                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3000
                         ___________________________

                                          K.B.,

                        lllllllllllllllllllll Plaintiff - Appellant,

                                            v.

        Michael Waddle; Jeff Hall; Stephanie Howerton; Sara Holzmeier,

                      lllllllllllllllllllll Defendants - Appellees.
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - Hannibal
                                  ____________

                              Submitted: June 12, 2014
                               Filed: August 20, 2014
                                   ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

      K.B. is a juvenile who was sexually assaulted at a public swimming pool by
another juvenile in 2003. K.B. sued several public employees, alleging that they were
aware of a threat by the assailant but failed to take steps to prevent the abuse. She
brought a federal constitutional claim based on the Due Process Clause and state-law
negligence claims. The district court1 dismissed all claims either on the pleadings or
on summary judgment. K.B. appeals, and we affirm.

                                          I.

       We recite the facts in the light most favorable to K.B. From the fall of 2002
through the spring of 2003, K.B., then a minor, voluntarily participated in an
after-school program offered by an entity known as the Family Advocacy Center in
Adair County, Missouri. S.H., also a minor, participated in the Center’s after-school
program, too. According to K.B., the Center is a joint project of the Adair County
Juvenile Office, the Missouri Department of Mental Health, and others.

       In February 2003, S.H. told Beatrice Dovin, a manager at the Center, that he
was going to sexually assault K.B. Dovin called the child abuse hotline maintained
by the Children’s Division of the Missouri Department of Social Services. S.H.’s
threat was subsequently communicated by Dovin or another person to Mike Waddle,
Chief Juvenile Officer of the Second Judicial Circuit, Jeff Hall, Deputy Juvenile
Officer of the Second Judicial Circuit, Stephanie Howerton, a supervisor at the
Children’s Division of the Adair County, Missouri Department of Social Services,
and Sara Holzmeier, a school resource officer for the Kirksville Police Department
and the Kirksville R-III School District. These four did not report S.H.’s threat to
K.B.’s parent.

        Several months later, during the summer of 2003, S.H. sexually assaulted K.B.
at a public swimming pool. K.B. and S.H. were not under the Center’s supervision
at the time of the assault. K.B. alleges, however, that if her parent had been warned



      1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

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of S.H.’s threat, then the parent would have been in a position to take protective
action.

       K.B. sued Waddle, Hall, Howerton, and Holzmeier, whom we will describe as
“the officials,” in Missouri state court, and the officials removed the case to the
federal district court. K.B.’s petition alleged that the officials, as state actors, created
a danger to K.B. and made K.B. more vulnerable to harm by failing to warn her parent
of the threat. K.B. claimed that the officials thereby violated a liberty interest in
personal bodily integrity that she enjoys under the Fourteenth Amendment. K.B. also
asserted state-law claims of negligence and negligent infliction of emotional distress,
based on the officials’ “duty . . . to K.B., to take steps to report and prevent abuse and
threatened abuse.”2

       Waddle, Hall, and Howerton moved for judgment on the pleadings and for
summary judgment. They raised a defense of qualified immunity to K.B.’s due
process claim and a defense of official immunity under Missouri law to her state-law
negligence claims. Holzmeier separately moved for judgment on the pleadings,
asserting that K.B. failed to allege the violation of a constitutional right and that she
was entitled to official immunity.

       The district court ruled that K.B. failed to establish a due process violation, so
the officials were entitled to qualified immunity and judgment as a matter of law on
the federal claim. With respect to K.B.’s negligence claims, the court concluded that
the officials enjoyed official immunity under state law because their duty to act, if
any, was discretionary, not ministerial.


       2
        In her complaint, K.B. also pleaded that Howerton instructed another
employee not to inform K.B.’s parent of the threat, but K.B. did not rely on that
allegation in her opposition to the officials’ motions for judgment on the pleadings
and summary judgment, or in her briefing on this appeal.

                                            -3-
       K.B. appeals those rulings. We review the district court’s grant of judgment
on the pleadings and summary judgment de novo, viewing the record in the light most
favorable to K.B., the nonmoving party. Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d
659, 665 (8th Cir. 2009) (judgment on the pleadings); Butts v. Cont’l Cas. Co., 357
F.3d 835, 837 (8th Cir. 2004) (summary judgment). Judgment on the pleadings and
summary judgment are warranted where the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 12(c), 56(a); Ashley Cnty., 552 F.3d at 665.

                                          II.

                                          A.

       The facts alleged, construed most favorably to K.B., do not establish a violation
of the Due Process Clause, so the officials are entitled to judgment on the federal
claim. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). A State’s failure to
protect an individual against private violence generally does not violate the
Constitution, because the Due Process 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.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989). There are two exceptions to that general rule. First, if a person is in the
state’s custody against her will, the state owes her a protective duty. Id. at 199-200.
Second, “the state owes a duty to protect individuals if it created the danger.” Hart
v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005); see also DeShaney, 489 U.S.
at 201. Neither exception applies here.

       The officials did not restrain K.B.’s liberty through “incarceration,
institutionalization, or other similar restraint,” DeShaney, 489 U.S. at 200, so the
custodial exception does not apply. See Lee v. Pine Bluff Sch. Dist., 472 F.3d 1026,
1029-32 (8th Cir. 2007); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir.

                                          -4-
1993). In Lee, we held that a student who voluntarily participated in a school band
trip was not in state custody, and that the State therefore did not have a constitutional
duty to protect the student. 472 F.3d at 1029-32. Likewise, K.B. was not in state
custody when she voluntarily participated in the Center’s after-school program.
There is no evidence that K.B. or S.H. were even under the supervision of any of the
officials or their agencies at the time of the assault at the public pool.

       In failing to warn K.B.’s parent, the officials did not take an affirmative action
that increased K.B.’s danger, so the second DeShaney exception is also inapplicable.
Liability may attach where an individual “would not have been in harm’s way but for
the government’s affirmative actions.” Carlton v. Cleburne Cnty., Ark., 93 F.3d 505,
508-09 (8th Cir. 1996). But the officials here did not affirmatively create the threat
posed by S.H. As in DeShaney, “[t]he most that can be said of the [officials] in this
case is that they stood by and did nothing when suspicious circumstances dictated a
more active role for them.” 489 U.S. at 203.

        K.B.’s emphasis on Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.
1998), is misplaced. In Kallstrom, the Sixth Circuit held that a city placed
undercover officers and their family members in danger because the city released the
officers’ addresses, phone numbers, and driver’s licenses, and thereby “substantially
increas[ed] the likelihood that a private actor would deprive [the officers and their
families] of their liberty interest in personal security.” Id. at 1067. Here, by contrast,
the officials did not take any “affirmative action which increase[d] [K.B.’s] danger
of, or vulnerability to, . . . violence beyond the level it would have been at absent state
action.” Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). The state-created-
danger exception thus does not apply, and the district court properly granted
judgment on the pleadings and summary judgment for the officials on the federal
constitutional claim.




                                           -5-
                                            B.

        The officials are entitled to official immunity as to K.B.’s state-law negligence
claims. Under Missouri law, official immunity “protects public employees from
liability for alleged acts of negligence committed during the course of their official
duties for the performance of discretionary acts.” Southers v. City of Farmington,
263 S.W.3d 603, 610 (Mo. 2008). Public employees, however, are not entitled to
immunity for torts committed when they are acting in a ministerial capacity. Id.

       “Whether an act can be characterized as discretionary depends on the degree
of reason and judgment required. A discretionary act requires the exercise of reason
in the adaptation of means to an end and discretion in determining how or whether
an act should be done or course pursued.” Id. (internal citation omitted). By contrast,
a ministerial function “is one of a clerical nature which a public officer is required to
perform upon a given state of facts, in a prescribed manner, in obedience to the
mandate of legal authority, without regard to his own judgment or opinion concerning
the propriety of the act to be performed.” Id. (internal quotation omitted); see also
Hutson v. Walker, 688 F.3d 477, 485 (8th Cir. 2012). “The determination of whether
an act is discretionary or ministerial is made on a case-by-case basis, considering: (1)
the nature of the public employee’s duties; (2) the extent to which the act involves
policymaking or exercise of professional judgment; and (3) the consequences of not
applying official immunity.” Southers, 263 S.W.3d at 610; accord Nguyen v. Grain
Valley R-5 Sch. Dist., 353 S.W.3d 725, 729-30 (Mo. Ct. App. 2011).

       According to K.B., Missouri’s child abuse–reporting statute,
Mo. Rev. Stat. § 210.115, imposed on the officials a ministerial duty to report S.H.’s
threat of abuse. The officials’ duty under that statute, however, was discretionary, not
ministerial. Section 210.115.1 provides: “When any . . . person with responsibility
for the care of children has reasonable cause to suspect that a child has been or may
be subjected to abuse . . . , that person shall immediately report to the division . . . .”

                                           -6-
K.B. emphasizes that the statute mandates that the officials “shall immediately report”
abuse. But to trigger the reporting requirement, there must be “reasonable cause” to
suspect abuse, and that “reasonable cause” determination “requires an exercise of
discretion and personal judgment, which takes the matter out of the realm of a
ministerial act.” Larson v. Miller, 76 F.3d 1446, 1457 (8th Cir. 1996) (en banc)
(discussing analogous Nebraska statute).

        K.B. argues that there was “reasonable cause” here as a matter of law, so the
act of reporting would have been ministerial. But we implicitly rejected a comparable
argument in Larson, see id. at 1459 (F. Gibson, J., dissenting), and we see no reason
to construe Missouri law differently. “[T]he conditions of the statute describing when
child abuse reporting is required are not so specifically designated and devoid of
personal judgment as to render this a ministerial act.” Id. at 1457 (majority opinion).
That an official might exercise poor judgment in a given case does not remove the
conduct from the category of discretionary acts.

       According to K.B., Missouri common law separately establishes that the
officials had a mandatory duty to warn K.B.’s parent, and that official immunity based
on a discretionary duty is thus unavailable. K.B. relies on Bradley v. Ray, 904
S.W.2d 302 (Mo. Ct. App. 1995), which concluded that

      when a psychologist or other health care professional knows or pursuant
      to the standards of his profession should have known that a patient
      presents a serious danger of future violence to a readily identifiable
      victim the psychologist has a duty under Missouri common law to warn
      the intended victim or communicate the existence of such danger to
      those likely to warn the victim including notifying appropriate
      enforcement authorities.

Id. at 312.



                                         -7-
      Bradley recognized a common law duty for certain health care professionals,
but did not involve the separate question of official immunity from liability.
“[O]fficial immunity does not deny the existence of the tort of negligence, but instead
provides that an officer will not be liable for damages caused by his negligence.”
Southers, 263 S.W.3d at 611. Any duty of the officials under the circumstances here
was the sort of duty characterized as discretionary under Missouri law, because it
required an exercise of discretion and personal judgment. Therefore, even if the duty
discussed in Bradley were extended from health care professionals to the officials of
the type who are defendants here, the doctrine of official immunity in Missouri
forecloses liability.

       The district court properly granted judgment on the pleadings and summary
judgment for the officials as to K.B.’s negligence claims, because the officials are
entitled to official immunity under Missouri law.

                                   *      *       *

      The judgment of the district court is affirmed.
                     ______________________________




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