King, Bernice v. East St. Louis 189

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3440
BERNICE KING, as Mother
and Next Friend of Jerica King,
Plaintiff-Appellant,
v.
EAST ST. LOUIS SCHOOL DISTRICT
189, CHESTER BLUETTE, NATHANIEL
ANDERSON, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 C 335—G. Patrick Murphy, Chief Judge.
____________
ARGUED MAY 30, 2007—DECIDED AUGUST 7, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and EVANS,
Circuit Judges.
RIPPLE, Circuit Judge. Bernice King brought this action
under 42 U.S.C. § 1983 on behalf of her daughter, Jerica
King, against East St. Louis School District 189 (“District”),
Dr. Chester Bluette, the principal of East St. Louis Senior
High School, and Dr. Nathaniel Anderson, the former
Superintendent of the District (collectively, “District
defendants”). Ms. King alleged that the District defendants
2 No. 06-3440
had violated Jerica’s rights under the Due Process Clause
of the Fourteenth Amendment by failing to protect her
from a state-created danger. Invoking the district court’s
supplemental jurisdiction, Ms. King also brought state
negligence claims against Bi-State Development Agency
(“Bi-State”). The District defendants moved for sum-
mary judgment. Ms. King then sought leave to amend her
complaint to add Frank Nave, a school counselor at East
St. Louis Senior High School, as a defendant in his individ-
ual capacity.
The district court granted summary judgment in favor
of the District defendants and denied Ms. King’s request
for leave to amend her complaint to add Mr. Nave. The
court then declined to exercise its supplemental jurisdiction
over Ms. King’s claims against Bi-State and dismissed
those claims as well.
Ms. King now appeals the district court’s ruling granting
summary judgment in favor of the District defendants and
denying her request for leave to amend her complaint. For
the reasons set forth in this opinion, we affirm the judg-
ment of the district court in all respects.
I
BACKGROUND
A.
Jerica King was a student at East St. Louis Senior High
School. At the end of the school day on May 4, 2004, Jerica
went to see Mr. Nave, a guidance counselor. She had no
appointment, but wanted to discuss her grades and credits
toward graduation. In the course of the meeting, Mr. Nave
noticed that Jerica appeared upset and asked what was
No. 06-3440 3
troubling her. Jerica explained that she was having trouble
with another student and proceeded to discuss the problem
with Mr. Nave. The meeting lasted less than an hour.
However, as a result of the meeting, Jerica missed the
school bus. Before leaving Mr. Nave’s office, Jerica stated
that she had missed her bus and would need to call her
mother. However, Jerica did not request to use the phone
at that time, and Mr. Nave did not offer Jerica the use of
his phone.
Although Jerica had missed the school bus, there was a
public bus stop in front of the high school and a MetroLink
station a couple of blocks from the school. After her
meeting with Mr. Nave, Jerica exited the school building
and checked to see if a public bus was waiting. When she
did not see a bus, Jerica attempted to reenter the building
to call her mother, but the school’s doors were locked. An
unidentified woman, to whom we shall refer, for the sake
of simplicity, as the hall monitor, met Jerica at the door.
Jerica informed the hall monitor that she wanted to reenter
the school to call her mother. The hall monitor denied
Jerica reentry, allegedly stating that reentry was against
school policy.
Jerica then headed toward the MetroLink station. As she
approached the MetroLink station, Jerica was abducted
at gun-point by two men. The men took her to a house
where she was raped. Jerica was released the following
morning.
B.
Ms. King originally brought suit in June 2004 on behalf
of Jerica. The action named as defendants the District,
Dr. Bluette and Dr. Anderson. Ms. King contended that the
4 No. 06-3440
District defendants had created a danger to Jerica when
she was left stranded outside of the school as a result of
an official policy prohibiting students from reentering
the school after school hours without supervision by a
school employee. Ms. King asserted that Jerica’s sub-
stantive due process rights were violated when she was
injured as a result of the school’s failure to protect her
from this danger. Ms. King also contended that the Dis-
trict should have trained its employees to ensure that a
student leaving the school after missing her school bus
had transportation home. Ms. King asserted that, given
the high crime rate in the area surrounding the school, the
District’s failure to train its employees in this manner
evinced a deliberate indifference to the safety of its stu-
dents.
In November 2005, after the close of discovery, Ms. King
moved for voluntary dismissal of the action; the court
granted the motion. Ms. King then filed this action in
April 2006.
The complaint asserted the same claims against the
District defendants and, invoking the district court’s
supplemental jurisdiction under 28 U.S.C. § 1367(a), added
state negligence claims against Bi-State. The District
defendants immediately moved for summary judgment.
Following oral arguments on the District defendants’
motion for summary judgment, Ms. King moved to amend
her complaint to add Mr. Nave as a defendant in his
individual capacity. Ms. King alleged that Mr. Nave had
created a danger to Jerica by keeping her in their meeting
until after the school buses had left for the day and that
he had violated Jerica’s substantive due process rights
when he failed to ensure that she had transportation home.
The district court granted summary judgment in favor of
the District defendants. It concluded that Ms. King had
No. 06-3440 5
failed to raise a genuine issue of fact with respect to the
existence of a school policy or custom that could provide
the basis for holding the District liable under Monell v.
Department of Social Services, 436 U.S. 658 (1978). The court
further concluded that, because there were no allegations
that Drs. Bluette and Anderson had been involved per-
sonally in the alleged constitutional violation, there was
no basis upon which to establish their individual liability.
The court also held that Ms. King had not established
that the District had acted with deliberate indifference to
Jerica’s constitutional rights by its failure to train its
employees. Thus, the court concluded, Ms. King could not
establish liability on the part of the District under City of
Canton v. Harris, 489 U.S. 378 (1989). The court then de-
clined to exercise supplemental jurisdiction over Ms.
King’s claims against Bi-State. The district court also
denied Ms. King’s motion for leave to amend her com-
plaint; the court concluded that, because there was no
evidence that Mr. Nave had exercised his authority to
cause Jerica to remain at school, Mr. Nave had not created a
danger to Jerica which would be actionable under § 1983.
II
DISCUSSION
Ms. King contends that the district court erred when it
granted summary judgment in favor of the District defen-
dants. She asserts that there is a genuine issue of material
fact with respect to the existence of an official policy that
would give rise to liability on the part of the District
defendants under Monell. Ms. King also contends that the
district court erred when it concluded that the District
defendants could not be held liable for failing to train its
6 No. 06-3440
employees to ensure the safety of students who had missed
their buses. Ms. King further asserts that the district
court erred in denying her motion to amend her com-
plaint because Mr. Nave had exercised his authority by
meeting with Jerica after school.1
A.
We review a district court’s grant of summary judg-
ment de novo. Alexander v. City of South Bend, 433 F.3d 550,
554 (7th Cir. 2006). Summary judgment is appropriate
where there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). We view all facts and all reasonable inferences
drawn therefrom in the light most favorable to the non-
moving party. Alexander, 433 F.3d at 554. When the non-
moving party bears the ultimate burden of proof at trial,
the non-moving party must come forward with specific
facts demonstrating an issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Ms. King contends that she has met her burden by
coming forward with evidence that, when taken in the
light most favorable to her, raises a genuine issue as to
the existence of an official policy prohibiting students
from reentering the school after school hours without
official supervision. The record reflects that, on the day
following Jerica’s abduction, Ms. King met with Mr.
1
Ms. King does not appeal the district court’s order dismissing
her claims against Bi-State. Following the court’s dismissal,
Ms. King brought an action against Bi-State in Illinois state
court.
No. 06-3440 7
Nave. When he was told that Jerica had been denied
reentry into the school, Mr. Nave allegedly stated that it
was not policy to allow students to reenter the school after
school hours. Further, in his deposition testimony, Dr.
Bluette stated that, although he was unaware of any
written policy regarding the presence of students in the
school building after hours, the practice at East St. Louis
Senior High School was that students present at such
times were required to be under a staff person’s super-
vision.
Taken in the light most favorable to Ms. King, this
evidence raises a genuine issue of fact with respect to
whether the hall monitor acted pursuant to an official
policy regarding students in the school building after
hours. Although nothing in the record reveals that there
was a written policy in place regarding the presence of
students in the school building after hours, municipal
liability under § 1983 is not conditioned on the existence
of a written policy. Liability under § 1983 extends to any
policy or custom that “may fairly be said to represent
official policy.” Monell, 436 U.S. at 694. A widespread
practice may constitute an official policy with the force of
law even though the practice itself is not reduced to written
form. Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005).
At the very least, when viewed in the light most favorable
to Ms. King, the statements attributed to the hall monitor
and to Mr. Nave present a triable issue of fact regarding
whether there was a widespread practice prohibiting
students from reentering the school after hours without
official supervision.
However, a genuine factual dispute with respect to the
existence of an official policy does not require reversal of
the district court’s decision because we can affirm the
8 No. 06-3440
decision of the district court on any ground fairly sup-
ported by the record. Luna v. United States, 454 F.3d 631,
635 (7th Cir. 2006). It is well established that there can be
no municipal liability based on an official policy under
Monell if the policy did not result in a violation of Jerica’s
constitutional rights. See Windle v. City of Marion, Indiana,
321 F.3d 658, 663 (7th Cir. 2003).
The Supreme Court held in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189 (1989), that the
Due Process Clause of the Fourteenth Amendment gener-
ally does not impose upon the state a duty to protect
individuals from harm by private actors. Id. at 195-96. As
an exception to this general rule, the Court noted that the
Constitution imposes a duty upon the state to protect
individuals with whom it has a “special relationship” by
virtue of the state’s custody over the individual. Id. at 199-
200.2 The courts of appeals also have inferred from
DeShaney that the substantive component of the Due
Process Clause imposes upon the state a duty to protect
individuals against dangers the state itself creates under
the state-created danger doctrine. See, e.g., Monfils v.
Taylor, 165 F.3d 511, 516 (7th Cir. 1998).
A fair reading of the decisions of this circuit and those of
our sister circuits governing the state-created danger
doctrine reveal the following three principles that must
govern our analysis.3 First, in order for the Due Process
2
Ms. King does not assert that a special relationship existed
between Jerica and the District that would give rise to a duty
on the part of the District to protect Jerica.
3
As our colleagues in the Second Circuit have noted, there is
considerable variation among the circuits in their application of
(continued...)
No. 06-3440 9
Clause to impose upon a state the duty to protect its
citizens, the state, by its affirmative acts, must create or
increase a danger faced by an individual. See Bright v.
Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006), cert.
3
(...continued)
the state-created danger doctrine. See Pena v. Deprisco, 432 F.3d
98, 108 (2d Cir. 2005). Some circuits have articulated multi-part
tests for determining whether an individual’s constitutional
rights have been violated under the state-created danger
doctrine. See, e.g., Bright v. Westmoreland County, 443 F.3d 276,
281 (3d Cir. 2006), cert. denied, 75 U.S.L.W. 3469 (U.S. Mar. 4,
2007) (No. 06-563), (four-part test); McQueen v. Beecher Cmty.
Sch., 433 F.3d 460, 464 (6th Cir. 2006) (three-part test); Hart v.
City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005) (five-part test);
Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003)
(six-part test). Other circuits simply ask whether the state
created or increased the danger to the individual and whether
the failure to protect against the danger shocked the conscience.
See, e.g., Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007);
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063-64 (9th Cir.
2006); Fraternal Order of Police v. Williams, 375 F.3d 1141, 1144
(D.C. Cir. 2004). We do not believe that these variations reflect
fundamental doctrinal differences. Each of the various ap-
proaches limits liability under the state-created danger doctrine
to conduct that violates an individual’s substantive due process
rights because it is arbitrary in the constitutional sense, i.e.,
shocks the conscience. We believe that the multi-part tests
employed by the various circuits simply reflect an effort to
guide the necessarily fact-bound inquiry into whether the
official conduct shocks the conscience. See County of Sacracmento
v. Lewis, 523 U.S. 833, 850 (1998) (citing Betts v. Brady, 316
U.S. 455, 462 (1942)); see also Uhlrig v. Harder, 64 F.3d 567, 572-
74 (10th Cir. 1995) (noting that the Tenth Circuit had derived
the elements of its test under the state-created danger doctrine
from the Supreme Court’s substantive due process jurispru-
dence).
10 No. 06-3440
denied, 75 U.S.L.W. 3469 (U.S. Mar. 4, 2007) (No. 06-563);
Windle, 321 F.3d at 663; Monfils, 165 F.3d at 511. Second, the
failure on the part of the state to protect an individual
from such a danger must be the proximate cause of the
injury to the individual. See, e.g., Kneipp v. Tedder, 95 F.3d
1199, 1209 n.22 (3d Cir. 1996) (“[T]he state-created danger
theory contemplates some contact such that the plaintiff
was a foreseeable victim of a defendant’s acts in a tort
sense.”). Third, because the right to protection against
state-created dangers is derived from the substantive
component of the Due Process Clause, the state’s failure
to protect the individual must shock the conscience. See
County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)
(holding that executive action only offends substantive
due process when it is arbitrary in a constitutional sense,
i.e., conscience shocking); see also Lombardi v. Whitman,
485 F.3d 73, 79 (2d Cir. 2007) (holding in the context of
the state-created danger doctrine that government con-
duct does not violate substantive due process unless it is
so egregious that it shocks the conscience); Martin v.
Shawano-Gresham Sch. Dist., 295 F.3d 701, 710 n.10 (7th Cir.
2002) (noting that, to establish a constitutional violation
under the state-created danger doctrine, the plaintiff must
demonstrate that the state acted with deliberate indiffer-
ence).
We need not explore in depth the first two components
of a claim under the state-created danger doctrine because
this case can be resolved expeditiously on the third prong
of the analysis. As a matter of law, there is no basis in the
record to permit a characterization of the District’s ac-
tions that fairly may be described as shocking the con-
science.
Conduct by executive officials which shocks the con-
science is that conduct which may be deemed “arbitrary in
No. 06-3440 11
the constitutional sense.” Lewis, 523 U.S. at 850 (citing
Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992)).
The inquiry into whether official conduct shocks the
conscience in a given case is a necessarily fact-bound
inquiry. Lewis, 523 U.S. at 850 (citing Betts v. Brady, 316 U.S.
455, 462 (1942)). The Supreme Court has noted that this
standard lacks precise measurement, but has stated that
the emphasis on whether conduct shocks the conscience
points toward “the tort law’s spectrum of liability.” Lewis,
523 U.S. at 847-48. Only conduct falling toward the more
culpable end of the spectrum shall be found to shock the
conscience. Id. at 849. Thus, when the circumstances per-
mit public officials the opportunity for reasoned delibera-
tion in their decisions, we shall find the official’s con-
duct conscience shocking when it evinces a deliberate
indifference to the rights of the individual. See id. at 851;
Armstrong v. Squadrito, 152 F.3d 564, 576-77 (7th Cir. 1998).
On the other hand, where circumstances call for hurried
judgments in order to protect the public safety or main-
tain the public order, and thereby render reasoned deliber-
ation impractical, conduct must reach a higher standard of
culpability approaching malicious or intentional inflic-
tion of injury before we shall deem official conduct con-
science shocking. Lewis, 523 U.S. at 852-53.
We need not determine the precise level of culpability
necessary to shock the conscience in this case, however,
because, in all cases, the conduct must be more culpable
than mere negligence, which is “categorically beneath the
threshold of constitutional due process.” Lewis, 523 U.S. at
849. Based on the record before us and assuming that
there was a school district policy to prevent the unsuper-
vised return of students to the school, it is clear that the
policy had as its purpose curbing the unsupervised, after-
12 No. 06-3440
hours presence of the students in the school and the
resulting damage to school property. There is no indication
that the policy adopted was deliberately indifferent to the
safety of the students. Any fault on the part of the school
district in implementing such a policy was simple negli-
gence in failing to account for all circumstances that may
arise in which a student would seek to reenter the school.
Likewise, because there was no violation of Jerica’s
constitutional rights, there is no basis for liability on the
part of the school district under City of Canton for the
failure to train its employees. See Windle, 321 F.3d at 663.
B.
Ms. King also challenges the district court’s decision
denying her leave to amend her complaint to assert claims
against Mr. Nave in his individual capacity under the state-
created danger doctrine. We review a district court’s
decision denying a motion for leave to amend a complaint
for an abuse of discretion. Brunt v. Serv. Employees Int’l
Union, 284 F.3d 715, 720 (7th Cir. 2002). It is not an abuse
of discretion to deny a motion to amend a complaint
when such amendment would be futile. See id. An amend-
ment is futile if the amended complaint would not sur-
vive a motion for summary judgment. See Sound of Music
Co. v. Minnesota Mining & Mfg. Co., 477 F.3d 910, 923 (7th
Cir. 2007).
Mr. Nave did not act affirmatively to create or to increase
a risk to Jerica. First of all, it is not clear from the record
that Mr. Nave acted affirmatively to keep Jerica after
school. Although he expanded the discussion beyond
what she had contemplated, the record gives no basis for
concluding that she was not willing to stay longer than she
No. 06-3440 13
may have anticipated or that she had any particular
expectations about the length of the meeting. In any
event, there is no basis upon which a jury could conclude
that Mr. Nave had any idea of Jerica’s transportation
situation until the conclusion of their meeting. Assuming,
arguendo, some affirmative act on the part of Mr. Nave,
it nevertheless would be difficult to characterize his acts
as anything other than simple negligence in failing to
inquire into whether, following their session, Jerica
needed assistance to arrange for transport.
Because Ms. King’s proposed claims against Mr. Nave
would not survive a motion for summary judgment, the
district court did not abuse its discretion when it denied
Ms. King leave to amend her complaint.
Conclusion
For the reasons set forth in this opinion, we affirm the
district court’s entry of summary judgment in favor of
the District defendants. We further conclude that the
district court did not abuse its discretion when it denied
Ms. King’s request to amend her complaint.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-7-07