UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELIZABETH ANN DALEY, in her own
right and in her capacity as mother
of Evan Daley Hippeard
(Deceased), and as Personal
Representative of the Estate of Evan
Daley Hippeard,
Plaintiff-Appellant,

v.
                                                                    No. 95-2360
HANOVER COUNTY, Ex Rel Hanover
County Department of Social
Services; DEPARTMENT OF SOCIAL
SERVICES, Hanover County; THE
BOARD OF SOCIAL SERVICES OF
HANOVER COUNTY; GINNY FERGUSON;
JOHN TWISDALE,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-95-304-R)

Argued: March 7, 1996

Decided: May 24, 1996

Before NIEMEYER and MOTZ, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Thomas Ogburn Bondurant, Jr., BONDURANT & BEN-
SON, P.C., Richmond, Virginia, for Appellant. Archibald Wal-
lace, III, SANDS, ANDERSON, MARKS & MILLER, P.C.,
Richmond, Virginia, for Appellees. ON BRIEF: W. Todd Benson,
BONDURANT & BENSON, P.C., Richmond, Virginia, for Appel-
lant. L. Lee Byrd, SANDS, ANDERSON, MARKS & MILLER, P.C.,
Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this case, two-year-old Evan Hippeard was beaten to death by
his father's girlfriend. Plaintiff, Evan's mother, brought suit, alleging
that the county social service agency and its employees violated the
Due Process Clause and 42 U.S.C. § 1983 by failing to protect Evan.
The district court granted Defendants' motion to dismiss for failure
to state a claim upon which relief can be granted, and Plaintiff
appealed. We now affirm.

I

Plaintiff Elizabeth Ann Daley alleges that she was divorced from
Steve Hippeard in July, 1993, and was awarded custody of their son
Evan, and that Hippeard was awarded visitation rights. On March 31,
1994, while Evan was visiting Hippeard and Hippeard's live-in girl-
friend, Lauren O'Dell, Plaintiff was informed that Evan's arm looked
strange. The next day, Plaintiff took Evan to Dr. Mark Patrizzi, who
found a fracture in Evan's upper right arm. Dr. Patrizzi filed a com-
plaint of suspected child abuse with the Hanover County Department
of Social Services, and the complaint was assigned to social worker

                     2
Ginny Ferguson, who was told by Plaintiff that her children had com-
plained of violent behavior by O'Dell. Ferguson was also aware that
another child had suffered a broken collarbone during a visit to Hipp-
eard's home. Although Ferguson told Plaintiff that she would speak
with Hippeard and O'Dell, Plaintiff alleges that Ferguson did not. On
May 21, 1994, O'Dell beat Evan to death. Two days later, Ferguson
and her supervisor John Twisdale sent Plaintiff a letter stating that the
investigation had been "thorough" and that the"complaint against Ms.
Daley" was unfounded. O'Dell was later convicted of first-degree
murder.

Plaintiff brought this action under 42 U.S.C. § 1983 against defen-
dants Hanover County, the Hanover County Department of Social
Services, the Hanover County Board of Social Services, Ferguson and
Twisdale. Defendants filed a Rule 12(b)(6) motion to dismiss. The
district court granted that motion, concluding that sovereign immunity
barred Plaintiff's claims against the governmental defendants and
against Ferguson and Twisdale to the extent they acted in their offi-
cial capacities. To the extent Ferguson and Twisdale acted in their
individual capacities, the district court held, Plaintiff had failed to
allege the type of state action required to maintain a suit under
§ 1983. We affirm the judgment of the district court.

II

An order granting a motion to dismiss is subject to de novo review.
Medical Waste Associates v. Mayor and City Council of Baltimore,
966 F.2d 148, 150 (4th Cir. 1992).

Two cases, directly on point, are dispositive of Plaintiff's claims.
In DeShaney v. Winnebago County Dep't of Social Services, 489 U.S.
189 (1989), the county department of social services received com-
plaints that the plaintiff was being abused by his father, but the
department did not remove the child from the father's home. The
boy's father eventually beat him so severely that he suffered perma-
nent brain damage and was rendered profoundly retarded. The boy
and his mother alleged violation of the Due Process Clause and sued
under § 1983. The district court granted summary judgment, and the
court of appeals affirmed. The Supreme Court also affirmed, conclud-
ing that the Due Process Clause was only a negative prohibition on

                     3
state action -- not a requirement of affirmative government protec-
tion against intrusions by private third parties."Because . . . the State
had no constitutional duty to protect Joshua against his father's vio-
lence, its failure to do so -- though calamitous in hindsight -- simply
does not constitute a violation of the Due Process Clause." Id. at 202.
The Court rejected the argument that the state had created a "special
relationship" requiring intervention, by distinguishing situations in
which the state holds a person in custody and in which "the Constitu-
tion imposes upon it the corresponding duty to assume some responsi-
bility for his safety and general well-being." Id. at 200.

In Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), a police officer
assured the plaintiff that her abusive ex-boyfriend would be incarcer-
ated overnight. However, the ex-boyfriend was released and set fire
to the plaintiff's home, killing her three children. This Court, sitting
en banc, held that the defendant police officer was entitled to quali-
fied immunity, holding that "[q]ualified immunity under § 1983
shields officials from civil liability unless their actions violated
clearly established statutory or constitutional rights of which a reason-
able person would have known," id. at 1173 (citations omitted), and
concluded that no due process right was clearly established. We held
that DeShaney rejected the type of affirmative duty of protection that
the plaintiff claimed in Pinder, id. at 1174-75, and rejected the plain-
tiff's claim that, by promising that the ex-boyfriend would be incar-
cerated overnight, the police officer created a"special relationship"
requiring intervention. Id. at 1175. Because no due process right to
protection was clearly established, the police officer was entitled to
qualified immunity.

The facts in this case are, in all material respects, identical to those
in DeShaney. In both cases, the government agency received a report
of abuse and allegedly failed to conduct a prompt, adequate investiga-
tion. Those facts are insufficient to state a claim for violation of the
Due Process Clause. Defendant Ferguson's alleged promise that she
would interview Hippeard and O'Dell does not alter the analysis.
"Promises do not create a special relationship-- custody does."
Pinder, 54 F.3d at 1175. Plaintiff has not alleged that she or her son
were ever restrained by, or in the custody, of the defendants. The
Constitution does not require affirmative government protection
under these circumstances.

                    4
Plaintiff relies on Swader v. Commonwealth of Virginia, 743 F.
Supp. 434 (E.D. Va. 1990), but that case is readily distinguishable. In
Swader, an inmate raped and killed the daughter of a prison employee
who was required to live on prison grounds. The trial court concluded
that the facts alleged in the complaint, if proved, were sufficient to
show a "special relationship" and to constitute a cognizable claim
under § 1983. In Swader, the government allegedly took the affirma-
tive step of requiring the employee to live on the grounds and granted
an inmate access to the area. There are no similar allegations of affir-
mative government action in the present case. Thus, Ferguson and
Twisdale were entitled to qualified immunity to the extent they were
acting in their individual capacities.

The district court concluded that the Eleventh Amendment barred
Plaintiff's claims against the governmental defendants and against
Ferguson and Twisdale to the extent they acted in their official capac-
ities. For the most part, we agree. The Eleventh Amendment bars
claims for monetary relief against state agencies and state employees
acting in their official capacities. Edelman v. Jordan, 415 U.S. 651,
668 (1974).* It does not bar claims against a county itself. Mt.
Healthy City School District Board of Education v. Doyle, 429 U.S.
274, 280 (1977). Therefore, Hanover County is entitled to no immu-
nity. However, Hanover County is not a proper party in this case. Fer-
guson and Twisdale were employees.

The judgment of district court is

AFFIRMED.
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*In view of our holdings here, we need not reach the question of
whether the complaint stated a cause of action under the Due Process
Clause.

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