Carol Wyke, Individually and as Personal Representative of the Estate of Shawn David Wyke, a Minor Deceased v. Polk County School Board, Max Linton, Individually and as Principal of McLaughlin Junior High School of Polk County, and James Butler, Individually and as Vice-Principal of McLaughlin Junior High School of Polk County, Carol Wyke, Individually and as Personal Representative of the Estate of Shawn David Wyke, a Minor Deceased v. Polk County School Board, Max Linton, Individually and as Principal of McLaughlin Junior High School of Polk County, and James Butler, Individually and as Vice-Principal of McLaughlin Junior High School of Polk County

This litigation arises from the tragic suicide of a 13 year old boy. The trial court dismissed the federal claim, submitted the common law negligence questions to the jury, and entered judgment based upon the jury verdict. These consolidated appeals raise the following issues: (1) whether plaintiff's § 1983 claim was so "insubstantial" as to deprive the district court of federal question jurisdiction; (2) whether the defendants violated plaintiff's constitutional rights by failing to provide her son with suicide intervention services or by failing to notify her of her son's suicide attempt; (3) whether, under Florida law, the Polk County School Board owed any duty to prevent Shawn's suicide; and (4) whether, under Fabre v. Marin, 623 So.2d 1182 (Fla.1993), the trial court submitted the proper parties to the jury for the apportionment of liability under Florida's comparative fault statute. We find (1) that the trial court had jurisdiction to entertain plaintiff's § 1983 claim, (2) that plaintiff failed to establish a violation of any constitutional rights, and (3) that the Polk County School Board had a duty to notify plaintiff of her son's suicide attempts, which occurred on school grounds, during school hours. Issue (4) is an open question under Florida law, and we certify that question to the Florida Supreme Court.

This suit arose from circumstances surrounding the death of plaintiff Carol Wyke's thirteen-year old son, Shawn, who committed suicide at home on the evening of October 17, 1989. The trial court dismissed Wyke's federal claim, submitted the common law negligence questions to the jury, and entered judgment based upon the jury verdict. The evidence presented at trial, which for appeal purposes we must construe in the light most favorable to Wyke, revealed that in the few days before his death, Shawn twice attempted suicide at school, during school hours. School officials, who were made somewhat aware of both incidents, failed to hold Shawn in protective custody, failed to provide or procure counseling services for Shawn, and failed to notify either Wyke or Shawn's "grandmother," Helen Schmidt,1 of the attempts. Prior to his actual death, neither Wyke nor Schmidt had any knowledge of Shawn's suicidal intent, but both were aware that Shawn had emotional and behavioral problems, which indicated to them a need for counseling.2

Shawn's first known suicide attempt occurred on October 16th in the boys' restroom at school. Shawn was found in the restroom by another student, Jonathan, trying to hang himself with a football jersey. The two boys talked and eventually left the restroom together. When Jonathan got home from school, he told his mother, Brenda Morton, about the incident.3 Morton immediately phoned the school,4 and spoke with a man whose voice she recognized as Jim Bryan, the school's Dean of Students. Morton relayed Jonathan's story to Bryan. Bryan recognized the seriousness of the situation, and assured Morton that "he would take care of it."5

Bryan responded to the situation by calling Shawn into his office.6 He read Shawn some verses from the Bible, and talked about their meaning with him.7 Shawn appeared very upset in the beginning, but seemed to feel better after talking with Bryan. Bryan believed that he had done "all he [could] do with Shawn that day," and took no other action with regard to Shawn's suicide attempt.8 When asked by Wyke why he did not notify anyone else of the situation, Bryan responded that "there was just too much red tape" and that he thought "he had it under control."9 Morton testified at trial that had she known Bryan was not going to notify Wyke of Shawn's suicide attempt, she would have done so herself.

Although unclear when, Shawn's second suicide attempt also occurred in the boys' restroom. Marlene Roberts, a school custodian, testified that she and a student--who Roberts could not positively identify as Shawn--were in the cafeteria one day, talking about the child's problems with his grandmother. The student went to the restroom and was gone longer than Roberts felt he should have been. When she went to check on him, the boy emerged and said that if he had stayed in the restroom any longer, he would have killed himself. Roberts jokingly told the student that she would do it for him; they both laughed, and the boy went back to the cafeteria. Roberts then went into the restroom, where she found a coat hanger and cord hanging from the ceiling. She threw them into the trash and also went to the cafeteria. There, Roberts saw James Butler, the school's Vice-Principal, and told him that a boy had been talking about killing himself. She did not specifically identify the boy, nor did she tell Butler about the coat hanger and cord. Butler responded by asking Roberts if she could not find anything else to do.10 The next day or the day after that, Roberts heard that a student had committed suicide; she did not know if it was the same student she had spoken with.

Several experts in the field of suicide prevention testified about the need for suicide prevention training in public schools. These witnesses testified that the Polk County School Board ("School Board" or "Board") provided inadequate training for school administrators and teachers. An adequate training program would have involved mandatory written policies requiring parental notification, holding students in protective custody, and arranging for counseling services. The experts further indicated that without training, school employees would tend to underestimate the "lethality" of suicidal thoughts, statements, or attempts. The experts' ultimate conclusion was that if the School Board's employees had been adequately trained in suicide prevention, Shawn would not have committed suicide on October 17, 1989.

Wyke, individually and as personal representative of Shawn's estate, filed suit pursuant to 42 U.S.C. § 1983 against the School Board and both the Principal and Vice-Principal of McLaughlin Junior High School (collectively, "Defendants"),11 alleging that the Defendants' failure to train employees in suicide intervention/prevention constituted deliberate indifference to Wyke's constitutional rights to the care, custody, management, companionship, and society of her son. Wyke also asserted a pendent state wrongful death claim, arising from the alleged breach of Defendants' duty to supervise Shawn. In both the federal and state claims, Wyke asserted that Shawn's death foreseeably resulted from the Defendants' failure to (i) notify her of Shawn's suicide attempt, (ii) hold Shawn in protective custody, (iii) procure psychiatric intervention and counseling for Shawn, or (iv) provide appropriate support and guidance for Shawn.

Defendants responded to Wyke's complaint with a motion to dismiss for lack of subject matter jurisdiction. They argued that the Supreme Court's decision in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), clearly foreclosed Wyke's § 1983 claim, because under DeShaney, the School Board had no constitutional duty to protect Shawn from harming himself while he was in his own home. Absent such a duty, Defendants argued, there could be no constitutional violation for the Defendants' failure to provide Shawn with suicide intervention services. DeShaney thus rendered Wyke's federal claim too "insubstantial" to support federal question jurisdiction under 28 U.S.C. § 1331. And because there was no diversity of citizenship, it followed that the court lacked jurisdiction to hear Wyke's state wrongful death claim.

The district court denied Defendants' motion to dismiss. Defendants answered, and pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before a United States Magistrate Judge. During the presentation of Wyke's case, Defendants moved for judgment as a matter of law on both the federal and state claims. Fed.R.Civ.Pr. 50(a). As to the federal claim, Defendants reasserted their DeShaney argument, and emphasized that Wyke had failed to establish any "policy" for which the School Board, as a local government entity, could be held liable under § 1983. As to the state claim, Defendants argued that their duty to supervise Shawn did not extend to nonschool activities, occurring after school hours.

The trial court denied Defendants motion on both claims, but subsequently ruled that the individual defendants should be dismissed. The School Board, as the only remaining defendant, renewed its motion for judgment as a matter of law at the end of Wyke's case. The court reserved ruling. At the close of all the evidence, the Board again made its motion. Finally, the court agreed that DeShaney was an insurmountable hurdle, and granted the motion as to the federal claim. The state claim, however, was submitted to the jury.12

The jury returned a verdict for Wyke, finding that the School Board negligently failed to supervise Shawn, that the failure was the proximate cause of his death, that the total damages were $500,000, and that the percentage of fault attributable to the School Board was 33%. The remaining 67% of fault was attributed to Wyke (32%) and to Schmidt (35%) as "Fabre defendants." The court entered a $165,000 judgment in favor of Wyke, that being the portion of the entire damage award attributable to the School Board. Both Wyke and the School Board filed timely notices of appeal.

Wyke now challenges the trial court's grant of judgment as a matter of law in favor of the School Board on her § 1983 claim. The School Board challenges the trial court's initial exercise of jurisdiction and its denial of the Board's motion for judgment as a matter of law on the state claim. Both Wyke and the School Board challenge the manner in which Wyke's state claim was submitted to the jury.

The School Board first contends that the district court should have dismissed this case for lack of subject matter jurisdiction. The Board, citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), argues that Wyke failed to present a substantial federal question under 28 U.S.C. § 1331, and thus that the district court lacked jurisdiction to hear the pendent state law claim. We disagree.

Absent diversity of citizenship, a plaintiff must present a "substantial" federal question in order to invoke the district court's jurisdiction. Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974). An "insubstantial" federal question is one that is either "obviously without merit," or one that is clearly foreclosed by previous Supreme Court decisions. Those decisions must "leave no room for the inference that the questions sought to be raised can be the subject of controversy." Id. (quoting Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933)). Previous decisions that merely render claims doubtful or of questionable merit do not render them insubstantial for jurisdictional purposes. Id.

In DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court held that a state had no constitutional duty to protect a child, Joshua, against beatings by his father, even though the state was aware of the father's abuse and had at one time taken custody of the child. The Court rejected the proposition that states have a general constitutional duty to protect their citizens from private violence, and noted that each previous case in which it had found a constitutional duty to protect involved a custodial relationship between the injured individual and the state. DeShaney, 489 U.S. at 198-201, 109 S.Ct. at 1004-1006. In those custodial situations, it was the "[s]tate's affirmative act of restraining the individual's freedom to act on his own behalf," which triggered a "corresponding duty to assume some responsibility for [the individual's] safety and general well-being." Id. at 200, 109 S.Ct. at 1005. The facts of DeShaney, however, presented a different situation:

Petitioners concede that the harms Joshua suffered occurred not while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor. 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. at 201, 109 S.Ct. at 1006.

The School Board insists that DeShaney clearly precluded Wyke's § 1983 claim because Shawn's death did not occur at the hands of a state actor and because Shawn was not in state custody at the time of his death. Wyke counters that DeShaney, by its own terms, does not apply when the state's actions render an individual "more vulnerable" to harm. Wyke's argument is that if Bryan had not told Morton he would "take care" of Shawn's situation, then Morton would have notified Wyke of Shawn's suicide attempt. In turn, Wyke would have helped her son, and Shawn would not have died. Because Bryan affirmatively interfered, however, Shawn was deprived of his mother's support and was placed in a worse situation than he would have been had the school not acted at all. Bryan's interference, as the argument goes, triggered a duty on the part of the school to provide Shawn with that support which it had taken away.

We cannot say that Wyke's argument was so "insubstantial," "clearly foreclosed," or "obviously without merit" as to deprive the court of subject matter jurisdiction. The language of DeShaney does indeed "leave room" for state liability where the state creates a danger or renders an individual more vulnerable to it. DeShaney, 489 U.S. at 210, 109 S.Ct. at 1011. Exactly what type of state action fits within that exception has been the subject of considerable debate since DeShaney. See Cornelius v. Town of Highland Lake, 880 F.2d 348, 356 (11th Cir.1989) (distinguishing DeShaney where state created dangerous situation and rendered plaintiff more vulnerable to it);13 Kneipp v. Tedder, 95 F.3d 1199, 1208-11 (3rd Cir.1996) (finding that DeShaney does not bar § 1983 claim where police officers' interference rendered intoxicated plaintiff more vulnerable to harm); Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir.1993) (reading DeShaney to imply that if police officers in some way assisted in creating or increasing danger, due process rights would be implicated); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.1993) (stating that "DeShaney ... leaves the door open for liability in situations where the state creates a dangerous situation or renders citizens more vulnerable to danger"); Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir.1990) (concluding that DeShaney does not bar § 1983 claim where injury by private actor was also result of "an affirmative act by a state actor to interfere with the protective services which would have otherwise been available in the community--with such interference increasing the vulnerability of [the victim] to the actions of [the private individual]...."). We agree that DeShaney may have rendered Wyke's constitutional claim doubtful from the beginning, but mere doubt is not enough to deprive the district court of federal question jurisdiction.

That Wyke's § 1983 claim ultimately fails does not alter our jurisdictional analysis.14 It is "well settled that the failure to state a cause of action calls for a judgment on the merits"--one which can only be made after and not before the court has assumed jurisdiction over the controversy. Hagans v. Lavine, 415 U.S. 528, 542, 94 S.Ct. 1372, 1381, 39 L.Ed.2d 577 (1974) (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946)). The district court did not err in denying Defendants' motion to dismiss.

We review de novo the trial court's decision to grant or deny a motion for judgment as a matter of law. Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 439 (11th Cir.1996). In so doing, we must view the evidence in the light most favorable to the nonmoving party. Id. The motion should be granted only if "reasonable people in the exercise of impartial judgment could not arrive at a contrary verdict." Id.

Wyke maintains that she has a viable claim under § 1983. She argues that the School Board's failure to train its employees in suicide prevention and intervention constituted deliberate indifference to her substantive due process rights. We conclude that Wyke has failed to establish a violation of any constitutional right.

Section 1983 provides a remedy against "any person" who, acting under color of state law, deprives another of rights protected by the Constitution. 42 U.S.C. § 1983. In Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local government entities are included among those persons to whom § 1983 applies. Monell, 436 U.S. at 690, 98 S.Ct. at 2035. At the same time, the Court made it clear that local government entities may not be held liable on a respondeat superior theory; "[i]nstead it is [only] when [the] execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. at 2037; see also Board of the County Commissioners v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (discussing in detail "policy" requirement for triggering municipal liability). In City of Canton v. Harris, 489 U.S. 378, 386-92, 109 S.Ct. 1197, 1203-06, 103 L.Ed.2d 412 (1989), the Supreme Court further extended the scope of local government liability, holding that the "failure to train" employees could itself constitute a governmental "policy" or "custom" for which a local government could be liable, if the failure to train evidenced a "deliberate indifference" to the constitutional rights of those with whom government employees came in contact. Canton, 489 U.S. at 388, 109 S.Ct. at 1204.

Wyke tries to escape the import of DeShaney by relying on Canton's failure to train theory. However, to prevail on a § 1983 claim against a local government entity, a plaintiff must prove both that her harm was caused by a constitutional violation and that the government entity is responsible for that violation. See Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 1065, 117 L.Ed.2d 261 (1992); Hamilton ex rel. Hamilton v. Cannon, 80 F.3d 1525, 1528 (11th Cir.1996). Canton discussed only the second issue, i.e., whether the city's "policy" was responsible for its employee's violation of the plaintiff's constitutional rights. For purposes of its discussion, the Court assumed that those rights had indeed been violated. Collins, 503 U.S. at 122-23, 112 S.Ct. at 1067-68; Canton, 489 U.S. at 389 n. 8, 390 n. 10, 109 S.Ct. at 1205 n. 8, 1206 n. 10; see also Board of the County Commissioners v. Brown, 520 U.S. 397, ----, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 ("In Canton, we did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.") (emphasis added). We cannot make the same assumption. Before addressing whether the School Board can be held liable for a failure to train its employees, we must first determine whether those employees violated any of Wyke's constitutional rights by failing to discharge some constitutional duty owed directly to Shawn (and thus indirectly owed to Wyke), or some constitutional duty owed directly to Wyke. See Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir.1996) (stating that "inquiry into a government entity's custom or policy is relevant only when a constitutional deprivation has occurred"). DeShaney, at least in part, mandates that we answer that question in the negative.

"[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimum levels of safety and security." DeShaney, 489 U.S. at 195, 109 S.Ct. at 1002. Only "in certain limited circumstances [does] the Constitution impose[ ] upon the State affirmative duties of care and protection with respect to particular individuals." Id. at 198, 109 S.Ct. at 1004. Those circumstances are present when the state affirmatively acts to restrain an individual's freedom to act on his own behalf, either "through incarceration, institutionalization, or other similar restraint of personal liberty." Id. at 200, 109 S.Ct. at 1005.

Wyke first submits that, because Shawn was a minor child in the custody of the school pursuant to Florida's compulsory school attendance laws, the school had a constitutional duty to protect him from harming himself. We explicitly reject that contention. Compulsory school attendance laws alone are not a "restraint of personal liberty" sufficient to give rise to an affirmative duty of protection. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995) (recognizing that public schools do not have such a degree of control over children as to give rise to a constitutional duty to protect); Russell v. Fannin County Sch. Dist., 784 F.Supp. 1576, 1581-83 (N.D.Ga.) (ruling that compulsory school attendance laws do not trigger duty of protection between state and student), aff'd without opinion, 981 F.2d 1263 (11th Cir.1992); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir.1993) (same); Maldonado v. Josey, 975 F.2d 727, 732-33 (10th Cir.1992) (same); D.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d 1364, 1371-73 (3d Cir.1992) (same); J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir.1990) (same); see also Wright v. Lovin, 32 F.3d 538, 540 (11th Cir.1994) (holding that student's voluntary attendance at summer school did not impose affirmative duty of protection on school officials). By mandating school attendance, the state simply does not restrict a student's liberty in the same sense that it does when it incarcerates prisoners or when it commits mental patients involuntarily. Absent that type of restraint, there can be no concomitant duty to provide for the student's "safety and general well-being." DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005; see also Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir.1987) (holding that "a child involuntarily placed in a foster home is in a situation so analogous to a prisoner in a penal institution and a child in a mental health facility" that state can be held liable for failure to protect child against injuries caused by foster parents); Russell, 784 F.Supp. at 1581-84 (reasoning that state does not take responsibility for child's entire life by mandating school attendance); Dorothy J., 7 F.3d at 732 (same); Maldonado, 975 F.2d at 733 (same); Middle Bucks, 972 F.2d at 1371 (same); Alton, 909 F.2d at 272 (same).

Wyke next asserts that by "cutting off" Shawn's "private sources of aid," the school rendered Shawn "more vulnerable to harm," and thereby incurred an affirmative duty to protect him. The Supreme Court's decision in DeShaney may have left the door open for that argument, but under the facts of this case, Wyke has not persuaded us to let it remain so. DeShaney expressly rejected the assertion that the state incurred a duty of protection merely because "the [s]tate knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger." DeShaney, 489 at 197-98, 109 S.Ct. at 1003-04. An affirmative duty to protect, according to the Court, arises from limitations the state places upon an individual's ability to act on his own behalf, "not from the [s]tate's knowledge of the individual's predicament or from its expressions of intent to help him...." Id. at 200, 109 S.Ct. at 1005. Trying to reconcile these statements with the Court's language about rendering an individual "more vulnerable to harm," we can only infer that, to venture into the realm of possible state liability, the state must do something more than say, "We'll take care of it."

Wyke submits that school officials "affirmatively prevented" her from saving Shawn's life. Unfortunately, the only things Wyke can point to in support of that assertion are Bryan's statement to Morton that he would "take care" of Shawn's situation, and Morton's testimony that, absent Bryan's assurances, she would have called Wyke directly. It was not Bryan, however, that prevented Morton from calling Wyke. Morton herself chose not to call Wyke. Bryan did not, either by verbal or physical act, restrain Morton from picking up her telephone. Morton simply assumed that after speaking with Bryan, she did not need to.15 Wyke cannot recharacterize that decision, which was made by a private person under no obligation to act, as the school's decision to prevent Wyke or anyone else from helping Shawn. If she could, perhaps our analysis would have been different. See Kneipp v. Tedder, 95 F.3d 1199, 1209 (3rd Cir.1996) (finding that police officer exercised his authority to render intoxicated plaintiff more vulnerable to harm); Salas v. Carpenter, 980 F.2d 299, 308 (5th Cir.1992) (noting that defendant did not "use his authority as a state officer to prevent any rescue, rather he exercised his authority to replace one rescue effort with another"); Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir.1990) (recognizing potential liability where plaintiff could show that police officer directed other officers not to stop conduct of third party); Ross v. United States, 910 F.2d 1422, 1430-31 (7th Cir.1990) (confirming potential liability where city's rescue policy "actually contemplated that some persons would die for the sake of preventing harm to private rescuers"); Hamilton ex rel. Hamilton v. Cannon, 864 F.Supp. 1332, 1336 (M.D.Ga.1994) (ruling that plaintiff stated § 1983 claim where police officer cleared area around drowning victim and interrupted bystander's CPR efforts), rev'd in part, 80 F.3d 1525 (11th Cir.1996). We need not address that possibility here.