Joseph Walton, as Next Friend of Christopher Walton, a Minor v. Alma Alexander, Alma Alexander

ROBERT M. PARKER, District Judge:

Plaintiff-appellee Joseph Walton filed this action on behalf of his son Christopher Walton (Walton), a student at the Mississippi School for the Deaf, against Defendant-appellant Dr. Alma Alexander (Alexander), former superintendent of the Mississippi School for the Deaf, alleging violations of 42 U.S.C. § 1988. Alexander moved for summary judgment on the basis of qualified immunity. The District Court denied her motion, and she is before this Court on interlocutory appeal of that order as is her right under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). For the reasons set out below, we REVERSE.

STANDARD OF REVIEW

Review of a district court’s ruling on a motion for summary judgment is plenary. Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). Although review is de novo, the court of appeals applies the same standards as those that govern the district court’s determination. Jackson v. Federal Deposit Ins. Corp., 981 F.2d 730, 732 (5th Cir.1992). Summary judgment must be granted if the court determines that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). To determine whether there are any genuine issues of material fact, the court must first consult the applicable substantive law to ascertain what factual issues are material. The moving party bears the burden of coming forward with proof of the absence of any genuine issues of material fact through the identification of those portions of the pleadings, depositions, answers to the interrogatories, and admissions on file, together with any affidavits which it believes demonstrates the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The nonmovant is then required to counter the motion for summary judgment. Fed.R.Civ.P. 56(e). “[Mjere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment.” Nicholas Acoustics, Etc. v. H & M Const. Co., Inc., 695 F.2d 839, 844 (5th Cir.1983) (quoting Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1051 (5th Cir.1967)). The court must then review all evidence bearing on those issues, viewing the facts and inferences in the light most favorable to the nonmoving party. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990).

FACTS

During the latter part of 1987, while he was a student at the Mississippi School for the Deaf (the School), Walton was sexually assaulted by a fellow student. This assault was reported to school officials, including Alexander, who filed a report with the Mississippi Department of Welfare. Pursuant to the School’s policies implemented by Alexander, both the School and the Mississippi Department of Welfare investigated the assault. The School called its discipline committee to counsel both students and to contact each student’s parents regarding the assault. Walton was also provided with medical treatment by the School’s physician. Walton and his assailant were suspended from the School campus for three days, which Alexander believed to be the maximum punishment allowed under a consent decree from an unrelated class action settlement, Mattie T. v. Holiday¹.

Upon return from suspension, Alexander contends both Walton and his assailant were given psychological consultation by the School’s psychologist. On the other hand, Walton contends that after returning to the School he did not receive any counseling or instructions as to how to protect himself from further assault. Alexander recalls that in addition to counseling, the two students were placed in separate dormitories. Walton alleges, however, that Alexander took insufficient measures to shield him from the assailant after returning from suspension. The law is clear that the court cannot consider mere general allegations of fact in response to a motion for summary judgment. Therefore, we find Alexander’s efforts to separate Walton from his assailant to be undisputed. By the fall of 1988, budgetary constraints imposed by the State of Mississippi forced the School to close all but one male dormitory. Consequently, Walton and his assailant were placed in the same dormitory. Walton was assigned a special dormitory room with a private bath, which was intended to keep Walton out of the bathrooms with other male students. Walton contends that the assailant was allowed unrestricted access to him in 1988, and he was again sexually assaulted by the same student. However, Alexander was not informed of the second assault. Thereafter, Walton filed the present action under 42 U.S.C. § 1983, alleging a Fourteenth Amendment violation based on Alexander’s failure to protect Walton from the sexual assault of the offending fellow student.

QUALIFIED IMMUNITY

Appellant contends that the district court erred in denying her summary judgment because she was entitled to qualified immunity as a matter of law.

State officials are protected by qualified immunity for alleged constitutional torts if their conduct does not violate clearly established law effective at the time of the alleged tort. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Therefore, the first step in examining a defendant’s claim of qualified immunity is to determine whether the plaintiff has “al-leg[ed] the violation of a clearly established constitutional right.” Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). For a constitutional right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531 (1987).

Walton’s amended complaint alleges that he was deprived of his “right to be free from sexual assault while attending school at the Mississippi School For the Deaf” in violation of his substantive due process right to bodily integrity. A substantive due process right, as opposed to a procedural due process right, is one either listed in the Bill of Rights or one held to be so fundamental that a state may not take it away. See generally, Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).

Although the Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law,” nothing in the language of the clause itself requires a state, or its officials, to protect the life, liberty, and property of persons within its borders against the actions of private actors. Courts have declined to recognize as a general rule a person’s affirmative right to state protection, even when such protection may be necessary to secure life, liberty, or property interests. See DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989); see also Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982). Following this reasoning, the U.S. Supreme Court has concluded that, as a general matter, “a State’s² failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 197, 109 S.Ct. at 1004.

However, in certain limited circumstances, when a “special relationship” exists between a state official and a particular individual, the state official is imposed with a duty to protect that particular individual, thereby creating a constitutional right to care and safety. See generally Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that the State is required to provide adequate medical care to incarcerated prisoners). For example, in Youngberg v: Romeo, supra, the U.S. Supreme Court held that the Due Process Clause of the Fourteenth Amendment requires a state, through its officials, to provide for the reasonable safety and care of involuntarily committed mental patients. Id. at 314-325, 102 S.Ct. at 2457-2463. Estelle and Youngberg stand for the proposition that when a state holds a person against his will, the Constitution imposes a duty upon the state and its officials to assume the responsibility for that person’s safety and well-being. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 200, 109 S.Ct. at 1005. This duty arises from the limitations that have been imposed on the individual’s freedom to act on his own behalf. Id. at 200, 109 S.Ct. at 1006; see also Estelle v. Gamble, supra at 103, 97 S.Ct. at 290.³ These cases leave open “the possibility that the duty owed by a state to prisoners and the institutionalized might also be owed to other categories of persons in custody by means of ‘similar restraints of personal liberty.’ ” D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1370 (3d Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993) (quoting DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 200, 109 S.Ct. at 1006).

Appellant contends that no “special relationship” exists between herself and Walton because his voluntary enrollment at the School does not place him within a category of persons recognized by law in 1987 and 1988 as involuntarily committed to state custody. Appellant primarily relies on the opinion in D.R. By L.R. v. Middle Bucks Area Vo. Tech. School, supra, in which the Third Circuit held that a school official’s authority over a special education day student does not create the type of physical custody necessary to establish a special relationship between the official and the student due to the fact that both the student and her parents retain substantial freedom to act. D.R. by L.R., 972 F.2d at 1373. The Court reasoned that because the students were able to return home at the end of the school day, their parents remained their primary caretakers. Id. The Court noted, however, that in those eases in which a duty was imposed, the state assumed “an important, continuing, if not immediate, responsibility for the child’s well-being” due to the fact that the child’s placement in state custody rendered him or her dependent upon the state to meet the child’s basic needs. Id. at 1372.

There are several factors that exist in this residential special education school which distinguish this case from those cases involving students who attend day classes, as in D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, supra. For example, the School had twenty-four (24) hour custody of Walton, a handicapped child who lacks the basic communications skills that a normal child would possess. Because its students are handicapped, the School has to enforce strict rules that impact on what the students can and cannot do. Obviously, Walton was not free to leave when he resided at the School. In addition, the economic realities of most Mississippi families are such that there is no other viable option to them if they want their handicapped children to receive an education. The residential special education program provided by the State of Mississippi had a significant custodial component wherein Walton was dependent on the School for his basic needs and lost a substantial measure of his freedom to act. Therefore, Walton falls within a category of persons in custody by means of “similar restraints of personal liberty,” thereby establishing the existence of a “special relationship” between Alexander and Walton sufficiently clear by law in 1987 and 1988 to impose Alexander with a duty to provide Walton with reasonable conditions of safety. No reasonable superintendent in 1987 could have assumed she could fail to take reasonable steps to protect the bodily integrity of one of her “special relationship” students.

Having established that Walton’s constitutional right to bodily integrity and Alexander’s duty with respect to that right were clearly established in 1987, when the first incident of sexual molestation occurred, we must determine whether, on the record before us, Alexander’s failure to act or actions amounted to “deliberate indifference.” In Doe v. Taylor Ind. School Dist.⁴, this Court held that a school official’s liability arises only at the point when the student shows that the official, by action or inaction, demonstrates a deliberate indifference toward his or her constitutional rights. Taylor, 15 F.3d at 454. The standard to be applied is not one of a guarantor or insurer of Walton’s safety, but whether Alexander’s actions provided reasonable conditions of safety, so as not to rise to a level of deliberate indifference. Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745, 761 (5th Cir.1993); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.1988) (rehearing denied) (holding that in order to violate a constitutional right, a defendant must act either knowingly or with deliberate, reckless indifference).

In Taylor, this Court adopted a test for determining personal liability of officials in physical sexual abuse cases. Although Taylor involved the physical sexual abuse of a student by an employee of the school, we can apply the same test to a “special relationship” student who is sexually molested or abused by a third party, which in this case is another student. A supervisory school official can be held personally liable for the violation of a “special relationship” student’s constitutional right to bodily integrity in sexual molestation cases if the student establishes that:

(1) the defendant learned of facts or a pattern of sexual molestation or abuse by a third party pointing plainly toward the conclusion that the third party was sexually molesting or abusing the “special relationship” student; and

(2) the defendant demonstrated deliberate indifference toward the constitutional rights of the “special relationship” student by failing to take action that was obviously necessary to prevent or stop the abuse; and

(3) such failure caused a constitutional injury to the “special relationship” student.

See Taylor, 15 F.3d at 454.

The evidence submitted by the plaintiff in this case clearly establishes that soon after Walton was first molested in 1987, Alexander received a report from Walton of the incident. Alexander learned of facts sufficient to satisfy the first prong of the test. The evidence submitted also shows that Alexander did not respond with deliberate indifference. She filed a report to the Mississippi Department of Welfare; she personally investigated the assault; she provided Walton with medical treatment administered by the School’s physician; she called the School’s discipline committee to counsel both students and notify each student’s parents; she suspended both students from the School campus for three days; and she separated Walton from his assailant as best she could under the circumstances created by the School’s budgetary constraints. Alexander’s actions may have been ineffective in halting the molestation, but her actions did not reflect that she was deliberately indifferent. Alexander provided reasonable conditions of safety to protect the bodily integrity of Walton. Therefore, as to the third prong of the test, no failure to act or action on her part had a causal connection with the second assault which occurred in 1988. Summary judgment should have been granted to Alexander on the grounds of qualified immunity.

CONCLUSION

The District Court’s Order denying the Motion for Summary Judgment filed by superintendent Alexander is REVERSED.

1 . Civil Action No. DC-75-31-S (N.D.Miss.1979).

2 . The U.S. Supreme Court’s use of the term “State" is meant to refer to state and local governmental entities and their agents. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. at 195, n. 1, 109 S.Ct. at 1002, n. 1.

3 . Some courts have also imposed a constitutional duty to protect foster children by analogy to involuntary institutionalized individuals. See Yvonne L., By and Through Lewis v. New Mexico Dept. of Human Services, 959 F.2d 883, 893 (10th Cir.1992); Taylor By and Through Walker v. Led-better, 818 F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989); Doe v. New York City Dept. of Social Services, 649 F.2d 134 (1981), after remand, 709 F.2d 782 (2d Cir.), cert. denied sub nom., Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). A special relationship is also recognized in cases involving a child removed from his home and placed under state supervision. See Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991).

4 . 15 F.3d 443 (5th Cir.1994).