# Petition for Writ of Certiorari — Maldonado v. Josey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1784%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 914 ## Text F I D 92-100 (0) BEC “—- me 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 V. To what extent are conflicts of decisions within the same circuit, between circuits, and “unpublished” deci- sions determinative in the qualified immunity inquiry?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? ii 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. iV 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 11 16 20 Al Bl Cl D1 El 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 vi 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 a 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 10 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 11 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 12 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. 13 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 14 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.) 15 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, 16 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 17 “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 18 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 19 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 20 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 Al 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. A2 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. A3 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. A4 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.” AS 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 A7 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). A8 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). AY 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 a 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). ¢ a 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). Bl 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. ——— B2 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 By /s/ \llegible Deputy Clerk Cl 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 ae C2 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 C3 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 D1 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, | D2 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 D3 Supreme Court of the United States No. A-423 Leroy Maldonado, Petitioner V. 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. El 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 E2 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 * . Fl 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 F2 (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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1784%3A1. Public record. Not legal advice.