Doe 2 v. John Rosa , 795 F.3d 429 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1748
JOHN DOE 2,
Plaintiff – Appellant,
v.
PRESIDENT JOHN W. ROSA, individually,
Defendant – Appellee.
No. 14-1749
MOTHER DOE, on behalf of John Doe 3,
Plaintiff – Appellant,
v.
PRESIDENT JOHN W. ROSA, individually,
Defendant – Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:12-cv-00794-RMG; 2:12-cv-00795-RMG)
Argued: March 24, 2015 Decided: July 28, 2015
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Shedd and Judge Duncan joined.
ARGUED: Jacqueline LaPan Edgerton, McLEOD LAW GROUP, LLC,
Charleston, South Carolina, for Appellants. Morris Dawes Cooke,
Jr., BARNWELL WHALEY PATTERSON & HELMS, LLC, Charleston, South
Carolina, for Appellee. ON BRIEF: W. Mullins McLeod, Jr., James
B. Moore III, McLEOD LAW GROUP, LLC, Charleston, South Carolina,
for Appellants. John W. Fletcher, Randell C. Stoney, Jr.,
Jeremy E. Bowers, BARNWELL WHALEY PATTERSON & HELMS, LLC,
Charleston, South Carolina, for Appellee.
2
AGEE, Circuit Judge:
The appellants in this consolidated appeal were the
plaintiffs below, John Doe 2 and Mother Doe, on behalf of John
Doe 2’s younger brother, Doe 3 (together, “the Does”). 1
Beginning in 2005 and continuing through July or August 2007,
Louis “Skip” ReVille provided childcare for the Doe family and
sexually abused the two minor boys. ReVille, a graduate of The
Citadel, The Military College of South Carolina (“The Citadel”),
had previously worked as a counselor at The Citadel’s youth
summer camp.
Defendant John W. Rosa was the president of The Citadel
during the time period relevant in this case. In April 2007,
his office received a phone call from the father of a former
camper, who reported that a counselor at the summer camp –-
later identified to be ReVille -- had molested his son in 2002.
Rosa did not report the complaint to law enforcement and
instead, the Does contend, took steps to conceal the
allegations. The Does argue that Rosa’s actions allowed ReVille
to continue his abuse of Doe 2 and Doe 3 during the summer of
2007.
1
Although both Doe 2 and Doe 3 were minors at the time of
the events underlying this case, Doe 2 is now an adult and
brings suit in his own right.
3
The Does brought suit against Rosa under 42 U.S.C. § 1983,
alleging that Rosa had violated an affirmative duty to protect
them under the Due Process Clause of the Fourteenth Amendment.
The district court granted summary judgment in favor of Rosa on
the ground that Rosa had no duty to protect the Does from a pre-
existent danger. For the reasons explained below, we affirm the
judgment of the district court.
I. Background
The Citadel is a public military college in Charleston,
South Carolina. From 1957 to 2006, it operated The Citadel
Summer Camp for young children, employing current and former
Citadel cadets to serve as staff and camp counselors. The
Citadel housed the camp counselors on campus in rooms near the
campers. In 2001, The Citadel learned that a former cadet named
Michael Arpaio had sexually abused campers while working as a
camp counselor from 1995 through 2001. Several victims sued the
Citadel based on Arpaio’s abuse and collected damages. 2
2 Consistent with the governing standard at the summary
judgment stage, the facts are recounted in the light most
favorable to the Does even where there are disputed events that
the Does may not ultimately be able to prove. See Walker v.
Mod-U-Kraf Homes, LLC, 775 F.3d 202, 205 n.1 (4th Cir. 2014).
4
A. Camper Doe Allegations
On April 23, 2007, Rosa’s office received a phone call from
the father of a former Citadel Summer Camp camper (“Camper Doe,”
unrelated to the plaintiffs and not a party in this case). Rosa
was not present that day, and his administrative assistant
referred the call to The Citadel’s general counsel, Mark
Brandenburg.
When Brandenburg returned the call, Camper Doe’s father
“asked whether [Brandenburg] was calling on behalf of President
Rosa,” because the family “did not want anything to fall through
the cracks.” J.A. 1753. The father told Brandenburg that
Camper Doe had been sexually abused by a counselor known as
“Skip” while attending the Citadel Summer Camp in 2002. Skip
had allegedly shown Camper Doe pornography and masturbated with
him and showered with the campers. The father also identified a
second camper who was similarly victimized. Brandenburg then
spoke on the phone with Camper Doe himself, who explained that
Skip abused him and other campers in this way for over a year.
J.A. 1830, 1862, 1865-1867.
Brandenburg reviewed camp records for the 2001 and 2002
years and found that Camper Doe’s description matched a
counselor named Louis “Skip” ReVille, who had been a Citadel
cadet from 1998 to 2002. ReVille had worked as a camp counselor
at the Citadel Summer Camp during the summers of 2000 to 2004
5
and as a tutor in The Citadel’s Writing Center from August 2006
until sometime in April 2007.
Brandenburg called ReVille at the Writing Center on April
24, 2007, the day after talking with Camper Doe’s father.
According to ReVille, Brandenburg arranged to meet with him and
Rosa’s Executive Assistant, Colonel Trez. At the meeting,
Brandenburg and Colonel Trez told ReVille about Camper Doe’s
accusations, all of which he denied. They explained to ReVille
that “from the Citadel’s standpoint their main concern was to
protect the institution” and that during their investigation he
should “lay low and stay off the campus.” J.A. 2416-17, 4622.
The Does suggest that Brandenburg then terminated ReVille’s
employment at the Writing Center, but ReVille’s time records as
a Citadel tutor indicate that he last worked at the Writing
Center on April 19, 2007, four days before Camper Doe’s father
called the Citadel. See J.A. 280. Similarly, a form that
ReVille’s supervisor at the Writing Center completed on March
22, 2007 lists the “Effective Date” of ReVille’s “Resignation”
as April 20, 2007. J.A. 279. The conflict between ReVille’s
testimony that he was at the Writing Center when he received
Brandenburg’s call on April 24, 2007 and the contradictory
employment forms is not resolved in the record, but we must
credit the Does’ account for summary judgment purposes.
6
Brandenburg also met with the former director of The
Citadel Summer Camp, Jennifer Garrott, on April 24, 2007, who
disclosed that ReVille had been asked to leave his prior job at
a prep school. In addition, Garrott told Brandenburg that in
the summer of 2003, she caught ReVille in his barracks room
alone with a camper rubbing Icy Hot on the camper’s leg, which
is against camp policy forbidding counselors from being alone in
a room with campers -– a terminable offense.
Brandenburg reported back to Rosa by May 6, 2007 about his
investigation of the allegations against ReVille. The Does
contend that Brandenburg “memorialized . . . his and President
Rosa’s intentions” to conceal the Camper Doe complaint in a May
8, 2007 email, Appellant’s Br. 9, and quote a portion of the
email that states, “I am hopeful that by conducting an
investigation on behalf of the school, no ‘formal’ investigation
-– criminal or civil -– will occur.” J.A. 1005. However, the
Does appear to take the email out of context as it was written
to provide a background explanation to a potential witness in
advance of an interview by Brandenburg. Further, the Does offer
no evidence that Rosa was aware of the contents of the email or
ever saw it.
On July 1, 2007, Brandenburg went to Dallas, Texas to
personally speak to Camper Doe and his parents. During the
interview, which was recorded and transcribed, Camper Doe
7
provided a detailed account of the abuse, including that it
happened to “about five other” boys. J.A. 3591. Asked whether
he reported the complaint to law enforcement, Camper Doe
replied, “Well, I mean, I’ve talked to you,” and “Most of all,
the thing I want the most is just to make sure that [ReVille]
doesn't have a chance to do this to anyone else.” J.A. 3659-61.
Camper Doe later testified, “I would have absolutely reported it
to police had I known that the Citadel didn’t.” J.A. 2399.
At the close of the July 1 interview, Camper Doe's father
mentioned that The Citadel had not accepted Camper Doe for
admission as a cadet. He stated that The Citadel had been “part
of the root cause” of Camper Doe’s problems and by admitting him
could “be part of the root cause to fix him.” J.A. 288. The
father considered this “a very inexpensive way for The Citadel
to say, do you know what -– we’ll fix our own.” J.A. 288. 3
B. The Alleged Cover-Up
The Does contend that Rosa “deliberately conspired to
conceal” the allegations by Camper Doe against ReVille. J.A.
35, 61 (Compls. ¶ 25). Jennifer Shiel, an administrative
3The Citadel considered Camper Doe for admission to its
2007 class, but could not admit him because he lacked several
high school courses that the state of South Carolina required as
prerequisites in order for him to matriculate. The Citadel
offered to pay for Camper Doe to take those classes at a
community college and consider him for admission to the 2008
freshman class but received no response from Camper Doe.
8
assistant who worked in Rosa’s office, testified that “President
Rosa [was] in charge” of a “conscious effort to cover up or
conceal [the] report of sexual abuse.” J.A. 975. She testified
that Rosa used the term “close hold,” which she interpreted to
mean that “only people that needed to know about it were
supposed to know about it.” J.A. 985. Further, Shiel testified
that Brandenburg and Rosa had nearby offices and met on business
at least three times a week. Brandenburg was deferential to
Rosa and “there was no way that [Brandenburg] would have done
something on his own without running it past [Rosa] first.”
J.A. 970.
The Does posit that Rosa ignored policies of both The
Citadel and its summer camp that required him to report the
Camper Doe claim to the Citadel Public Safety Department. J.A.
35, 61 (Compls. ¶ 29); see also Serious Incidents, Memorandum
No. 39, J.A. 1376-88 (directing that when criminal activity
involving someone affiliated with The Citadel as a suspect or
victim occurs, the “first member of the Citadel community
learning of the occurrence” is responsible for reporting it to
the Public Safety Department); Summer Camp Official Camp
Policies Regarding Sexual Misconduct Issues, J.A. 1389
(mandating that “[r]egardless of validity of the violation, any
sexually inappropriate conduct reports concerning any camper or
employee of the camp will be turned over to the Citadel Public
9
Safety Department”). Shiel testified that Rosa “made sure that
did not happen.” J.A. 976.
The Does also assert that Rosa violated The Citadel’s
Employee Misconduct Policy by allowing ReVille to resign his
position at the Writing Center and to leave with a clean record.
J.A. 37, 63 (Compls. ¶ 37). According to the Does, The Citadel
policy forbids expunging molestation findings from an employee’s
record or terminating an investigation in exchange for the
employee’s resignation. J.A. 2418. The Does, however, offer no
evidence that Rosa expunged findings from ReVille’s record.
The Does also point to multiple policies they contend
required Rosa to report sexual assault or harassment to the
college’s Title IX Coordinator. J.A. 37, 63 (Compls. ¶ 35); see
also Sexual Assault Crisis Intervention Policy, J.A. 1415-20;
Sexual Harassment, J.A. 1421-36; General Procedures for
Conducting Formal Investigations of Sexual Harassment, J.A.
1437-38. In addition, the Does allege Rosa violated Title IX’s
requirement for an impartial investigation of sexual abuse by
leaving the investigation to The Citadel’s general counsel
(Brandenburg) and its insurer, the South Carolina Insurance
Reserve Fund. See 20 U.S.C. § 1681.
In addition to failing to report the Camper Doe allegations
or initiate a proper investigation, the Does contend that Rosa
actively concealed the allegations. For example, in October
10
2007, the Camper Doe complaint was omitted from a list of
“possible litigation” files kept in The Citadel’s General
Counsel’s office. J.A. 2421-34. In 2010, Camper Doe’s name
appeared in the list with the description “alleged sexual abuse
at summer camp,” but the entry was annotated as being against
“Arpaio,” not ReVille. J.A. 2435-38. The Does argue that this
“is evidence of President Rosa’s cover up” and that an accurate
file, listing ReVille’s name, would have notified the South
Carolina Budget and Control Board that potential liability
extended beyond the Arpaio sex abuse complaints. Appellant’s
Br. 17. 4
As further evidence of a cover-up, the Does point out that
The Citadel did not include the Camper Doe complaint in the 2007
crime statistics that it was required to keep under the Clery
Act. See 20 U.S.C. § 1092(f). The Clery Act requires schools
to report statistics of crimes “that are reported to local
police agencies or to a campus security authority” during “the
three most recent calendar years.” 34 C.F.R. § 668.46.
According to the Does, Rosa “effectively prevent[ed] the trigger
of any duty to report pursuant to the Clery Act” by withholding
4
Rosa responds that this argument “defies logic” because
the South Carolina Insurance Reserve Fund, to which Brandenburg
did report Camper Doe’s allegations, is a division of the Budget
and Control Board. Appellee’s Br. 15; see also S.C. Dep’t of
Disabilities and Special Needs v. Hoover Universal, Inc., 535
F.3d 300, 302 (4th Cir. 2008).
11
Camper Doe’s complaint from law enforcement. Appellant’s Br.
18; see also J.A. 36, 62 (Compls. ¶ 31).
The Does also assert that The Citadel further hid the
Camper Doe allegations by withdrawing a challenge to ReVille’s
application for unemployment benefits. On June 8, 2007, the
South Carolina Employment Security Commission found ReVille
eligible for unemployment benefits due to job loss from The
Citadel, and on June 20, 2007, The Citadel filed a Notice of
Appeal to challenge that decision. However, on July 5, 2007,
four days after Brandenburg met with Camper Doe in Dallas, The
Citadel withdrew its appeal of ReVille’s unemployment benefits.
ReVille testified that he believed The Citadel withdrew the
challenge because Brandenburg and Colonel Trez “did not want to
have anything to do with [him] as far as any kind of
confrontation or anything.” J.A. 4687.
Finally, in June and September 2007, Brandenburg appeared
with Rosa before The Citadel’s Board of Visitors to provide
information on Camper Doe’s allegations against ReVille. The
Does argue that Brandenburg gave such minimal detail on the
issue that the Board could not understand the true nature of the
complaint. According to a third-party investigative report
commissioned by The Citadel, the Board “assumed, based on what
they were told, that it was an insurance defense and civil claim
matter, and believed from what they were told that this was the
12
case of a father displeased with his son’s unsuccessful
application for admission to the College.” J.A. 4043.
C. ReVille’s Abuse of the Does
ReVille met Doe 2 in the summer of 2005, about two years
before Camper Doe’s father called Rosa’s office. Doe 2 had just
finished 6th Grade, and ReVille was a volunteer coach for his
youth basketball team, which held practice at the prep school
where ReVille worked. At some point, ReVille invited Doe 2 to
his home to help with yardwork and began sexually abusing him
shortly thereafter. ReVille testified he abused Doe 2 at least
12 times in 2005 and “three, four times a week” in 2006. J.A.
4721-26.
ReVille became increasingly close with Doe 2 and his
family, and during Doe 2’s 8th grade year, ReVille was invited
by the Doe family to move into their home as a part-time
caregiver for Doe 2 and his younger brother, Doe 3. ReVille
then increased his abuse of Doe 2 and also began to abuse Doe 3.
The abuse -- which consisted of sexual truth-or-dare games, oral
sex, physical touching, and masturbation -- occurred from three
to four times a week to “nearly daily” between the summer of
2006 through early 2007. J.A. 4989, 5044, 5231-33. In April
2007, prior to learning about Camper Doe’s allegations, ReVille
13
was abusing Doe 2 approximately “two to three times a week” and
Doe 3 “three to four times a week.” J.A. 4730-31, 4736.
After meeting with Brandenburg and Colonel Trez on April
24, 2007, ReVille briefly curtailed his sexual abuse of the
Does. However, he heard nothing further from The Citadel or law
enforcement and, taking the silence as “news that [he] was not
going to get in trouble,” ReVille resumed the abuse before the
end of May 2007. J.A. 5043-44. By that time, ReVille was no
longer working at the Writing Center and used his additional
free time to abuse the Does more frequently. The abuse ended by
August, when the Doe family moved to Atlanta.
After leaving his employment at the Writing Center, ReVille
returned to The Citadel several times, to speak to the Honor
Committee and incoming freshman, and in 2010 to attend the
unveiling of the remodeled Honor Court. Finally, in October
2011, Mount Pleasant, South Carolina police arrested ReVille,
apparently based on separate allegations of child sexual abuse.
At that time, Camper Doe’s April 2007 allegations against
ReVille came to light.
D. Legal Proceedings
The Does filed two complaints against Rosa (one each for
Doe 2 and Doe 3) on March 19, 2012 in the District of South
Carolina, which were later amended. The amended complaints
14
assert a substantive due process violation under 42 U.S.C.
§ 1983, as well as two other claims that the district court
dismissed. In effect, the Does allege that Rosa caused their
abuse during the late spring and early summer of 2007 by
covering up the Camper Doe complaint and thereby allowing
ReVille to remain a respected member of the community. J.A. 34,
62 (Compls. ¶ 34).
On June 27, 2014, the district court granted summary
judgment in favor of Rosa in both cases. The district court
concluded that the Supreme Court’s holding in DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189(1989), bars the Does’ § 1983 claim because Rosa “cannot be said
to have created a danger which already existed.” J.A. 5244. By
the time Rosa learned of the Camper Doe complaint, “ReVille had
been abusing [the Does] for nearly two years and this abuse had
occurred wholly independent of any act or involvement of
[Rosa].” J.A. 5251. The Does therefore “c[ould ]not
demonstrate that [Rosa] created or substantially enhanced the
danger which resulted in [their] tragic abuse at the hands of
ReVille.” Id.
The Does timely appealed their respective orders, and we
have jurisdiction over their consolidated appeal under 28 U.S.C.
§ 1291.
15
II. Standard of Review
We review de novo the district court’s grant of summary
judgment. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
Summary judgment is appropriate only when the evidence shows
that “there is no genuine issue as to any material fact,” Fed.
R. Civ. P. 56(c), such that “a reasonable jury could [not]
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “In addition to
construing the evidence in the light most favorable to [the
Does], the non-movant, we also draw all reasonable inferences in
[their] favor.” World Fuel Servs. Trading, DMCC v. Hebei Prince
Shipping Co., Ltd., 783 F.3d 507, 512 (4th Cir. 2015).
III. Discussion
On appeal, the Does argue that they have established a
triable cause of action against Rosa under 42 U.S.C. § 1983 for
the abuse that occurred after the Camper Doe allegation. They
contend Rosa’s alleged conduct constituted affirmative acts
which created, or at least increased, the risk of their later
abuse by ReVille. The Does’ central argument is that the
district court erred in applying the state-created danger
doctrine when it concluded that Rosa was not liable because
ReVille had already been abusing the Does long before the Camper
Doe complaint.
16
A. The State-Created Danger Doctrine
Section 1983 imposes liability on state actors who cause
the “deprivation of any rights, privileges, or immunities
secured by the Constitution.” 5 Under established precedent,
these constitutional rights include a Fourteenth Amendment
substantive due process right against state actor conduct that
deprives an individual of bodily integrity. See, e.g., Hall v.
Tawney, 621 F.2d 607, 612-13 (4th Cir. 1980). Accordingly,
state actions that result in sexual abuse of children can be
actionable under § 1983. See Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443, 454 (5th Cir. 1994) (addressing a “student’s
constitutional right to bodily integrity in physical sexual
abuse cases”); Stoneking v. Bradford Area Sch. Dist., 882 F.2d
720, 724-25 (3rd Cir. 1989) (recognizing § 1983 liability for
school administrators’ “actions in adopting and maintaining a
practice, custom or policy of reckless indifference to instances
of known or suspected sexual abuse of students by teachers”).
State actor liability, however, is significantly limited as
the Supreme Court explained in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189 (1989). In that
case, a child’s mother brought a § 1983 action against a social
5
There is no disagreement that Rosa could be a state actor
for § 1983 purposes when acting in his capacity as the President
of The Citadel, as The Citadel is a public university of the
state of South Carolina.
17
worker and other local officials on behalf of her child, who had
been beaten and permanently brain damaged by his father. The
mother alleged that the state officials failed to remove the
child from his father’s custody, despite repeated reports and
evidence of the father’s abuse, and that failure to act deprived
the child of a liberty interest in violation of his due process
rights. Id. at 191.
The Supreme Court rejected DeShaney’s asserted federal
constitutional cause of action because
nothing in the language of the Due Process
Clause itself requires the State to protect
the life, liberty, and property of its
citizens against invasion by private actors.
The Clause is phrased as a limitation on the
State’s power to act, not as a guarantee of
certain minimal levels of safety and
security. It forbids the State itself to
deprive individuals of life, liberty, or
property without “due process of law,” but
its language cannot fairly be extended to
impose an affirmative obligation on the
State to ensure that those interests do not
come to harm through other means. Nor does
history support such an expansive reading of
the constitutional text. Like its
counterpart in the Fifth Amendment, the Due
Process Clause of the Fourteenth Amendment
was intended to prevent government “from
abusing [its] power, or employing it as an
instrument of oppression[.]” Its purpose
was to protect the people from the State,
not to ensure that the State protected them
from each other.
Id. at 195-96 (citations omitted). In establishing a bright-
line rule regarding due process causes of action involving the
18
state-created danger doctrine, the Court concluded that because
“the Due Process Clause does not require the State to provide
its citizens with particular protective services, it follows
that the State cannot be held liable under the Clause for
injuries that could have been averted had it chosen to provide
them.” Id. at 196-97.
The Supreme Court noted, nonetheless, that state actor
liability might attach in two narrow circumstances. The first
exception arises “when the State takes a person into its custody
and holds him there against his will.” Id. at 199-200
(sometimes referred to as the state-custody or special-
relationship exception). For example, individuals confined in a
penal institution or mental hospital are due certain protections
by the state during the time of confinement because
when the State takes a person into its
custody and holds him there against his
will, the Constitution imposes upon it a
corresponding duty to assume some
responsibility for his safety and general
well-being. . . . . The affirmative duty
to protect arises not from the State’s
knowledge of the individual’s predicament or
from its expressions of intent to help him,
but from the limitations which it has
imposed on his freedom to act on his own
behalf.
Id. at 199-200.
The Does do not contend that their asserted cause of action
can be sustained under the state custody exception.
19
The second exception, implicit in DeShaney, gives rise to
the state-created danger doctrine and is at issue here. 6 In
DeShaney, the Supreme Court observed that “[w]hile the State may
have been aware of the dangers that [the child] 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.” Id. at 201
(emphasis added). Under “th[o]se circumstances,” the State had
no constitutional duty to protect the child. Id. Thus, “When
the state itself creates the dangerous situation that resulted
in a victim’s injury, the absence of a custodial relationship
may not be dispositive.” Pinder, 54 F.3d at 1177.
The leading case in the Fourth Circuit on the state-created
danger doctrine is Pinder, where Ms. Pinder, the mother of three
children, brought a § 1983 action against a police officer who
had responded to a report of domestic violence at her home. Id.
at 1171-72. Her ex-boyfriend, Pittman, had broken into Pinder’s
home, assaulted her, and threatened to kill her and her three
children. Pinder told the investigating officer that Pittman
also had threatened her in the past and had just been released
6 Although commonly referred to as a second “exception” to
DeShaney’s general rule, we have noted that this terminology “is
not strictly accurate.” Pinder v. Johnson, 54 F.3d 1169, 1176
n.* (4th Cir. 1995). “Rather, ‘creation’ of a danger implicates
the alternate framework of § 1983 liability wherein a plaintiff
alleges that some conduct by an officer directly caused harm to
the plaintiff.” Id.
20
from jail for the attempted arson of her home. Fearing that
Pittman could return to harm her or her children, she asked the
officer whether she could safely return to work that evening.
The officer assured her that Pittman would be incarcerated
overnight on assault charges and could not be released until the
county commissioner became available for a hearing in the
morning. With that assurance, Pinder went to work that evening
leaving her children at home.
Instead of the assault charge, the officer filed lesser
charges against Pittman, and he was released from custody that
night. Pittman then returned to Pinder’s home after she had
gone to work and set it on fire. Pinder’s children were
sleeping inside, and all three died of smoke inhalation.
Pinder then brought a § 1983 due process claim against the
police officer. Lacking a custodial relationship with the
state, she sought to invoke the state-created danger doctrine by
alleging that the officer’s assurances of Pittman’s overnight
detention were affirmative misconduct by a state actor that
increased the danger to her children. Id. at 1175. We
concluded, however, that Pinder could not sidestep the broad
rule in DeShaney by “characterizing her claim as one of
affirmative misconduct by the state in ‘creating or enhancing’
the danger, instead of an omission.” Id.
21
We reasoned that if Pinder’s theory was correct, “every
representation by the police and every failure to incarcerate
would constitute ‘affirmative actions,’ giving rise to civil
liability.” Id. Such a rule could not survive scrutiny under
DeShaney:
No amount of semantics can disguise the fact
that the real “affirmative act” here was
committed by Pittman, not by Officer
Johnson. As was true in DeShaney, the state
did not “create” the danger, it simply
failed to provide adequate protection from
it. In both cases, “[t]he most that can be
said of the state functionaries . . . is
that they stood by and did nothing when
suspicious circumstances dictated a more
active role for them.” Thus, like DeShaney,
Pinder’s case is purely an omission claim.
Id. at 1175-76 (citation omitted). In light of DeShaney, the
officer lacked a “clearly established” duty under the due
process clause to protect Pinder or her children and was
therefore entitled to qualified immunity. Id. at 1176.
Under the narrow limits set by DeShaney and Pinder, to
establish § 1983 liability based on a state-created danger
theory, a plaintiff must show that the state actor created or
increased the risk of private danger, and did so directly
through affirmative acts, not merely through inaction or
omission. Put another way, “state actors may not disclaim
liability when they themselves throw others to the lions,” but
that does not “entitle persons who rely on promises of aid to
22
some greater degree of protection from lions at large.” Pinder,
54 F.3d at 1177.
B. Rosa’s § 1983 Liability
Given the clear rule under DeShaney and Pinder, we conclude
that the Does cannot make a § 1983 state-created danger claim
against Rosa. As the district court found in granting summary
judgment, the Does’ claim fails because they “cannot demonstrate
that [Rosa] created or substantially enhanced the danger which
resulted in [their] tragic abuse at the hands of ReVille.” 7 J.A.
5244. ReVille began abusing the Does in 2005 and 2006, two
years before Rosa could have been aware through the Camper Doe
complaint that he was a pedophile. Quite simply, Rosa “could
7 The Does’ claim may suffer from an additional defect.
Even if their theory were legally viable, it is not altogether
clear that the evidence establishes Rosa’s culpability. Because
“principles of respondeat superior do not apply in imposing
liability under § 1983,” McWilliams v. Fairfax Cnty. Bd. of
Supervisors, 72 F.3d 1191, 1197 (4th Cir. 1996), it is not
enough that Rosa had general supervisory authority over
Brandenburg and other Citadel employees. His “own individual
actions” must violate the Does’ rights. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). Rosa did not receive the initial call
from Camper Doe’s father, and the Does provide at best
speculative evidence that Rosa directed Brandenburg’s subsequent
actions. Nonetheless, because we find the claim fails as a
matter of law, we need not delve further into the sufficiency of
the Does’ proof.
23
not have created a danger that already existed.” 8 Armijo v.
Wagon Mound Pub. Sch., 159 F.3d 1253, 1263 (10th Cir. 1998).
Nor did Rosa create or increase the risk of the Does’ abuse
specifically during the early summer months of 2007, as the Does
posit. As horrific as the abuse of the Does by ReVille was,
nothing transpired between them and ReVille in the summer of
2007 that had not been ongoing for two years unrelated to any
action by Rosa. As DeShaney makes clear, allowing continued
exposure to an existing danger by failing to intervene is not
the equivalent of creating or increasing the risk of that
danger. The father’s abuse in DeShaney was a pre-existent
danger, and the fact that the state had taken temporary custody
of the child and returned him to the father’s care “d[id] not
alter the analysis.” 489 U.S. at 201; see also Armijo, 159 F.3d
at 1263 (concluding that a state actor cannot be liable for a
pre-existent danger, “even if the state put the plaintiff back
in that same danger”). Here, Rosa is alleged to have done even
less than the acts claimed in DeShaney and Pinder; at worst, he
8At oral argument, Rosa’s counsel represented that this
fact might not be dispositive if Rosa had specifically known
that the Does would be victims of ongoing abuse. But see
Pinder, 54 F.3d at 1175 (“DeShaney rejected the idea that [an
affirmative] duty can arise solely from an official’s awareness
of a specific risk or from promises of aid.”). Because this
case does not present that situation, we need not address the
issue.
24
failed to take actions that might have removed them from an
ongoing danger that had been present for a long time.
The Does were thus placed in “no worse position than that
in which [they] would have been had [Rosa] not acted at all.”
DeShaney, 489 U.S. at 201. There was simply nothing new about
ReVille’s perverted abuse of the Does in the summer of 2007 that
had not already been occurring for months. Rosa did not make
the Does’ danger any worse, and he had no constitutional duty to
save them from ReVille’s existing abuse. “[T]here simply is ‘no
constitutional right to be protected by the state against . . .
criminals or madmen,’” and a state actor’s “‘failure to do so is
not actionable under section 1983.’” Fox v. Custis, 712 F.2d
84, 88 (4th Cir. 1983) (quoting Bowers v. DeVito, 686 F.2d 616,
618 (7th Cir. 1982)). To paraphrase Pinder, “[n]o amount of
semantics can disguise the fact that the real ‘affirmative act’
here was committed by [ReVille], not by [Rosa]. As was true in
DeShaney, the state did not ‘create’ the danger, it simply
failed to provide adequate protection from it.” Pinder, 54 F.3d
at 1175.
In arguing for the opposite conclusion, the Does rely
almost exclusively on an unpublished case Robinson v. Lioi, 536
F. App’x 340 (4th Cir. 2013). However, the state actor in
Robinson substantially changed a pre-existent danger –- he did
not simply fail to intervene to stop it. In Robinson, a woman
25
was stabbed and killed after a police officer, Lioi, actively
conspired with her husband and enabled him to evade an arrest
warrant for domestic violence, thus creating the opportunity for
him to murder his wife. Though the risk of domestic abuse
already existed, the officer “directly enabled [the husband] to
perpetrate the harm to [the wife]” and “affirmatively placed
[the wife] in a position of danger.” Id. at 345 (citation and
internal quotation marks omitted). Unlike here or in DeShaney,
the police officer in Lioi put the victim in a far “worse
position” by acting to thwart the arrest warrant. DeShaney, 489
U.S. at 201. By contrast, the Does were in no different
situation with ReVille after the Camper Doe complaint than they
had been the previous two years.
Even if the Does did face a new or increased risk of abuse,
which they did not, their claim would still fail because the
danger was not the result of Rosa’s “affirmative acts.”
A “key requirement” for liability under the state-created
danger doctrine is that the state actor increase or create the
danger through “affirmative conduct.” Butera v. District of
Columbia, 235 F.3d 637, 650 (D.C. Cir. 2001); see also DeShaney,
489 U.S. at 200 (observing that “it is the State’s affirmative
act” that “trigger[s] the protections of the Due Process
Clause”); Sarji v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th
Cir. 1995) (“There is no evidence that the Board took any
26
affirmative action that exposed decedent to any danger to which
she was not already exposed.”). The state, through its
affirmative acts, must “itself create[] the dangerous situation
that resulted in a victim’s injury,” such that “it becomes much
more akin to an actor itself directly causing harm to the
injured party.” Pinder, 54 F.3d at 1177. “No constitutional
liability exists where the State actors ‘had no hand in creating
the danger but [simply] stood by and did nothing when suspicious
circumstances dictated a more active role for them.’” Butera,
235 F.3d at 650 (citation omitted).
“Affirmative acts,” in the state-created danger context,
are quite limited in scope. “It cannot be that the state
‘commits an affirmative act’ . . . every time it does anything
that makes injury at the hands of a third party more likely.”
Pinder, 54 F.3d at 1175 (“If so, the state would be liable for
every crime committed by the prisoners it released.”). And
although “inaction can often be artfully recharacterized as
‘action,’ courts should resist the temptation to inject this
alternate framework into omission cases.” Id. at 1176 n.*. The
“concept of ‘affirmative acts’” should not extend “beyond the
context of immediate interactions between the [state actor] and
the plaintiff.” Id.Here, Rosa’s alleged “affirmative acts” boil down to a
particular inaction: his failure to alert the authorities about
27
ReVille’s past conduct. He did not follow Citadel policies and
report the ReVille allegations to campus police or file required
notices under Title IX. But even what the Does offered at oral
argument as their strongest “affirmative act” -- failing to
fully explain the allegations against ReVille at the Board of
Visitors meetings in June and September 2007 –- is something
that Rosa did not do. As the Does argued, Rosa “sat idly by,”
Oral Arg. at 3:16, and “did not correct the misperception by the
Board,” Appellant’s Br. 20. But that course of events clearly
fails to establish state actor liability under DeShaney. See
489 U.S. at 203 (“The most that can be said of the state
functionaries . . . is that they stood by and did nothing when
suspicious circumstances dictated a more active role for
them.”).
The Does cannot “sidestep” this problem by “artfully
recharacteriz[ing]” Rosa’s conduct in terms of affirmative
violations of Citadel policies and misrepresentations in Citadel
records. Pinder, 54 F.3d at 1175-76 & n*; see Oral Arg. at 5:56
(“[Rosa] acted when he didn’t do what his school policies told
him to.” (emphasis added)). Rosa’s failure to report ReVille to
the Citadel police or to a Title IX agency is an inaction on his
part and not a cognizable affirmative act for liability under
the state-created danger doctrine.
28
We rejected a similar argument in Pinder. Although the
plaintiff “emphasize[d] the ‘actions’ that [the officer] took in
making assurances, and in deciding not to charge Pittman with
any serious offense,” the failure to file more serious charges
amounted to an inaction on the part of a state actor. Pinder,
54 F.3d at 1175 (“At some point on the spectrum between action
and inaction, the state’s conduct may implicate it in the harm
caused, but no such point is reached here.”). Rosa’s decision
not to report ReVille is no different from the officer’s
decision not to file the more serious charges against Pittman.
As in Pinder and DeShaney, the Does claim against Rosa is
“purely an omission claim,” and “[n]o amount of semantics can
disguise the fact that the real ‘affirmative act’ here was
committed by [ReVille], not by [Rosa].” Id. at 1175-76.
In addition, the Does’ claim lacks the nexus necessary for
any of Rosa’s alleged conduct to be “affirmative acts.” We
cannot “stretch[] the concept of ‘affirmative acts’ beyond the
context of immediate interactions between the [state actor] and
the plaintiff.” Id. at 1176 n.*. Here, Rosa did not meet or
speak with the Does, and by all accounts, was not even aware the
Does existed. Further, he could only speculate that the Camper
Doe allegations were true and that ReVille would pose future
danger. If anything, the case at bar stands on weaker ground
than in DeShaney, in which the state-actor defendants knew the
29
child victim and were aware of the specific danger the father
posed to him. The Supreme Court rejected liability there, and
we must do the same here. The same distinction can be drawn to
Pinder, where the officer was well aware of the potential danger
to Pinder’s children, but made his charging decision
nonetheless. The downstream, but-for connection alleged here
simply stretches the “affirmative acts” concept too far.
Here, again, the Does look only to Robinson for support, by
arguing that case recognized that actions to keep a violent
husband out of custody are “affirmative acts.” But (in addition
to being unpublished) that case featured conduct of an entirely
different nature than what the Does have alleged. Lioi had
“conspired with [the husband] to help [him] avoid being
arrested”; “actively interfered with the execution of the
warrant by not only failing to turn the warrant over to the
proper unit . . . , but also by warning [the husband] and giving
him advice about how to avoid service of the warrant”; and “lied
to avoid service of the arrest warrant by falsely contending
that it could not be found.” Robinson, 536 F. App’x at 344.
The conduct thus “was far more than a mere passive failure to
act; the type of omission claim which the court rejected in
Pinder.” Id. at 344. In contrast, Rosa did not collaborate
with ReVille to assist him to avoid custody or detection; he
30
merely failed to take actions that he was under no
constitutional obligation to take.
IV.
For the foregoing reasons, the state-created danger
doctrine does not impose liability on Rosa for ReVille’s ongoing
abuse of the Does. While Rosa’s undisputed failure to act
brought dishonor to him and The Citadel, it did not create a
constitutional cause of action. 9 Rosa’s alleged conduct neither
created nor increased the danger ReVille already posed to the
Does, and in any event, did not constitute cognizable
affirmative acts with respect to ReVille’s abuse of the Does. 10
Accordingly, the district court’s judgment is
AFFIRMED.
9 Rosa now agrees that The Citadel should have done more in
response to Camper Doe’s allegations and that the matter should
have gone to the police. See J.A. 4030 (“When you read that
transcript [of Camper Doe’s interview], with my experience in
the sexual assault world, there was much more going on than what
we were led to believe (by Mark Brandenburg).”).
10 Because we agree with the district court that Rosa lacked
an affirmative duty to the Does and therefore did not violate
their constitutional rights, we need not address Rosa’s
additional argument as to qualified immunity.
31