                              ___________

                              No. 95-2223
                              ___________

Jane Doe; John Roe,               *
                                  *
 Plaintiffs - Appellants,         *
                                      *
       v.                         *
                                  *
Elijah Wright, individually and       *
in his official capacity as a         *
Deputy in the Pulaski County          *
Sheriff's Department; Carroll         *
Gravett, individually and in his*
official capacity as Sheriff of       *
Pulaski County,                       *
                                *
           Defendants,                 *
                                       *
Boyd A. Williams, individually         *
and in his official capacity as        *
Chief of Police of the City of         *
Helena, Arkansas, Police               *
Department,                            *
                                       *
    Defendant - Appellee.              * Appeal from the United States
                                  *   District Court for the Eastern
     __________                           District of Arkansas

Boyd A. Williams, individually     *
and in his official capacity as    *
the Chief of Police of the City    *
of Helena, Arkansas, Police        *
Department,                        *
                                   *
     Third party defendant,        *
                                   *
     v.                            *
                                   *
Carroll Gravett,                   *
                                   *
     Third party plaintiff.        *
                                   *
                              ___________

                              No. 95-2224
                              ___________

Jane Doe; John Roe,               *
                                  *
            Plaintiffs,               *
                                  *
       v.                         *
                                  *
Elijah Wright, individually and        *
in his official capacity as a          *
Deputy in the Pulaski County           *
Sheriff's Department; Carroll          *
Gravett, individually and in his*
official capacity as Sheriff of        *
Pulaski County; Boyd A.                *
Williams, individually and in          *
his official capacity as Chief         *
of Police of the City of Helena,*
Arkansas, Police Department,           *
                                *
            Defendants.                *
                                *
      __________

Boyd A. Williams, individually         *
and in his official capacity as        *
the Chief of Police of the City        *
of Helena, Arkansas, Police            *
Department,                            *
                                       *
     Third party defendant -           *
     Appellee,                         *
                                       *
     v.                                *
                                       *
Carroll Gravett,                       *
                                       *
     Third party plaintiff -           *
     Appellant.                        *

                               ___________

                               No. 95-2228
                               ___________

Jane Doe; John Roe,               *
                                  *
 Plaintiffs - Appellees,               *
                                  *
       v.                         *
                                  *
Elijah Wright, individually and        *
in his official capacity as a          *
Deputy in the Pulaski County           *
Sheriff's Department; Carroll          *
Gravett, individually and in his*
official capacity as Sheriff of        *




                                      -2-
Pulaski County,                         *
                                   *
           Defendants,                  *
                                        *
Boyd A. Williams, individually          *
and in his official capacity as         *
Chief of Police of the City of          *
Helena, Arkansas, Police                *
Department,                             *
                                        *
    Defendant - Appellant.         *
                                   *
     __________

Boyd A. Williams, individually          *
and in his official capacity as         *
the Chief of Police of the City         *
of Helena, Arkansas, Police             *
Department,                             *
                                        *
     Third party defendant,             *
                                        *
     v.                                 *
                                        *
Carroll Gravett,                        *
                                        *
     Third party plaintiff.             *
                                        *


                                  ___________

                   Submitted:     January 8, 1996

                         Filed:   April 29, 1996
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES,*
      Senior District Judge.


JONES, Senior District Judge.


     In this interlocutory appeal, plaintiffs Jane Doe and John Roe appeal
the dismissal of their § 1983 claim against defendant Boyd




      *
      The HONORABLE JOHN B. JONES, Senior District Judge, United
States District Court for the District of South Dakota, sitting by
designation.

                                       -3-
A. Williams (Williams).    Third Party Plaintiff Carroll Gravett (Gravett)
appeals the dismissal of his contribution claim against the Third Party
Defendant Williams.   We affirm.


     Williams appeals the denial of his motion for summary judgment on the
state law outrage claim.   We reverse.


                                      I.


     Plaintiffs allege that Defendant Elijah Wright (Wright), while on
duty as a deputy with the Pulaski County Sheriff's Department on September
14, 1992, forced the plaintiffs to undress and engage in various sex acts
in his presence.    After the plaintiffs complained to the Pulaski County
Sheriff's Department, Wright was terminated.


     Prior to his employment in Pulaski County, Wright was employed by the
Helena Police Department from August 1987 to April 12, 1991.         While
employed by the City of Helena, Wright offered to fix traffic tickets for
three women in exchange for sex.    When complaints were lodged, Williams,
as Chief of the Helena Police Department, reprimanded Wright and placed him
on a day shift to observe him.      Wright did not engage in any similar
conduct while employed in Helena.


     When Wright resigned from the Helena Police Department,      Williams
filled out and filed with the Arkansas Commission on Law
Enforcement Standards and Training a change in status report as required
by Arkansas law.   Williams did not recommend that Wright be decertified as
a police officer and plaintiffs assert that Williams had a duty to do so.



     Before Wright was hired by the Pulaski County Sheriff's Department,
a background investigation was conducted.      The investigation involved
contacting the Helena Police Department.     Assistant Chief Robinson, and
Officers Rowan and Lovell submitted




                                    -4-
favorable recommendations for Deputy Wright.   These recommendation letters
were written in violation of department policy.   Under the policy in force,
only Williams was authorized to write a letter of recommendation.    At the
time the recommendations were given, Wright's file contained the complaints
from the three women concerning the traffic tickets.        The information
regarding Wright's prior acts of sexual misconduct was not reported to the
Pulaski County Sheriff's Department.   Gravett has testified that he would
not have employed Wright if he knew of his prior record.


                                   II.


     The plaintiffs brought this action against Wright, Gravett and
Williams, alleging 42 U.S.C. § 1983 claims.     The plaintiffs also alleged
a pendent state claim of outrage against Williams.       Gravett brought a
third-party complaint against Williams for indemnity or contribution in
failing to report to Gravett Wright's sexual misconduct while employed by
the Helena Police Department during the background check.        Williams's
motions to dismiss the complaints were treated as motions for summary
judgment pursuant to Rule 56.
                                   III.


     The district court dismissed the § 1983 claim of the plaintiffs and
the third-party complaint of Sheriff Gravett as to Williams.   The district
court, relying on DeShaney v. Winnebago County Dept. of Social Servs., 489
U.S. 189, 109 S. Ct. 998 (1989), concluded that the plaintiffs could not
establish a constitutional duty on the part of Williams.       The district
court also concluded that the actions of Williams were too attenuated to
establish an actionable § 1983 claim, relying on Martinez v. California,
444 U.S. 277, 100 S. Ct. 553 (1980).      The district court also held that
Williams was entitled to qualified immunity.


     The district court exercised supplemental jurisdiction




                                   -5-
pursuant to 28 U.S.C. § 1367 over the plaintiffs' state law claims and
denied Williams' motion to dismiss the pendent state claim of outrage.


        The district court certified the causation and qualified immunity
questions concerning Williams to this Court and permission to appeal was
granted.


        On appeal, the plaintiffs contest the dismissal of their § 1983
action     against   Williams.    Gravett   contests   the   dismissal   of   his
contribution claim against Williams.    On cross-appeal,     Williams challenges
the ruling on the plaintiffs' state claim for outrage.         The jurisdiction
for this appeal is founded upon 28 U.S.C. § 1292.


        The standard of review for an order granting summary judgment is de
novo.    Landreth v. First Nat'l Bank, 45 F.3d 267, 268 (8th Cir. 1995).


                                      IV.


        The first inquiry in a § 1983 claim is to determine "[W]hether the
plaintiff has been deprived of a right `secured by the Constitution and
laws' of the United States."     Martinez, 444 U.S. at 284, 100 S. Ct. at 558,
quoting, Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979).
This Court has held that the Due Process Clause imposes a duty on state
actors to care for or protect citizens in two situations:


        first, in custodial and other settings in which the state has
        limited the individuals' ability to care for themselves; and
        second, when the state affirmatively places a particular
        individual in a position of danger the individual would not
        have otherwise have faced.


Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir.




                                      -6-
1992), cert. denied, 507 U.S. 913 (1993).     Under the second alternative,
the plaintiffs contend they were placed in a situation they would not have
been in except for the actions and policies of Williams.


       We believe the reasoning of the Martinez case is on point under the
facts presented in this case.   In Martinez, the plaintiffs brought a § 1983
action against the parole board after a parolee murdered a 15-year-old girl
five months after his release.    Martinez, 444 U.S. at 279, 100 S. Ct. at
556.   The complaint alleged that the parolee was a sex offender who had
been committed to the state mental hospital with the recommendation that
he not be paroled.    Id.   The parole board was fully informed about the
parolee's history and the likelihood he would commit another crime.     Id.
In upholding a dismissal of the § 1983 claim, the Court determined that the
action of the parolee five months after his release could not fairly be
characterized as state action.       Id. at 285, 100 S. Ct. at 559.     The
incident in Pulaski County occurred approximately seventeen months after
Wright had left the Helena Police.   In acting in Pulaski County, Wright was
clearly not acting as an agent of Williams or the Helena Police Department.
Williams was not aware that the plaintiffs in this case faced any special
danger, as distinguished from the public at large, from Wright.   We believe
the action of Williams in failing to recommend decertification of Wright
is too remote to create a § 1983 claim.    The fact that decertification was
not requested for Wright does not make Williams liable for every subsequent
action Wright takes while on duty at a different law enforcement agency.


       The actions of Williams' subordinates in recommending Wright
to Pulaski County in violation of the Helena Police Department's policy
does not create a cause of action against Williams either individually or
in his official capacity.   Like the failure to recommend decertification,
we believe the recommendation letters are simply too attenuated to state
an actionable § 1983 claim.




                                     -7-
        In regards to Williams and the Helena Police Department, Wright was
acting as a private actor while employed at the Pulaski County Sheriff's
Department.    The Due Process Clause contains no language which requires the
State    to protect its citizens against the deeds of private actors.
DeShaney, 489 U.S at 195, 109 S. Ct. at 1003.      The failure to protect an
individual against private violence does not constitute a violation of the
Due Process Clause.    Id. at 197, 109 S. Ct. at 1004.   While state law does
require that a form be completed upon the resignation of an officer from
a department, state law does not impose an affirmative duty to recommend
decertification.


        We have considered plaintiffs' other allegations relating to the §
1983 claim against Williams and find that none of them are meritorious.
The trial court properly dismissed plaintiffs' § 1983 claim against
Williams.


                                      V.


        Williams has brought a cross-appeal on plaintiffs' Arkansas state
claim for outrage.    The district court denied Williams' motion for summary
judgment on this claim ruling that genuine issues of material fact were
left to be resolved regarding      Williams' intent.     The district court's
application of state law is subject to de novo review.       Church of God in
Christ, Inc. v. Graham, 54 F.3d 522, 525 (8th Cir. 1995).       Four elements
are necessary to establish the Arkansas state tort claim of outrage:


        (1) the actor intended to inflict emotional distress or knew or
        should have known that emotional distress was the likely result
        of his conduct; (2) the conduct was "extreme and outrageous,"
        was "beyond all possible bounds of decency" and was "utterly
        intolerable in a civilized community"; (3) the actions of the
        defendant were the cause of the plaintiff's distress; and (4)
        the emotional distress sustained by the plaintiff was so severe
        that no reasonable man could be expected to endure it.




                                     -8-
Deitsch v. Tillery, 833 S.W.2d 760, 762 (Ark. 1992), citing, Counce v.
M.B.M. Co. Inc., 597 S.W.2d 92, 94 (Ark. 1980).        Even grossly negligent
conduct cannot be characterized as "atrocious or exceeding all possible
bounds of decency."    Wood v. National Computer Systems, Inc., 814 F.2d 544,
545 (8th Cir. 1987).      Arkansas courts take a narrow view of claims for
outrage.   Hamaker v. Ivy, 51 F.3d 108, 110 (8th Cir. 1995), citing, Ross
v. Paterson, 817 S.W.2d 418, 420 (Ark. 1991).


     The first element deals with Williams' intent.       It is our view that
Williams could not have formed the intent to commit the tort of outrage.
The acts of Wright while working in Pulaski County are simply too tenuous
to be imputed to Williams.      This element couples with the third element.
Williams could not foresee the acts of Wright.      Therefore, Williams could
not be the cause of the plaintiffs' distress.


     The second element requires that the conduct be both extreme and
outrageous.    Id.   (emphasis omitted).   We look at the following factors in
determining whether the conduct is extreme and outrageous, "the conduct at
issue; the period of time over which the conduct took place; the relation
between plaintiff and defendant; and defendant's knowledge that plaintiff
is peculiarly susceptible to emotional distress by reason of some physical
or mental peculiarity."     Id. at 111 (citations omitted).   We believe that
when analyzing the factors the plaintiffs fail on all counts.     The conduct
of Williams complained of was the failure to recommend decertification on
the change of status form and to inform the Pulaski Sheriff's Office of
Wright's past misconduct.       Williams' conduct can in no way be termed
"extreme and outrageous."      Williams had absolutely no prior contact with
either of the plaintiffs.    The plaintiffs were not in the custody and care
of Williams.   Since he had no contact with the plaintiffs there is no way
he could have known if the plaintiffs were in any way susceptible to
emotional distress.     We choose not to address the




                                      -9-
fourth element.     The case was dismissed on summary judgment and the record
was not well-developed as to the damages the plaintiffs sustained.


     The district court relied exclusively on Deitsch to deny      Williams'
motion on the outrage claim.      In our view, this case is not controlling.
Deitsch came before the Arkansas Supreme Court following a dismissal for
failure to plead a claim upon which relief could be granted.      833 S.W.2d
at 761.    The plaintiffs in Deitsch were a group of parents whose children
attended the Westside Elementary school and one employee.           Id.    The
plaintiffs alleged the defendants, school employees, school board members
and the school district, had failed to protect plaintiffs against the
presence of friable asbestos in the school, thus resulting in the tort of
outrage.   Id.    The complaint alleged that during "spring break" of March,
1990, over 30,000 square feet of ceiling tile, containing asbestos, was
improperly and negligently removed.    Id.   The Court noted that the alleged
proper standards for asbestos treatment, comprising both federal and state
regulations, were set out extensively in the complaint.      Id. at 762.    It
was alleged that the defendants were aware of the asbestos material present
in the school and intentionally violated these regulations.      Id. at 761.
We believe that Deitsch is distinguishable.    First, the asbestos in Deitsch
imposed a clear and immediate danger to the children who went to school at
Westside Elementary.     Second, the defendants in Deitsch were aware of the
extensive regulation involving asbestos.     Third, the students were in the
care and custody of school officials.     This created a unique relationship
between    the students and school officials.        Lastly, in Deitsch the
complaint alleged that in the years prior to its removal, the asbestos had
been agitated causing daily incidents of exposure.    We do not believe that
Wright was a clear and immediate danger when he left the Helena Police
Department.      Williams complied with state regulations in filling out the
change of status report      concerning Wright's resignation from the force.
Williams in no way was in care or




                                      -10-
custody of the plaintiffs.    The conduct of Williams did not result in a
pervasive daily exposure to harm.   We reverse the district court as to the
outrage claim.


                                    VI.


     Finally, we believe the indemnity and contribution claim of Gravett
does not need to be addressed.   The plaintiffs' claim against Williams was
properly dismissed.   Therefore, the contribution claim of Gravett against
Williams is moot.


                                    VII.


     The decisions of the district court in dismissing the § 1983 claims
made by plaintiffs and Gravett against Williams are hereby affirmed.   The
district court's decision denying Williams' summary judgment on plaintiffs'
pendent state claim of outrage is reversed. The action is remanded with
directions to dismiss all claims against defendant Williams.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -11-
