                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 October 12, 2007
                                No. 06-15368                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 05-21230-CV-JAL

JORGE T.,
a minor by and through his mother and natural
guardian,
SUSAN CARCANO,

                                                              Plaintiff-Appellant,

                                     versus

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
a.k.a. Florida Department of Children and Family Services,
SARA ARIAS,
Julian as a minor,
OLIVIA WALKER,
JERMAINE IRVING,
MELVIN DOE, et al.,


                                                           Defendants-Appellees.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                               (October 12, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Jorge T. filed a complaint in district court pursuant to 42 U.S.C. § 1983,

alleging that defendants violated his substantive due process right to protection and

care as a dependent child in the Florida Department of Children and Families

(“DCF”). The defendants filed a motion to dismiss based upon qualified

immunity. The district court granted the motion, and Jorge T. timely filed this

appeal. Because Jorge T.’s complaint failed to state a claim upon which relief can

be granted, we affirm the district court’s judgment.

                                 BACKGROUND

      In 2002, the DCF placed Jorge T. and his older brother Ricardo in the foster

home of Sara Arias. Jorge T. brought a § 1983 claim against seven DCF

employees after Julian, another foster child in the Arias home, allegedly raped and

sexually assaulted him on December 14, 2002. He claims that the following facts

support the conclusion that the DCF employees violated his constitutional rights:

one DCF employee knew that, on several occasions prior to the incident, Julian had

entered the bathroom while Jorge T. was inside; one DCF employee received

reports that Jorge T. and his brother were not well-kept, were dirty and lacked

proper care; six DCF employees failed to act to ensure Jorge T.’s safety at the time



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of the alleged rape and assault; the defendants failed to respond to various

structural errors and a general increase in reports of abuse in the foster care system;

and the defendants improperly screened Jorge T.’s foster mother’s background.

      The defendants filed a motion to dismiss, asserting qualified immunity. The

district court granted the motion, concluding that Jorge T.’s assertions failed to

establish a claim under § 1983.

                            STANDARD OF REVIEW

      We review de novo the grant of a motion to dismiss under Fed. R. Civ. P.

12(b)(6) and assumes that the facts alleged in the complaint are true. Spain v.

Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004)

(quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).

Because the district court dismissed Jorge T.’s § 1983 claim on qualified immunity

grounds, however, we must also apply a heightened pleading requirement. GJR

Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998)

(citing Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (1992) (overruled

on other grounds)). Accordingly, while Fed. R. Civ. P. 8 gives plaintiffs

considerable leeway in framing complaints, we require that, in response to the

qualified immunity defense, a § 1983 complaint allege its supporting facts with

some specificity. Id.



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                                    DISCUSSION

      The facts and procedural posture of this case are similar to those we faced in

Ray v. Foltz, 370 F.3d 1079 (11th Cir. 2004). Ray involved alleged abuse of a

foster child and a § 1983 claim against DCF employees. Id. at 1080-81. There, as

here, the defendants raised the qualified immunity defense. Id. at 1081. In Ray we

reversed the district court’s denial of the defendants’ 12(b)(6) motion to dismiss,

and our reasoning there will guide us here.

      Government officials are immune from suit when acting within the scope of

their discretionary authority unless they knowingly violate a clearly established

statutory or constitutional right of which a reasonable person would have known.

Id. at 1081 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982)). The defendants concede that Jorge T. has alleged a violation

of his clearly established constitutional right to be free from unnecessary pain

under the Fourteenth Amendment. See id. at 1082 (“It is clearly established in this

circuit that foster children have a constitutional right to be free from unnecessary

pain and a fundamental right to physical safety.”) (citing Taylor v. Ledbetter, 818

F.2d 791, 794-95 (11th Cir. 1987) (en banc)). Under Ray, however, Jorge T.’s

complaint must also sufficiently allege that the defendants were deliberately

indifferent to the violation of Jorge T.’s rights. Id. at 1083 (citing Taylor, 818 F.2d



                                           4
at 797).

      In Ray, we reasoned that the defendants could not be liable under the

deliberate indifference standard unless they (1) actually knew that an excessive risk

of abuse existed and (2) disregarded that risk. Id. (citing Farmer v. Brennan, 511

U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (requiring that a state

official be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and actually draw the inference). Jorge T.’s

complaint cannot survive the defendants’ motion to dismiss because the facts, even

when viewed in the light most favorable to Jorge T., do not support an inference

that a substantial risk of serious harm existed.

      The only relevant fact that Jorge T. alleged with specificity is that one of the

seven defendants knew that Julian had previously entered the bathroom when it

was occupied by Jorge T. The defendants could not have inferred from that fact

alone that a substantial risk of serious harm to Jorge T. existed. Thus, while we

acknowledge that what Jorge T. allegedly suffered is horribly tragic, the law

clearly prevents Jorge T. from pursuing his case against the defendants as pleaded.

                                   CONCLUSION

      Jorge T.’s complaint failed to state a claim upon which relief could be

granted. Nowhere in the complaint does he allege facts that would support the



                                           5
inference that a substantial risk of serious harm existed. Accordingly, we affirm

the district court’s dismissal of Jorge T.’s complaint.

AFFIRMED.




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