Shane Davis v. Mike Carroll, et al.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 18-1 4558
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D.C. Docket No. 8:16-cv-00998-MSS-SPF

SHANE DAVIS,

Plaintiff-Appellant,

versus

MIKE CARROLL, WILEEN R. WEAVER,
& PAULINE RILEY

Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 13, 2020)
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Before JILL PRYOR and GRANT, Circuit Judges, and ROYAL,
*
District Judge.
GRANT, Circuit Judge:
Discovering that someone has a serious, life-long illness can strike a terrible
blow. Especially when the one suffering is a child. That is the hardship J.D.D. and
his adoptive parents have endured since learning that J.D.D. was HIV-positive—a
condition he likely contracted at birth but that went unnoticed until he was 14 years
old. On behalf of his son, Shane Davis sued two state social workers for failing to
request an HIV screening when the State of Florida took custody of J.D.D. shortly
after his birth. The district court granted the social workers’ summary judgment
motion because it found that qualified immunity protected them from suit. After
careful review and with the benefit of oral argument, we affirm.
I.
J.D.D. was born in a hospital on April 10, 2000, to a mother who was
tragically unfit for parenting. Shortly after his birth, the hospital filed an abuse
report with the Pinellas County Sheriff’s Office. The report explained that
J.D.D.’s mother tested positive for cocaine, that she had no prenatal care, and that
other children had already been removed from her care.
1

After his birth, J.D.D. remained at the hospital for a week because of
complications stemming from his cocaine exposure, low birthweight, and low

*
Honorable C. Ashley Royal, Senior District Judge of the Middle District of Georgia, sitting by
designation.

1
The parties dispute many of the relevant facts. Because this case comes to us after the district
court granted the defendants’ motion for summary judgment, we draw all inferences in favor of
Davis.
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oxygen. When he was released, the Florida Department of Children and Families
took custody of him directly from the hospital. At that time, the hospital provided
the department with an Infant Discharge Summary, which noted several normal
findings about J.D.D.’s health—but said nothing about HIV. No records suggest
that the hospital tested him for HIV.
Within ten days of J.D.D.’s hospital discharge, social workers Wileen
Weaver and Pauline Riley, the defendants here, were working with J.D.D. They
soon learned about his case. Case staffing notes record that the last four children
from J.D.D.’s mother tested positive for cocaine and were then cared for by family
members. Riley also knew that J.D.D.’s mother had little or no prenatal care and
that J.D.D. himself had been exposed to cocaine at birth. And Weaver had access
to J.D.D.’s file, which contained information about both the lack of prenatal care
and his cocaine exposure. Neither Weaver nor Riley sought HIV screening.
An investigator for the Sheriff’s Office later petitioned a county court to
place J.D.D. in foster care. The petition summarized other abuse reports filed after
J.D.D.’s mother had given birth to her previous children. One case summary
mentioned alleged “domestic violence,” and noted that J.D.D.’s “mother ‘smokes
crack like it was cigarettes.’” Other police investigations in 1993 and 1995
uncovered that J.D.D.’s mother had been treated for heroin and had been arrested
in 1983 for soliciting prostitution, but the custody petition for J.D.D. did not
include these details. “To the best of writer’s knowledge,” the petition read,
“mother has no criminal history.” The petition also stated that “neither the mother
nor the child has any medical problems or physical abnormalities.”
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J.D.D. was placed with a foster family that same year. J.D.D.’s foster
parents took him to see Dr. Richard Gonzalez for typical childhood illnesses like
common colds and asthma. Like the hospital staff, Dr. Gonzalez knew about
J.D.D.’s cocaine exposure, and about his mother’s drug addiction and lack of
prenatal care. And like the hospital staff, Dr. Gonzalez did not pursue HIV
screening for J.D.D.
Shane and Patricia Davis adopted J.D.D. when he was three years old.
Eleven years later, at age fourteen, J.D.D. developed thrush, a mouth infection
somewhat common for infants but rare for teenagers. His infection prompted
physicians to conduct immunological testing. The doctors diagnosed him with
AIDS, and treatment began immediately.
Dr. Carina Rodriguez, who treated J.D.D. after his diagnosis, said that
J.D.D. probably contracted HIV at birth from his mother, although no direct
evidence shows that she had HIV. The doctor also explained that HIV-positive
newborns are usually asymptomatic at birth. Another expert opined that if J.D.D.
had been tested and treated for HIV within six weeks of his birth, “it is highly
unlikely he would have developed an HIV infection, and highly unlikely that his
HIV infection would have progressed to AIDS.”
About two years after J.D.D.’s diagnosis, his adoptive father sued social
workers Weaver and Riley in their individual capacities.
2
Davis’s second amended
complaint alleged that they were liable under 42 U.S.C. § 1983 for violating

2
He also sued Weaver, Riley, and the Secretary of the Florida Department of Children and
Families in their official capacities. The district court granted the defendants’ motion for
summary judgment on these claims, and Davis does not challenge that decision on appeal.
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J.D.D.’s clearly established federal rights. Specifically, Davis claimed that by not
requesting HIV screening, Weaver and Riley showed deliberate indifference to
J.D.D.’s serious risk of contracting HIV. Davis also alleged violation of J.D.D.’s
federal right to prompt medical assistance under the Medicaid Act. See 42 U.S.C.
§ 1396a(a)(8). The district court disagreed, and granted the defendants’ motion for
summary judgment based on qualified immunity. Davis now appeals.
II.
We review de novo the district court’s granting of a summary judgment
motion based on qualified immunity. Whittier v. Kobayashi, 581 F.3d 1304, 1307
(11th Cir. 2009) (per curiam). In doing so, we “resolve all issues of material fact
in favor of the plaintiff, and then, under that version of the facts, determine the
legal question of whether the defendant is entitled to qualified immunity.” Id.
III.
On appeal, Davis challenges the district court’s determination that qualified
immunity shields Weaver and Riley from suit. “In order to receive qualified
immunity, the public official must first prove that he was acting within the scope of
his discretionary authority when the allegedly wrongful acts occurred.” Carruth v.
Bentley, 942 F.3d 1047, 1054 (11th Cir. 2019) (quotation marks and citation
omitted). The parties agree that Weaver and Riley were acting within the scope of
their discretionary authority as foster caseworkers. Given this agreement, the
burden shifts to Davis “to show that qualified immunity is not appropriate.” Id.
(citation omitted).
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To defeat qualified immunity, Davis must show that the defendants “violated
clearly established federal statutory or constitutional rights of which a reasonable
person would have known.” Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000). He contends both that Weaver and Riley were deliberately
indifferent to J.D.D.’s serious risk of HIV and that they violated his clearly
established federal statutory right to HIV screening. Neither argument persuades
us.
A.
We have held that “a foster child can state a 42 U.S.C. § 1983 cause of
action under the Fourteenth Amendment if the child is injured after a state
employee is deliberately indifferent to a known and substantial risk to the child of
serious harm.” H.A.L. ex rel. Lewis v. Foltz, 551 F.3d 1227, 1231 (11th Cir. 2008)
(per curiam) (citing Taylor v. Ledbetter, 818 F.2d 791, 794–96 (1987) (en banc)).
“To survive summary judgment on a deliberate indifference failure-to-protect
claim, a plaintiff must produce sufficient evidence of (1) a substantial risk of
serious harm; (2) the defendants’ deliberate indifference to that risk; and
(3) causation.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th
Cir. 2014) (quotation marks and citation omitted).
For the second element—deliberate indifference to the risk—“a plaintiff
must produce evidence that the defendant actually (subjectively) knew” about the
“substantial risk of serious harm.” Id. (punctuation and citation omitted). In other
words, “a state official acts with deliberate indifference only when he disregards a
risk of harm of which he is actually aware.” Ray v. Foltz, 370 F.3d 1079, 1083
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(11th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 836 (1994)). It is not
enough for the official to “be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists”—“he must also draw the
inference.” Farmer, 511 U.S. at 837. That said, proving actual awareness does not
require a smoking gun; a factfinder could conclude that an “official knew of a
substantial risk from the very fact that the risk was obvious.” Id. at 842.
Davis does not have any direct evidence that Weaver and Riley were
actually aware of a substantial risk that J.D.D. (or even his mother) had HIV. In
Davis’s view, though, J.D.D.’s mother had such an obvious risk of HIV that
Weaver and Riley must have concluded that by extension J.D.D. also faced a
substantial risk. After all, he says, J.D.D.’s mother had multiple risk factors: her
lack of prenatal care, use of cocaine, removal of four of her previous children for
drug exposure, domestic violence, and J.D.D.’s ambiguous paternity.
We do not view the risk as being obvious. Like most newborns with HIV,
J.D.D. did not have any physical symptoms. Although Davis sees warning signs of
the hidden illness, several of his proposed risk factors would show little or no risk
at all. Davis says one risk factor is the uncertainty of J.D.D.’s paternity. Yet
record documents repeatedly reference Ernest “Keith” Majors as the biological
father, and Davis has not directed us to any contrary evidence. Moreover, there is
no reason that an allegation of domestic violence would suggest an HIV risk—
especially when that allegation, as the custody petition for J.D.D. noted, resulted in
a closed case “with no indicators of any abuse or neglect.” Even the strongest risk
factor, cocaine usage, may not be strong as it first appears: the record reflects that
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J.D.D.’s mother mainly—if not exclusively—ingested cocaine through smoking
rather than injection. For example, the petition filed by an investigator in J.D.D.’s
case only discusses his mother as “smok[ing] crack.”
More importantly, although J.D.D. received treatment from several medical
professionals, none of them thought to have him tested for HIV. Hospital staff and
doctors cared for J.D.D. not only at his birth but also for his week-long stay after
his birth. The hospital’s abuse report shows that medical staff knew that J.D.D.
was exposed to his mother’s cocaine, that his mother had no prenatal care, and that
J.D.D. had low oxygen. Still, they did not request HIV screening. In fact, the
hospital’s Infant Discharge Summary noted several normal health findings for
J.D.D., and did not so much as hint about the possibility of HIV. Nor did Dr.
Gonzalez, who saw J.D.D. many times during his time in foster care, detect the
need for screening—even though he also knew about J.D.D.’s cocaine exposure
and his mother’s addiction. Under these circumstances, a jury could not
reasonably conclude that a substantial risk of HIV was obvious to social workers
when the risk was overlooked by many medical professionals.
Davis counters that only the defendants (and not the doctors and nurses)
were aware that J.D.D.’s mother had been treated for prior heroin use and had been
arrested in the 1980’s for soliciting prostitution. It strikes us as speculative to
assume that they would have known this information because, as the district court
explained, these details were “not included in any document summarizing J.D.D.’s
case or on any document containing Weaver and Riley’s signature.” Instead, these
facts came from police abuse reports for previous children of J.D.D.’s mother.
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Even if we assume that the defendants read the old police reports, we could
not embrace Davis’s argument. True, the prostitution arrest and heroin usage raise
a yellow flag. But they do not make the risk obvious. And at any rate, the older
police reports were undermined by the custody petition filed by an investigator in
J.D.D.’s own case—which said that, to the best of the author’s knowledge,
J.D.D.’s “mother has no criminal history,” and that “neither the mother nor the
child has any medical problems or physical abnormalities.” Lacking evidence that
the risk was obvious, Davis can only hope to show that the defendants were
negligent—but “deliberate indifference entails something more than mere
negligence.” Farmer, 511 U.S. at 835.
In short, the record does not show that Weaver and Riley actually inferred
that J.D.D. had a substantial risk of contracting HIV. No actual inference of risk
means no deliberate indifference. And without deliberate indifference, there can
be no constitutional violation—clearly established or otherwise. The defendants
are thus immune from suit on this claim.
B.
Next, Davis points to the Medicaid Act to overcome qualified immunity.
Under the Act, Florida must create a plan that provides “medical assistance” with
“reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8)
(2000); see id. § 1396a(a)(10) (listing covered individuals). That medical
assistance includes early and periodic screening, such as “laboratory tests” and
other treatment “to correct or ameliorate defects” and physical “illnesses and
conditions.” Id. § 1396d(r)(1)(B)(iv), (5).
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To the extent Davis seeks to tack this statutory argument onto his
constitutional one, his attempt flounders. We have already explained that the
defendants did not violate J.D.D.’s constitutional rights. And officials “sued for
constitutional violations do not lose their qualified immunity merely because their
conduct violates some statutory or administrative provision.” Davis v. Scherer,
468 U.S. 183, 194 (1984).
At the same time, “we have acknowledged the possibility that some federal
statutory provisions will be sufficiently clear on their own to provide defendants
with fair notice of their obligations under the law.” Gonzalez v. Lee Cty. Hous.
Auth., 161 F.3d 1290, 1301 (11th Cir. 1998). To provide sufficient notice to
Weaver and Riley, the statutory provisions and regulations must be so clear that
any “reasonable public official, having read the plain terms of this statute, certainly
would have understood that federal law makes it unlawful” not to request HIV
screening. Id. at 1302.
That level of clarity is not present here. None of the provisions Davis cites,
as the district court put it, “mandate HIV testing specifically, nor do they
unmistakably instruct that the failure to refer a child for such a test is illegal.” We
do not doubt that a state plan’s required coverage of “laboratory tests” includes
screening for HIV. Still, we cannot say that this language puts social workers on
notice that they must diagnose an HIV risk and pursue screening, or else face
personal financial liability.
To be sure, we have identified “a federal right to reasonably prompt
provision of assistance under section 1396a(a)(8) of the Medicaid Act.” Doe 1-13
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ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 719 (11th Cir. 1998). Although
Davis leans on this holding in Doe, the case cannot withstand the weight he
understandably wishes to place on it. There, Medicaid-eligible patients waited
several years for treatment of their known medical conditions. Id. at 711. We held
that they had a federal right, enforceable through § 1983, to prompt state treatment
under the Medicaid Act. Id. at 715–19. But a state’s duty to provide prompt care
for known medical needs does not imply—let alone “clearly establish”—that an
individual social worker must request specific tests for an unknown medical need.
Nor would state law have put Weaver and Riley on notice. According to a
Florida statute, the Department of Children and Families “is authorized to have a
medical screening performed on the child.” Fla. Stat. § 39.407(1) (1999). The
statute also says that the “medical screening shall be performed by a licensed
health care professional and shall be to examine the child for injury, illness, and
communicable diseases.” Id. Davis argues that the statute “clearly and
unequivocally states DCF ‘shall’ have the child examined for illness and
‘communicable diseases.’” We do not read the statute to authorize screening in
one sentence only to mandate screening in the next. The “shall be” language does
not obligate social workers to initiate any screening; rather, that language explains
who can perform medical screening and what kind of screening the department is
authorized to request. Far from creating a clear requirement to initiate screening,
the language becomes relevant only after a social worker decides to pursue a
screening.
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Davis also looks to a now-repealed Florida regulation to make up for the
law’s lack of clarity on the screening issue. The regulation provided several
examples of children who “should be considered at risk” and “should be tested” for
HIV. Fla. Admin. Code. R. 65C-13.017(7) (1992) (repealed in 2008). Those
children include any “abandoned newborn” and children who tested positive for
“drugs commonly self-administered by injection,” although the regulation also
notes that hospital “staff will normally discover these [drug-positive] children and
request appropriate permission” for testing. Id. We can assume for argument’s
sake that J.D.D. “should” have been considered at risk. But should indicates a
recommendation, not a requirement. Again, hospital staff and doctors—those who,
as the regulation indicates, are often best positioned to detect the need for testing—
also did not see a need for HIV screening. Simply put, none of the statutes or
regulations commanded Weaver and Riley to detect the HIV risks and request
screening.
* * *
At bottom, no federal law mandated HIV screening here—much less
“clearly established” such a requirement. Weaver and Riley are therefore immune
from suit. We AFFIRM the judgment of the district court.
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