John Doe 4 v. John Rosa

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-04396-RMG. Copies to all parties and the district court. [999962504]. [16-1256, 16-1257]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1256

JOHN DOE, 4,
Plaintiff – Appellant,
v.
PRESIDENT JOHN W. ROSA, individually; MARK BRANDENBURG;
COLONEL
JOSEPH
TREZ,
individually;
JENNIFER
GARROTT,
individually,
Defendants - Appellees.

No. 16-1257

JOHN DOE, A,
Plaintiff – Appellant,
v.
PRESIDENT JOHN W. ROSA, individually; MARK BRANDENBURG,
individually; COLONEL JOSEPH TREZ, individually; JENNIFER
GARROTT, individually,
Defendants - Appellees.

Appeals from the United States District Court for the District
of South Carolina, at Charleston.
Richard M. Gergel, District
Judge. (2:14-cv-04396-RMG; 2:14-cv-00710-RMG)

Submitted:

October 31, 2016

Decided:

November 4, 2016

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Before KING and
Circuit Judge.

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DUNCAN,

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Circuit

Judges,

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Jacqueline LaPan Edgerton, W. Mullins McLeod, Jr., MCLEOD LAW
GROUP, LLC, Charleston, South Carolina; Allan P. Sloan, II,
Kristen
B.
Fehsenfeld,
PIERCE,
HERNS,
SLOAN
&
WILSON,
Charleston, South Carolina; Gregg Meyers, JEFF ANDERSON &
ASSOCIATES, Saint Paul, Minnesota, for Appellants. M. Dawes
Cooke, Jr., John W. Fletcher, Charleston, South Carolina;
Russell G. Hines, Stephen L. Brown, Carol B. Ervin, Brian L.
Quisenberry, Stephanie N. Ramia, YOUNG, CLEMENT, RIVERS, LLP,
Charleston, South Carolina; Caroline Wrenn Cleveland, Bob J.
Conley,
Emmanuel
J.
Ferguson,
CLEVELAND
&
CONLEY,
LLC,
Charleston, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Doe, 4, and John Doe, A, appeal from the district
court’s

order

Appellants’

42

granting
U.S.C.

summary
§ 1983

judgment

(2012)

to

Defendants

proceeding.

in

Appellants

alleged that Defendants John W. Rosa (President of The Citadel
during

the

Citadel’s

relevant

attorney),

time

period),

Mark

Joseph

Trez

Colonel

Brandenburg
(Rosa’s

(The

executive

assistant), and Jennifer Garrott (Deputy Director and Director
of The Citadel’s summer camp) failed to protect them from the
known

risk

of

Louis

ReVille,

who

sexually

after he left his employment with The Citadel.

abused

Appellants

We have reviewed

the parties’ briefs and the record, and we find no meritorious
issues for appeal.

Accordingly, we affirm substantially for the

reasons stated by the district court.

See John Doe 4 v. Rosa,

No. 2:14-cv-04396-RMG (D.S.C. Feb. 8, 2016); John Doe A v. Rosa,
No. 2:14-cv-00710-RMG (D.S.C. Feb. 8, 2016).
The district court relied primarily on our decision in Doe
2 v. Rosa, 795 F.3d 429 (4th Cir. 2015), cert. denied, 136 S.
Ct. 811 (2016), which involved a substantially similar factual
background, similar legal issues, and one of the Defendants in
this case.

All the suits considered the application of the

state created danger doctrine, which attaches § 1983 liability
to a failure to protect, where a plaintiff can “show that the
state actor created or increased the risk of private danger, and
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did so directly through affirmative acts, not merely through
inaction or omission.”

Id. at 439.

In Doe 2, we found that the plaintiffs had not shown a
state created danger claim against Rosa because, for several
reasons,

they

substantially

could

not

enhanced

“demonstrate

the

danger

that

which

tragic abuse at the hands of ReVille.”

[Rosa]

resulted
Id.

created
in

or

[their]

First, unlike in

the instant case, ReVille began abusing the plaintiffs in Doe 2
prior to the date when Rosa was on notice of ReVille’s risk.
Second,

Rosa

did

not

“create

or

increase”

the

risk

of

plaintiffs’ abuse because Rosa did not make the danger to the
plaintiffs worse and he had no constitutional duty to save them.
Third, Rosa did not commit “affirmative acts”; allegations that
he stood by and did nothing were insufficient.

Finally, Rosa

did not know the plaintiffs and had never spoken with them.

Id.

at 439-41.
On

appeal,

Appellants

argue

that

the

district

court

incorrectly read Doe 2 to require that the victim be known to
the state actor.

Appellants attempt to distinguish Doe 2 by

pointing out that, unlike the present case, the plaintiffs in
Doe 2 were abused prior to Rosa’s knowledge that ReVille was a

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pedophile. 1

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Further, Appellants contend that circuits are split

as to whether a state created danger victim must be “known” or
must be merely part of a “readily definable group at risk of
harm.”
While a review of Appellants’ citations does not show a
clear split in the circuits, even assuming there is one, we find
it

unnecessary

to

draw

specific

lines,

as

even

under

the

“readily definable group” test, summary judgment was properly
granted

in

Johnson v.

this
Weber,

case.
785

Appellants
F.3d

267,

271

first
(8th

cite
Cir.

Estate
2015),

of
and

Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1262 (10th
Cir. 1998).

While these cases discussed a risk to a group of

victims, the cases actually involved victims known to the state
actor.

As such, they do not support Appellants’ argument that

Doe 2 required an improper nexus between the state actor and the
victim.
Appellants cite only one circuit court case involving an
unknown victim.

In Reed v. Gardner, 986 F.2d 1122, 1127 (7th

Cir. 1993), the Seventh Circuit held that “direct contact” with
the

victims

was

not

required

if

1

the

dangers

presented

are

We conclude that this fact is irrelevant, as in Doe 2 we
considered the legal issues in the case, assuming that the Does
faced a “new or increased risk of abuse” after Rosa’s actions or
inactions. 795 F.3d at 440.

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“familiar and specific,” and cause “an immediate threat of harm
[with a] limited range and duration.”

The facts in Reed were

that officers arrested a sober driver of a car, leaving the car
keys with a drunk passenger who caused a head-on collision two
hours

later.

Id.

at

1123.

allegations stated a claim.

The

court

found

that

such

Id. at 1127.

The relationship between the victims and the state actors
in the instant case were significantly more attenuated than the
relationship
duration

in

(the

geographical

Reed.

In

length

area.

of

The

Reed,

the

danger

intoxication)

injury

was

of

in

a

and

occurred

two

hours

a

short

limited

after

the

actions of the state actors, and the Reed court itself found
this short period of time significant.

986 F.2d at 1127.

Here,

the time period ranged from weeks to months, was open ended, and
involved risks covering a larger geographic area.
In
would

addition,

include

at

the
least

potential
any

victims

minor

with

in

the

whom

instant

ReVille

case

came

in

contact with as part of his teaching, mentoring, supervising, or
coaching at any place and at any time in the future.
is neither discrete or identifiable.

In fact, such a class is

practically akin to the general public.
not

‘a

limited,

state-created-danger

precisely
doctrine

The “general public is

definable
does

This class

not

group,’

apply.”

and

the

Glasgow

v.

Nebraska, 819 F.3d 436, 442 (8th Cir. 2016); see also Jones v.
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Reynolds, 438 F.3d 685, 697-98 (6th Cir. 2006) (holding that
group of at least 150 spectators at a drag race was too large
and unidentified for state created danger doctrine to apply).
Even

accepting

Appellants’

argument

that

other

circuits

have decided the issue differently, Appellants have failed to
show that our language in Doe 2 should be ignored or that it is
inapplicable in the instant case.
“immediate

interactions

plaintiff”

are

liability.

We found it significant that the state actor did not

a

between

In Doe 2, we ruled that

required

the

nexus

[state

for

actor]

state

created

know the plaintiffs and was unaware of their existence.

and

the

danger

That is

precisely the situation for all the Defendants in this case.

It

is undisputed that none of the Defendants knew the Appellants.
In addition, to the extent the Defendants knew or should have
known that ReVille posed a threat, the victims he posed a threat
to

were

too

constitutional
protect

them.

diffuse

and

significance
Accordingly,

unspecified
to
we

the

a

group

Defendants’

affirm

the

to

attach

failure

judgment

of

to
the

district court granting summary judgment to Defendants on the
state created danger claims.

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Appellants also raised supervisory liability claims against
Rosa and Garrott for their supervision of ReVille. 2

Supervisory

officials may be held liable where “supervisory indifference or
tacit authorization of subordinates’ misconduct [is] a causative
factor

in

the

constitutional

committed to their care.”

injuries

they

inflict

claim

plaintiff

must

constructive
conduct

of

that

supervisory

establish

knowledge
posed

a

those

Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir. 1994) (internal quotation marks omitted).
viable

on

liability

(1)

that

“the
his

under

supervisor

subordinate

pervasive

and

To establish a
§

1983,

had

the
or

engaged

was

actual

in

unreasonable

risk

of

constitutional injury to citizens like the plaintiff,” (2) the
supervisor’s

response

was

sufficiently

inadequate

“to

show

deliberate indifference to or tacit authorization of the alleged
offensive
between

practices,”
the

and

supervisor’s

(3)

“an

inaction

affirmative
and

the

constitutional injury suffered by the plaintiff.”

causal

link

particular
Id. at 799

(internal quotation marks omitted).
The district court ruled that, once ReVille left the employ
of The Citadel, the causal link was broken.
2

The court noted

Appellants also allege that Rosa is liable for the actions
of Brandenburg and Trez.
However, because the evidence is
insufficient to support Appellants’ state created danger claims,
for
the
reasons
discussed
above,
Appellants’
supervisory
liability claims must also fail.

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that “[t]o rule otherwise would expose a former supervisor to
unlimited

and

continuous

liability

for

the

acts

of

private

violence of his former subordinate after the former subordinate
left his government employer for the balance of the natural life
of the former subordinate.”
issue,

without

citation

On appeal, Appellants address this

and

also

without

explaining

why

the

district court’s conclusions were incorrect.
We

conclude

that

the

district

court

correctly

granted

summary judgment to Rosa and Garrott on Appellants’ supervisory
liability claims.
there

is

no

There can be no supervisory liability when

underlying

violation

of

the

Constitution.

See

Temkin v. Frederick County Comm’rs, 945 F.2d 716, 724 (4th Cir.
1991).
no

Here, because ReVille was not a state actor, there was

underlying

constitutional

violation.

This

is

fatal

to

Appellants’ supervisory liability claims.
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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