PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS
                        FOR THE ELEVENTH CIRCUIT

                             -------------------------------------------
                                          No. 97-9214                                FILED
                            --------------------------------------------
                                                         U.S. COURT OF APPEALS
                           D. C. Docket No. 1:97-CV-4-JOF ELEVENTH CIRCUIT
                                                                                     2/19/03
                                                                              THOMAS K. KAHN
YASMIN SANTAMORENA, individually and as next                                      CLERK
friend of H.S., a minor,

                                                               Plaintiff-Appellant,

      versus

GEORGIA MILITARY COLLEGE,
PETER J. BOYLAN, General, et al.,
                                                               Defendants-Appellees.




                  ----------------------------------------------------------------

                  Appeal from the United States District Court
                     for the Northern District of Georgia

                  ----------------------------------------------------------------


                                       (July 31, 1998)

Before EDMONDSON and BIRCH, Circuit Judges, and LAWSON*, District Judge.

____________

*     Honorable Hugh Lawson, U.S.               District Judge for the Middle District of
      Georgia, sitting by designation.
EDMONDSON, Circuit Judge:



     Plaintiff appeals the district court’s dismissal of her claim

-- a claim brought on behalf of Plaintiff and Plaintiff’s minor

daughter -- that Defendants, Georgia Military College (“GMC”)

and several of its officials, violated Plaintiff’s and her

daughter’s substantive due process rights. Because we agree

with the district court that the individual Defendants are entitled

to qualified immunity, we affirm.1




     1
      Plaintiff originally sued both the institution, Georgia
Military College, and several of its officials (in both their
official and individual capacities). The district court granted
Defendants’ motion to dismiss, concluding that the
institution (and the Defendants sued in their official
capacities) was entitled to sovereign immunity and that the
Defendants, sued in their individual capacities, were entitled
to qualified immunity. Plaintiff appeals only the
determination by the district court that the individual
Defendants were entitled to qualified immunity.
                                 2
                          Background



     GMC is a state-run institution that serves as both a high

school and a college. Plaintiff’s daughter, H.S., was a 13-year-

old high school freshman enrolled at GMC.2 According to GMC

policy, high school freshmen were required to stay on campus

and to live in the barracks for the first four weeks of school.

During this period, only the high school was in session; but

GMC’s college football team was on campus for pre-season

training.

     Before enrolling H.S. at GMC, H.S.’s parents inquired about

security on the campus. In response to these concerns, several

school officials represented to H.S.’s parents that H.S. would be

adequately protected. School officials specifically told H.S.’s

parents these things: that H.S. would be housed in a room near



    H.S. was one of only two female students enrolled in
     2


GMC’s high school program.
                                3
a school official’s -- Defendant Major Banks’s -- living quarters;

that an adult supervisor would be assigned to H.S.’s barracks

and available at all times; that a piece of sliding cardboard

would be placed on the inside of the observation window in the

door to H.S.’s room so that she could observe visitors; that

security personnel would be present in the barracks to monitor

visitors; and that a nightly bed check would be conducted to

ensure that all students were in their rooms by 10:00 p.m.

     About one week after H.S. arrived at GMC, she and her

roommate (the other female high school student at GMC) were

moved to a room in the opposite wing from the room in which

the two were originally placed. No other school personnel or

students lived in that wing of the barracks, and this new room

was some distance from Major Banks’s living quarters. In

addition, the new room had a wooden board nailed to the

observation window of the door -- not a piece of sliding



                                4
cardboard -- which prevented H.S. from observing and

identifying visitors.

     On 1 September 1995, after being moved to the new room,

H.S. was awakened by a knock on her door. H.S. opened the

door and allowed GMC college football player, Kareem Holmes,

to enter her room. Holmes then raped H.S.

     Plaintiff, the parent of H.S., asserts that on the night of the

attack, no security personnel were present to monitor the

barracks, no bed check was conducted, and all supervisory

responsibility for the barracks had been delegated to Defendant

Major Banks. Major Banks was left in charge because Lt. Diane

Ortega, the official actually assigned to supervise the main

barracks and the female hall on the night of the incident, was

not on campus.

     Plaintiff filed suit under 42 U.S.C. § 1983. Plaintiff’s claim

is based on the rape of H.S. by a private third party on the

campus of GMC while H.S. was a resident high school student

                                 5
there. Plaintiff alleges that GMC and GMC officials -- by failing

to protect H.S. from harm by a private actor (Holmes) -- violated

H.S.’s Fourteenth Amendment rights to personal security and

to physical integrity and violated Plaintiff’s related right to

maintain family integrity.3 The district court dismissed the

complaint, before discovery, concluding in relevant part that

the individual Defendants were entitled to qualified immunity.

Plaintiff appeals the dismissal of her complaint against the

individual Defendants -- General Peter J. Boylan, Colonel

Frederick Van Horn, Major Walter Banks, and Sergeant Larry

Swint4 -- challenging the district court’s conclusion that these

Defendants were entitled to qualified immunity.




     3
      The alleged constitutional violations are premised on the
existence of a constitutional duty -- owed to H.S. (and
secondarily to Plaintiff) by the school officials -- to protect H.S.
from private third parties.
    All individual Defendants were teachers or
     4


administrators at GMC at the time of the incident.
                                  6
                           Discussion



     “Qualified   immunity     protects    government      officials

performing discretionary functions from civil trials . . . and from

liability if their conduct violates no clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Lassiter v. Alabama A & M Univ., 

,

1149 (11th Cir. 1994) (en banc) (internal quotations and citations

omitted).5 To overcome this immunity, Plaintiff has the burden

of pointing to case law which “pre-date[s] the offic[ial]’s alleged

improper conduct, involve[s] materially similar facts, and ‘truly

compel[s]’ the conclusion that the plaintiff had a right under




     No party disputes that Defendants were performing
     5


discretionary functions in relation to the events of this case.
                                 7
federal law.”6 Ensley v. Soper, 

, 1406 (11th Cir.

1998) (citing 

).

     Defendants “assert[ed] the defense of qualified immunity

in a Rule 12(b)(6) motion to dismiss, and they are entitled to

qualified immunity at this stage in the proceedings if [Plaintiff’s]

complaint fails to allege a violation of a clearly established

constitutional right.” Williams v. Alabama State Univ., 

, 1182 (11th Cir. 1997). Whether the complaint alleges the

violation of a clearly established right is a question of law,



     6
      This statement summarizes the usual rule and the law
that applies in this case. We can imagine an exceptional
case where “the words of a federal statute or federal
constitutional provision will be specific enough to establish
the law applicable to particular circumstances clearly and to
overcome qualified immunity even in the absence of case
law,” 

n.4, or where “a general
constitutional rule already identified in the decisional law
[applies] with obvious clarity to the specific conduct in
question,” United States v. Lanier, 

, 1227
(1997). But these exceptional cases rarely arise. And we are
not faced with such an exceptional case: given the
circumstances of this case, the Due Process Clause does not
provide the essential, obvious clarity.
                                 8
which we review de novo. See 

this case, we

accept all facts alleged in the complaint as true and draw all

reasonable inferences in favor of the nonmoving party, Plaintiff.

See 

that her complaint, which is premised

on a violation of the Due Process Clause,7 is based on the rape

of her daughter, not by a school official, but by a private third

party. And, “nothing 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.” DeShaney v.

Winnebago County Dep’t of Social Servs., 

, 1003

(1989). “As a general matter, . . . a State’s failure to protect an




     The Due Process Clause of the Fourteenth Amendment
     7


provides, in pertinent part, that “[n]o State shall . . . deprive
any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1.
                                 9
individual against private violence simply does not constitute

a violation of the Due Process Clause.” 

     But “in certain limited circumstances the Constitution

imposes upon the State affirmative duties of care and

protection with respect to particular individuals.” 

State takes a person into its custody and holds him there

against his will . . . the Constitution imposes upon [the State] a

corresponding duty to assume some responsibility for his

safety and general well-being.” 

Thus, a duty may

be imposed on States to protect involuntarily committed mental

patients, prisoners, and involuntarily placed foster children.

See, e.g., Youngberg v. Romeo, 

(1982) (mental

patients); Estelle v. Gamble, 

(1976) (prisoners);




     8
      We note that the absence of a constitutional duty to
protect does not negate the possibility that state law duties
might be owed to individuals by government actors: state
tort actions might apply.
                                

. Ledbetter, 

(11th Cir. 1987) (foster

children).

     The question presented in this case is whether, given the

status of the preexisting law, the Defendants, at the pertinent

time, clearly owed Plaintiff or H.S. some constitutional duty to

protect H.S. based on the voluntary, custodial relationship

between H.S. and GMC. So, we consider cases where we have

talked about the possibility of a constitutional duty when the

State has a “special relationship” with either the victim or the

perpetrator. See Wyke v. Polk County Sch. Bd., 

(11th Cir. 1997); Mitchell v. Duval County Sch. Bd., 

(11th Cir. 1997); Cornelius v. Town of Highland Lake, 

(11th Cir. 1989).

     “The contours of what constitutes a ‘special relationship’

between a [State institution], acting through its officials, and its

citizens are hazy and indistinct.” Wideman v. Shallowford

Comm. Hosp., Inc., 

, 1035 (11th Cir. 1987) (quoting

                                 11
Ellsworth v. City of Racine, 

, 185 (7th Cir. 1985)).

During oral argument, Plaintiff’s counsel acknowledged that

whether a voluntary, instead of an involuntary, custodial

arrangement between the State and a citizen could give rise to

a special relationship, and thus a constitutional duty, remains

“unclear” in this circuit.   But still Plaintiff argues that the

preexisting law was somehow so clearly established that

Defendants should not be protected by qualified immunity.

    Plaintiff points us to three cases, which Plaintiff claims

clearly established that GMC owed a constitutional duty to H.S.:

Taylor v. Ledbetter, 

(11th Cir. 1987); Cornelius v.

Town of Highland Lake, 

(11th Cir. 1989); and Spivey

v. Elliott, 

(11th Cir. 1994). None of these cases,

however, provide the “bright line” necessary to delineate the

concrete circumstances in which officials will violate the

Constitution. See 

(“If case law, in

factual terms, has not staked out a bright line, qualified

                               12
immunity almost always protects the defendant.”) (internal

quotations and citations omitted).

     When considering whether the law applicable to
     certain facts is clearly established, the facts of cases
     relied upon as precedent are important. The facts
     need not be the same as the facts of the immediate
     case. But they do need to be materially similar. . . .
     Public officials are not obligated to be creative or
     imaginative in drawing analogies from previously
     decided cases.9

(quoting Adams v. St. Lucie County

Sheriff’s Dep’t, 

, 1575 (11th Cir. 1992) (Edmondson,

J., dissenting), approved en banc, 

(11th Cir. 1993)).




     9
      Plaintiff argues that this circuit’s qualified immunity
analysis, generally requiring materially similar cases to
establish clearly a constitutional right, is no longer good law
after Lanier, 

. We have already reaffirmed our
qualified immunity analysis in the light of Lanier. See
Jenkins v. Talladega City Bd. of Educ., 

, 825 n.3
(11th Cir. 1997) (en banc) (specifically discussing the impact
of Lanier on the law of the circuit). “The principles of
qualified immunity set out in Lassiter v. Alabama A & M
Univ., . . . continue to be the guiding directives for deciding
cases involving the question of a state actor’s entitlement to
qualified immunity in this circuit.” 

                                13
    Given the facts, the cases relied on by Plaintiff are not

materially similar to the case before us and would have

required Defendants to draw inferences -- inferences of highly

debatable validity -- to reach the conclusion that H.S. (and

secondarily Plaintiff) was owed a constitutional duty. These

cases do not address the situation in this case: where an

individual is voluntarily in the custody of the State10 or where

the State represented that it would provide the individual with

security. Cf. Taylor, 

(The court wrote these words

about involuntary custody in foster homes: “The liberty interest

in this case is analogous to the liberty interest in Youngberg.

In both cases, the state involuntarily placed the person in a

custodial environment, and in both cases, the person is unable

to seek alternative living arrangements.”) (emphasis added);


    10
      We understand that presence at a custodial school may
not be a voluntary decision on the part of the minor student.
But only restraints of freedom imposed by the State, not by a
student’s parents, can give rise to a constitutional duty
requiring the State to protect that student.
                               14
Cornelius, 

;11 Spivey, 

, withdrawn,


     11
       In Cornelius, the court determined that a special
relationship might exist between the town and a town
employee, the town clerk, where the town knowingly placed
the town clerk in danger by allowing poorly supervised
prison labor to work near the town clerk’s place of
employment, the town hall. Later panels have questioned the
survival of Cornelius, and its special danger theory, following
the Supreme Court’s decision in Collins v. City of Harker
Heights, 

, 1070-71 (1992) (employment
relationship alone cannot give rise to constitutional duty to
protect). See 

n.3 (“Cornelius may
not have survived Collins . . . .”); Wright v. Lovin, 

,
541 n.1 (11th Cir. 1994) (same). Because Cornelius has
significantly different facts and its validity has been
expressly questioned in our later opinions, we cannot let
Cornelius be the case that clearly established H.S.’s right to
the State’s protection: Cornelius did not clarify the law to the
point that all reasonable school officials in Defendants’ place
must have known they were subject to a constitutional duty
to protect H.S.
      The confusion created by the Supreme Court’s
intervening decision in Collins, and by later opinions by this
court questioning Cornelius, presents the legal possibility
that law, which may have once been clear, can become
unclear later. The nature of the law is not always to move
from unsettled to settled. Although one of our decisions may
not be expressly overruled, later cases -- at least Supreme
Court cases -- may bring its reasoning or holding into such
doubt that the elements set out in the case are no longer
clearly established for purposes of qualified immunity.
      Given the confusion surrounding the soundness of
                                15
Spivey v. Elliott, 

(11th Cir. 1995) (Spivey II).12 Thus,

these cases did not (and do not today) clearly establish that

Defendants owed Plaintiff or H.S. a federal constitutional duty

to protect H.S. from the incident in this case.

     Given their facts, the cited precedents gave much too little

guidance. We cannot properly require Defendants in this case

to have drawn inferences when the facts of the existing cases

were considerably different from the circumstances facing

these particular Defendants.


Cornelius and considering its facts, we can locate no case
(and Plaintiff has pointed us to no case) that is sufficiently
factually similar to this case and that would have made it
clear to Defendants at the time (or to us now) that Defendants
placed H.S. in a position of danger which imposed upon them
a constitutional duty to protect H.S.
     12
       Plaintiff relies on Spivey, 

. But the portion
of that opinion on which Plaintiff relies was withdrawn. See
Spivey 

(“[I]n the interest of efficiency and
collegiality on this Court, where there are differing views as
to the substantive right, this panel has chosen to withdraw all
of its prior opinion which relates to whether the complaint
alleges a constitutional right so that the opinion will serve as
no precedent on that issue.”).
                                 16
     Furthermore, some preexisting case law may have

particularly suggested to Defendants (or to be more precise, to

every reasonable school official standing in Defendants’ place)

that no duty would arise in a voluntary situation, despite

representations by Defendants that protection would be

provided. See 

(“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.”) (emphasis added). “Unless

a government agent’s act is so obviously wrong, in the light of

preexisting law, that only a plainly incompetent officer or one

who was knowingly violating the law would have done such a

thing, the government actor has immunity from suit.” 

.    Defendants were not obviously violating

Plaintiff’s or H.S.’s clearly established rights in this case.



                                17
    Because Plaintiff’s complaint fails to allege the violation of

a clearly established constitutional right, the district court

correctly granted Defendants’ motions to dismiss on grounds

of qualified immunity. We, given the status of the preexisting

law, view it as obvious that Defendants are entitled to qualified

immunity.

    But we do acknowledge that the existence or nonexistence

of a constitutional right (or duty) in this case presents a

perplexing question: a question that we -- in part, because it

cannot be easily answered -- decline to answer at this time. To

overcome qualified immunity, Plaintiff must show both (1) that

Defendants violated a federal constitutional right and (2) that

the right was already clearly established at the time of the

violation. See Spivey 

. “[A] negative decision

on either prevents the plaintiff from going forward.” 

answer the other question is unnecessary to decide the case.

Thus, “[o]nce there has been a determination that there is no

                               18
‘clearly established’ right, the parties can accomplish little in

pursuing the question of whether there is a right at all. . . .

[because t]hose who differ with the decision of the court could

write it off as dictum.” Id.13


     13
        We have already stated that “[t]he law cannot be
established by dicta. Dicta is particularly unhelpful in
qualified immunity cases where we seek to identify clearly
established law.” Hamilton v. Cannon, 

, 1530
(11th Cir. 1996); see also In re United States, 

, 731
(11th Cir. 1995) (“Statements of dicta are not part of the law of
the case.”); United States v. Teague, 

, 1535 (11th
Cir. 1992)(“[D]icta is inherently unreliable for what a court will
do once faced with a question squarely and once its best
thoughts, along with briefs and oral argument, are focused
on the precise issue.”) (Edmondson, J., concurring). The
reasons for avoiding dicta were briefly expressed by the
Supreme Court early in our nation’s jurisprudence:
      It is a maxim, not to be disregarded, that general
      expressions, in every opinion, are to be taken in
      connection with the case in which those
      expressions are used. If they go beyond the case,
      they may be respected, but ought not to control the
      judgment in a subsequent suit, when the very point
      is presented for decision. The reason of this maxim
      is obvious. The question actually before the court
      is investigated with care, and considered in its full
      extent. Other principles which may serve to
      illustrate it, are considered in their relation to the
      case decided, but their possible bearing on all other
                                 19
     A Supreme Court opinion recently suggested that the

“better approach” -- in cases involving the defense of qualified

immunity -- might be to decide whether the contended for

constitutional right exists at all before determining whether the

right was, at the pertinent time, clearly established. See County

of Sacramento v. Lewis, 

, 1714 n.5 (1998) (citing

Siegert v. Gilley, 

, 1793 (1991)) (“[T]he better

approach to resolving cases in which the defense of qualified

immunity is raised is to determine first whether the plaintiff has

alleged a deprivation of a constitutional right at all. Normally,

it is only then that a court should ask whether the right

allegedly implicated was clearly established at the time of the

events in question.”) (emphasis added).

     We do not understand this footnote as an absolute

requirement that lower courts must always follow this



    cases is seldom completely investigated.
Cohens v. Virginia, 

, 399 

(1821).
                                20
“normally” “better approach.” In County of Sacramento, the

district court decided the case strictly on qualified immunity

grounds, that is, on the ground of the unsettled nature of the

law; but the Supreme Court never said the district court erred.

And if the Supreme Court intended to impose an absolute

requirement on lower courts always to address the merits of

constitutional issues even where qualified immunity obviously

applies and readily resolves the case, we believe the Supreme

Court would have said so more directly.14


    14
       Several separate opinions were written in County of
Sacramento. As we understand it, four Justices did not
endorse footnote 5 or expressly stressed that footnote 5 was
no blanket rule. See County of 

(Breyer, J., concurring) 

(Stevens, J.,
concurring) (specifically discussing footnote 5); see 

(Scalia, J., with whom Thomas, J., joins,
concurring in judgment only). Although a majority of the
Justices did join in Justice Souter’s opinion (including
footnote 5) for the Court, we cannot say that footnote 5 is
doubtlessly a holding of the Court. See generally Crawford-
El v. Britton, 

, 1590 (1998) (not everything set
forth in an opinion is a holding of the case).
      We do recognize, however, that the Supreme Court has
the power to supervise lower federal courts through special
                              21
     At least in situations like this one -- (1) where the existence

of a constitutional right (or duty) presents a perplexing

question, (2) where the alleged right obviously was not already

clearly established, and (3) where the qualified immunity

determination does end the whole case -- it remains

appropriate, and sometimes preferable, to stop at the

determination that the right, if any, was not clearly

established.15 “A fundamental and longstanding principle of


statements that go beyond the holding of a case; and the
Supreme Court has, on occasion, invoked such supervisory
powers. See, e.g., Lowenfield v. Phelps, 

, 551
n.2 (1988); Cheff v. Schnackenberg, 

, 1526
(1966). In footnote 5, the supervisory powers are not
specifically invoked.
      But even if footnote 5 is a binding judicial
pronouncement or a binding supervisory instruction, we --
given the footnote’s own words -- do not understand it to be
a strict rule with no exceptions.
     15
       We do not say that the presence of these three features in the
case at hand distinguishes it from County of Sacramento. One could
argue that the same features were presented by County of
Sacramento. We just say that these features make the case a fit
subject for judicial discretion when it comes to fashioning the
analysis: the kind of cases in which sometimes to decide the
                                 22
judicial   restraint   requires   that   courts   avoid   reaching

constitutional questions in advance of the necessity of deciding

them.” Lyng v. Northwest Indian Cemetery Protective Ass’n,

, 1323 (1988); see also Jean v. Nelson, 

, 2997 (1985); In re Snyder, 

, 2880 (1985);

Superintendent, Massachusetts Correctional Instit., Walpole v.

Hill, 

, 2772 (1985); Spivey 

(decided after Siegert v. Gilley) (“[A] determination of whether

a right is clearly established will always require no more, and

will often require less, analysis than is required to decide

whether the allegedly violated constitutional right actually

exists in the first place. Moreover, deciding the case on the

‘clear establishment’ element comports with the well-

established    principle   disfavoring     reaching   substantive

constitutional issues if a case can be resolved on other



constitutional issue and sometimes not, depending on a wide array
of other considerations.
                                  23
grounds.”). “[T]his self-imposed limitation on the exercise of

the Court’s jurisdiction has an importance to the institution that

transcends the significance of particular controversies.” City

of Mesquite v. Aladdin’s Castle, Inc., 

, 1077

(1982).

     The Supreme Court looked at these arguments for

avoiding the merits of constitutional issues when the Court, in

County of Sacramento, said that a decision on those merits was

normally the “better approach.” Still we conclude the Supreme

Court did not mean to nullify all the traditional restraint

principles or to take away all our discretion to analyze

particular qualified immunity cases, involving perplexing

constitutional issues, without first deciding whether the

constitutional right exists. We think the Supreme Court was

telling us that, notwithstanding the usual restraint arguments,

sometimes the courts can and should decide the constitutional



                                24
issues; and we will but -- because we believe the Supreme

Court has left us with some discretion -- not today.16

    Because we conclude that Plaintiff and H.S. were owed no

clearly established constitutional duty by Defendants at the

time of the incident, Defendants are entitled to qualified

immunity.

    AFFIRMED.




    16
      Refraining (until truly necessary) from deciding -- in
qualified immunity cases -- the more perplexing federal law
issues will not inevitably preclude the law in due course from
becoming clearly established. Suits seeking injunctions,
suits against local governments, and certain criminal
proceedings can settle the law. And, in circumstances where
the right allegedly violated is one based in federal statute,
Congress can add the necessary clarity to the law. Thus, our
avoidance of a constitutional issue in a specific case, like
this one, does not prevent the law from ever becoming
clearly established; and if we chose to address the
perplexing constitutional issue, we would not necessarily
add clarity to the law because such a decision could be
viewed as mere uncontrolling dicta.
                               25