                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2007

Estate of Bennett v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 06-2879




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Estate of Bennett v. Philadelphia" (2007). 2007 Decisions. Paper 494.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/494


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                         PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


             Nos. 06-2879 and 06-2978


   ALEXUS BENNETT, ALIYAHA BENNETT,
  PRISCILLA BENNETT, Minors, by and through
  their Guardian Ad Litem JONATHAN IRVINE,
                            Appellants in No. 06-2978

                         v.

            CITY OF PHILADELPHIA




     THE ESTATE OF PORCHIA BENNETT,
     Decedent, by and through the Administrator
      of the Estate, THOMAS BRUNO, Esq.,
                             Appellant in No. 06-2879

                         v.

    CITY OF PHILADELPHIA; JOE MAIDEN


   On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
   (D.C. Civil Nos. 03-cv-05685 and 05-cv-00833)
       District Judge: Hon. Berle M. Schiller


                Argued July 10, 2007

Before: SLOVITER, WEIS, and ROTH, Circuit Judges

              (Filed August 22, 2007 )
Teri B. Himebaugh (Argued)
Abramson & Deneberg, P.C.
1200 Walnut Street, Sixth Floor
Philadelphia, PA 19107

      Attorney for Appellant,
      The Estate of Porchia Bennett

Christopher J. Culleton     (Argued)
Allan H. Gordon
Kolsby, Gordon, Robin, Shore & Bezar
1650 Market Street, 22 nd Floor
One Liberty Place
Philadelphia, PA 19103

      Attorneys for Appellants,
      Alexus Bennett, Aliyaha Bennett
      and Priscilla Bennett

Romulo L. Diaz, Jr.
       City Solicitor
Jane Lovitch Istvan (Argued)
       Senior Attorney, Appeals
City of Philadelphia Law Department
1515 Arch Street, 17 th Floor
Philadelphia, PA 19102-1595

      Attorneys for Appellee,
      City of Philadelphia

Richard G. Tuttle, Esq.
Archer & Greiner
One South Broad Street, Suite 1620
Philadelphia, PA 19107

             Attorney for Appellee,
             Joe Maiden

                 OPINION OF THE COURT



                                2
SLOVITER, Circuit Judge.

       One of the essential principles inherent in a multi-layered
judicial system is the requirement to adhere to legal decisions
pronounced by the highest court: in the case of the federal
courts, that is the Supreme Court of the United States. Those
decisions are supported by sound reasoning, and lower federal
courts generally have no difficulty in applying the precedent.
Occasionally, however, the factual situation in which the
principle is tested is heartrending, tempting the judge to seek a
way to circumvent the principle. This is one such case.1

                                I.

       We borrow this background section almost verbatim from
the text of the unreported opinion of the District Court (Judge
Berle M. Schiller) because it is accurate and requires no
elaboration.

A. Iyonnah

       Tiffany Bennett had five daughters: Alexus (born January
9, 1993), Iyonnah (born October 29, 1994), Aliyaha (born
October 3, 1996), Priscilla (born January 12, 1999) and Porchia
(born July 7, 2000). In December 1994, Iyonnah suffered brain
injuries from being shaken while in the care of a babysitter. An
investigation by the Philadelphia Department of Human Services
(“DHS”) concluded that Tiffany Bennett and Oliver Bynum, Jr.,
the father of Iyonnah and Alexus, were “perpetrators by
omission,” and therefore Iyonnah was permanently placed with
an adoptive family. Tiffany Bennett and Oliver Bynum, Jr.
subsequently separated.

B. Alexus and Aliyaha



       1
         There are two related appeals in this case. One appeal is
by the Estate of Porchia Bennett (06-2879), and the other is by
Alexus Bennett, Aliyaha Bennett, and Priscilla Bennett, by and
through their Guardian Ad Litem Jonathan Irvine (06-2978).

                                3
       In 1997, DHS determined that Tiffany Bennett, a
substance abuser who did not provide her children with
necessary medical attention, posed a risk of serious harm to her
children. Tiffany Bennett compounded this risk by actively
avoiding contact with DHS. On May 30, 1997, DHS petitioned
the family court to rule Alexus and Aliyaha dependent children
because Tiffany Bennett was not cooperating with DHS in
implementing a plan for their care. On June 4, 1997, the family
court deferred adjudication of dependency but ordered DHS
supervision of Alexus and Aliyaha. In December 1997, the
family court learned Alexus was living in North Carolina with
her father and ordered DHS to assess her situation. The North
Carolina Department of Social Services visited Alexus in her
new home and provided DHS with a positive report. The family
court then discharged Alexus’ dependency petition on February
19, 1998.

       In July 1998, Aliyaha was temporarily committed to DHS
and placed in foster care for two days because Tiffany Bennett
was expelled from the shelter where they had been living. The
family court returned Aliyaha to her mother and ordered Tiffany
Bennett to enter another shelter, undergo a mental health
evaluation, and cooperate with DHS. Tiffany Bennett and
Aliyaha lived at the Salvation Army Shelter from August 1998
until May 1999. During that stay, Priscilla was born on January
12, 1999.

C. The Bennetts Leave the Shelter

       On May 10, 1999, Tiffany Bennett left the Salvation
Army Shelter with Priscilla and Aliyaha. Two days later, DHS
social worker Yolanda Grant learned of Tiffany Bennett’s
unauthorized departure from the shelter. On June 1, 1999, Grant
checked the Department of Public Administration’s (“DPA”)
computer records and discovered that Tiffany Bennett’s DPA
benefits were still being sent to the Salvation Army Shelter. In
an effort to locate Tiffany Bennett, Grant spoke with a DPA
representative who confirmed that Bennett’s benefits would be
terminated on June 10, 1999, and that if Tiffany Bennett
contacted DPA for benefit reinstatement she would be told she

                               4
must first contact DHS. However, when Tiffany Bennett sought
benefit reinstatement, DPA allowed her to reinstate her benefits
without contacting DHS. Grant made several other efforts to
locate Tiffany Bennett, including: (1) contacting Priscilla’s
pediatrician; (2) visiting a former address at West Master Street;
(3) speaking with Adiam Debesai, a social worker who had
worked with Tiffany Bennett at the Salvation Army Shelter and
who had spoken with Tiffany Bennett’s mother, Dale Geiger;
and (4) trying to contact Dale Geiger and Alexus’ father by
telephone.

       On September 14, 1999, DHS petitioned family court to
discharge DHS supervision and the dependency petition for
Aliyaha. At the hearing, the Child Advocate 2 objected based on
concern for Aliyaha’s safety. Judge James Murray Lynn refused
to terminate DHS’ involvement and stated, “I don’t want [this
case] just sitting on a desk somewhere. I want to see work done.
I want people to continue to look . . . . I want DHS to vigilantly
look for the baby [Aliyaha]. When they get the baby, I want them
to take the baby.”

       By early 1999, Alexus and her father had returned to
Philadelphia, where Alexus attended public school. She lived
with her paternal grandfather for a period of time, before
returning to her mother’s control.3 In March 2003, Tiffany
Bennett directed Alexus’ school not to permit contact between
Alexus and her grandfather.

D. Bennett Case Reassigned & Discharged

       In November 1999, the Bennett DHS case was reassigned
to social worker Iris Dejesus. On the case assignment sheet,
social work supervisor Patricia Wilson wrote, “If you cannot


       2
        A Child Advocate is member of the Child Advocacy Unit
of the Defender Association of Philadelphia.
       3
           The length of time Alexus lived primarily with her
paternal grandfather is in dispute, but it is not material to the issue
before us.

                                  5
locate family by Nov. 14 [1999] request an early listing for
discharge of this case, again, as floater SW [social worker] did.
If you do locate family, J. Lynn made an order to take Aliyaha
into DHS custody!!!” Dejesus did not try to locate the Bennetts
until late March of 2000. On March 27, 2000, Dejesus sent
search letters to the Department of Public Welfare and to the
Office of Services to the Homeless and Adults. On April 17,
2000, Dejesus checked DPA’s computer records and learned that
Tiffany Bennett was receiving DPA benefits at a Grandsback
Street address in Philadelphia. That same day, Dejesus visited
the Grandsback Street address, but the house appeared
abandoned.

       On April 18, 2000, DHS again petitioned family court to
discharge DHS supervision and Aliyaha’s dependency petition
because the “family is unable to be located.” The child advocate
did not object, and DHS supervision and the dependency petition
were discharged by agreement.

E. Porchia

        In late 1999, Tiffany Bennett and her daughters began
living periodically with Dale Geiger. Porchia was born on July
7, 2000. The Bennett sisters were exposed to unsuitable,
unstable living conditions and to unfit care givers. For example,
Jayson Chambers, a convicted child sex offender, was a
babysitter for the Bennett sisters. Beginning in the fall of 2002,
Tiffany Bennett paid Jerry Chambers, who suffered from a
schizoaffective bipolar type disorder and a history of drug and
alcohol abuse, fifty to eighty dollars per week to look after her
children. With rare visits from their mother, the four Bennett
sisters lived with Jerry Chambers and his girlfriend, Candace
Geiger, who was Tiffany Bennett’s younger sister.

       Through its telephone hotline, DHS received a report at
7:25 p.m. on August 14, 2003 that Jerry Chambers beat the




                                6
Bennett sisters.4 The hotline report was classified as a General
Protective Services report, which applies to allegations of
neglect, and a DHS social worker was required to respond within
twenty-four hours. During the morning of August 15, 2003,
DHS social worker Joe Maiden was assigned to investigate the
hotline report. Maiden reported that he visited the Bennett
sisters’ home twice on August 16, 2003, leaving a note at the
first visit, and once on August 17, 2003, but he never got a
response at the door. The facts surrounding Maiden’s response
to the hotline report are disputed, but the parties agree that
Maiden did not respond as he reported in his case progress notes.

       On August 17, 2003 at approximately 1 p.m., emergency
personnel rushed a brutally beaten Porchia to a hospital, where
she was pronounced dead shortly after arrival. Alexus described
the events leading to Porchia’s death as follows.

      SHE STATED THAT ON SATURDAY PORTIA
      [sic] GOT A BEATING FROM JERRY WITH
      AN EXTENSION CORD. SHE STATED THAT
      PORTIA’S [sic] WOUNDS WERE SO SEVERE
      THAT SHE COULD NOT LAY DOWN AND
      GO TO SLEEP. JERRY BEAT HER AGAIN
      FOR MAKING NOISE. HE PICKED HER UP
      AND SLAMMED HER TO THE FLOOR IN THE


      4
       The DHS Report Referral Data Narrative, which refers to
Chambers as “Smokie,” reads:
   RFRL REPORTER ALLEGED THAT “SMOKIE” (FAT)
   BEATS THE CHILDREN LIKE THEY ARE MEN.
   ACCORDING TO THE REPORTER FAT HANDS ARE
   SWOLLEN FROM BEATING ON THE CHILDREN.
   FAT MAKES THE GIRLS STAY IN THE HOUSE ALL
   THE TIME. REPORTER STATED THAT RECENTLY
   SHE SAW THE OLDEST GIRL COME TO THE DOOR
   AND SHE HAD A SWOLLEN EYE. HOWEVER,
   REPORTER HAS NEVER SEEN OR HEARD THE
   CHILDREN BEING BEAT.


                               7
       CORNER. HE TOLD HER TO STAND UP IN
       THE CORNER ALL NIGHT BUT THE SLAM
       TO THE FLOOR HAD INJURED HER LEG
       AND SHE COULD NOT STAND UP. HE THEN
       CHOKED AND KICKED HER. SHE STATED
       THAT THEY ALL WENT TO SLEEP AND IN
       THE MORNING THEY FOUND PORTIS [sic]
       WEDGED BETWEEN THE MATTRESS AND
       THE RADIATOR. “WE COULD NOT WAKE
       HER.”

        Porchia’s cause of death was listed as multiple blunt
trauma, asphyxia and inanition.5 Porchia’s autopsy revealed
malnourishment, laceration of the liver, “[m]ultiple blunt force
injuries to the head, chest, abdomen, back and extremities,” and
“[m]ultiple scars and healing injuries of varying ages from past
episodes of blunt force injuries to head, trunk and extremities.”
Alexus, Aliyaha and Priscilla were admitted to the Children’s
Hospital of Philadelphia (“CHOP”), and they were given
admission and discharge diagnoses of child abuse. Alexus had
facial injuries, a fractured eye socket, bruised and swollen eyes,
scabbed-over back lesions, and scars on her buttocks. Aliyaha
and Priscilla also had scars, lesions, and bruises.

F. The Aftermath from the Bennett Sisters’ Tragedy

      In relation to Porchia’s death, Jerry Chambers was
convicted of first-degree murder and sentenced to death and
seventy-three to one hundred forty-six years in prison. Candace
Geiger was convicted of third-degree murder and sentenced to
seventeen to thirty-four years in prison. Tiffany Bennett was



       5
           Inanition “covers not getting enough food; or in very
stressed infants, even if they get enough food and they are forced
to digest it, they just don’t derive any nourishment from it. It’s a
peculiar condition, well recognized in neglected and abused infants
and children.” Young children “have to receive emotional support
and feel safe; and when they don’t, you tend to see this phenomena
of wasting away. We call that inanition, for want of a better term.”

                                 8
convicted of conspiracy and endangering the welfare of her
children, and she was sentenced to twenty to forty years in
prison.

        A DHS Employee Violation Report was filed on Maiden
for his activities related to the Bennett hotline report. The report
stated that Maiden was being disciplined for failing to make
reasonable efforts to access the Bennetts’ home, for failing to
notify his supervisors that he did not make the required home
visit within twenty-four hours, and for making false and
misleading representations regarding his response to the hotline
report. Maiden resigned before DHS could proceed with its
disciplinary process. Since August 2003, Alexus, Aliyaha and
Priscilla have required a variety of mental health services, and
they remain severely traumatized.

                                 II.

        As we stated in note 1, two actions were filed following
Porchia’s death, and the appeals in both cases were argued
together. Three Bennett sisters, Alexus, Aliyaha and Priscilla,
through their guardian ad litem, sued the City of Philadelphia,
DHS and its Director, and social workers Dejesus, Grant, and
Wilson. They assert a claim under 42 U.S.C. § 1983 for
violation of their due process right to bodily integrity from harm
inflicted by private parties under the state-created danger
doctrine.

        The Estate of Porchia Bennett also filed a suit against the
City and Maiden under 42 U.S.C. § 1983, asserting in addition
conspiracy, wrongful death and survival action claims. The
District Court ordered that the Estate’s case and the Bennett
sisters’ case be tried simultaneously, but granted the defendants’
motion for summary judgment before trial.6 Plaintiffs in both



       6
          The District Court also granted summary judgment in the
City’s favor as to the Estate’s: (1) § 1983 conspiracy claim on the
grounds that its “vague and unsubstantiated allegations fail[ed] to
create a genuine issue of material fact that a conspiracy existed[,]”

                                 9
cases appeal.7

        The “state-created danger” doctrine emanates from
language in DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189 (1989), a case where the United
States Supreme Court confronted a factual scenario markedly
similar to that presented here. There, the county Department of
Social Services (“DSS”) and several of its social workers
received complaints that a child, Joshua, was being abused by
his father. The caseworker assigned to Joshua recorded her
observations in her files, along with her continuing suspicions
that someone in the DeShaney household was physically abusing
Joshua, but she did nothing more. Id. at 193. The caseworker
was later notified that Joshua had been treated again for injuries
that appeared to have been the result of child abuse. She made
two visits to the DeShaney household, but was informed that
Joshua was too ill to see her and the department again took no
action. Id. Joshua was eventually beaten so badly that he
suffered permanent brain damage and was rendered profoundly
retarded. Id.

       Joshua and his mother brought an action under 42 U.S.C.
§ 1983 against the county, DSS, and various individual
employees of the department. “The complaint alleged that
respondents had deprived Joshua of his liberty without due
process of law, in violation of his rights under the Fourteenth
Amendment, by failing to intervene to protect him against a risk
of violence at his father’s hands of which they knew or should
have known.” Id. The district court granted summary judgment


App. at 40; and (2) wrongful death and survival act claims against
the City and Maiden on the ground that they are immune from tort
liability pursuant to Pennsylvania’s Political Subdivision Tort
Claims Act, 42 Pa. Cons. Stat. § 8541 et seq. We do not consider
these rulings in this appeal because they have not been raised in the
Appellants’ brief. See Couden v. Duffy, 446 F.3d 483, 492 (3d
Cir. 2006).
       7
        The District Court had jurisdiction under 28 U.S.C. §
1331. This court has jurisdiction under 28 U.S.C. § 1291.

                                 10
for defendants, and the Court of Appeals affirmed, holding that
petitioners had failed to state an actionable § 1983 claim. The
United States Supreme Court granted certiorari to remedy
inconsistent approaches taken by appellate courts in determining
when, if ever, the failure of a local governmental entity or its
agents to provide an individual with adequate protective services
constitutes a violation of the individual’s due process rights. Id.
at 194.

       The Court explained that because the harms that Joshua
suffered did not occur while he was in the State’s custody, but
occurred while he was in the custody of his natural father, who
was not a state actor, his claim could not succeed. Id. at 201.
The Court concluded that:

       While the State may have been aware of the
       dangers that Joshua faced in the free world, it
       played no part in their creation, nor did it do
       anything to render him any more vulnerable to
       them. That the State once took temporary custody
       of Joshua does not alter the analysis, for when it
       returned him to his father’s custody, it placed him
       in no worse position than that in which he would
       have been had it not acted at all; the State does not
       become the permanent guarantor of an individual’s
       safety by having once offered him shelter. Under
       these circumstances, the State had no
       constitutional duty to protect Joshua.

Id. (emphasis added).

       Justice Blackmun began the last paragraph of his dissent
with the now memorable words, “Poor Joshua!” He continued,

       Victim of repeated attacks by an irresponsible,
       bullying, cowardly, and intemperate father, and
       abandoned by respondents who placed him in a
       dangerous predicament and who knew or learned
       what was going on, and yet did essentially nothing
       except, as the Court revealingly observes, ante, at

                                11
       193, “dutifully recorded these incidents in [their]
       files.” It is a sad commentary upon American life,
       and constitutional principles – so full of late of
       patriotic fervor and proud proclamations about
       “liberty and justice for all” – that this child, Joshua
       DeShaney, now is assigned to live out the
       remainder of his life profoundly retarded. Joshua
       and his mother, as petitioners here, deserve – but
       now are denied by this Court – the opportunity to
       have the facts of their case considered in the light
       of the constitutional protection that 42 U.S.C. §
       1983 is meant to provide.

Id. at 213 (Blackmun, J., dissenting).

        Notwithstanding the views of the dissenting Justices
(Brennan and Marshall, in addition to Blackmun), the state-
created danger doctrine has become a staple of our constitutional
law. As this court recently held, to establish a claim based on
the state-created danger doctrine, a plaintiff must satisfy the
following elements: (1) the harm caused was foreseeable and
fairly direct; (2) a state actor acted with a degree of culpability
that shocks the conscience; (3) some relationship existed
between the state and the plaintiff that renders plaintiff a
foreseeable victim; and (4) “a state actor affirmatively used his
or her authority in a way that created a danger to the citizen or
that rendered the citizen more vulnerable to danger than had the
state not acted at all.” Bright v. Westmoreland County, 443 F.3d
276, 281 (3d Cir. 2006).

        This court has consistently adhered to the Supreme
Court’s pronouncements in DeShaney. For example, in Kaucher
v. County of Bucks, 455 F.3d 418 (3d Cir. 2006), this court
stated that petitioners must allege affirmative acts that were the
“but for cause” of the risks they faced, id. at 433 n.10, and noted
that we have held that failures to act cannot form the basis of a
valid § 1983 claim. See id. at 433 n.10 (citing Bright, 443 F.3d
at 283-84 (failure to hold revocation hearing for an individual in
violation of his parole prior to killing an eight-year-old girl);
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907-08 (3d

                                 12
Cir. 1997) (failure to prevent mentally disturbed individual from
entering school and attacking teacher); D.R. v. Middle Bucks
Area Vocational Tech. Sch., 972 F.2d 1364, 1376 (3d Cir. 1992)
(failure of school officials to investigate and stop instances of
sexual abuse of students) (en banc); Brown v. Grabowski, 922
F.2d 1097 (3d Cir. 1990) (failure to file criminal charges against
an individual who repeatedly threatened and assaulted former
girlfriend, despite reports to the police by the victim and her
family)).

       In Bright, this court relied on DeShaney in rejecting
appellant’s claim that a police officer’s knowledge of a danger to
the victim creates an affirmative duty to protect the victim from
that harm. Rather, we explained that DeShaney clearly holds
that “no affirmative duty to protect arises from the State’s
knowledge of the individual’s predicament.” Bright, 443 F.3d at
284 (internal citation and quotation marks omitted). “Liability
requires affirmative state action; mere ‘failure to protect an
individual against private violence’ does not violate the Due
Process Clause.” Id. (quoting DeShaney, 489 U.S. at 197).

       In granting summary judgment to the defendants, the
District Court concluded that Plaintiffs in both cases had failed
to meet their burden of establishing a genuine issue of material
fact with regard to the fourth element of their state-created
danger claims – that a state actor affirmatively used his or her
authority to render the citizen more vulnerable to danger than
had the state not acted at all.

        In Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), the one
case that has often been cited as deviating from the court’s
otherwise unbroken series of holdings following the state-
created danger doctrine, we expressly stated that “we adopt the
‘state-created danger’ theory as a viable mechanism for
establishing a constitutional violation under 42 U.S.C. § 1983.”
Id. at 1201. The Kneipps, who were returning on foot from a
night of drinking at a neighborhood tavern, were stopped by the
police on the highway for causing a disturbance. They were
one-third of a block from their home. Mr. Kneipp requested and
was given permission by the police to go home to relieve the

                                13
babysitter. He assumed that because Mrs. Kneipp was
inebriated, the police would take her either to the hospital or to
the police station, and therefore he proceeded home without her.
Instead, the police officer sent her on her way alone; she never
reached home, but instead ended up unconscious at the bottom
of an embankment next to a parking lot across the street from her
home. As a result of her exposure to the cold, she suffered
permanent brain damage impairing many basic body functions.

       This court did not rely on the state-created danger
doctrine to affirm the district court’s grant of summary judgment
to the City defendants. Instead, we reversed, holding that there
was sufficient evidence in the record to show that the police
officers used their authority to create a dangerous situation or to
make Mrs. Kneipp more vulnerable to harm than had they not
intervened. The court explained,

       It is conceivable that, but for the intervention of
       the police, [Mr. Kneipp] would have continued to
       escort his wife back to their apartment where she
       would have been safe. A jury could find that [Mrs.
       Kneipp] was in a worse position after the police
       intervened than she would have been if they had
       not done so.

Id. at 1209 (emphasis added).

       The Bennett sisters contend that the closing of their
dependency case rendered them more vulnerable to harm by their
mother and acquaintances because closing the case effectively
prevented a private source of aid, the Child Advocate, from
looking for the children. They argue that the District Court erred
in concluding “that DHS’ misrepresentation and the subsequent
discharge of supervision and Aliyaha’s dependency [petition] did
not violate the Bennett sisters’ substantive due process rights by
making them more vulnerable to danger from inappropriate care
givers than if DHS had not acted at all.” Appellants’ Br. at 24-
25 (quoting Dist. Ct. Op. at 16).

       The District Court’s conclusion that DHS’ case closure

                                14
did not prevent the Child Advocacy Unit from searching for the
children is supported by the record. It remained free to search
for the Bennett children even after the case was closed. We
must agree with the District Court that Appellants failed to
demonstrate a material issue of fact that the City used its
authority to create an opportunity for the Bennett sisters to be
abused that would not have existed absent DHS intervention.

       The Estate makes a slightly different argument. It
contends that because Maiden asked his superiors at DHS to
assign the Bennett case to him, although it was destined for
another social worker, he was responsible for the type of
affirmative act for which the City should be held responsible. It
is undisputed that after he was assigned the case Maiden did not
perform the duties vis-à-vis Porchia that were incumbent upon a
dedicated social worker. Although we believe Maiden’s actions
(or more accurately, inactions) were beyond the pale, we
conclude that in essence the Estate’s argument is no more than
another effort to circumvent the state-created danger doctrine.
We are not free to do that.

       The District Court did not err in concluding that the City
did not take action in the constitutional sense. Maiden’s actions
did not result in the creation of dangers by the state, but rather
those dangers already existed. Maiden was therefore not the
“but for” cause of the harm to Porchia Bennett in this case.

                                 III.

        We return to the point made at the beginning of this
opinion. If a municipality, state or other public body is to be
liable under the Constitution for harm caused by private parties
to persons not in custody, the liability would be unlimited.
There is no legal doctrine that supports imposition of such
liability. Without legislative activity, we are not prepared to
hold that a city that fails to respond promptly to a 911 call must
pay for the harm that befalls the caller as a result of the failure.
The fact is that most 911 calls are answered, that the police use
their best efforts in many cases, and that they prevent egregious
harm. We have less personal experience with DHS but are

                                 15
willing to assume, for this purpose, that this is also true of DHS
social workers, notwithstanding the well-publicized cases of
failures in that connection.

       However, it is not the role of the courts, certainly not the
federal courts, to rectify the failures that do happen. That is the
responsibility of the citizens of the body politic, who elect the
leaders of the executive branch of the respective city, state or
municipality. If the public raises its voice and demands
accountability, and is willing to use the ballot to support those
demands, then change and improvement can and will occur.
Unfortunately, it will be too late for Porchia Bennett.

                                IV.

      For the reasons set forth above, we will affirm the
judgment of the District Court.




                                 16
