                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 96-2647
                                     ___________

Christian Kuwebin, Deceased, by           *
and through his mother and                *
next friend Karen Street, and             *
Karen Street, individually,               *
                                          * Appeal from the United States
              Appellants,                 * District Court for the
                                          * Eastern District of Missouri.
     v.                                   *
                                          *       [UNPUBLISHED]
City of Wellston, and                     *
Robert Powell,                            *
                                          *
              Appellees.                  *
                                     ___________

                     Submitted:      February 14, 1997

                            Filed:    March 17, 1997
                                     ___________

Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF,1 District Judge.
                               ___________

PER CURIAM.


     Plaintiffs     appeal    the    order   of   the   District   Court2   granting
defendants’ motion for summary judgment in this 42 U.S.C. § 1983 action.
Defendants-appellees are the City of Wellston and Mayor Robert Powell.            We
affirm.




     1
      The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, sitting by designation.
     2
      The Honorable Carol E. Jackson, United States District
Judge for the Eastern District of Missouri.
     The case, which arises out of tragic circumstances, is, as succinctly
stated by the District Court, as follows:


           On Saturday February 6, 1993 defendant Sterling Woods
     murdered nine-year-old Christian Kuwebin at the home of his
     grandmother, Corabelle Street. Corabelle Street received meals
     delivered to her home through the Meals on Wheels program which
     was operated by the Mid-East Area Agency on Aging (MEAAA).
     MEAAA is a not-for-profit corporation operating a senior
     citizens center located in the Wellston community center. The
     City of Wellston provides a van and a driver for the meal
     delivery, and the MEAAA prepares the meals and provides a
     volunteer to deliver the meals from the van to the recipients’
     homes. Woods sometimes served as a volunteer delivering the
     meals to the homes. Before the attack, Woods had done yard
     work for Corabelle Street and had delivered meals to her home.
     Woods was not employed by the City of Wellston.        He began
     volunteering at the community center in 1989 after his
     probation officer told him that he needed to perform community
     service work or attend school.

           Plaintiffs allege that Woods gained access to Corabelle
     Street’s residence through his participation in the Meals on
     Wheels program. As a result, plaintiffs argue that the City
     placed Kuwebin in a position of danger which gave rise to a
     duty to protect Kuwebin from the harm inflicted by Woods. In
     response, defendants argue that the City had no affirmative
     duty to protect Kuwebin from the violence committed by a
     private actor; therefore, the City is not liable under § 1983
     for Woods’ actions.

Memorandum Opinion pp. 1-2 (footnotes omitted).


     The District Court determined that the evidence pointed to only one
conclusion:   that Woods was acting in a purely private capacity when he
murdered the child, and thus was not acting under color of state law.3   The
court further determined that plaintiffs’




     3
      The District Court entered a default judgment against Woods
in the amount of $10,000,000. No appeal has been taken from this
judgment.

                                   -2-
substantive   due   process   failure-to-protect   claim   under   DeShaney   v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989), must be
rejected because, as a matter of law, the murder of the child was too
remote a consequence of allowing Woods to participate as a volunteer in the
Meals on Wheels program, even assuming for purposes of summary judgment
that the City defendants in fact played a role in placing Woods in this
community-service activity.     The court noted that Woods had worked as a
volunteer at the community center, without incident, for over three years
before the murder occurred.    See Martinez v. California, 444 U.S. 277, 285
(1980) (holding that murder committed by parolee five months after his
release from prison was too remote a consequence of parole officers’
decision to release him to make officers liable).
     Seeking reversal, plaintiffs argue that the District Court (1) erred
as a matter of law in granting summary judgment for defendants on the basis
of temporal remoteness, and (2) abused its discretion in granting summary
judgment even though defendants had not responded to plaintiffs’ discovery
requests.   Having carefully considered the briefs and record, we conclude
that summary judgment was correctly entered.       We agree with the District
Court that even if defendants played a role in placing Woods in a volunteer
position at the community center, Kuwebin’s death over three years later
was, as a matter of law, too remote a consequence of defendants’ conduct
to impose liability upon them under the Fourteenth Amendment.        As to the
discovery issue, the court did not abuse its discretion in entering summary
judgment before discovery had been completed, since the discovery sought
by plaintiffs had no relevance to the court’s ruling on the issue of
remoteness.


     The judgment of the District Court is affirmed.




                                     -3-
A true copy.


     Attest:


          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




                            -4-
