Perry v. City of Norfolk ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GRADY PERRY, on his behalf and on
behalf of others similarly situated;
PAMELA PERRY, on her own behalf
and on behalf of others similarly
situated,
Plaintiffs-Appellants,
v.
CITY OF NORFOLK; JAMES B. OLIVER,
JR., City Manager of the City of
Norfolk, in his official and
individual capacity; GEORGE G.
MUSGROVE, individually; SUZANNE
PURYEAR, individually; KEVIN
CHILDS, individually; BRENDA
HERRON, individually,
Defendants-Appellees, No. 98-2284
and
CLARENCE H. CARTER,
Commissioner, Virginia Department
of Social Services, in his official
and individual capacity; CORLISS V.
BOOKER; BRIAN E. CAMPBELL; PHILLIP
W. JONES; FRANKLIN R. JOSEPH;
HOLLY D. KORTE; FRANK MEDICO;
SHIRLEY C. ROGERS; RITA THOMPSON;
ROBERT C. SPADACCINI, SR.,
individually and in their official
capacities as members of the State
Board of Department of Social
Services,
Defendants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-97-893-2)
Argued: June 10, 1999
Decided: September 20, 1999
Before LUTTIG and KING, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
_________________________________________________________________
Affirmed by unpublished opinion. Judge King wrote the opinion, in
which Judge Luttig and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Bernard Travis Holmes, HOLMES & ASSOCIATES,
P.C., Virginia Beach, Virginia, for Appellants. John Yulee Richard-
son, Jr., Deputy City Attorney, Norfolk, Virginia, for Appellees. ON
BRIEF: Jacob P. Stroman, IV, Deputy City Attorney, Norfolk, Vir-
ginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
KING, Circuit Judge:
Grady Perry ("Perry") and his wife, Pamela Perry ("Ms. Perry"),
sued the City of Norfolk, Virginia, and numerous individual defen-
2
dants after Perry was listed in Virginia's Child Abuse and Neglect
Information System ("CANIS") registry and lost his job as a result.
Perry brought several state-law tort claims, along with claims under
42 U.S.C. § 1983, protesting the fact that he had been listed in
CANIS, as well as the procedures followed by the City of Norfolk
Child Protective Services Unit ("Norfolk CPS") in deciding to list
him. Ms. Perry joined as a plaintiff to contest the constitutionality of
Virginia's Child Abuse and Neglect Act ("CANA"), Va. Code Ann.
§ 63.1-248.1 to -248.18, contending that the CANA infringed her con-
stitutionally protected right to discipline her children. In addition,
each of the Perrys sought to represent a class of similarly situated
individuals.
The district court for the Eastern District of Virginia determined
that Ms. Perry lacked standing, and therefore dismissed her from the
suit and refused to certify her proposed class. It further dismissed cer-
tain of Perry's claims pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim, and it granted summary judgment
in favor of the remaining defendants as to the balance of Perry's
claims. The court also refused to certify the class that Perry sought to
represent.
The Perrys appeal the district court's rejection of their various
claims, as well as its refusal to certify their respective classes. Finding
no error in the district court's treatment of these claims, we affirm.
I.
On March 9, 1990, Kevin Childs, a social worker with the Norfolk
CPS, received a complaint that five-year-old Marcus Staton had been
beaten by his father, Grady Perry. When Childs visited Marcus at
school, he saw that the child had lacerations on his forehead, which
Marcus said had been caused by his father hitting him with a belt
buckle. Childs then spoke with Perry, who admitted to having used
a belt to spank Marcus. He also admitted that he had hit Marcus in
the head with the belt, although he claimed that this blow had been
accidental. According to Perry, Childs said that he had found no evi-
dence of abuse and was closing Perry's file.
But Childs did conclude that Perry had abused Marcus, and his
supervisor concurred. Childs then drafted a report to this effect. How-
3
ever, he later destroyed his handwritten notes and some photographs
that he had taken of Marcus, allegedly because he was told that the
photographs were insufficient for evidentiary purposes. Childs there-
after assembled information necessary to list Perry in the CANIS reg-
istry.
Childs also prepared a letter notifying Perry of his right to a hear-
ing at which he could contest his designation as a child abuser.
Apparently, Perry's first and last names were transposed on the letter,
and the letter was misaddressed. Nothing in the record indicates that
these inaccuracies were intentional. The letter was mailed but it
appears that Perry never received it.
Some time in 1991, management of the Norfolk CPS became con-
cerned with the quality of some of its social workers' research. Con-
sequently, it directed a CPS supervisor, Karen Hatch, to audit the
CPS's files. Hatch found many of the files to be in poor shape and
not in compliance with the Norfolk CPS's requirements. Some of the
deficient files belonged to Childs. In fact, Childs's file regarding
Perry was found to be deficient, and Hatch recommended that Childs
be reprimanded.1
In 1995, Perry was fired from his job as a custodian with Virginia
Beach Public Schools, because the school found out that he was listed
as a child abuser on CANIS and because Perry had not indicated on
_________________________________________________________________
1 Perry contends that, as part of Hatch's 1991 audit of his file, she
became aware that Childs's letter to Perry had been misaddressed. Perry
bases this claim on a strained interpretation of Hatch's deposition testi-
mony given in a related state-court proceeding. The district court chose
not to consider this deposition, as the City of Norfolk's attorneys were
not present when it was given. Instead, the district court considered only
Hatch's deposition testimony given in this case, in which she unequivo-
cally states that she learned only in 1995 that Perry's notification letter
was misaddressed. J.A. 221.
When the relevant parts of either of these depositions are read in full,
though, neither supports Perry's proffered interpretation, even giving him
the benefit of all inferences due. As a result, Perry has not raised a genu-
ine issue of fact as to when Hatch learned that the letter had not been
sent.
4
his employment application that he had been found to be a child
abuser. This was the first time Perry learned he was listed in the
CANIS registry. He then requested and was given a hearing before
Hatch. She confirmed the finding of child abuse, and her finding was
upheld on administrative review, but was ultimately overturned on
appeal to the Norfolk Circuit Court.2
The Perrys then filed this suit against the City of Norfolk Depart-
ment of Human Services (DHS); James Oliver, Norfolk's City Man-
ager; George Musgrove, the former head of the DHS; Suzanne
Puryear, the current DHS director; Kevin Childs; and Brenda Herron,
Childs's immediate supervisor.3 As to all defendants, Perry brought
claims under § 1983, alleging violations of substantive and procedural
due process. He sued Puryear, Musgrove, Herron, and Childs for
intentional infliction of emotional distress under Virginia law. Addi-
tionally, Perry sued Oliver for state-law negligent hiring and retention
of Musgrove, contending that Musgrove had been fired from a prior
job for incompetence. Ms. Perry joined as a plaintiff, alleging that her
federal constitutional rights to discipline her children were being
chilled by the CANA. Finally, the Perrys sought certification of two
classes consisting of:
(1) all Virginia residents who are parents or guardians and
were finally determined to be child abusers, without their
knowledge; and whose names were entered into the CANIS
central registry as child abusers, without their knowledge;
(2) all parents or guardians who were found to be child
_________________________________________________________________
2 The Norfolk Circuit Court ordered the designation of Perry's child
abuse determination changed to "unfounded," but it concluded that the
Norfolk CPS had not violated any statutory or constitutional authority.
3 The Perrys also named as defendants the Commissioner of the Vir-
ginia Department of Social Services, as well as members of the Virginia
Board of the Department of Social Services. Each of these defendants
was sued in his individual and official capacities. Because the Perrys
were able to address their claims against these defendants in a then-
pending state case, the district court stayed all claims against these defen-
dants and abstained from further rulings on those issues, in accordance
with Younger v. Harris, 401 U.S. 37 (1971). As a result, none of these
defendants is a party to this appeal.
5
abusers based solely on the agency defendants' finding that
a "mark/bruise" left on a child during a lawful disciplinary
spanking constituted child abuse, notwithstanding the lack
of intent of the parent or other person to injure the child.
The district court issued two dispositive orders. Its first order,
entered on January 29, 1998, did the following: (1) dismissed Ms.
Perry as a plaintiff for lack of standing, both as an individual and as
a putative class representative; (2) dismissed Perry's claim for inten-
tional infliction of emotional distress under Rule 12(b)(6) for failure
to state a claim; (3) found the City of Norfolk immune from certain
claims; (4) dismissed Perry's claim for negligent retention, also under
Rule 12(b)(6); and (5) refused to certify the proposed classes. On July
27, 1998, the district court granted summary judgment in favor of the
defendants as to all remaining claims.
The Perrys appeal the district court's orders (1) dismissing Ms.
Perry as a plaintiff for lack of standing; (2) dismissing under Rule
12(b)(6) Perry's claim for intentional infliction of emotional distress;
(3) granting summary judgment in favor of Oliver as to Perry's negli-
gent hiring claim; (4) granting summary judgment in favor of all
defendants as to Perry's substantive and procedural due process
claims under § 1983; and (5) refusing to certify the proposed classes.
We affirm the district court's orders as to each of these issues.
II.
Ms. Perry appeals the district court's order determining that she
lacked standing to challenge the constitutionality of the CANA, either
individually or as a class representative. Specifically, the court held
that Ms. Perry had suffered no present injury that could support a
"case or controversy," because she could not allege that she was in
danger of having the CANA enforced against her. We agree.
Without pointing to any specific provision of the CANA, Ms. Perry
argues that the statute and its implementing regulations establish a per
se rule that any disciplinary spanking resulting in a mark or bruise on
a child constitutes child abuse. She challenges the district court's rul-
ing that she lacks standing, arguing that because she likely will have
to discipline her children in the future, and because she will encounter
6
the alleged "mark or bruise" restrictions of the CANA on such future
occasions, the CANA will chill her constitutionally protected right to
discipline her children.
We agree with the district court that Ms. Perry's claim is not justi-
ciable, although for reasons somewhat different from those the district
court gave.4 Rather than analyzing this claim in terms of standing, it
is easier to understand the defect in Ms. Perry's claim as a lack of
ripeness. The Supreme Court has held that a plaintiff who, like Ms.
Perry, alleges only that she intends to violate a law and fears that she
will have the law enforced against her if she does violate it, does not
present a sufficiently ripe controversy for adjudication. United Pub.
Workers v. Mitchell, 330 U.S. 75 (1947).
Here, Ms. Perry alleges only that she may wish to spank her chil-
dren in the future, not that she has done so and fears imminent
enforcement of the CANA. Any threat of enforcement against Ms.
Perry is, therefore, purely hypothetical and is beyond our power to
address:
It would not accord with judicial responsibility to adjudge,
in a matter involving constitutionality, between the freedom
of the individual and the requirement of public order except
when definite rights appear upon the one side and definite
prejudicial interferences upon the other.
Id. at 90. Consequently, Ms. Perry's claim is not ripe for adjudication,
and the district court properly dismissed it. And because Ms. Perry
has no justiciable claim herself, she cannot represent the class she
proposes. Bailey v. Patterson, 369 U.S. 31, 32-33 (1962) ("[Plaintiffs]
cannot represent a class of whom they are not a part.").
_________________________________________________________________
4 We are, of course, free to affirm the district court's judgment on
grounds that were not addressed below. McMahan v. International Ass'n
of Bridge, Structural & Ornamental Iron Workers, 964 F.2d 1462, 1467
(4th Cir. 1992) (citing Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982)).
7
III.
Perry appeals the district court's Rule 12(b)(6) dismissal of his
state-law claim for intentional infliction of emotional distress (IIED).
To establish such a claim under Virginia law, a plaintiff must show
the following: (1) the wrongdoer's conduct was intentional or reck-
less; (2) the conduct was outrageous and intolerable in that it offends
against the generally accepted standards of decency and morality; (3)
there was a causal connection between the wrongdoer's conduct and
the emotional distress; and (4) the emotional distress was severe.
Womack v. Eldridge, 210 S.E.2d 145, 148 (Va. 1974). Further, a court
is authorized to determine at the outset of the case whether the con-
duct alleged is outrageous enough to support a claim for IIED. Id.Here, the district court correctly determined that the conduct of
which Perry complains simply is not "outrageous" under Virginia law.
Indeed, it is the rare case that will satisfy the outrageousness standard:
Even if a defendant has intended to inflict emotional dis-
tress, or his conduct is characterized by malice, or a degree
of aggravation which would entitle the plaintiff to punitive
damages for another tort, the requirement of [outrageous-
ness] has not been satisfied.
Russo v. White, 400 S.E.2d 160, 162 (Va. 1991). At bottom, Perry
alleges that various defendants failed to notify him that he had been
classified as a child abuser, and that they intentionally covered up this
failure. Assuming, as we must on review of a Rule 12(b)(6) dismissal,
that Perry's allegations are true, we agree with the district court that
they do not allege facts sufficiently "outrageous" to support an IIED
claim. See id. (outrageous conduct must be"so outrageous in charac-
ter, and so extreme in degree, as to go beyond all possible bounds of
decency and to be regarded as atrocious, and utterly intolerable in a
civilized society") (quoting Restatement (Second) of Torts § 46 cmt.
d (1965)). Misaddressing an envelope--even intentionally, as Perry
alleges--so that the putative recipient will miss the opportunity to
have a hearing simply does not rise to the requisite level of outra-
geousness.
As a result, we affirm the dismissal of Perry's IIED claim.
8
IV.
Perry also argues that the district court erred in granting summary
judgment in favor of Oliver on Perry's claim that Oliver was negli-
gent in hiring Musgrove to oversee the Norfolk CPS. 5 Under Virginia
law, a plaintiff seeking to prove "negligent hiring" must show that the
defendant has been negligent in placing an unfit person--who ulti-
mately harms the plaintiff--in an employment situation involving an
unreasonable risk of harm to others. J. v. Victory Tabernacle Baptist
Church, 372 S.E.2d 391, 394 (Va. 1988).
Here, Perry has presented no evidence raising a genuine issue as
to whether he was harmed by any action that Musgrove took, or failed
to take. Instead, he simply alleges that Musgrove oversaw the Norfolk
CPS unit, and that this unit mishandled his case. Without any evi-
dence regarding specific actions by or failures of Musgrove, Perry
cannot show that Oliver's decision to hire Musgrove--whether or not
that hiring decision was unwise--harmed him in any way. The district
court was thus correct to grant summary judgment in favor of Oliver
as to Perry's negligent hiring claim.
V.
Next, Perry appeals that the district court's grant of summary judg-
ment on his claim that the Norfolk CPS's treatment of his case vio-
lated substantive due process. Specifically, he claims that being listed
as a child abuser violated a liberty interest and infringed his right to
familial privacy. The district court was right to dismiss this claim, and
we affirm it on this point.
Unlike the procedural component of the Fourteenth Amendment's
Due Process Clause--which requires states to employ adequate pro-
cedures when they deprive a citizen of a liberty, or property interest
_________________________________________________________________
5 Perry originally added an allegation that Oliver was negligent in
retaining Musgrove after he had been hired. The district court concluded
that Virginia does not recognize the tort of "negligent retention." See
Dixon v. Denny's Inc., 957 F. Supp. 792, 797 (E.D. Va. 1996). In any
event, Perry has not appealed the dismissal of his negligent retention
claim, so we need not address it.
9
--substantive due process analysis ignores procedure and asks
whether the substance of a state action is permissible: "The substan-
tive component of the Due Process Clause ``bar[s] certain government
actions regardless of the fairness of the procedures used to implement
them.'" Weller v. Department of Soc. Servs. , 901 F.2d 387, 391 (4th
Cir. 1990).
As a result, if Perry's substantive due process claim is to succeed,
he would have to show that a state may never--regardless of the pro-
cedures it uses--designate an individual as a child abuser and post
that designation on a public database. Perry cannot make this show-
ing. This court has explained that there is no constitutional right to be
free from child abuse investigations. Hodge v. Jones, 31 F.3d 157,
164 (4th Cir. 1994). Further, state publication of information regard-
ing child abuse or neglect to entities authorized by law to receive such
reports likewise does not violate substantive due process. Wildauer v.
Frederick County, 993 F.2d 369, 373 (4th Cir. 1993). Thus, whatever
liberty interests Perry may have in not being labeled a child abuser
or in the privacy of his family life, substantive due process does not
prohibit the Norfolk CPS from posting Perry's name on the CANIS
registry.
VI.
Perry also contends that the City Defendants violated procedural
due process by failing to notify him of his right to a hearing, at which
he could have contested the finding that he had abused his son, all
before his name was listed on the CANIS directory. Not only does
Perry complain of the defendants' failure to give proper notice in his
case, but he further argues that the system by which the Norfolk CPS
notifies all child abuse suspects of their hearing rights is constitution-
ally deficient. Specifically, Perry contends that due process requires
such notices to be sent by certified mail or to be served personally on
child abuse suspects, rather than being sent by regular mail alone. We
disagree and affirm the district court.6
_________________________________________________________________
6 As an initial matter, we note that the district court based its grant of
summary judgment on its determination that each defendant was, as to
each of Perry's due process claims, entitled to either qualified or sover-
eign immunity. Because we conclude that Perry's due process claims fail
on their merits, we need not reach the various immunity questions at
issue here.
10
A.
For purposes of our analysis, we assume that Perry does have a lib-
erty interest in not being listed as a child abuser in the CANIS regis-
try, an assumption that appears reasonable because this listing
indirectly cost him his job. Cf. Paul v. Davis , 424 U.S. 693, 701
(1976) (stigma of defamation by a government implicates no liberty
interest "apart from some more tangible interests such as
employment") (emphasis added). If a liberty interest is implicated, due
process requires that Perry be given a hearing to contest the determi-
nation that he was a child abuser before his name could be listed in
the CANIS registry. See Matthews v. Eldridge, 424 U.S. 319, 333
(1976) ("some form of hearing is required before an individual is
finally deprived" of a protected interest). Manifestly, then, Perry was
entitled to timely notice of this required hearing:"No ``process,' how-
ever thorough, can provide what is ``due' without notice to those who
stand to lose out thereby." Lane Hollow Coal Co. v. DOWCP, 137
F.3d 799, 807 (4th Cir. 1998).
There is no question that Perry did not receive notice of the hearing
at which he could have contested his status as a child abuser. The let-
ter that was to notify him of this hearing was misaddressed and, as
a result, was never delivered to him. The question thus becomes
whether the circumstances under which this particular failure of
notice occurred amount to a "deprivation" of Perry's liberty interest
in violation of the Due Process Clause of the Fourteenth Amendment.
See U.S. Const. amend. XIV ("nor shall any State deprive any person
of life, liberty, or property, without due process of law") (emphasis
added). Such a deprivation is necessary to support a§ 1983 claim. See
Daniels v. Williams, 474 U.S. 327, 332 (1986).
Perry has presented no evidence suggesting that his notification let-
ter was intentionally misaddressed. Instead, it appears that this mis-
take was the result of simple negligence. The Supreme Court has
made clear that a state actor's negligence cannot work an unconstitu-
tional deprivation of a citizen's liberty or property interests: "We con-
clude that the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to life,
liberty, or property." Id. at 328. As a result, Perry's claim that he was
11
denied due process because of the Norfolk CPS's failure to properly
address his letter must fail.
B.
Perry also contests the adequacy of the Norfolk CPS's notification
system itself. Specifically, he contends that by sending notices via
regular mail--rather than by certified mail or personal service--the
Norfolk CPS failed to employ a method of notification that was rea-
sonably certain to notify citizens of their right to a hearing. See
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) ("An elementary and fundamental requirement of due process
. . . is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.").
In support of this argument, Perry relies on the Supreme Court's
decision in Greene v. Lindsey, 456 U.S. 444 (1982). In Greene, the
Court held that Kentucky's practice of posting warnings of pending
evictions on apartment doors did not satisfy the notice standard of
Mullane, and was thus constitutionally deficient. Id. at 453-54. The
Court grounded its holding primarily on the testimony of process
servers, who had observed that the notices were"``not infrequently'
removed by children or other tenants before they could have their
intended effect." Id. at 453. Under these circumstances, the Court
concluded that posting "cannot be considered a``reliable means of
acquainting interested parties of the fact that their rights are before the
courts.'" Id. at 454 (quoting Mullane , 339 U.S. at 315).
Analogizing to Greene, Perry argues that his failure to receive
notice proves that the system of sending hearing notices by regular
mail is deficient. But, in contrast to the evidence of "not infrequent"
notice failure presented in Greene, Perry has presented no evidence
that the system employed by the Norfolk CPS has failed to notify
anyone--other than himself--of his right to a hearing. Evidence that
the system has failed only a single time does not support the conclu-
sion that the Norfolk CPS's system is "not reasonably calculated,
under all circumstances" to deliver notice. See Mullane, 339 U.S. at
314. Even a perfect system, if negligently administered in a single
instance, will fail to provide notice in that case.
12
It is telling that the Greene Court urged Kentucky to adopt pre-
cisely the system of which Perry now complains:
[T]he mails provide an efficient and inexpensive means of
communication upon which prudent men will ordinarily rely
in the conduct of important affairs. Notice by mail in the cir-
cumstances of this case would surely go a long way toward
providing the constitutionally required assurance that the
State has not allowed its power to be invoked against a per-
son who has had no opportunity to present a defense despite
a continuing interest in the resolution of the controversy.
Greene, 456 U.S. at 455 (internal quotation marks and citations omit-
ted). Consequently, Perry can draw no support for his position from
Greene; in fact, that case demonstrates that his procedural due process
argument must fail.
VII.
Finally, the Perrys appeal the district court's refusal to certify the
classes they have proposed. See Part I, supra. The district court
refused to certify the classes because the Perrys did not produce any
evidence suggesting that there are any members in the proposed
classes, other than themselves.
A plaintiff seeking class certification must, at a minimum, produce
some type of evidence suggesting that a class exists. See Doe v.
Charleston Area Medical Ctr., 529 F.2d 638, 645 (4th Cir. 1975)
(informal survey indicating that seventy women sought abortions out-
side West Virginia is sufficient proof of class's existence). Because
the Perrys did not come forward with proof of any type regarding the
existence of other potential class members, the district court was
within its discretion to refuse to certify the Perrys' proposed classes.
VIII.
For the reasons given above, we affirm the district court's orders
disposing of the Perrys' claims against all defendants.
AFFIRMED
13