                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1540
                         ___________________________

                                Tamela Montgomery,

                       lllllllllllllllllllll Plaintiff - Appellant,

                                           v.

  City of Ames; Suzanne Owens, individually and in her official capacity as a Law
     Enforcement Officer for the City of Ames Police Department; Heath Ropp,
 individually and in his official capacity as a Law Enforcement Officer for the City
   of Ames Police Department; Christine Crippen, individually and in her official
  capacity as a Law Enforcement Officer for the City of Ames Police Department;
  John Doe, individually and in his official capacity as a Law Enforcement Officer
for the City of Ames Police Department; State of Iowa; John Baldwin, individually
   and in his official capacity as Director of the Iowa Department of Corrections;
  Curt Forbes Residential Center; John McPherson, individually and in his official
               capacity as Manager of Curt Forbes Residential Center,

                      lllllllllllllllllllll Defendants - Appellees.
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                            Submitted: January 12, 2016
                               Filed: July 20, 2016
                                 ____________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
                         ____________
COLLOTON, Circuit Judge.

       Angenaldo Bailey seriously injured Tamela Montgomery when he broke into
her house and shot her several times before killing himself. At the time, Bailey was
a resident of the Curt Forbes Residential Center, a halfway house facility operated by
the State of Iowa in Ames. Montgomery sued the City of Ames, several Ames police
officers, the Center, John McPherson (the Center’s manager), the State of Iowa, and
John Baldwin (the director of the Iowa Department of Corrections). We previously
affirmed the district court’s grant of summary judgment for the City of Ames and its
police officers and remanded for further proceedings on the other claims.
Montgomery v. City of Ames, 749 F.3d 689 (8th Cir. 2014). On remand, the district
court1 granted summary judgment for McPherson, Baldwin, the Center, and the State.
Montgomery appeals that order, and we affirm.

                                          I.

       As we are reviewing a grant of summary judgment, we describe the facts in the
light most favorable to Montgomery. Bailey had a history of abusing Montgomery.
On November 12, 2008, Bailey was arrested for domestic abuse after he assaulted
Montgomery. She stated that Bailey had struck her in the face, started to strangle her,
and threatened to kill her. The following day, an Iowa state court issued an order of
protection prohibiting Bailey from contacting Montgomery.

       Bailey disobeyed the order and continued to contact Montgomery. In February
2009, authorities arrested Bailey at Montgomery’s residence in Ames. Bailey, armed
with a baseball bat, returned the following day, slapped Montgomery, and threatened
to rape her. Police arrested Bailey and brought him to jail. After he was placed in a


      1
        The Honorable John A. Jarvey, now Chief Judge, United States District Court
for the Southern District of Iowa.

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holding cell, Bailey hit his head against the walls and tried to wrap his belt around his
neck in an apparent attempt to harm himself. The next month, after his release,
Bailey forced a door open at Montgomery’s residence and threatened to kill her.
Montgomery told police that if they did not catch Bailey, she believed that he would
come back and attack her. Police arrested Bailey on charges of aggravated
interference with official acts and third-degree burglary.

       An Iowa state court issued a second order of protection in June 2009, noting
that Bailey previously had been convicted of a domestic abuse assault. Despite the
order, Montgomery’s neighbors reported seeing Bailey drive by Montgomery’s
residence in July 2009. By then, Bailey had been released from jail and was assigned
to reside at the Curt Forbes Residential Center in Ames. Bailey continued to contact
Montgomery in September 2009.

      On September 28, 2009, Montgomery called the Ames police. Montgomery
informed an officer, John Mueller, that Bailey was contacting her and coming to her
residence, in violation of the protective order. Mueller informed Montgomery that
he would locate Bailey and talk with him about the situation. Mueller went to the
Center and spoke with a probation officer. The probation officer told Mueller that
Bailey had “stepped out,” and that Bailey might be found at a local workforce
development office.

      Mueller went to the workforce office, found Bailey, and discussed
Montgomery’s complaint against Bailey. Bailey claimed that Montgomery had
contacted him by telephone. Mueller warned Bailey not to contact Montgomery in
any way, and Bailey promised not to do so. Mueller then returned to Montgomery’s
residence and informed her of Bailey’s statements. Montgomery admitted that she
recently had called Bailey. Mueller warned her not to make such calls and then
departed.



                                          -3-
       Around the same time that Montgomery called the police, she also contacted
the Center. She told an unidentified man who answered the telephone that she felt
threatened by Bailey. She requested that the Center not allow Bailey to leave on
outings because he was contacting her when he left the facility.

       Bailey returned to the Center from the workforce office. Later that afternoon,
Bailey was allowed to leave the Center to go shopping at Walmart. At around 5:00
p.m., police received reports from Montgomery’s neighbors that Bailey had been
riding his bicycle around the neighborhood. Bailey returned to the Center. At 7:50
p.m., Bailey was allowed to leave to go to a Hy-Vee store for one hour. When Bailey
did not return by 8:50 p.m., a staff member at the Center called the police to file a
“run report” on Bailey. Rather than return to the Center, Bailey broke into
Montgomery’s home, shot her, and then shot himself. Montgomery sustained serious
injuries from gunshot wounds.

         Montgomery brought suit, alleging constitutional due process claims and state-
law negligence claims against the City, several police officers, the Center, John
McPherson (the manager of the Center), the State of Iowa, and John Baldwin (the
director of the Iowa Department of Corrections). The constitutional claim against
McPherson alleged that he acted with deliberate indifference to Bailey’s history of
violating protective orders and thus violated Montgomery’s due process right to
bodily integrity. Montgomery further alleged that Baldwin, the Center, and the State
had maintained “official policies . . . of failing to prevent individuals in custody from
violating protective orders” and “failed to establish an adequate and sufficient policy
. . . for training supervisors and officers within the Department and Center relating
to individuals in custody violating protective orders.”

       The district court granted summary judgment for all defendants. We affirmed
the judgment in favor of the City and its police officers. Because Montgomery did
not have notice that the district court would consider granting summary judgment for

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the other defendants, we remanded for further proceedings on the remaining claims.
Montgomery, 749 F.3d at 697. On remand, the district court granted summary
judgment for McPherson, Baldwin, the Center, and the State on the federal claims,
and dismissed the remaining state-law claims without prejudice. The court concluded
that Montgomery presented insufficient evidence to establish a constitutional
violation.

       We review the grant of summary judgment de novo, viewing the record in the
light most favorable to Montgomery. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). We may uphold a grant of summary judgment for any reason supported
by the record. Bishop v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013).

                                           II.

       The Due Process Clause of the Fourteenth Amendment provides that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process of
law.” “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.” DeShaney v. Winnebago
Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). As a general matter, therefore,
“a State’s failure to protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197.

       Montgomery relies on one recognized exception to this general rule. A State
owes a duty to protect a citizen “when the state affirmatively places a particular
individual in a position of danger the individual would not otherwise have faced.”
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc); see K.B.
v. Waddle, 764 F.3d 821, 824 (8th Cir. 2014). To succeed under this theory, a
plaintiff must prove that the defendant affirmatively created a significant risk of
serious, immediate, and proximate harm, that the risk was obvious or known to the
defendant, that the defendant acted recklessly in conscious disregard of the risk, and

                                           -5-
that the defendant’s conduct “shocks the conscience.” Hart v. City of Little Rock, 432
F.3d 801, 805 (8th Cir. 2005). Montgomery argues that the defendants created or
increased a danger to her by authorizing Bailey to leave the Center to visit the Hy-
Vee, despite his history of violence and Montgomery’s cautionary telephone call to
the Center earlier in the day.

       As to Montgomery’s claim against McPherson, the manager of the Center, we
see several shortcomings. First, there is no evidence in the record that McPherson
knew about Bailey’s history of abusing Montgomery or Montgomery’s telephone call
to the Center on the afternoon of the shooting. Montgomery cites an Iowa statute
directing a county attorney to give the director of the judicial district department of
correctional services “a detailed statement of the facts and circumstances surrounding
the crime committed and the record and history of the defendant as may be known to
the county attorney.” Iowa Code § 907.8(3). But the record does not include
testimony or documents showing what the relevant county attorney gave to the
director in McPherson’s judicial district or what the director gave to McPherson. Nor
is there evidence that the unidentified man at the Center with whom Montgomery
spoke by telephone in the afternoon communicated to McPherson about
Montgomery’s concern for her safety. McPherson cannot be held liable under § 1983
for constitutional violations of a subordinate based on a respondeat superior theory.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Negligence or even gross negligence is
insufficient to establish a violation of the Due Process Clause. Daniels v. Williams,
474 U.S. 327, 328 (1986); Hart, 432 F.3d at 805. Montgomery must present
sufficient evidence to show that McPherson, through his own actions, violated the
Constitution. That proof is lacking here.

      Second, as the district court observed, there is also insufficient evidence to
show that McPherson’s subordinates at the Center were deliberately indifferent to a
known or obvious substantial risk of harm to Montgomery when they authorized
Bailey to visit the Hy-Vee. The Center’s employees did not know whether Bailey

                                         -6-
recently had violated the order of protection by contacting Montgomery. The Ames
Police Department was investigating a report from Montgomery that Bailey had
violated the no-contact order. But that investigation was in progress, and the police
had received conflicting information about whether Bailey or Montgomery had
initiated the forbidden contact. Montgomery eventually admitted that she had
contacted Bailey. Nor, as the district court explained, is there evidence that the
Center’s employees were deliberately indifferent to Montgomery’s well being. The
record does not show that the unknown staff member who authorized Bailey to visit
the Hy-Vee consciously disregarded a known or obvious risk to Montgomery.

       Third, Montgomery has not established that McPherson or employees of the
Center created a new danger to Montgomery or increased the danger that Bailey
posed to Montgomery, because the danger to Montgomery existed before Bailey
resided at the Center and would have continued to exist thereafter. Allowing Bailey
to visit the Hy-Vee did not create a greater risk to Montgomery than what she would
have faced if Bailey had never been assigned to the Center in the first place. See S.S.
v. McMullen, 225 F.3d 960, 962-63 (8th Cir. 2000) (en banc). That Bailey was able
to leave the Center during the evening of September 28 simply placed Montgomery
back in the same situation that she occupied before Bailey was in custody or resided
at the halfway house. Montgomery was not an institutionalized person to whom the
State owed a duty, cf. Youngberg v. Romeo, 457 U.S. 307, 317 (1982), and the
Supreme Court has rejected the notion that a State has an affirmative duty,
enforceable through the Due Process Clause, to protect an identified victim when it
knows that a person in custody poses a special danger to that victim. DeShaney, 489
U.S. at 197-98 & n.4. Montgomery has not presented evidence comparable to the
allegations in Wells v. Walker, 852 F.2d 368, 371 (8th Cir. 1988), where state officials
took action under state law to provide post-release transportation for a prisoner, used
a citizen’s store as the closest commercial transportation pick-up point, and thus
affirmatively placed the citizen in a “unique, confrontational encounter” with a person
known to have exhibited violent propensities.

                                          -7-
       Montgomery’s claim against Baldwin, the director of the Iowa Department of
Corrections, also fails for insufficient evidence. Baldwin had no personal
involvement with events at the Center, and he cannot be held liable under a
respondeat superior theory. Montgomery’s complaint alleged that Baldwin failed to
implement appropriate policies or adequately to train employees who worked at the
Center, but because there is insufficient proof of a constitutional violation, Baldwin
cannot be liable on these theories. See Carpenter v. Gage, 686 F.3d 644, 651 (8th
Cir. 2012). The Eleventh Amendment bars Montgomery’s claims against the State
and the Center, because the State and its agencies are immune from suits for damages.
Quern v. Jordan, 440 U.S. 332, 337 (1979); Edelman v. Jordan, 415 U.S. 651, 663
(1975).

                                 *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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