sexually

molested student). But see Waechter v. School Dist. No. 14-030, 773

F.Supp. 1005 (W.D.Mich.1991).

Al15

laws do not change the fact that the parents are the

primary caretakers of the students; those same parents -

and not the state - must determine and address the basic

needs that each child has. This amount of freedom on the

part of the student and the degree of parental involve-

ment and control necessarily dictate that the state does

not become the primary caretaker simply by mandating

compulsory school attendance.

Thus, we conclude that compulsory attendance laws

do not impose the severe restraints on individual liberty

that implicate the Due Process Clause of the Fourteenth

Amendment. Although the facts of this case present a

truly tragic situation, the Due Process Clause “does not

transform every tort committed by a state actor into a

constitutional violation.” Id. at 202, 109 S.Ct. at 1007.

Because appellant does not appeal the district court’s

grant of summary judgment in favor of defendants

McGowen and Malano, we do not address whether Mal-

donado stated an independent basis for liability that is

not controlled by DeShaney. See Stoneking II, 882 F.2d at

725 (“Liability of municipal policymakers for policies or

customs chosen or recklessly maintained is not depen-

dent upon the existence of a ‘special relationship’

between the municipal officials and the individuals

harmed.”). We simply conclude that Maldonado has

failed to establish a constitutional deprivation with

regard to the school teacher’s liability. Therefore, appel-

lee is entitled to qualified immunity.

AFFIRMED.

SEYMOUR, Circuit Judge, concurring.

Al6

No sooner does this circuit determine that the state

owes children in its custody an affirmative duty of pro-

tection, Yvonne L. v. New Mexico Dep't of Human Servs., 959

F.2d 883, 893 (10th Cir.1992), than the majority here limits

~ that duty to exclude schoolchildren. While I concur in the

result reached by the majority opinion, I depart from its

analysis at a critical point. Rather than conclude flatly

that no affirmative duty exists in this situation, I would

follow the analysis set out in Yvonne L., 959 F.2d at 890-93,

and hold that a child legally required to attend school

and thereby forced into the temporary day-time custody

of the state’s agents is constitutionally entitled to some

level of protection from harm and care for basic safety. |

would nonetheless affirm summary judgment in defen-

dant’s favor because there is no evidence in the record

that the teacher was deliberately indifferent to the danger

that awaited Mark Maldonado, and thus no issue of mate-

rial fact with respect to defendant’s breach of a clear

affirmative duty.

DeShaney v. Winnebago County Dep't of Social Servs.,

489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), as the

majority recognizes, interprets past Supreme Court prece-

dent as holding that “when the State takes a person into

its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general

well-being.” Id. at 199-200, 109 S.Ct. at 1005. The idea is

simply that the state assumes an obligation to fulfill the

“basic human needs - ¢.g., food, clothing, shelter, medical

care, and reasonable safety,” id. at 200, 109 S.Ct. at 1005

(emphasis added), of those people whom the state has

rendered unable to care for themselves.

Al7

In Yvonne L., we followed a number of other courts in

concluding that state foster care is a situation in which

the state, by shouldering the responsibility to care for

children, incurs an affirmative constitutional duty to

insure their reasonable safety. We held that an affirmative

duty to foster children follows from the line of cases

imposing such a duty on the state with respect to pretrial

detainees, see City of Revere v. Massachusetts General Hosp.,

463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (duty to

provide medical care), mentally disabled people in state

institutions, see Youngberry v. Romeo, 457 U.S. 307, 102

S.Ct. 2452, 73 L.Ed.2d 28 (1982) (duty to insure reasonable

safety), and prisoners, see Estelle v. Gamble, 429 U.S. 97, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976) (duty to provide medical

care). We also analogized the situation of children in state

foster care to that of juveniles involuntarily placed by the

state in a private boarding school, see Milonas v. Williams,

691 F.2d 931 (10th Cir.1982), cert. denied, 460 U.S. 1069, 103

S.Ct. 1524, 75 L.Ed.2d 947 (1983). On the basis of this line

of cases and the above-quoted language from DeShaney,

we concluded that “[i]f defendants knew of the asserted

danger to plaintiffs or failed to exercise professional judg-

ment with respect thereto, .. . and if an affirmative link to

the injuries plaintiffs suffered can be shown, then... de-

fendants violated plaintiffs’ constitutional rights.” Yvonne

L., 959 F.2d at 890.

The majority attempts to distinguish the custodial

situations described in DeShaney and Yvonne L. from the

facts presented here by observing that compulsory atten-

dance laws do not “render the child and his parents

unable to care for the child’s basic needs.” Maj. op. at 7°21.

To reach this conclusion, the majority focuses on .wo

Al18

circuit court decisions. In J.O. v. Alton Community Unit

Sch. Dist. 11, 909 F.2d 267 (7th Cir.1990), the Seventh

Circuit concluded that a school district is not constitu-

tionally liable for the sexual molestation of students by

their teacher because compulsory attendance laws do not

create “responsibility for [the students’] entire personal

lives.”! Id. at 272. Following a similar rationale, the Third

Circuit held that compulsory attendance laws do not

create an affirmative duty to protect high school students

from repeated sexual assaults by other students because

children in school are still able to meet their own “basic

needs.” D.R. v. Middle Bucks Area Vocational Technical Sch.,

972 F.2d 1364 (3d Cir.1992) (en banc). Both courts read

DeShaney as finding an affirmative duty to protect only

when the state has physical custody of the individual.

Under this analysis, school children, as residents in their

parents’ homes, are not in custody of the state. Therefore,

parents retain responsibility for providing for the chil-

dren’s basic needs, including protection during school

hours. The Third Circuit further stated that, to provide

this protection, parents may remove their children from

public school in favor of home education or private

1 The suggestion in Alton that sexual assault is a matter of

one’s “personal life” is as offensive as it is bizarre. No one, to

my knowledge, has contended that a school district is to be held

constitutionally responsible for all harm that may befall a stu-

dent, no matter when or where. A school or teacher may none-

theless assume an obligation to protect its students during those

hours that a student is on school premises or in a classroom as

required by state law.

Al19

schools. The Third Circuit also found no custodial rela-

tionship stemming from a restraint of the student’s lib-

erty since the student “could, and did, leave the school

building every day. The state . . . thus did not deny her

meaningful access to sources of help.” Id. at 1372.

Much of the Middle Bucks analysis does not support

the majority’s opinion here. Unlike the repeated incidents

in Middle Bucks and Alton, a sole incident is the basis of

Mark Maldonado’s death. No warnings or previous inju-

ries existed to alert Mark’s parents or to allow Mark to

“seek help.” Moreover, even if such warnings had exis-

ted, the belief that alternatives to public education are

easily found is misplaced. “For the vast majority of chil-

dren of school age, [there] is no choice at all.” Middle

Bucks, 972 F.2d at 1380 (Sloviter, C.J., dissenting).

Beyond the stark differences in facts, the basis of the

holdings in Alton and Middle Bucks is off the mark. Obvi-

ously, a parent does not lose all control over, nor all

responsibility for, satisfying a child’s basic needs simply

as a result of school attendance laws. But younger chil-

dren are incapable of providing for their own basic needs;

they depend on parents or other caretakers to provide for

them.? Even older children may be forced by school disci-

plinary procedures and rules to rely on authority figures

at school to protect them from harm. | cannot fathom

2 Even the Third Circuit recognized the difference between

younger and older school children. In discussing whether high

school children are in some sort of custody of the school during

school hours, the court in Middle Bucks stated: ” ‘[e]xcept perhaps

when very young, the child is not physically restrained from

leaving school during school hours.’” Id. at 1372 (quoting

Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51

L.Ed.2d 711 (1977) (emphasis added).

A20

who, other than a teacher or other school staff member, is

capable of ensuring the “reasonable safety” of school-

children during the school day and class periods.

A number of district court cases are at odds with the

holdings of Alton and Middle Bucks, followed by the

majority here, that public school personnel owe no consti-

tutional duty to children in their care. In Pagano v. Massa-

pequa Pub. Schs., 714 F.Supp. 641, 643 (E.D.N.Y.1989), for

example, the court held “elementary school students who

are required to attend school... to be owed some duty of

care by [school] defendants.” Id. at 643. Similarly, a dis-

trict court more recently held that.a student “was in a

custodial relationship” with his teacher, who required the

student to run a 350 yard sprint despite his knowledge of

the student’s congenital heart defect. Waechter v. School

Dist. No. 14-030, 773 F.Supp. 1005, 1009 (W.D.Mich.1991).*

But see Dorothy J. v. Little Rock Sch. Dist., 794 F.Supp. 1405

(E.D.Ark.1992) (following Alton).

Although I believe the state owes a constitutional

duty to provide for the reasonable safety to children

required to attend school. | would nevertheless affirm the

dismissal of the complaint in this case. Because the com-

plaint does not allege that the teacher was deliberately

indifferent to the potential danger to Mark Maldonado, it

fails to state a breach of the teacher’s duty. See Appel-

lant’s Appendix at 1-6. | do not believe the Constitution

3 Because the teacher was the direct cause of harm in Wae-

chter, that case could presumably have also been brought under

the line of cases following Ingraham v. Wright, 430 U.S. 651, 97

S.Ct. 1401, 51 L.Ed.2d 711 (1977). See, e.g., Garcia v. Miera, 817

F.2d 650 (10th Cir.1987) cert. denied, 485 U.S. 959, 108 S.Ct. 1220,

99 L.Ed.2d 421 (1988).

A2]

requires an elementary school teacher to protect her stu-

dents from unknown and unforeseen harms, or to follow

the minute-by-minute progress of her eleven-year-old

charges. Even accepting as true the allegations that the

teacher “permitt[ed] him to leave the classroom and

remain in the cloakroom unsupervised for [twenty min-

utes],” id. at 3, there is nothing that suggests either the

teacher’s “deliberate indifference” or “failure to exercise

professional judgment,” see Yvonne L., 959 F.2d at 893-94.

Under the facts as alleged, the teacher did not breach the

duty I believe the Constitution imposes.

The ground on which I concur, however, is a far cry

from the majority’s holding that no constitutional duty

exists in any case. Under the majority’s holding, children

suffering all manner of injuries attributable to the know-

ing inaction of state officials charged with their supervi-

sion and care will be unable to pursue federal

constitutional claims. We do not adequately discharge our

duty to interpret the Constitution by merely describing

the facts as “tragic” and invoking state tort law, see maj.

op. at 732.4 In my judgment, the Fourteenth Amendment

requires that we recognize some affirmative duty on the

part of public school teachers to protect students who are

in the total care of the school during the period of their

compulsory attendance.

4 Such an abdication is particularly disingenuous when, as

here, the teacher or other state actor is insulated from state

liability under a state tort claims act, see N.M.Stat.Ann. § 41-4-4

(1989).

APPENDIX B

Tenth Circuit Court of Appeals Judgment in Mal-

donado v. Josey

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LEROY MALDONADO, Personal

Representative of the Estate of

MARK P. MALDONADO,

Deceased,

)

Plaintiff — Appellant, ) No. 91-2176

) (D.C. No.

m ) CIV-90-267-JC)

ANNE JOSEY, Personal )

Representative of the Estate of )

MARGARET BERRY, Deceased; )

BUTCH MOGOWEN, PAUL )

MALANO, in their individual )

capacities only, )

)

Defendants — Appellees.

JUDGMENT

Entered September 16, 1992

Before SEYMOUR and TACHA, Circuit Judges, and BEN-

SON*, District Judge.

*The Honorable Dee V. Benson, District Judge for the

United States District Court ofr [sic] the District of Utah,

sitting by designation.

———

This cause came on to be heard on the record on

appeal from the United States District Court for tne Dis-

trict of New Mexico, and was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed.

A true copy Entered for the Court

Teste ROBERT L. HOECKER, Clerk

Robert L. Hoecker By: /s/ Patrick Fisher

Clerk, U. S. Court of Patrick Fisher

Appeals, Tenth Circuit Chief Deputy Clerk

/s/ \llegible

Deputy Clerk

APPENDIX C

U.S. District Court, District of New Mexico, Summary

Judgment Opinion and order

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

LeROY MALDONADO, Personal Pig biel

Representative of the Estate J

of Mark P. Maldonado, Deceased, FILED

a UNITED STATES

Plaintiff, DISTRICT

VS. COURT

ANNE JOSEY, Personal Representa- JUL 8 1991

tive -

of the Estate of Margaret Berry,

Deceased; BUTCH McGOWEN and

PAUL MALANO, in their individual

capacities only,

Defendants.

SUMMARY JUDGMENT

THIS MATTER having come before the Court upon

the Motion for Summary Judgment filed by all Defen-

dants on the issue of qualified immunity. On June 26,

1991, a hearing was held on the motions. The Plaintiff,

LeRoy Maldonado, personal representative of the Estate

of Mark P. Maldonado, was represented by counsel of

record, Defendant, Anne Josey, personal representative of

the estate of Margaret Berry, appeared in person and was

represented by counsel of record and Defendants Butch

McGowen and Paul Malano were represented by counsel

of record. The Court, after reviewing the pleadings filed

herein, hearing argument of counsel and being otherwise

fully advised in the premise, finds that the motions for

summary judgment as to all Defendants are well taken.

In support of this ruling, the Court states the following:

1. There has been no showing by the Plaintiff that

the need for more or different training is so obvious, and

the inadequacy so likely to result in the violation of

constitutional rights that the school administrators can

reasonably be said to have been deliberately indifferent.

Stoneking v. Bradford Area School District, 882 F.2d 720, 725

(34d Cir. 1989) City of Canton v. Harris, 489 U.S. 378, 109

S.Ct. 1197, 103 L.Ed.2d 412 (1989). There is no viable

substantive due process claim against Malano and

McGowen based upon supervisory liability theories.

2. On March 16, 1987, the law was not clearly estab-

lished as to a teacher’s duty to observe every student in

class for the time the students are in class. The law is still

not clearly established that there is a duty to protect

children who are compelled by state law to attend school

who are physically mistreated by school district

employees. Stoneking v. Bradford Area School District, 882

F.2d 720, 724 (3rd Cir. 1989). There has been no showing

of any cases addressing the failure to supervise students

in a classroom. The Court in Stoneking could not find the

law well established as to the sexual abuse of children in

school. Therefore this Court cannot find the law well

established as to the supervisory duty of a teacher in a

classroom. At the time of Mark Maldonado’s death, the

law was not clearly established that grossly negligent,

reckless or grossly reckless failure to supervise a public

school student may give rise to a Section 1983 Fourteenth

Amendment substantive due process violation. Margaret

Berry, deceased, is therefore entitled to qualified immu-

nity. This decision as to defendant Ann Josey, Personal

Representative of the Estate of Margaret Berry, Deceased,

is based upon the defense of qualified immunity.

IT IS THEREFORE ORDERED that Defendants’ motion

for summary judgment is hereby granted. Plaintiff's Com-

plaint is dismissed with prejudice as to all defendants.

/s/ John E. Conway

DISTRICT COURT JUDGE

SUBMITTED BY:

BEALL, PELTON, O’BRIEN & BROWN

By: /s/ Kevin M. Brown

KEVIN M. BROWN

Attorney for Defendants

APPROVED BY:

By: /s/ John B. Roesler

JOHN B. ROESLER

Attorney for Plaintiff

By: /s/ Ernesto J. Romero by John Roesler

ERNESTO J. ROMERO

Attorney for Plaintiff

By: /s/ Stephen Tinkler by John Roesler

STEPHEN E. TINKLER

Attorney for Plaintiff

APPROVED :

By: /s/ Illegible

STEPHEN M. WILLIAMS

Attorney for Defendant

Anne Josey

APPENDIX D

Application No. A-423 for extension of time to file petition

for a writ of certiorari, filed November 30, 1992, and Order

by Justice Byron R. White, filed November 30, 1992, grant-

ing extension to and including December 24, 1992.

ROTH, VANAMBERG, GROSS, ROGERS & ORTIZ

ATTORNEYS AT LAW

347 EAST PALACE AVENUE

SANTA FE, NEW MEXICO 87501

MICHAEL P. GROSS (NM,AZ) MAILING

RAYMOND Z. ORTIZ (NM,DC ADDRESS:

CARL BRYANT ROGERS (NM)

F. JOEL ROTH (NM) say gis

RONALD J. VANAMBERG (NM) hg

eee 87504-1447

JOHN B. ROESLER (NM,MO)

TELEPHONE

(505)283-7319

(505)288-8979

TELECOPIER

(505) 983-7508

November 25, 1992

VIA FEDERAL EXPRESS

William K. Suter

Clerk of the Court

United States Supreme Court

One First Street NE

Washington, D.C. 20543

Re: Rule 13.2 Request for Extension of Time to File

Petition for A writ of Certiorari

Dear Mr. Suter:

I respectfully request a one week extension of time from

December 16, 1992, to and including December 24, 1992,

within which to file petition for writ of certiorari to

review the Tenth Circuit Court of Appeals decision in

Maldonado v. Josey, No. 91-2176, 1992 W.L. 221991, ___ F.2d

____ (10th Cir. Sept. 16, 1992), copy of slip. op. attached.

Good cause exists to grant this extension. | am faced with

a December 21, 1992 completion deadline on a public

school law treatise under contract with Am Jur Trials.

I would appreciate the Court’s indulgence in considering

the Maldonado petition along with two other current peti-

tions presenting the same issue of law, i.e., whether the

Court should extend DeShaney “custodial duty” protec-

tion to public schools. See D.R. v. Middle Bucks Area Voca-

tional Technical School, No’s. 91-1136 & 91-1137, 1992 W.L.

19115, ss F.2d ___ (3rd Cir. August 11, 1992) (cert. pend-

ing, Sup. Ct. Docket No. 92-816), and Doe v. Taylor Inde-

pendent School Dist., No. 90-8431, 1992 W.L. 247175, ___

F.2d __ (5th Cir. Oct. 2, 1992) (cert. pending as of Friday,

November 27, 1992).

Thank you for your consideration of this matter.

Sincerely,

/s/ John Roesler

JOHN B. ROESLER

JBR:clg

Enclosure

cc: Messrs. Stephen E. Tinkler, Ernesto J. Romero, Step-

hen M. Williams and Kevin M. Brown; Mr. & Mrs.

LeRoy Maldonado

ier nerereennnnenenieel

Supreme Court of the United States

No.

A-423

Leroy Maldonado,

Petitioner

Anne Josey, et al.

ORDER

UPON CONSIDERATION of the application of coun-

sel for the petitioner,

IT IS ORDERED that the time for filing a petition for

a writ of certiorari in the above-entitled case, be and the

same is hereby, extended to and including

December 24, 1992.

/s/ Byron R. White

Associate Justice

of the Supreme

Court of the United States

Dated this 30th

day of November, 1992.

APPENDIX E

Excerpts from Tenth Circuit Brief of Appellant regard-

ing Section 1983/Wrongful Death deprivation of life

without due process of law claim, and the Statement of

the Issue and Statement of the Case as pertain to the

deprivation of life claim.

* * *

STATEMENT OF THE ISSUE

Was the law “clearly established” on March 16, 1987,

so as to satisfy the first “purely legal” step of the two-

part Harlow v. Fitzgerald test, that the Fourteenth Amend-

ment liberty interest and protection from deprivation of

life without due process of law were implicated, respec-

tively, by a public school teacher’s failure to provide

“reasonable care and safety” during class for grade

school children, and by “reckless indifference” to super-

vision requirements at a public grade school, causing

death of a pupil?

STATEMENT OF THE CASE

Summary Judgment as to all defendants was granted

by the District Court on July 8, 1991, on the basis of

qualified immunity (Aplt’s Append. pp. 118-120), and

Notice of Appeal was filed on August 7, 1991 (Aplt’s

Append. pp. 121-122). This appeal pertains only to the

defendant-appellee classroom teacher’s liability, and the

first purely legal inquiry of the two-part Harlow v.

Fitzgerald, infra, test, namely whether the liberty interest

and protection from deprivation of life without due pro-

cess were Clearly established and implicated in this case

on March 16, 1987, the date of alleged wrongful death.

As stated and alleged in plaintiff-appellant’s “First

Amended Complaint To Recover Damages For Wrongful

Death, Violation of Civil Rights,” filed on August 7, 1990

(Aplt’s Append. pp. 1-7), this is an action for monetary

damages by decedent’s estate under Title 42 U.S.C. Sec-

tion 1983 for the wrongful death of fifth grade student

Mark P. Maldonado at Kearney Elementary School, a

public elementary

* * *

Moreover, a separate Federal common law “Section

1983/Wrongful Death” claim for “deprivation of life without

due process of law” has been stated! The threshold here for

stating a claim or recovery is “reckless indifference.” See

Bell v. City of Milwaukee, 746 F.2d 2305 (7th Cir. 1984),

decided three years prior to the wrongful death in this

case. (Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir.

1990), recently modified the damages element of the

claim, however the Constitutional right to be free from

“reckless indifference” while one is under the care, cus-

tody, supervision or control of the State remains the

same. The basic legal right not to be deprived of life

without due process of law while in the care and control

of the State was clearly established and implicated on

March 16, 1987. But for the classroom teacher’s “reckless

indifference” to supervision of this child, who was

entrusted to her supervision and control, Mark Mal-

donado would not have died on March 16, 1987.

ue * .

APPENDIX F

New Mexico Compulsory School Attendance Law, Sec-

tion 22-12-2 1978 N.M.S.A., as amended.

22-12-2. Compulsory school attendance;

responsibility.

A. Any qualified student and any person

who because of his age is eligible to become a

qualified student as defined by the Public

School Finance Act [22-8-1 to 22-8-42 NMSA

1978] until attaining the age of majority shall

attend a public school, a private school, a home

school or a state institution. A person shall be

excused from this requirement if:

(1) the person is specifically exempted

by law from the provisions of this section;

(2) the person has graduated from a

high school;

(3) the person is at least sixteen years

of age and has been excused by the local school

board or its authorized representative upon a

finding that the person will be employed in a

gainful trade or occupation or engaged in an

alternative form of education sufficient for the

person’s educational needs and the parent,

guardian or other person having custody and

control consents;

(4) with consent of the parent, guard-

ian or person having custody and control of the

person to be excused, the person is excused

from the provisions of this section by the super-

intendent of schools of the school district in

which the person is a resident and the person is

under eight years of age; or

Ieee

(5) the person is judged, based on

standards and procedures adopted by the state

board, to be unable to benefit from instruction

because of learning disabilities or mental, physi-

cal or emotional conditions.

B. A person subject to the provisions of the

Compulsory School Attendance Law [22-12-1 to

22-12-7 NMSA 1978] shall attend school for at

ieast the length of time of the school year that is

established in the school district in which the

person is a resident.

C. Any parent, guardian or person having

custody and control of a person subject to the

provisions of the Compulsory School Atten-

dance Law is responsible for the school atten-

dance of that person.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.