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June 7, 1990


The opinion of the court was delivered by: WISEMAN


 This matter involves the death of plaintiffs' son, Valion Jordan, IV, a severely retarded 10-year-old boy who was a resident at Clover Bottom Developmental Center ("Clover Bottom"). Valion was born on April 2, 1977. For most of his early childhood, Valion required the continuous care and attention of his parents. As a result of his condition, Valion would often walk on his toes around the room aimlessly or in circles and thus required close supervision. On June 29, 1984, plaintiffs chose to admit Valion to Clover Bottom, a residential facility provided by the state of Tennessee for the 24-hour care of severely retarded individuals.

 Plaintiffs, usually Mrs. Jordan alone, regularly visited Valion at Clover Bottom. The Jordans often removed Valion from the facility so he could spend the weekend at home with them. From the beginning, plaintiffs made regular complaints to the staff at Clover Bottom about the conditions in Valion's unit. The state contends that these complaints were remedied to the extent possible.

 In the evening of April 26, 1987, the door from Valion's building to the outside was left propped open. The state contends that the door was left open because the residents of the unit had earlier been outside under supervision. When the residents are outside the building, the doors must be left open to give the residents access to the restrooms. Plaintiffs, however, allege that the door was propped open because the building was uncomfortably hot. Whatever the reason, the door was left open, and while the staff was occupied with other residents of the building, Valion apparently wandered outside. Once outside, he apparently traveled some 700 feet around a fence, fell into a pond on the Clover Bottom grounds and drowned. Although there was no fence completely surrounding the pond, Valion's building was separated from the pond by a 975-foot fence in a rough U-shape around the building.

 In April of 1989, this Court 1) dismissed all claims against state officials in their official capacities, 2) dismissed all causes of action claimed under § 1983 except those based upon the due process clause, 3) dismissed all pendent state law claims without prejudice, and 4) denied a motion to dismiss the claims against the defendants in their individual capacities. As explained below, the Court now dismisses the claims against the defendants in their individual capacities on the grounds that they are barred by the doctrine of qualified immunity.

 Substantive Due Process

 A threshold question in this case is whether the state has a constitutional duty to provide a safe environment for a voluntary resident of Clover Bottom. If there is no such constitutional duty, then the defendants are protected by qualified immunity since they could not have violated any "clearly established constitutional duty." See Eugene D. v. Karman, 889 F.2d 701 (6th Cir. 1989). In Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982), the Supreme Court held that an involuntarily committed resident of a state institution does have a substantive due process right to safe conditions. The Court, however, has not addressed whether that right should extend to voluntary residents.

 DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), indicates that voluntary residents are not afforded a constitutional right to safe conditions. DeShaney held that a state has a constitutional duty to provide safe conditions only when it, by an affirmative exercise of its power, limits a person's freedom to act on his own behalf. 103 L. Ed. 2d at 261-63. In DeShaney, a 4-year old child suffered sever brain damage as a result of being severely beaten by his father. The child's mother sued under 42 U.S.C. § 1983 on the grounds that the child's substantive due process rights were violated. She alleged that the state was aware of the risk that the father presented to the child, but failed to intervene to protect the child from that risk. Id. at 257. Although the state placed the child in temporary custody at one time, it later returned him to the custody of his father. Id. at 256-57.

 The Court held that the state had no constitutional duty to protect the child from his father. "[The Fourteenth Amendment's] purpose was to protect the people from the State, not to ensure that the State protected them from each other." 103 L. Ed. 2d at 259. On the surface DeShaney would seem to be distinguishable from the instant case. Plaintiffs allege injury by the state, not by a private actor. The importance of this distinction, however, is lessened by the Court's discussion of its rationale for denying constitutional protection to the DeShaney plaintiffs. DeShaney does not turn on the fact that the injury was caused by a private actor, but on the lack of an affirmative act by the state that placed the child in harm's way.

 The DeShaney Court expressly limited the scope of the rights protected under Youngberg :

[ Youngberg and other cases] stand only for the proposition that 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 rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises . . . from the limitation which [the state] has imposed on his freedom to act on his own behalf.

 103 L. Ed. 2d at 261-62. The three dissenting members of the Court (Brennan, Marshall and Blackmun) argued that the state's duty to provide safe conditions arose when the state undertook to intervene through its social services programs. See Id. at 264-69 (Brennan, J., dissenting). For the majority, however, the important factor was the ...

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