Powell v. GA Dept./Human Resources , 114 F.3d 1074 ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-8359
D. C. Docket No. CV195-128
BRUCE JAMES POWELL, SR., individually
as Natural Father of BRUCE JAMES POWELL, JR.,
and as Administrator of the Estate of BRUCE
JAMES POWELL, JR.,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF HUMAN RESOURCES,
JAMES G. LEDBETTER, individually and as
the Commissioner of the Department of
Human Resources of the State of Georgia,
DOUG GREENWELL, individually and as Director
of the Department of Human Resources of the
State of Georgia Division of Family and Children
Services, PAT FITZGERALD, individually and as
the Director of the County Department of Family
and Children Services, MIGNON ROSEN, individually
and as an employee of the Richmond County
Department of Family and Children Services, JANE
DOE, a DFCS Caseworker known and identified with the
initials M.D.S., individually and as an employee of
the Richmond County Department of Family and
Children Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Georgia
(May 29, 1997)
Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior
Circuit Judges.
ANDERSON, Circuit Judge:
Appellant Bruce James Powell, Sr., appeals the
district court's order dismissing his complaint for
failure to state a claim upon which relief can be
granted. We affirm.
I. FACTS1 AND PROCEDURAL HISTORY
This case involves the tragic death of Powell's
infant son. Powell's son, Bruce James Powell, Jr.,
was born on April 26, 1993. Approximately one
month after the baby's birth, Powell, age 18, and the
baby's mother, age 15, ended their relationship. The
mother retained primary physical custody of the
baby, with Powell exercising visitation rights. On
1
Because we are reviewing the district court's
dismissal of Powell's complaint for failure to state
a claim, we accept the factual allegations of the
complaint as true, construe them in the light most
favorable to Powell, and determine whether it
appears beyond doubt that Powell can prove no
facts that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957);
Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995).
2
July 22, 1993, the mother married James Loren, age
20.
On August 29, 1993, the baby's maternal
grandmother, Janice Newman, took the baby to the
home of the baby's maternal great aunt, Jeannette
Odum. Odum noticed bruises on the baby, became
concerned, and took the baby to Powell's workplace
to show him the baby's bruises. At Powell's request,
Odum called the Richmond County Department of
Family and Children Services ("DFCS") and reported
that she suspected the baby was being abused.
Appellee Mignon Rosen, a DFCS caseworker,
met Powell and Odum at Powell's workplace and
examined the baby. Rosen noticed that the baby had
a scrape across his forehead, discoloration over his
left ear with slight swelling, broken blood vessels in
his right ear, and three bruises on the back of his
thigh. She noted these injuries in her initial report.
Rosen was informed that the baby's mother was very
young and immature and that Loren, the baby's
stepfather, was a heavy drinker who handled the
baby roughly.
3
Rosen contacted her supervisor at DFCS, who
advised Rosen that a doctor should examine the
baby. Rosen did not follow this advice and did not
have the baby examined by a doctor. Rosen gave
Odum protective custody of the baby and promised
to speak with the mother and Loren the next day
about the baby's situation.
Later that same night, Rosen received a
telephone call from Odum. Odum reported that
Newman was going to call the sheriff's department
and obtain custody of the baby. Rosen told Odum
that the baby could be taken into protective custody.
After her conversation with Odum, Rosen called
"Ask a Nurse" to inquire about the possible causes
of the baby's injuries. Rosen was informed that
there was no medical condition that would cause the
observed injuries. Rosen then called an emergency
shelter and was told that the shelter could house the
baby for the night. Rosen, however, took no action
to place the baby in the shelter.
The mother and Newman arrived later that night
at Odum's home with a deputy sheriff and demanded
4
the return of the baby. After learning of Rosen's
involvement with the baby's case, the deputy called
Rosen to advise her of the situation. Rosen, acting
on the instructions of her supervisor, went to
Odum's home. Discussions occurred in which the
mother indicated that Loren had explained the baby's
injuries by saying that the baby had fallen off the
bed. Rosen allowed the baby to be released into
Newman's custody, although protective custody at
the emergency shelter was available. Rosen
instructed Newman that Newman should not return
the baby to the mother's custody.
The next day, August 30, 1993, the baby's case
was assigned to appellee Jane Doe, an unknown
DFCS caseworker with the initials M.D.S. No action
was taken that day on the baby's case. On August
31, 1993, Jane Doe called Newman, who told Jane
Doe that the baby had returned to the mother's
home, despite Rosen's instructions to the contrary.
During this conversation, Jane Doe learned that the
mother and Loren lived with Loren's sister and her
boyfriend in an environment of excessive drinking.
5
Newman, in another telephone conversation with
Jane Doe later that same day, also told Jane Doe that
she believed that someone who lived in the baby's
home had dropped the baby. The mother and Loren
failed to meet with Jane Doe that day as scheduled
to discuss the baby's care.
Jane Doe took no further action on the baby's
case. She made an entry in the baby's file on
September 16, 1993 stating: "Another intake. Due to
excessive # of intakes and [caseworker] trying to get
case load in order to be out on [leave] starting
9/17/93, [caseworker] unable to make another
contact."
The baby, who was not yet five months old, died
that day. The official cause of the baby's death was
"blunt force trauma to the head." For over two
weeks prior to his death, the baby had been severely
abused and neglected. The baby's injuries included
innercranial bleeding, retinal bleeding, abrasions,
and over 100 bruises on his body. The baby's
treating physicians described the baby's case as one
of the worst instances of child abuse they had ever
6
seen. The mother and Loren were convicted of the
baby's murder.
Powell sued the appellees under 42 U.S.C. §
1983, seeking monetary damages and claiming that
the appellees violated his son's substantive and
procedural due process rights and his son's Eighth
Amendment rights. He also alleged a state law claim
against the appellees under the Georgia Tort Claims
Act. The appellees moved to dismiss Powell's
complaint. The district court held pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure that
Powell failed to state a federal claim upon which
relief can be granted. Consequently, the district
court dismissed Powell's federal claims and declined
to exercise its jurisdiction over Powell's state law
claim.2
The only issue before us in this appeal is
whether Powell has stated a claim against the
individual appellees in their individual capacities.
Powell asserts only two claims on appeal: a
2
The district court dismissed the state law claim
without prejudice.
7
substantive due process claim and a procedural due
process claim.3
II. ANALYSIS
Before analyzing Powell's claims, we pause to
note that the circumstances alleged by Powell are
troubling and tragic. However, Powell has elected to
sue in federal court and thus has undertaken to
prove more than merely wrongful acts on the part of
the appellees or a constitutional violation; rather, in
order to surmount the appellees' qualified immunity
shield, Powell must prove that the appellees violated
clearly established constitutional rights of which a
reasonable person would have known.
Qualified immunity shields government officials
performing discretionary duties from civil litigation
3
Powell has not appealed the district court's
determination that the Department of Human
Resources and the individual appellees in their
official capacities are immune from suit under the
Eleventh Amendment. Powell also has not
appealed the district court's dismissal of his claim
that the appellees violated his son's Eighth
Amendment rights.
8
and liability if their conduct violates no "clearly
established statutory or constitutional rights of
which a reasonable person would have known."
Harlow v. Fitzgerald, 475 U.S. 800, 818, 102 S. Ct.
2727, 2738 (1982). We readily conclude in this case
that the appellees were performing discretionary
duties,4 and thus the burden shifts to Powell to
demonstrate that the appellees violated clearly
established constitutional rights of which a
reasonable person would have known. McCoy v.
Webster, 47 F.3d 404, 407 (11th Cir. 1995). As the
Supreme Court most recently stated in United States
v. Lanier, "[Q]ualified immunity seeks to ensure that
defendants 'reasonably can anticipate when their
conduct may give rise to liability' . . . by attaching
liability only if '[t]he contours of the right [violated
are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.'"
4
The appellees' actions in the instant case are
indistinguishable from those which we held in
McCoy v. Webster, 47 F.3d 404 (11th Cir. 1995), to
be discretionary. We summarily reject Powell's
argument to the contrary.
9
___ U.S. ___, ___, 117 S. Ct. 1219, 1227 (1997)
(alteration in original) (quoting Davis v. Scherer, 468
U.S. 183, 195, 104 S. Ct. 3012, 3019 (1984), and
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 3039 (1987), respectively). When analyzing a
claim of qualified immunity in a case which is in a
Rule 12(b)(6) posture, we determine "'whether, under
the most favorable version of the facts alleged,
defendant's actions violate clearly established law.'"
Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir.
1993) (quoting Bennett v. Parker, 898 F.2d 1530, 1535
n.2 (11th Cir. 1990) (Tjoflat, J., concurring), cert.
denied, 111 S. Ct. 1003 (1991)).
We turn first to Powell's substantive due process
claim and then to his procedural due process claim.
A. Substantive Due Process Claim
Powell argues that the appellees violated his
son's substantive due process rights by removing
the baby from Odum's safe care and allowing the
baby to return to a known zone of danger with an
10
abusive mother and stepfather. Powell must prove
more than negligent or wrongful acts on the part of
the appellees or an abuse of power rising to the level
of a constitutional violation. In order to strip the
appellees of their qualified immunity defense, Powell
must demonstrate that the appellees violated clearly
established constitutional rights of which a
reasonable person would have known. Two cases
involving facts very similar to the instant facts, one a
Supreme Court case and one an Eleventh Circuit
case, persuade us that Powell cannot prove a
violation of a clearly established constitutional right.
In DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189, 109 S. Ct. 998 (1989),
Joshua DeShaney and his mother brought a §1983
claim against social workers and other officials who
failed to protect Joshua, despite suspecting that
Joshua's father was abusing him. The Supreme
Court held that there was no substantive due
process violation under the following circumstances.
After Joshua's parents divorced, the father was
awarded legal custody of Joshua. The first
11
complaint of child abuse occurred in January 1982.
The Department of Social Services ("DSS")
interviewed the father, who denied the accusations.
DSS did not pursue the matter. In January 1983,
Joshua was hospitalized with multiple bruises and
abrasions. DSS was notified that child abuse was
suspected, and custody was temporarily withdrawn
from the father. The appropriate team of county
officials considered the matter, determined there was
insufficient evidence of child abuse, and decided to
recommend that Joshua be returned to the father's
custody. Based on this recommendation, the
juvenile court returned Joshua to his father's
custody. Thereafter, the following additional
warning signals came to the attention of the
defendant officials. A month later, Joshua was
treated at the emergency room for suspicious
injuries. During monthly visits in the next six
months, the caseworker observed suspicious
injuries on Joshua's head. In November 1983,
Joshua was again treated at the emergency room for
injuries believed to be caused by child abuse.
12
During the next two home visits, the caseworker was
told that Joshua was too ill to see her. DSS took no
action. In March 1984, Joshua was severely beaten
by his father. As a result of this beating, Joshua
sustained severe brain damage, which required that
Joshua be permanently institutionalized. The
Supreme Court held that "[a]s a general matter, . . .
we conclude that 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, 109 S. Ct. at 1004. The Court also rejected
Joshua's argument that a "special relationship"
existed because the officials knew that Joshua faced
a special danger of abuse at his father's hands, and
had specifically proclaimed an intention to protect
him against that danger. Id. at 197-98, 109 S. Ct. at
1004.5
5
The Court distinguished the relationship
created when a state restrains an individual's
liberty such that it renders him unable to care for
himself. See DeShaney, 489 U.S. at 198-200, 109 S.
Ct. at 1004-06 (citing Estelle v. Gamble, 429 U.S. 97,
97 S. Ct. 285 (1976) (incarceration); Youngberg v.
Romeo, 457 U.S. 307, 102 S. Ct. 2452 (1982)
(involuntarily committed mental patients)).
13
The relevant Eleventh Circuit case is Wooten v.
Campbell, 49 F.3d 696 (11th Cir.), cert. denied, 116 S.
Ct. 379 (1995). In Wooten, after a child was abducted
by his father, the state agency comparable to the one
involved in this case was awarded legal custody of
the child and given the authority to place the child.
With the consent of the child's parents, the agency
placed the child with the mother and allowed
unsupervised visits by the father. During an
unsupervised visit, the father again abducted the
child, killed the child, and then committed suicide.
The mother brought a §1983 claim against the
agency and its involved employees, alleging that the
defendants were reckless in allowing the father to
have unsupervised visits with the child when the
evidence showed that the father posed a significant
risk of danger to the child. The district court
dismissed the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Noting that the
facts were very similar to those in DeShaney, this
court affirmed, holding that there was no substantive
due process violation. Id. at 701. Although the state
14
agency had legal custody of the child, this court
emphasized that the mother herself had physical
custody of the child and also had access to the
courts had she wanted to challenge the
unsupervised visitation. Id. at 700. As in the
DeShaney case, this court stressed that the child
had been killed by a private actor, the father, and not
by the State. Id.
Comparing the facts of the instant case to the
facts in DeShaney, it is true that caseworker Jane
Doe gave the baby's case very little attention after
taking over responsibility from Rosen on August 30,
1993. She merely had two telephone conversations
with Newman, in whose custody Rosen had left the
baby. During one of these conversations, Jane Doe
learned that Newman had permitted the mother to
take the baby back to the mother's home, the
environment in which it was suspected that previous
child abuse might have occurred. Jane Doe
apparently did schedule a meeting with the mother
and her husband, Loren, for that day, but they failed
to appear at the meeting. Jane Doe took no further
15
action.
While we do not condone Jane Doe's neglect, we
nevertheless readily conclude that it is
indistinguishable from the caseworker's failure to act
in DeShaney. Indeed, the danger signals in
DeShaney (including one hospitalization and two
emergency room visits, all indicating suspected
child abuse) were more pronounced than in the
instant case. In an attempt to distinguish DeShaney,
Powell points to the fact that the Supreme Court
noted that the State in that case did not "do anything
to render [the abused child] any more vulnerable" to
abuse. DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006.
Powell argues that a plaintiff can make out a viable
substantive due process claim by proving that the
officials created or increased the danger to the child.
Powell contends that the increase in danger
occurred in the instant case on August 29, 1993,
when caseworker Rosen permitted the baby to be
removed from the safe haven of Odum's home.6
6
In his brief on appeal, Powell acknowledges
that the "substantive claim does not hang on the
two weeks of inactivity which triggers the
16
Recalling the facts, that night Newman and the
mother, accompanied by a deputy sheriff, went to
Odum's home and demanded that the baby be
returned. The deputy telephoned Rosen, and Rosen
actually went to Odum's home. After discussions in
which the mother denied child abuse and related the
explanation that the baby had fallen off the bed,
Rosen allowed the baby to be released into
Newman's custody at Newman's home. By allowing
the baby to leave the safe haven of Odum's home,
Powell argues that caseworker Rosen affirmatively
increased the danger to which the baby was
exposed.
We can assume arguendo, without deciding, that
in some circumstances, a plaintiff might be able to
establish a substantive due process violation upon
proof that a state actor created or increased the
danger to a child or rendered a child more vulnerable
procedural claim. Instead, the substantive claim is
triggered by the active and forcible abuse of Power
[sic] by the state officials on one day, August 29,
1993." Appellant's Brief at 46 (emphasis omitted).
17
to abuse.7 However, both DeShaney and Wooten
indicate that Rosen's allowing the baby to leave the
safety of Odum's home cannot be the basis for a
substantive due process claim in this case. The
language in DeShaney upon which Powell relies (i.e.,
about rendering the child more vulnerable) is
followed immediately by language rejecting an
argument precisely like Powell's:
While the State may have been aware of the
dangers that Joshua faced in the free world,
it played no part in their creation, nor did it
do anything to render him any more
vulnerable to them. That the State once took
temporary custody of Joshua does not alter
the analysis, for when it returned him to his
father's custody, it placed him in no worse
position than that in which he would have
been had it not acted at all . . . .
7
For cases discussing such claims, see, e.g.,
Mitchell v. Duval County Sch. Bd., 107 F.3d 837,
838-39 (11th Cir. 1997) (assuming
arguendo that a plaintiff might be able to state a
substantive due process claim if the state's actions
placed the plaintiff in "special danger"); Kneipp v.
Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)
(discussing "state-created danger" theory); Uhlrig
v. Harder, 64 F.3d 567, 572-73 & nn.6-7 (10th Cir.
1995) (discussing "creation of danger" theory),
cert. denied, 116 S. Ct. 924 (1996); Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 530-31 (5th Cir. 1994)
(discussing "state-created danger" theory).
18
DeShaney, 489 U.S. at 201, 109 S. Ct. at 1006
(emphasis added). Although in this Rule 12(b)(6)
posture, we do indulge the inference that Newman's
home was less safe than Odum's, the danger signals
apparent to Rosen in this case certainly do not
exceed those apparent to the team which decided to
return Joshua to his father in the DeShaney case.
That team knew that Joshua had just been admitted
to the hospital with multiple bruises and abrasions
and that the examining physician suspected child
abuse. The team also knew of the allegation of
abuse one year earlier. In this case, we note that
Rosen merely permitted the baby's grandmother,
Newman, to take custody of the baby. Rosen
specifically instructed that the baby was not to be
returned to the mother in whose home the suspected
abuse occurred. In this respect, the instant facts are
more favorable to the appellees than those in
DeShaney. We also note that Rosen's decision was
made during an actual visit to the scene and
followed her discussion with the mother, Newman,
Odum, and the deputy sheriff, during which the
19
mother denied any abuse and gave an explanation
for the baby's injuries. Finally, we note that the
subsequent removal of the baby to the mother's
home was without the appellees' permission, and
thus is a mere failure to act similar to that in
DeShaney. The government officials in DeShaney
had greater dominion and control over Joshua (i.e.,
temporary legal custody) than did the appellees here.
Similarly, the agency in Wooten had legal custody of
the child, allowed the child to return to the mother's
custody, and permitted unsupervised visits by the
father, who was the alleged source of danger to the
child. In neither DeShaney nor Wooten did the
affirmative act of permitting the child's return to the
home environment rise to the level of a substantive
due process violation. In evaluating the asserted
increased danger in DeShaney, the Court seemed to
focus on the totality of the agency's actions, and in
any event declined to place much significance on a
single judgment call in returning Joshua to his home
environment.
We recognize that the facts of DeShaney and
20
Wooten are not identical to the instant facts. In
DeShaney, the agency's decision to permit Joshua to
return to his home environment was apparently in
the nature of a recommendation to the juvenile court,
which followed the agency's recommendation. In
Wooten, the similar decision was with the consent of
the parents. However, caseworker Rosen's decision
clearly constituted an exercise of judgment very
similar to that of the officials in DeShaney and
Wooten. Moreover, as in Wooten, Powell and Odum
"had access to the courts if [they were] displeased"
with Rosen's decision. Wooten, 49 F.3d at 700.
Because the appellees in the instant case claim
qualified immunity, we need only decide that the
appellees violated no clearly established
constitutional rights.8 We readily conclude that the
8
As this court has explained previously,
Since a plaintiff must show both that there
is a constitutional right that is allegedly
violated and that the right was clearly
established at the time, a negative decision
on either prevents the plaintiff from going
forward. Once it is determined that there is
no clearly established right, the Court
could well leave for another day the
21
appellees' actions are sufficiently similar to the
actions of the comparable officials in DeShaney and
Wooten that it cannot be said that a reasonable
official would have understood that the actions at
issue in this case violated constitutional rights.
Accordingly, we hold that the appellees are shielded
by qualified immunity, and we affirm as to this claim.
B. Procedural Due Process Claim
Powell alleges that the appellees' failure to
follow the Richmond County Child Abuse Protocol
("the Protocol") violated his son's procedural due
process rights.9 In their defense, the appellees
determination as to whether there is such
a right, albeit not one that a reasonable
person would have known. It is the
plaintiff's burden to show that when the
defendants acted, the law established the
contours of a right so clearly that a
reasonable official would have understood
his acts to be unlawful.
Spivey v. Elliott, 41 F.3d 1497, 1499 (11th Cir. 1995).
9
As quoted in the appellees' brief, the Protocol
provides as follows:
22
When a report of child abuse/neglect is
received by DFCS, the case shall be
assigned to a caseworker to make an initial
assessment/investigation (including
whether the case is that of a caretaker or
noncaretaker). In determining the
appropriate action to be taken by DFCS,
the caseworker shall go to where the child
is located to conduct an interview with the
child to establish that the child is in fact
alleging abuse/neglect.
Appellees' Brief at 13. The Protocol, as quoted in
Powell's complaint, further provides:
If there is reasonable cause to believe that
abuse has occurred, DFCS shall take the
following action or actions:
1. Seek protective custody of the child.
(See Juvenile Court Section).
2. If appropriate, allow the child to remain
with its family and provide ongoing
monitoring and treatment.
3. Immediately notify the appropriate law
enforcement agency pursuant to
O.C.G.A. § 19-7-5. (See Law Enforcement
Section).
4. File any and all Juvenile Court
proceedings necessary
for the protection of the child.
5. If there is reasonable cause to believe
abuse has occurred, DFCS will seek a
physical examination in those instances
where a medical test will be needed t o
substantiate the same, or will photograph
evidence of physical abuse where a
medical examination is not
necessary. Any physical examination will
23
invoke the protections of qualified immunity.
Powell argues that Zinermon v. Burch, 494 U.S.
113, 110 S. Ct. 975 (1990), shows that the appellees
violated his son's clearly established procedural due
process rights. In Zinermon, the plaintiff, a former
state mental hospital patient, alleged that the State
violated his due process rights by failing to have in
place appropriate precommitment safeguards
ensuring that state mental hospital patients are in
fact competent to sign forms authorizing their
be conducted as expeditiously as
possible.
...
[I]f a report of child abuse . . . is made to
DFCS . . . and it has reasonable cause to
believe such report is true, then the agency
shall immediately notify the appropriate
authority or District Attorney and forward
the proper reports within a timely manner.
...
Every abused child should have a physical
examination as soon as possible following
disclosure of the abuse. Typically, the
child will be examined at one of the local
hospitals according to accepted hospital
procedure.
Compl. at 12-13.
24
voluntary admission and treatment. The Supreme
Court held that the plaintiff stated a procedural due
process claim because the deprivation of the
plaintiff's liberty was predictable and predeprivation
process was feasible. Id. at 136, 110 S. Ct. at 989.
Powell argues that Zinermon applies to this case. He
asserts that the State should have provided
predeprivation process in this case because the
State should have anticipated that caseworkers
might be so overloaded with cases that they would
neglect their duties. He further contends that the
value of predeprivation safeguards is high in child
abuse cases and the State is in the position to
provide predeprivation process.
The appellees, however, argue that Powell
cannot state a claim for a violation of his son's
procedural due process rights.10 The appellees
10
As a threshold matter, the appellees argue that
the Protocol did not vest Powell's son with a
legitimate claim of entitlement such that a failure to
follow the Protocol constituted a procedural due
process violation. Because we ultimately conclude
that the appellees are entitled to qualified immunity
in any event, we can assume arguendo, without
deciding, that Powell's son had such a liberty
interest.
25
assert that Parratt v. Taylor, 451 U.S. 527, 101 S. Ct.
1908 (1981), and Hudson v. Palmer, 468 U.S. 517, 104
S. Ct. 3194 (1984) control this case. In Parratt and
Hudson, the Supreme Court held that there is no
procedural due process violation when the act
complained of is the random and unauthorized act of
a state employee for which adequate postdeprivation
process is available. Hudson, 468 U.S. at 533, 104 S.
Ct. at 3203-04; Parratt, 451 U.S. at 541, 101 S. Ct. at
1916. The Parratt-Hudson reasoning applies when
the official action complained of is of a type that the
State cannot reasonably foresee and for which
predeprivation process thus is not feasible. Hudson,
468 U.S. at 533, 104 S. Ct. at 3203; Parratt, 451 U.S. at
541, 101 S. Ct. at 1916. See also Zinermon, 494 U.S.
at 128-30, 110 S. Ct. at 985-86. The appellees argue
that in this case, the State could not reasonably
foresee that the caseworkers would fail to follow the
Protocol. The appellees also contend that providing
predeprivation process, such as a hearing, for child
abuse cases is not feasible because caseworkers
often must make quick judgment calls in such cases.
26
Furthermore, the appellees argue that the State has
provided Powell with adequate postdeprivation
process because Powell may pursue a damage claim
in the Georgia state courts under the Georgia Tort
Claims Act.11
The crux of Powell's claim is his contention that
predeprivation process was feasible in this case and
was not provided, thus violating the baby's
procedural due process rights. In Zinermon, the
Court found that a predeprivation procedure was
feasible and would avert the problem of incompetent
people signing voluntary admission forms before
receiving treatment for mental illness. The Court
explained that "had the State limited and guided
petitioners' power to admit patients, the deprivation
11
Powell argues that this post-deprivation
process is inadequate because the State has
invoked sovereign immunity as to any possible
claims under the Georgia Tort Claims Act.
However, assuming arguendo that the State is
immune, Powell's argument is foreclosed by our
decision in Rittenhouse v. DeKalb County, 764 F.2d
1451, 1459 (11th Cir. 1985) ("the sovereign
immunity enjoyed by [the county and the
government official] [does] not render appellant's
state law remedy inadequate under Parratt"), cert.
denied, 475 U.S. 1014, 106 S. Ct. 1193 (1986).
27
might have been averted." Zinermon, 494 U.S. at
137, 110 S. Ct. at 989. The Court indicated that the
State could provide such guidance by having "a
specific requirement that petitioners determine
whether a patient is competent to consent to
voluntary admission." Id. at 135-36, 110 S. Ct. at 988-
89.12
By contrast, in the instant case, the Protocol
already provides predeprivation procedures for
caseworkers to follow. There is no other feasible
predeprivation procedure that is readily apparent to
us. It is clear from the Protocol that a caseworker
must make a judgment decision "[i]n determining the
appropriate action to be taken." Appellees' Brief at
13 (quoting Protocol). The caseworker must make
12
At several places, the Court referred to such a
procedure. For example, the Court noted that
"[t]here is, however, no specified way of
determining, before a patient is asked to sign
admission forms, whether he is competent."
Zinermon, 494 U.S. at 136, 110 S. Ct. at 989. See
also id. at 135, 110 S. Ct. at 988 ("But the statutes
do not direct any member of the facility staff to
determine whether a person is competent to give
consent, nor to initiate the involuntary placement
procedure for every incompetent patient.").
28
an initial assessment and must determine on an
ongoing basis whether or not there is "reasonable
cause to believe that abuse has occurred." Compl.
at 12 (quoting Protocol). We readily conclude that it
would not be feasible to require a hearing before
every such judgment decision by a caseworker.
Indeed, the Protocol established by the appellees in
the instant case would seem to be precisely the kind
of procedure contemplated in Zinermon because it
guides caseworkers' decision-making. We do not
understand Powell to be challenging the adequacy of
the Protocol itself; rather, he argues that
caseworkers Rosen and Jane Doe did not follow the
Protocol.
The only specific procedure suggested by
Powell is that the officials should have provided
more staffing, supervision, and training so that
neglect of duty would not result from excessive
caseloads.13 However, we know of no case which
13
In his brief, Powell asserts that "the State was
in a position to provide the requisite predeprivation
process by oversight, supervision, adequate
staffing and caseload distribution, management
and training." Appellant's Brief at 26-27.
29
has held that the Constitution requires a government
to provide more personnel or more training in order
to reduce the risk of random and unauthorized acts
of neglect of duty. The Parratt decision suggests
just the opposite. The deprivation there, as here,
resulted from a failure to follow applicable
procedures. Parratt, 451 U.S. at 531, 543, 101 S. Ct.
at 1910, 1917. Although not mentioned by the Court,
additional money, personnel, or training might well
have averted the prison officials' negligence in
failing to follow the policies and losing plaintiff's
hobby kit.
Because the appellees have invoked the defense
of qualified immunity, Powell must prove a violation
of a clearly established constitutional right. Under
the circumstances of this case, we cannot conclude
that there was a clearly established constitutional
right to some additional predeprivation procedure in
this case. In other words, we cannot conclude that it
was clearly established at the time of the appellees'
actions in this case that an additional predeprivation
procedure was feasible. Although the appellees'
30
actions were disastrous in hindsight, Powell has not
demonstrated that the contours of his son's
procedural due process rights were sufficiently clear
that a reasonable official would understand that the
conduct at issue here violated constitutional rights.
Accordingly, we hold that the appellees are shielded
by qualified immunity from Powell's procedural due
process claim. We affirm the district court as to this
claim.
III. CONCLUSION
We are not without sympathy for Powell's
situation. His son's death was an unquestionably
cruel loss. For the foregoing reasons, however, we
conclude that Powell has failed to surmount the
appellees' qualified immunity shield with respect to
either of his claims.14
AFFIRMED.
14
Because the district court properly dismissed
Powell's federal claims, it did not err by dismissing
without prejudice his state law claim.
31