                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                                                             U.S. COURT OF APPEALS
                          ________________________             ELEVENTH CIRCUIT
                                                                    April 20, 2005
                                No. 04-15055                    THOMAS K. KAHN
                            Non-Argument Calendar                     CLERK
                          ________________________

                       D. C. Docket No. 03-00916-CV-A-N


ROBERT GRIFFIN,
ANNETTE GRIFFIN, as Individuals and
next friends and Administrators of the
Estate of Brandy Hobson, deceased,

                                                            Plaintiffs-Appellants,

                                      versus

TROY STATE UNIVERSITY, an entity
organized under the laws of the State of Alabama, et al.,

                                                            Defendants,

EDWARD RICHARDSON,
DOUGLAS HAWKINS,
GERALD O. DIAL,
JOHN D. HARRISON,
ALLEN E. OWEN, III, et al., all as individuals,

                                                            Defendants-Appellees.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            _________________________

                                       (April 20, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

       Robert Griffin and Annette Griffin, as next friends and Administrators of the

Estate of Brandy Hobson, appeal the district court’s dismissal of their 42 U.S.C. §

1983 claims, pursuant to Fed. R. Civ. P. 12(b)(6), against twelve defendants, in their

individual capacities.1 The Griffins filed this claim after their 17-year-old daughter,

Brandy Hobson, a Troy State University (“TSU”) student, was murdered in her on-

campus dormitory during her first semester at the school. The Griffins alleged that

by requiring students under the age of 19 to live on campus, TSU assumed a duty to

provide adequate security for its students. The Griffins asserted that by virtue of the

on-campus living requirement, Defendants formed a “special relationship” with their

daughter and, thereafter, were deliberately indifferent to inadequate security and



       1
           The district court previously dismissed the claims against these defendants, Troy State
University (“TSU”), and the Trustees of the TSU Board, in their official capacities. That order is
not at issue here.

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control issues on the TSU campus. The Griffins alleged violations of Brandy’s Fifth

and Fourteenth Amendment rights, all in violation of § 1983.

      The district court dismissed the complaint after finding the defendants were

entitled to qualified immunity. On appeal, the Griffins argue this decision was wrong

because TSU’s requirement that certain students, such as Brandy Hobson, live on

campus created a “special relationship,” giving rise to a duty, under the Fourteenth

Amendment, to protect those students from harm by third parties. Based on our

thorough review of the record and careful consideration of the parties’ briefs, we find

no reversible error and affirm.

      “We review the district court’s grant of qualified immunity de novo to the

extent the appeal concerns pure issues of law, including whether the underlying law

governing official conduct was clearly established.” Magluta v. Samples, 375 F.3d

1269, 1273 (11th Cir. 2004) (citing Smith v. Mattox, 127 F.3d 1416, 1418 (11th Cir.

1997). “We resolve all issues of material fact in favor of the plaintiff, and then

determine the legal question of whether the defendant is entitled to qualified

immunity under that version of the facts.” Durruthy v. Pastor, 351 F.3d 1080, 1084

(11th Cir. 2003); Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

      “Qualified immunity offers complete protection for government officials sued

in their individual capacities as long as their conduct violates no clearly established

                                          3
statutory or constitutional rights of which a reasonable person would have known.”

Lee, 284 F.3d at 1193 (internal quotation marks and citations omitted). “The purpose

of this immunity is to allow government officials to carry out their discretionary

duties without the fear of personal liability or harassing litigation, protecting from

suit all but the plainly incompetent or one who is knowingly violating the federal

law.” Id. (internal quotation marks and citations omitted). “Because qualified

immunity is a defense not only from liability, but also from suit, it is ‘important for

a court to ascertain the validity of a qualified immunity defense as early in the lawsuit

as possible.’” Id. (quoting GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359,

1370 (11th Cir. 1998) (citation omitted)).

      In order to receive qualified immunity, a public official “must first prove that

he was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Lee, 284 F.3d at 1194 (internal quotation marks omitted).

In this case, there is no contention that the Defendants were not acting within their

discretionary duties so we proceed to the next step at which the burden shifts to the

plaintiff to prove that qualified immunity is not warranted. Id. The Supreme Court

has articulated a two-prong test to aid in this analysis. See Vinyard v. Wilson, 311

F.3d 1340, 1347 (11th Cir. 2002). First, “[t]aken in the light most favorable to the

party asserting the injury, do the facts alleged show the officer’s conduct violated a

                                           4
constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed.

2d 272 (2001). Second, if a constitutional right “would have been violated under the

plaintiff's version of the facts, ‘the next, sequential step is to ask whether the right

was clearly established.’” Vinyard, 311 F.3d at 1347 (quoting Saucier, 533 U.S. at

201, 121 S. Ct. 2151). It is the plaintiff’s burden to establish both prongs of the

foregoing test to defeat a defendant’s motion for summary judgment based on

qualified immunity. See Holloman ex real. Holloman v. Harland, 370 F.3d 1252,

1264 (11th Cir. 2004) (“If the plaintiff prevails on both prongs of this test, then the

defendant is unable to obtain summary judgment on qualified immunity grounds.”)

       Here, the district court applied the two-part Saucier test and concluded that

qualified immunity applied.        On the first prong, the district court found no

constitutional violation of substantive due process under the Fourteenth Amendment

because the Supreme Court has held that substantive due process does not require a

State to protect its citizens’ life, liberty, or property against invasion by private actors.

See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195, 109

S. Ct. 998 (1989) (holding “nothing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against

invasion by private actors. The Clause is phrased as a limitation on the State's power

to act, not as a guarantee of certain minimal levels of safety and security”). The

                                             5
district court also found that the “special relationship” exception to DeShaney did not

apply because Brandy Hobson voluntarily attended TSU and the on-campus housing

requirement did not place Hobson in a custodial relationship. Finally, the district

court concluded that the Griffins had not alleged conduct that rose to the level of

arbitrary or conscious-shocking in the constitutional sense. See Waddell v. Hendry

Sheriff’s Office, 329 F.3d 1300, 1306 (to establish a substantive due process violation

in a non-custodial situation, plaintiff must show “deliberate indifference to an

extremely great risk of serious injury to someone in Plaintiffs’ position” (citing

McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002) (stating that

Plaintiff was required to demonstrate that “the defendant state official at a minimum

acted with deliberate indifference toward the plaintiff”); Nix v. Franklin County

School Dist., 311 F.3d 1373, 1376 (11th Cir. 2002) (concluding that deliberate

indifference was insufficient to constitute a due-process violation in a non-custodial

school setting)).

      We agree with the district court’s thorough analysis of the first Saucier prong

and its conclusion that, on this record, the Griffins have not satisfied their burden to

show that the Defendants’ conduct violated a constitutional right.

      Moreover, even if the Griffins met the first prong, they have not challenged the

district court’s decision on the second prong. The district court held that even if the

                                           6
Griffins’s substantive due process claim satisfied Saucier’s first prong, the Griffins

could not show the law on their substantive due-process claim was clearly

established.

      As the district court concluded, the Defendants’ conduct would rise to the level

of a substantive due process violation “only if the act can be characterized as arbitrary

or conscience shocking in a constitutional sense.” Waddell v. Hendry County

Sheriff's Office, 329 F.3d 1300, 1305 (11th Cir. 2003) (citing Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261

(1992)). “‘[O]nly the most egregious official conduct can be said to be arbitrary in

the constitutional sense.’” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833,

118 S. Ct. 1708, 1716, 140 L. Ed. 2d 1043 (1998)(quotation and citation omitted)).

Moreover, “[d]eterminations of what is egregious conduct must not be made in the

glow of hindsight; decisions made by a government actor must be egregious--that is,

shock the conscience--at the time the government actor made the decision.” Waddell,

329 F.3d at 1305 (emphasis in original). As we have noted, on appeal, the Griffins

do not argue that they have met this standard, nor do they challenge the district

court’s conclusion on the issue. Again, it is their burden to satisfy both prongs of the

qualified immunity analysis. Based on the Griffins’ failure to challenge the second

prong, we affirm the district court’s grant of qualified immunity. Moreover, even if

                                           7
we were to reach the second prong, we conclude, as we did at the first step, that the

district court thoroughly considered and rejected every argument raised in this appeal.

We find no error in its qualified-immunity analysis. Accordingly, we affirm the entry

of summary judgment in favor of the defendants.

      AFFIRMED.




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