Opposition Brief — Waubanascum v. Shawano County

Ultimately, Menominee County contacted Shawano

County to issue the license. (R. 127 at 399.) Menominee

County did so because Fry lived just across the border

from Menominee County in Shawano County. (/d. at 400;

R. 126 at 117.) Menominee County informed Shawano

County that it was doing a background check of Fry as

part of its processing and review of his application. (R. 127

at 403.) Menominee County did not expect that Shawano

County, or any other county, would duplicate its back-

ground check of Fry. (/d. at 405 & 407.)

2. The License Issued By Shawano County.

Shawano County agreed to issue a foster care license

to Fry at the request and recommendation of Menominee

County. (Ex. 1005; R. 126 at 124.) Shawano County had

issued such a license (referred to at trial and on appeal as

a “courtesy license”) on occasion in the past to Menominee

County and two other neighboring counties. (R. 125 at

479.) Shawano County never experienced any problems in

issuing courtesy foster care licenses prior to the Fry

application. (id. at 482.) Other counties in Wisconsin,

including Milwaukee County, the state’s most populous

county, have issued similar courtesy licenses in the past as

well. (R. 127 at 239-40.)

In responding to Menominee County’s request in this

instance, Shawano County reviewed the foster home study

completed by Menominee County, as it represented a

summary of all of the work completed by Menominee

County on the application at that point. (R. 125 at 480 &

485; R. 126 at 121.) Based on the home study and its past

experience with Menominee County, Shawano County

believed that a criminal background check had been or

7

was being done on Fry by Menominee County. (R. 125 at

488; R. 126 at 121-22.) Shawano County did not believe it

had any reason to doubt the home study conducted by

Menominee County. (R. 125 at 491.)

Shawano County issued the license to Fry on August

21, 1995. (Ex. 1005; R. 126 at 124; R. 125 at 469 & 487.)

Under the license, Menominee County was responsible for

the placement of any foster children in the home. (Ex.

1005; R. 127 at 399 & 403; R. 125 at 459; R. 126 at 123-

24.) Accordingly, Shawano County had no knowledge of

whom, if anyone, Menominee County would place in the

Fry home at the time it issued the license. (R. 126 at 115 &

118.) Shawano County never placed anyone in the Fry

foster home. Further, under the license, Menominee

County was responsible for the supervision of the Fry

foster home. (R 127 at 399; R. 125 at 459.)

C. Waubanascum’s Placement With Fry.

In September 1995, Menominee County placed

Waubanascum in the Fry foster home. (R. 127 at 408.)

Menominee County continued to have legal custody of

Waubanascum even after he was placed in the Fry home.

(id. at 409.) Shawano County never had custody of

Waubanascum. (R. 125 at 491-92; R. 126 at 119 & 122.)

Shawano County was not even advised that Menominee

County was placing Waubanascum in the Fry home. (R.

126 at 123.)

In October 1995, a supervisor in the Menominee

County Human Services Department learned that a

student in the Menominee Indian School District had

presented to a local hospital emergency room making

allegations of possible sexual contact by Fry. (R. 127 at

8 -

412.) Randail Giese, a Deputy Sheriff with the Shawano

County Sheriff’s Department, was called to the hospital to

investigate the allegations. (R. 126 at 151-52 & 159.) Giese

informed the Menominee County Department of Social

Services of the allegations, which, as is described below,

investigated the allegations itself and considered removing

Waubanascum from the home. (R. 127 at 412.) Giese also

verbally informed an unnamed intake worker at the

Shawano County Department of Social Services by tele-

phone of the results of his initial investigation at the

hospital, telling the intake worker that the child in ques-

tion was safe and that he would seek further information.

(R. 126 at 162-63.) In the course of his further investiga-

tion, Giese learned that Fry had been convicted of disor-

derly conduct in Illinois under circumstances indicating

misconduct on his part with respect to one of his students

at the time. (Jd. at 163-64.)

Neither Ronald Stuber, the Director of Shawano

County’s Department of Social Services, nor Richard Kane,

the Department’s Deputy Director, were aware of these

allegations against Fry or Deputy Sheriff Giese’s investi-

gation before April 1996, when Fry’s foster license was

revoked. (Jd. at 112-13 & 141.) There was no evidence

introduced at trial suggesting that the allegations regard-

ing Fry were shared with anyone employed by Shawano

County other than Deputy Sheriff Giese or the unnamed

intake worker at the County’s Department of Social

Services.

At the time of the October 1995 allegations involving

Fry, Waubanascum was in Menominee County’s Intensive

Supervision Program. Under this program, two licensed

social workers from Menominee County had face-to-face

contact with Waubanascum seven days a week and with

9

his foster parent and his school at least once a-week. (R. 127

at 413-14; R. 125 at 507-08.) The social workers visited the

Fry residence two to three times a week during the entire

time Waubanascum was placed in the home. (R. 125 at 508.)

There is no higher level of supervision of a foster child by

county social workers in Wisconsin. (R. 126 at 126 & 148.)

In the fall of 1995, Menominee County did not per-

ceive any problems with Waubanascum’s foster placement

based on its daily supervision of him. (R. 127 at 413-15; R.

125 at 508.) According to a Menominee County supervisor,

Menominee County believed Waubanascum was doing well

in the home in terms of his mental health, his behavior,

his school attendance, and his grades. (R. 127 at 413.)

Once the allegations against Fry surfaced in October 1995,

the two social workers assigned to Waubanascum con-

fronted Waubanascum about the allegations to ask him if

he was having any problems. (/d. at 414-15.) Waubanas-

cum told the social workers that things were fine and that

he wished to remain in the Fry home. (/d.; R. 125 at 432 &

510-11.) As a result of the allegations by the other student,

Menominee County became even more vigilant in its

contacts with and supervision of Waubanascum. (R. 127 at

416.) Menominee County considered removing Waubanas-

cum from Fry’s home but it did not do so based on the

results of its investigation and its supervision of Wauba-

nascum. (/d. at 412-16.)

D. The Removal Of Waubanascum And The

Revocat: »n Of The License.

In the spring of 1996, Waubanascum informed one of

his Menominee County social workers that Fry had been

sexually abusing him. (R. 125 at 511-12 & 493.) Menominee

10

County removed Waubanascum from the Fry home the

same day it learned of the abuse. (R. 127 at 416; R. 125 at

512.)

Shawano County revoked Fry's foster care license on

April 30, 1996. (R. 125 at 493.) Shawano County was not

aware of any misconduct by Fry, with respect to Wauba-

nascum or otherwise, until the day it revoked his license.

(R. 126 at 112-13, 127, & 141-42; R. 125 at 493.) Shawano

County had no knowledge of Fry’s criminal conduct in

Illinois when it issued the license or at any point prior to

its revocation of his license. (R. 125 at 492; R. 126 at 127 &

141.)

®

REASONS FOR DENYING THE WRIT

I. THE SEVENTH CIRCUIT DID NOT MISAPPLY

RULE 50 IN REVERSING THE JURY VERDICT

AND GRANTING JUDGMENT TO SHAWANO

COUNTY.

A. The Rule 50 Standard.

Under Rule 50 of the Federal Rules of Civil Procedure:

If during a trial by jury a party has been fully

heard on an issue and there is no legally suffi-

cient evidentiary basis for a reasonable jury to

find for that party on that issue, the court may

determine the issue against that party and may

grant a motion for judgment as a matter of law

against that party with respect to a claim or de-

fense that cannot under the controlling law be

maintained or defeated without a favorable find-

ing on that issue.

Fed. R. Civ. P. 50(a)(1).

1l

As the Seventh Circuit properly noted, “attacking a

jury verdict is a hard row to hoe.” (App. at A-19 (quoting

Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir.

1999)).) Yet, as this Court has long recognized, a mere

“scintilla or modicum of conflicting evidence” is decidedly

not enough to create an issue that can only be left to a jury

for resolution. See, e.g., A.B. Small Co. v. Lamborn & Co.,

267 U.S. 248, 254 (1925). Indeed, “a trial judge must direct

a verdict {under Rule 50(a)] if, under the governing law,

there can be but one reasonable conclusion as to the

verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); Brady v. Southern Ry. Co., 320 U.S. 476, 479-80

(1943). The same is necessarily true for a federal circuit

court of appeals in reviewing a jury verdict on appeal. See,

e.g., Gower v. Vercler, 377 F.3d 661, 666 (7th Cir. 2004);

McGreevey v. Daktronics, Inc., 156 F.3d 837, 840 (8th Cir.

1998).

In its decision in this case, the Seventh Circuit plainly

described a standard of review that is wholly consistent

with Rule 50. As the Seventh Circuit noted, it was re-

quired to view all of the evidence presented at trial in the

light most favorable to Waubanascum, as the non-movant.

(App. at A-8 (citing Gower, 377 F.3d at 666; DeBiasio v. Ill.

Cent. R.R., 52 F.3d 678, 682 (7th Cir. 1995)).) Further, the

Seventh Circuit observed that it was bound to “examine

the record as a whole to determine whether there was

sufficient evidence from which a reasonable jury could

have returned the verdict,” but that it could not “reweigh

this evidence nor substitute [its] own credibility determi-

nations for that of the jury.” (/d. (citing Marshall ex rel.

Gossens v. Teske, 284 F.3d 765, 770 (7th Cir. 2002); Gower,

377 F.3d at 666).) Consistent with this Court’s reasoning

in Anderson, however, the Seventh Circuit also noted that

12

judgment as a matter of law is nonetheless appropriate

“lif reasonable persons could not find that the evidence

justifies a decision for a party on an essential element of

its claim.” (/d. (citing Deimer v. Cincinnati Sub-Zero

Prods., Inc., 58 F.3d 341, 343 (7th Cir. 1995)).)

B. The Seventh Circuit Properly Applied Rule

50 Im Granting Judgment To Shawano

County.

The Seventh Circuit did not disregard well-

established Rule 50 standards or ignore material evidence

heard by the jury, and it properly decided to reverse the

jury verdict and grant judgment as a matter of law to

Shawano County.

1. The Seventh Circuit Properly Con-

cluded That Shawano County Owed

Waubanascum No Constitutional Duty,

And The Factual Oversights. Now A\l-

leged By Waubanascum Do Not Affect

This Conclusion.

In DeShaney v. Winnebago County Department of

Social Services, this Court held that the Due Process

Clause does not require the state to protect the life, liberty,

and property of its citizens from deprivation by private

individuals and does not act as a guarantee of certain

minimal levels of safety and security. 489 U.S. 189, 195

(1989). As the DeShaney Court noted, “laJs a general

matter, ... a State’s failure to protect an individual

against private violence simply does not constitute a

violation of the Due Process Clause.” Id. at 197.

13

As the lower courts have noted, two exceptions exist to

this general rule. See, e.g., Monfils v. Taylor, 165 F.3d 511,

516 (7th Cir. 1998). “One exists if the state has a ‘special

relationship’ with a person, that is, if the state has custody

of a person, thus cutting off alternate avenues of aid.” Jd.

However, as the DeShaney Court itself observed, such a

special relationship does not arise simply from the state’s

knowledge of an individual’s predicament; instead, it

arises from limitations the state may have imposed on the

individual through a restraint on his personal liberty.

DeShaney, 489 U.S. at 200. The other exception to the

general rule of DeShaney is the “state created danger”

exception, which exists where the state “affirmatively

places a particular individual in a position of danger the

individual would not otherwise have faced.” Monfils, 165

F.3d at 516 (citations and internal quotations omitted), see

also Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900

(7th Cir. 1997); K.H. through Murphy v. Morgan, 914 F.2d

846, 849 (7th Cir. 1990).

Here, the Seventh Circuit concluded that Waubanas-

cum did not satisfy either exception to the general rule of

DeShaney based on all of the evidence of record, finding

that Waubanascum did not prove either the existence of a

“special relationship” between him and Shawano County

or that the County affirmatively placed him in a position

of danger that he otherwise would not have faced. (App. at

A-10 — A-20.)

As is discussed below in Point II below, the Seventh

Circuit did not err in reaching these conclusions. At a

minimum, Waubanascum’s arguments with respect to the

Seventh Circuit's application of Rule 50 to the jury verdict

do not undermine the Seventh Circuit’s determinations in

this regard in the least. Indeed, none of Waubanascum’s

Z 14 a

arguments regarding the Seventh Circuit’s supposed

disregard of certain trial evidence relates to the existence

or non-existence of a duty owing from Shawano Covnty to

Waubanascum under the exceptions to DeShaney. Absent

such a duty, however, there is no basis to hold Shawano

County liable under the Due Process Clause. DeShaney,

489 US. at 197.

On this point, Waubanascum is incorrect in implying

that the Seventh Circuit need not have concerned itself

with the issue of whether a duty existed under DeShaney

and instead simply should have considered the general

question of whether Shawano County had a policy or

custom that “exhibited deliberate indifference to the rights

of its citizens.” (Petition at 13.) As DeShaney made clear,

and as the Seventh Circuit correctly noted, the question of

whether a constitutional duty exists under the Fourteenth

Amendment is a necessary predicate to any claim under

the Due Process Clause in this context. Indeed, even the

cases cited by Waubanascum acknowledge, in the context

of Monell claims against a municipalities, that the duty of

substantive due process only arises when the municipality

either has a special relationship with the plaintiff or

affirmatively places him in a position of known danger.

See, e.g., City of Canton v. Harris, 489 U.S. 378, 387 (1989)

(analyzing a Monell failure to train claim against a mu-

nicipality arising from a failure by police to provide medi-

cal care to the plaintiff while she was in police custody);

. Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 723

(3rd Cir. 1989) (noting that DeShaney provides that there

is “no constitutional duty on the state to provide its citi-

zens with particular protective services” except in limited

circumstances where the Constitution imposes “affirma-

tive duties of care and protection” and distinguishing the

15

claims before it because the plaintiff had suffered abuse at

the hands of a government employee rather than a private

actor); Ruge v. City of Bellevue, 892 F.2d 738, 741-42 (8th

Cir. 1989) (acknowledging that the defendant municipality

could:be liable on a substantive due process claim brought

by the mother of a deceased municipal employee if she

could show that the city actively placed the decedent into a

situation of known danger).

For these reasons, Waubanascum’s arguments under

Rule 50, standing alone, do not provide a basis for grant-

ing the requested writ of certiorari.

2. The Seventh Circuit Also Properly Con-

cluded That Waubanascum Failed To

Demonstrate Deliberate Indifference

On The Part Of Shawano County.

As the Seventh Circuit noted, Waubanascum had the

burden of proving not only that Shawano County owed

him a duty under the Due Process Clause but also that,

given such a duty, the County exhibited deliberate indif-

ference to his rights. (App. at A-12.) The Seventh Circuit

properly concluded that Waubanascum failed to prove

such deliberate indifference on the part of the County, and

his arguments under Rule 50 do not undermine this

conclusion.

The Seventh Circuit applied a “modified” deliberate

indifference standard in its analysis, under which it looked

to see if a reasonable jury could have concluded that the

County had actual knowledge or a suspicion that Wauba-

nascum was likely to suffer abuse or some other serious

harm at the hands of his foster parent and then ignored

that knowledge or suspicion. (App. at A-12 (citing J.H.

16

ex rel. Higgin v. Johnson, 346 F.3d 788, 792 & 795 (7th Cir.

2003); K.H., 914 F.2d at 852; Camp v. Gregory, 67 F.3d

1286, 1293 (7th Cir. 1995)).)' Furthermore, because

Waubanascum’s claims were against Shawano County, he

was also subject to the burden of proof imposed generally

with respect to § 1983 claims against municipal entities.

See, e.g., Monell v. Dep't of Social Servs., 436 U.S. 658, 694

(1978) (holding that, to establish municipal liability under

§ 1983, a plaintiff must demonstrate the existence of a

municipal policy or custom that caused the deprivation of

his constitutional rights). Under these standards, the

Seventh Circuit properly found that Waubanascum had

not established § 1983 liability on the part of the County

either with respect to its issuance of a foster care license to

Fry or its actions following the issuance of the license.

(App. at A-12 ~ A-16.)

a. The Issuance Of The License.

Waubanascum attacks the Seventh Circuit's decision

with respect to the issuance of the foster care license to

Fry by focusing on the background investigation con-

ducted of Fry before Shawano County issued the license.

According to Waubanascum, the jury could reasonably

have concluded that the County acted with deliberate

* Waubanascum observes that, two other circuit courts, the Third

and Tenth Circuits, have applied the “professional judgment” standard

in evaluating due process claims in the foster care context. (Petition at

12 n.4.) However, Waubanascum does not suggest that this Court

should consider the question of whether the modified deliberate

indifference standard or the professional judgment standard is more

properly applied to the facts of this case. Nor does he explain how the

outcome of this case would have been different if the professional

judgment standard had been used below.

17

indifference in issuing the foster care license to Fry in that

Shawano County officials were aware of a general risk to

foster children in the absence of background checks on

prospective foster parents as required by Wisconsin law. In

particular, Waubanascum points to the fact that the

criminal background check on Fry was not complete at the

time Shawano County issued a foster care license to Fry.

(Petition at 14.)

As the Seventh Circuit itself noted, however, this

argument fundamentally misconstrues the applicable due

process standard. Indeed, rather than proving that Sha-

wano Courty had actual knowledge, or a least a suspicion,

that Fry would abuse a foster child placed in his care,

Waubanascum rests his argument on the possibility that a

greater risk of abuse existed as a result of the County's

practice relating to courtesy foster care licenses. However,

a finding of deliberate indifference cannot rest on such a

mere possibility of risk rather than a subjective awareness of

risk that is subsequently ignored. (App. at A-13.) See also

Farmer v. Brennan, 511 U.S. 825, 837, & 841-42 (1994)

(noting that the deliberate indifference standard consists of

both an objective and a subjective component and holding, in

the jail context, that a public official cannot be held liable

unless “the official [is both) aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists and. . . also draw/(s) the inference”).

Further, as the Seventh Circuit also correctly ob-

served, Wisconsin law on criminal background checks for

prospective foster parents does not create a duty under the

Due Process Clause. Thus, even assuming that Shawano

County violated the applicable provisions of the state

regulations governing the licensing of foster parents in

issuing a license to Fry before a criminal background

18

check was complete (an argument that is suspect given the

plain language of HSS 56 of the Wisconsin Administrative

Code as it existed in 1995), it is firmly established that

state law violacions are not sufficient to establish § 1983

liability. See, e.g., DeShaney, 489 U.S. at 202; see also

White v. Olig, 56 F.3d 817, 820 (7th Cir. 1995); Burgess v.

Ryan, 996 F.2d 180, 184 (7th Cir. 1993); Martin v. Tyson,

845 F.2d 1451, 1455 (7th Cir. 1988).

Finally, Waubanascum’s argument on this issue also

fails given the facts presented at trial. Even when viewed

in the light most favorable to Waubanascum, the evidence

unquestionably demonstrated that Shawano County did

not possess actual knowledge, or even a suspicion, that

Fry presented a risk, either generally or to Waubanascum

specifically, before it issued him a foster care license.

Indeed, while Shawano County issued the foster care

license to Fry, it did so at the specific request of neighbor-

ing Menominee County. (R. 127 at 399.) At the time it

issued the license, Shawano County did so on the basis of

the home study conducted by Menomine County. (R. 125

at 480 & 485; R. 126 at 121.) This home study was based

in large part on an extensive set of interviews by Menomi-

nee County personnel with Fry, as well as an inspection of

his home, and a check of his references. (R. 125 at 448,

450, 452, & 454.) According to the home study, Fry was a

good candidate for the issuance of a foster care license.

* The applicable provisions of § HSS 56 specified only that an

applicant for a foster care license was to provide written authorization

for the licensing entity to conduct a criminal background check, but

they did not outline specifically when or how that check was to be

conducted. (Ex. 2 at 4 & 7 (Wis. Admin. Code §§ HSS 56.03(4aX(2) &

56.04(4m)\(a)); R. 126 at 108; App. at E-4 & E-7.)

19 :

(Ex. 1; R. 126 at 108.) In fact, the Menominee County

social worker that prepared the study indicated as follows

in the “evaluation” portion of the study:

Mark Fry appears to be a very intelligent and

caring individual. His desire to help seems genu-

ine. It is this interviewer's opinion that a child in

need who may be academically struggling would

receive excellent care from Mr. Fry.

(Id.) No problems were indicated in the home care study,

and, to the contrary, the study specifically concluded that

Fry met the standards set forth under Wisconsin law with

respect to foster care licenses. (/d.)

Thus, when it issued the license, the County simply

did not possess any information that would have led it to

conclude, or even suspect, that Fry would engage in sexual

abuse of a foster child or would otherwise present a risk as

a foster parent. Further, Shawano County never had

custody of Waubanascum, and it was not even involved in

the process whereby Waubanascum was placed in the Fry

home as a foster child. Instead, Menominee County had

custody over Waubanascum, and it alone placed him with

Fry. (R. 127 at 408-09; R. 125 at 491-92; R. 126 at 119 &

122-23.) Based on these facts, and as the Seventh Circuit

properly found, no reasonable jury could have concluded

that Shawano County had any knowledge or suspicion of

the risk posed by Fry to Waubanascum in issuing the

foster care license to Fry.

As to the criminal background check conducted in

connection with Fry’s application, the evidence indicated

that the check undertaken by Menominee County had not

yet been completed at the time Shawano County issued

20

the license to Fry (and that the home care study relied on

by Shawano County indicated as much). (Exs. 1002 & 1; R.

125 at 456 & 469; R. 126 at 108.) Further, viewed in the

light most favorable to Waubanascum, the evidence at

trial showed that the criminal background check con-

ducted by Menominee County did not search for convic-

tions outside of Wisconsin. (R. 127 at 419.) Yet, as the

Seventh Circuit observed, none of these facts allowed for a

reasonable inference that events would have unfolded any

differently had Shawano County done the check itself or if

it had waited for the results of the check by Menominee

County before it issued the license. (App. at A-14.) Indeed,

which county (Menominee or Shawano) requested the

check had no bearing on the content of the results. In

addition, because the check ultimately came back clear,

Fry’s license would not have been held up even had Sha-

wano County possessed the results before it issued the

license. The fact that the Wisconsin Department of Jus-

tice, which conducted the check, did not search for convic-

tions outside of Wisconsin cannot reasonably be construed

as anything more than negligence on the part of the State

of Wisconsin (rather than a constitutional wrong on the

part of the County). (/d.)

b. The Monitoring Of The License.

Focusing on the fact that allegations of sexual abuse

were first raised against Fry in October 1995 by another

minor, Waubanascum contends that a reasonable jury

could have concluded that Shawano County acted with

deliberate indifference in failing to remove Waubanascum

from Fry’s home or suspend or revoke Fry's license in the

fall of 1995. According to Waubanascum, a reasonable jury

could have concluded that Shawano County failed to do so

21

because of the County's policy with respect to courtesy

foster care licenses. (Petition at 15-16.)

Viewed in the light most favorable to Waubanascum,

the evidence on this issue showed that on October 21,

1995, Shawano County Deputy Sheriff Randall Giese

received an uncorroborated complaint from a child that he

had been sexually assaulted by Fry. (R. 126 at 151-52 &

159; R. 127 at 412.) The evidence showed that Giese began

to investigate this possible abuse and that he contacted

the Menominee County Department of Social Services to

warn Menominee County of the allegations in light of the

fact that Waubanascum had been placed by Menominee

County in Fry’s home. (R. 127 at 412.) The testimony at

trial reflected that Menominee County reviewed its initial

decision to place Waubanascum in Fry’s home and decided

to leave Waubanascum in the home. Menominee County

based this decision on its social workers’ questioning of

Waubanascum outside the presence of Fry and its daily

observations of Waubanascum under its Intensive Super-

vision Program. (/d. at 413-16; R. 125 at 432, 508, & 511.)

As the Seventh Circuit noted, “Menominee County re-

tained legal custody of Waubanascum and continued to

monitor his status in Fry’s home under its highest level of

supervision.” (App. at A-18.)

At trial, Waubanascum placed great emphasis on

Deputy Giese’s testimony that he also contacted an intake

worker at the Shawano County Department of Social

Services and advised this person of the allegations made

* Waubanascum makes this argument despite the fact that his

counsel repeatedly represented at tria! that he did not intend to pursue

a claim against Shawano County for failing to monitor Waubanascum’s

placement in Fry’s home. (See, ¢.g., R. 126 at 126, 147, & 153-54.)

22

against Fry by the other child. Based on this testimony,

the jury was invited to believe that they could find that

Shawano County acted with deliberate indifference with

respect to Waubanascum and thus violated his constitu-

tional rights based on the conduct of Deputy Giese and

this unidentified intake worker.

This evidence was an insufficient basis of § 1983

liability against Shawano County, a municipal entity, for

three principal reasons. First, Waubanascum did not

present any evidence that would have allowed for a rea-

sonable inference that Shawano County had a policy or

custom of any kind of failing to investigate alleged inci-

dents of abuse within foster homes licensed by the County.

Indeed, on the contrary, the Director of the County's

Department of Social Services testified that the County

would investigate and take appropriate action with respect

to any allegations of abuse in a Shawano County foster

home. (R. 125 at 492.) Further, the record reflects that the

County terminated Fry’s foster care license as soon as

Waubanascum’s allegations of abuse arose in the spring of

2005. (R. 126 at 112, 127, & 141-42; R. 125 at 493.) Thus,

contrary to the most fundamental teachings of Monell, no

reasonable jury could have concluded that the County had

a policy er custom of failing to investigate allegations of

abuse within its foster homes. See, e.g., City of Oklahoma

City v. Tuttle, 471 U.S. 808, 823-24 (1985) (noting that

“{plroof of a single incident of unconstitutional activity is

not sufficient to impose liability under Monell unless proof

of the incident includes proof that it was caused by an

existing, unconstitutional municipal policy, which policy

can be attributed to a municipal policymaker”).

Second, Waubanascum offered no proof outside of the

events relating to his own circumstances at trial. As a

23

result, no reasonable jury could have concluded that the

County was on notice of a problem relating to its supervi-

sion of foster care licenses so as to subject it to liability for

either encouraging or condoning a series of bad acts on the

part of its agents. See, e.g., Monell, 436 U.S. at 691 (de-

scribing practices so “permanent and well settled as to

constitute a ‘custom or usage’ with the force of law”);

Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d

525, 531 (7th Cir. 2000) (describing municipal liability

under § 1983 for a custom as requiring a showing of a

series of bad acts from which a jury could infer that the

municipality was bound to have noticed what was going on

and, by failing to do anything, either encouraged or con-

doned the misconduct).

Finally, Waubanascum did not present any evidence

that the information possessed by Deputy Sheriff Giese

and allegedly passed from him to an intake worker at the

County’s Department of Social Services was ever relayed

to a policymaker for Shawano County. See, e.g., Pembaur v.

City of Cincinnati, 475 U.S. 469, 482-83 (1986) (describing

a municipal policymaker sufficient to bind a municipality

as one who has final decision making authority over the

subject at issue). Giese’s testimony at trial was that he

informed only an unnamed intake worker at the Shawano

County Department of Social Services of the status of his

investigation. (R. 126 at 162-63.) In addition, Stuber and

his deputy, Kane, specifically testified at trial that they

were unaware of Officer Giese’s investigation or any

suspected abuse of Waubanascum until Waubanascum’s

own allegations of abuse came to light in the spring of

1995. (Ud. at 112-13, 127, & 141.) As the Seventh Circuit

properly observed, in the absence of a single shred of

evidence to the contrary, no reasonable jury could have

24° -

concluded that a Shawano County policymaker had

knowledge of this information and failed to respond. (App.

at A-18.)

Il. THE SEVENTH CIRCUIT PROPERLY CON-

CLUDED THAT SHAWANO COUNTY DID NOT

OWE WAUBANASCUM A DUTY UNDER EI-

THER OF THE TWO EXCEPTIONS TO DE-

SHANEY.

At trial, Waubanascum did not dispute that Shawano

County never took him into its custody. Instead, it was

undisputed that Menominee County had legal custody

over Waubanascum the entire time he was in the Fry

home. (R. 126 at 119 & 122; R. 127 at 408-09; R. 125 at

491-92.) Further, Shawano County was not responsible for

the placement of children in the Fry home under the foster

care license. Rather, Menominee County accepted that

responsibility, and Menominee County actually placed

Waubanascum in the Fry home. (R. 126 at 123-24; R. 127

at 399 & 403; R. 125 at 459; Ex. 1005.) Indeed, Shawano

County had no knowledge that Waubanascum had even

been placed in Fry’s home. (R. 126 at 115 & 118.) Finally,

Menominee County, and not Shawano County, was respon-

sible for supervising the Fry foster home (under its Inten-

sive Supervision Program, no less), and it immediately

removed Waubanascum from Fry’s care once it learned of

his abuse. (R. 127 at 399; R. 125 at 459: R. 126 at 124; Ex.

1005.) Under these circumstances, the Seventh Circuit

properly concluded that Waubanascum had not estab-

lished that Shawano County had a “special relationship”

with him or that the County had affirmatively placed him

in a position of danger sufficient to implicate either of the

exceptions to the general! rule of DeShaney.

25

A. The Special Relationship Exception.

With respect to the “special relationship” exception to

DeShaney, the Seventh Circuit first noted that Waubanas-

cum had not shown that he had ever been in the custody of

Shawano County. (App. at A-10.) In so noting, the Seventh

Circuit traced Waubanascum’s status from the time he

was removed from his grandparents’ custody through to

his removal from the Fry foster home, observing that

Menominee County, not Shawano County, had him in its

custody and performed any and all protective, investiga-

tive, and administrative functions relative to him this

entire time. (/Jd.} Thus, contrary to Waubanascum’s sug-

gestions, the Seventh Circuit’s decision was anything but

the result of a formalistic distinction relying solely on the

issue of which county had “legal” custody over him.

In any event, the Seventh Circuit’s reasoning on this

point is squarely in line with DeShaney and is anything

but in conflict with the decisions of the other federal

circuits on this issue. Indeed, in DeShaney, this Court

reviewed prior due process decisions, noting that “|t]aken

together, they stand only for the proposition that when the

State takes a person into its custody and holds him there

against his will, the Constitution imposes upon it a corre-

sponding duty to assume some responsibility for his safety

and general well being.” 489 U.S. at 199-200. In such

instances, this Court explained, “[t]he affirmative duty to

protect arises not from the State’s knowledge of the indi-

vidual’s predicament or from its expressions of intent to

help him, but from the limitation which it has imposed on

his freedom to act on his own behalf.” Jd. at 200. Further:

In the substantive due process analysis, it is the

State’s affirmative act of restraining the individ-

ual’s freedom to act on his own behalf — through

26

incarceration, institutionalization, or other simi-

lar 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 in-

flicted by other means.

Id.

All of the federal circuit courts have adhered to this

line of reasoning in applying the “special relationship”

exception first articulated in DeShaney. See, e.g., Rivera v.

Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005) (observing

that a special relationship may exist “when the individual

is incarcerated or is involuntarily committed to the cus-

tody of the state”); Ying Jing Gan v. City of New York, 996

F.2d 522, 533 (2nd Cir. 1993) (noting that special relation-

ships have been recognized in “custodial relationships

such as a prison and inmate or a mental institution and

involuntarily committed patient and the relationship

between a social service agency and foster child”); Brown

v. Pennsylvania Dep't of Health Emergency Med. Servs.

Training Inst., 318 F.3d 473, 478 (3rd Cir. 2003) (noting

that the special relationship exception exists “when the

state restrains an individual so as to expose the individual

to harm”); Patten v. Nichols, 274 F.3d 829, 841 (4th Cir.

2001) (reasoning that “an exception to the general no-duty-

to-act rule arises only if the state takes an individual into

custody; if there is no custodial relationship, then the state

has no duty to protect”); Walton v. Alexander, 44 F.3d 1297,

1303 (5th Cir. 1995) (observing that “only when the state,

by its affirmative exercise of power, has custody over an

individual involuntarily or against his will does a ‘special

relationship’ exist between the individual and the state”)

(emphasis in original); Sargi v. Kent City Bd. of Educ., 70

27

F.3d 907, 911 (6th Cir. 1995) (noting that “[a] special

relationship can only arise when the state restrains an

individual”) (emphasis in original); Hutchinson ex rel.

Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997) (stating

that “the State has a ‘special relationship’ with those it has

taken into custody”); Avalos v. City of Glenwood, 382 F.3d

792, 799 (8th Cir. 2004) (noting that “the state owes a duty

to protect those in its custody”); Wang v. Reno, 81 F.3d 808,

818 (9th Cir. 1996) (government created special relation-

ship with alien by paroling him into United States and

placing him in its custody); Christiansen v. City of Tulsa,

332 F.3d 1270. 1280 (10th Cir. 2003) (“Absent involuntary

restraint, ... no duty to protect arises under the special

relationship theory”); Lovins v. Lee, 53 F.3d 1208, 1210 &

1211 (11th Cir. 1995) (citing examples of special relation-

ships with incarcerated prisoners, involuntarily committed

mental patients, and children taken into custody and then

placed in foster homes).

The two lone cases cited by Waubanascum do not

create a circuit split. In Horton v. Flenory, for instance, the

Third Circuit concluded that the evidence was sufficient to

permit a finding that an individual was in state custody at

the time of his fatal beating by the owner of a private club

when his liberty had been restrained by the club owner,

who was “investigating” a burglary under a delegation of

authority from and with the knowledge of the local police.

889 F.2d 454, 458 (3rd Cir. 1989). The Eight Circuit’s

decision in Wells v. Walker, on the other hand, was handed

down before this Court’s decision in DeShaney and neither

explains its finding of a constitutional duty under the

Fourteenth Amendment nor distinguishes between the

special relationship and the heightened danger exceptions.

852 F.2d 368, 371 (8th Cir. 1988).

28

Further, as the Seventh Circuit observed, the fact that

Wisconsin laws and regulations prescribe certain duties

with respect to foster care licensing is not sufficient to

create a special relationship between Shawano County

and Waubanascum. (App. at A-11 — A-12.) Indeed, as is

noted above in Point I, state laws do not define the scope

of a government entity's duties under the Fourteenth

Amendment, and violations of state law are not sufficient

to impose liability under § 1983. See, e.g., DeShaney, 489

U.S. at 202.

B. The State Created Danger Exception.

Waubanascum contends that the Seventh Circuit

should have examined the “state created danger” excep-

tion to DeShaney in the “overall context” of Shawano

County’s alleged actions and inactions in this case. (Peti-

tion at 20.) Contrary to Waubanascum’s suggestions, the

Seventh Circuit did just that, and it properly concluded

that no due process duty arose under this theory either.

As the Seventh Circuit described the “state created

danger” exception to DeShaney, a due process duty may

exist when the state “affirmatively places a particular

individual in a position of danger the individual would not

otherwise have faced.” (App. at A-9 (citing Monfils, 165

F.3d at 516; Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir.

2002)).) Examining all of the evidence introduced at trial,

the Seventh Circuit properly concluded that Waubanas-

cum had not met his burden of proof under this exception

to DeShaney. Indeed, as the Seventh Circuit recognized,

Shawano County issued the foster care license to Fry, but

the license made no requirements or limitations as to who

29

would be placed in the home. To the contrary, the place-

ment of a child in Fry's home was the responsibility of

Menominee County, and Shawano County played no role

in placing Waubanascum in the home. (App. at A-17.)

Thus, as the Seventh Circuit concluded, the evidence at

trial was insufficient to show that Shawano County

“affirmatively placed Waubanascum into harm’s way when

it did not even know of Waubanascum’s existence at the

time it issued the license to Fry.” (/d. at A-18.)

In reaching this conclusion, the Seventh Circuit

relied, in part, on the Tenth Circuit’s decision in Ruiz v.

McDonnell, 299 F.3d 1173 (10th Cir. 2002). (Ud. at A-16 -

A-17.) In Ruiz, a mother brought suit against employees of

the Colorado Department of Human Services after her

child died in a state licensed day care facility alleging that

the defendants had improperly licensed the facility by

conducting an insufficient background investigation. Id. at

1178. The Tenth Circuit afffrmed the dismissal of the

mother’s due process claims, concluding that she could not

make out a claim under the “state created danger” excep-

tion to DeShaney. Id. at 1183. According to the Tenth

Circuit, the license in Ruiz did not impose an immediate

risk of harm and instead affected the public at large rather

than the deceased child. Jd.

Likewise, as the Seventh Circuit observed here, the

Shawano County license to Fry did not present an imme-

diate risk and instead affected the universe of children

who were potentially eligible to be placed in Fry’s home

(by Menominee County) rather than Waubanascum

himself. (App. at A-17 ~ A-18.) Although the license only

permitted one placement at a time in Fry’s home, it still

was not issued specifically for Waubanascum and did not,

in and of itself, place Waubanascum in any danger. (Jd. at

30

A-17 (citing Ruiz, 299 F.3d at 1183).) As a result, the

license cannot be said to have resulted in a state created

danger under the second exception to DeShaney.

©

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

CHARLES H. BOHL

Counsel of Record

ANDREW A. JONES

JENNIFER J. Kopp

WHYTE HIRSCHBOECK DUDEK S.C.

555 East Wells Street, Suite 1900

Milwaukee, Wisconsin 53202

(414) 273-2100

Counsel for Respondent