                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                            ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                  No. 10-15241               OCTOBER 13, 2011
                              Non-Argument Calendar             JOHN LEY
                            ________________________             CLERK


                    D. C. Docket No. 3:09-cv-01246-HLA-JRK

K.A.,
and their adopted parents,
M.A.,
and their adopted parents, et al.,

                                                             Plaintiffs-Appellants,

                                          versus

RENEE WATERS,
LAJOSHA HAYNES, et al.,

                                                            Defendants-Appellees.

                            ________________________

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

                                     (October 13, 2011)

Before TJOFLAT, CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
      Through their adoptive parents, minors K.A., M.A., and T.A. (collectively,

“Plaintiffs”) appeal the district court’s dismissal of their 42 U.S.C. § 1983 action

for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Plaintiffs also appeal the

district court’s refusal to allow them to amend their complaint a second time. We

affirm.

      Plaintiffs argued that their constitutional right to be free from harm was

violated by Renee Waters, Lajosha Haynes, Lisa Blackford, and Curtis Bennett

(collectively, “Defendants”), all of whom are employees of Family Integrity

Program (“FIP”), a subcontractor for the Department of Children and Families of

St. Johns County, Florida. Plaintiffs had been taken into foster care by FIP in

2006 but were reunited with their mother and her boyfriend in late November

2007. Plaintiffs were almost immediately subjected to emotional, physical, and

sexual abuse at the hands of the boyfriend.

      Plaintiffs filed suit, alleging that Defendants had failed to protect Plaintiffs

by returning them to their mother and her boyfriend, who lived without electricity

or water in a trailer allegedly infested with maggots and dead animals. Defendants

had not conducted a “home study” to determine whether the house, mother, or

boyfriend were suitable for Plaintiffs’ return.

      The district court determined that Plaintiffs had failed to make out a claim

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under 42 U.S.C. § 1983 because Plaintiffs’ facts showed that they had been injured

while in the custody of their own mother and her boyfriend, rather than while in

the custody of the state or its agencies. Thus, Plaintiffs could not make a showing

that Defendants had violated a constitutional right. The district court also

determined that Defendants would be immune from suit anyway because their

actions did not violate a clearly established constitutional right.

      We review de novo a district court’s order granting a motion to dismiss

under Fed. R. Civ. P. 12(b)(6). Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.

1999). Defendants’ claim of qualified immunity means that we need only to

decide whether Defendants violated any “clearly established constitutional rights.”

Powell v. Georgia Dep’t of Human Resources, 114 F.3d 1074, 1080 (11th Cir.

1997) (emphasis added).

      Despite Plaintiffs’ arguments to the contrary, their case is not

distinguishable from DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 109 S. Ct. 998 (1989). DeShaney held that there could not

be a § 1983 action where a child was severely injured while in the custody of his

natural father, even though the state had previously taken custody of the child and

had strong reason to believe that the father was continuing to abuse the child.

DeShaney, 489 U.S. at 192-93, 200-03, 109 S. Ct. at 1001-02, 1005-07.

                                           3
      Plaintiffs contend that DeShaney does not apply here because the

government in DeShaney “never had custody of the child,” whereas Defendants

here had legal and physical custody over Plaintiffs for almost two years before

returning them to their mother. However, in DeShaney, the government did

previously have custody over the child. Id. at 201, 109 S. Ct. at 1006. And even if

that were not the case, the extent of the government’s past custody is not a

meaningful factor. The “affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from its expressions of intent to help

him, but from the limitation which it has imposed on his freedom to act on his own

behalf.” Id. at 200, 109 S. Ct. at 1005-06. Accordingly, the government may have

a duty to protect when it “takes a person into its custody and holds him there

against his will.” Id. at 199-200, 109 S. Ct. at 1005. Typical cases are where the

person is incarcerated or involuntarily institutionalized. Id. at 200, 109 S. Ct. at

1006. The government owes these people a duty because the government has

taken away their “freedom to act on [their] own behalf,” which is the “‘deprivation

of liberty’ triggering the protections of the Due Process Clause.” Id.

      But where the government merely returns a child to his home–placing “him

in no worse position than that in which he would have been had it not acted at

all”–there is no duty for the government to protect the child and thus there can be

                                           4
no constitutional violation if the child is injured. Id. at 201, 109 S. Ct. at 1006; see

also Camp v. Gregory, 67 F.3d 1286, 1293 (7th Cir. 1995) (holding that the

government may face liability under § 1983 when a child is taken from his home

and placed in a state-chosen foster home, where he is subsequently injured).

      In the current case, Plaintiffs were injured by their mother’s boyfriend at

their own house. The boyfriend “was in no sense a state actor,” DeShaney, 489

U.S. at 201, 109 S. Ct. at 1006, nor were Plaintiffs “totally dependent upon the

state,” Wooten v. Campbell, 49 F.3d 696, 701 (11th Cir. 1995). They had been

placed with their natural mother and were no longer in the custody of the

government or its agents. The government’s “failure to protect an individual

against private violence simply does not constitute a violation of the Due Process

Clause.” DeShaney, 489 U.S. at 197, 109 S. Ct. at 1004. Accordingly,

Defendants had no duty to protect Plaintiffs from the boyfriend’s actions, and a

violation of § 1983 cannot be made out under these facts. DeShaney, 489 U.S. at

201-02, 109 S. Ct. at 1006-07.

      As DeShaney noted, “the State does not become the permanent guarantor of

an individual’s safety by having once offered him shelter.” Id. at 201, 109 S. Ct.

at 1006. The district court was proper in dismissing the complaint for failure to

state a claim upon which relief can be granted. Id. at 202-03, 109 S. Ct. at 1006-

                                           5
07; Wooten, 49 F.3d at 699.

      Plaintiffs also appeal the district court’s refusal to let them amend their

complaint a second time. This normally is reviewed for an abuse of discretion, but

where the district court denied a plaintiff leave to amend on account of futility, we

review the denial de novo because the district court concluded as a matter of law

that “an amended complaint ‘would necessarily fail.’” Freeman v. First Union

Nat’l, 329 F.3d 1231, 1234 (11th Cir. 2003) (quoting St. Charles Foods, Inc. v.

America’s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999)). Since we

agree with the district court that Plaintiffs could not make out a valid § 1983 claim

under their own version of the facts, as discussed above, it would have been futile

to allow further amendments on the subject. It was not error for the district court

to refuse Plaintiffs’ subsequent amendments. Freeman, 329 F.3d at 1235.

      We are sympathetic to Plaintiffs’ plight. They were subjected to unlivable

conditions and abuse, perhaps as the result of Defendants’ failure to conduct an

evaluation of the suitability of Plaintiffs’ mother, boyfriend, and home. But the

Due Process Clause “does not transform every tort committed by a state actor into

a constitutional violation.” DeShaney, 489 U.S. at 202, 109 S. Ct. at 1006. In a

case like this, the court’s initial focus is not on whether Defendants were derelict

or negligent, but on whether Defendants owed Plaintiffs a constitutional duty at

                                          6
all. The answer under DeShaney and Wooten is that Defendants did not, and this

necessarily means that Plaintiffs’ claims fail under § 1983. Id. at 202, 109 S. Ct. at

1006-07; Wooten, 49 F.3d at 701. Plaintiffs may be able to seek damages against

Defendants under state tort law, DeShaney, 489 U.S. at 201-02, 109 S. Ct. at 1006,

but the district court here properly dismissed Plaintiffs’ complaint for failure to

state a claim upon which a federal court could grant relief.

      AFFIRMED.1




      1
             Plaintiffs’ request for oral arguments is DENIED.

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