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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
ERIC WALLER, as Personal Representative of the Estate of
Doris Taylor, Deceased, Plaintiff-Appellee, v. DAVID
TRIPPETT, Defendant-Appellant.
No. 01-2716
49 Fed. Appx. 45
October 10, 2002, Filed
NOTICE: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
PER CURIAM:
Defendant-Appellant, David Trippett ("Trippett" or the
"Defendant"), appeals the district court's order denying in part, and
granting in part, his motion to dismiss Plaintiff-Appellee, Eric Waller's
("Waller" or the "Plaintiff") complaint for failure to state a claim pursuant to 42 U.S.C. §
1983 and on the grounds of qualified immunity.
For the reasons set forth below, we AFFIRM the district court's
order denying the Defendant's motion to dismiss for failure to state a § 1983
claim and REVERSE the district court's order denying the Defendant's motion to
dismiss on the grounds of qualified immunity.
I. BACKGROUND
This is an
appeal from an action for damages pursuant to 42 U.S.C. § 1983 by the estate of
a prison employee who was murdered by a prison inmate. The Plaintiff, acting in
his capacity as the personal representative of the Estate of Doris Taylor
("Ms. Taylor" or the "decedent"), charged the Defendant,
warden of Thumbs Correctional Facility ("TCF") in Michigan, of
violating the decedent's constitutional due process rights because the
Defendant [*47] established certain prison policies and
procedures that put the decedent at a serious risk of serious harm.
At the time
of her death in May 1998, Ms. Taylor was working as a food service steward at
TCF, where she had been employed for more than ten years. TCF is currently a
prison facility for male offenders
between the ages of 17 and 21 that are classified as Security Level II prison
inmates. n1 Although TCF generally houses inmates who have committed Level II
offenses, at the time of Ms. Taylor's murder, TCF also contained persons whose
crimes warranted a Level III or IV classification. During all of the times that
are relevant to this controversy, TCF was under the direction of the Defendant,
Trippett, who served as its warden and, as such, was Taylor's ultimate
supervisor.
On May 17, 1998, Gerald Barnes
("Barnes") and other inmates were assigned to routine kitchen duties
at TCF. Barnes had been imprisoned after having been convicted of committing a
criminal sexual assault with a knife. The
complaint alleges that Barnes had a
"history of admitting to at least eight rapes, several of which were
committed at knife point." See J.A. at 11, Complaint at P 23(o). Ms.
Taylor had worked with Barnes before the attack and the complaint alleges that
she had advised her supervisors n2 prior to the attack that Barnes should not
be allowed near her.
The
complaint alleges that pursuant to the policies promulgated by the Defendant,
prisoner inmates working on kitchen details were allowed access to knives that where neither tethered nor
secured in any manner. According to the complaint, in connection with its
inmate kitchen detail program, the prison "failed to conduct any
meaningful investigation of the prisoners to whom large knives were provided [in order] to assess their mental stability
and/ or propensity for committing additional violent acts." See J.A. at 8,
Complaint at P 19(b).
On the
fateful day, Barnes checked out a large knife. When Ms. Taylor left the cooking
area and went to the back offices, Barnes followed her and then, with the
knife, violently stabbed her. Ms. Taylor died several hours later. In addition
to the other practices and procedures, the Plaintiff's complaint also alleges
that the Defendant furthered increased decedent's risk of substantial harm
because he deviated from Michigan Department of Correction's policy when he
declined to station correction officers within the kitchen food preparation
area. See J.A. at 9, Complaint at P 19(m). The Plaintiff also alleged prison
inmates assigned to the food preparation area were inadequately supervised. See
J.A. at 8, Complaint at PP 19 (d) & (k).
The Defendant filed a motion to dismiss pursuant to Fed. R. Civ.
P 12(b)(6) and on the grounds of qualified immunity. The district court issued
an order granting in part, and denying in part, the Defendant's motion to
dismiss. According to the district court, many of the Plaintiff's allegations
failed to identify conduct that is conscience shocking in the constitutional
sense. For example, opined the district
[*48] court, citing to the
Supreme Court's decision in Collins v. City of Harker Heights, Tx., 503 U.S.
115, 126, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992), and our decision in Lewellen
v. Metropolitan Gov't of Nashville, 34 F.3d 345, 351 (6th Cir. 1994), neither
the state nor the Defendant had any constitutional duty in their capacities as
Ms. Taylor's employers, to protect her from unreasonable existing risks.
According to the district court, prisons are dangerous places, and the people
who work in them are generally not entitled to receive any recovery if some
unexceptional danger results in an injury, unless their exposure to risk was
intended to be some form of punishment.
Similarly,
concluded the district court, the state has broad authority in its
determinations as to how to allocate resources. According to the district
court, as Ms. Taylor became increasingly uncomfortable with general issues of
prison overcrowding, the lack of security personnel, and the absence of electronic
emergency transceivers, the burden was upon her to take reasonable steps to protect herself from harm. In sum,
concluded the district court, Ms. Taylor's complaint regarding what amount to
general employment risks are not actionable and thus subject to dismissal as
the U.S. Constitution does not impose a duty on the state to provide employees
with minimum levels of safety and security in the workplace.
Nonetheless,
the district court declined to dismiss the Plaintiff's complaint in its entirety.
The district court went on to conclude that although a generalized employment
risk is insufficient to render a state liable for a constitutional due process
violation, the affirmative creation of a particularized hazard or danger in relation to a discrete
group of employees is a different matter. The district court believed that the
Plaintiff had alleged facts sufficiently different from those in Collins.
Here,
unlike in Collins, surmised the district court, Ms. Taylor was allegedly
ordered to work under circumstances, which the supervisor knew or should have known would present a
significant risk that she would be injured. As a result, the district
court denied the Defendant's motion to dismiss the complaint in its entirety
because accepting the allegations of
the Plaintiff, in the most favorable light, the situation in the TCF kitchen on
May 17, 1998 was compounded when the state indirectly armed a prison inmate
with his choice weaponry without adequate supervision. The district court thus
held that the state did something "to render an individual more vulnerable
to danger." Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir.
1994). The district court stated that the Defendant presumptively made an
intentional decision to institute a practice that provided an untethered knife
without adequate supervision to a man who had a history of committing violent
crimes with the aid of knives. The district court was persuaded that the
Defendant ostensibly created a specific danger and, thereby, was deliberately
indifferent to Ms. Taylor's constitutional rights.
Finally
because the district court concluded that the complaint stated a cognizable
claim for violation of Ms. Taylor's constitutional rights, the district court
also addressed whether the Defendant was entitled to qualified immunity. The
district court concluded that Defendant was not entitled to qualified immunity
because the Defendant's conduct in promulgating policies which created a special danger to Ms. Taylor violated
clearly established law. According to the district court, in this jurisdiction,
the Constitution prevents an executive official from materially increasing the
danger to which he renders other identifiable
[*49] persons vulnerable.
Therefrom, the district court concluded that a reasonable person, such as the
Defendant in this case, should have been aware of these basic standards.
The Defendant timely appealed the district court's decision and
order.
II. ANALYSIS
a. Dismissal For Failure to
State a Claim
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests
whether a claim has been adequately stated in the complaint. The basic
requirements for a pleading are set out in Fed. R. Civ. P. 8(a) and call for a
"short and plain statement of the claim showing that the pleader is
entitled to relief." In considering a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6), we must accept as true all factual allegations in the
complaint. Windsor v. The Tennessean,
719 F.2d 155, 158 (6th Cir. 1983), cert. denied, 469 U.S. 826, 83 L. Ed. 2d 50,
105 S. Ct. 105 (1984), and the motion should
not be granted "unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of [her] claim which would entitle [her]
to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S.
Ct. 99 (1957).
We agree
with the district court that the complaint, read in the light most favorable to
the plaintiff, supports a § 1983 claim. In order to establish a § 1983 claim, a
plaintiff's complaint must allege facts which "demonstrate a violation of
a right secured by the Constitution and the laws of the United States [and] that the
alleged deprivation was committed by a person acting under color of state
law." n3 Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.)
cert. denied, 516 U.S. 858, 133 L. Ed. 2d 107, 116 S. Ct. 165 (1995) (quoting Moore
v. Tartler, 986 F.2d 682, 685 (3d Cir.1993)); see also Sargi v. Kent City Bd. of Educ., 70 F.3d
907, 910 (6th Cir. 1995). Here, the Plaintiff's complaint alleges that the
Defendant violated Ms. Taylor's substantive and procedural due process rights guaranteed by the Fourteenth
Amendment. n4
Generally a
person does not have a constitutional right under the Fourteenth Amendment to
be protected from the criminal acts of third parties. See DeShaney v. Winnebago
County Dept. of Social Services, 489 U.S. 189, 195, 103 L. Ed. 2d 249, 109 S.
Ct. 998 (1989) (stating that "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"). However, there are two recognized exceptions to this
rule: (i) the special relationships doctrine; and (ii) the "state-created
danger" theory. DeShaney, 489 U.S.
at 199-200. A special relationship exists when the state assumes control over
an individual sufficient to trigger
[*50] an affirmative duty to
provide protection to the individual (e.g. when the individual is a prison
inmate or involuntary committed mental patient). See id; see also Stemler v. City of Florence, 126 F.3d
856, 867-68 (6th Cir: 1997). This theory is inapplicable to the instant case
because Ms. Taylor was simply an employee of the state working at TCF, and an
employment relationship is consensual.
We,
however, find that Plaintiff's complaint legally suffices to state a § 1983
claim premised on the "state-created danger" theory of liability.
DeShaney, left open the possibility that the state may be liable for private
acts which violate constitutionally protected rights despite the absence of a
special relationship. In DeShaney, the Supreme Court stated that, "while
the State may have been aware of the dangers that Joshua [DeShaney] 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." 489 U.S. at 201. (emphasis
added). Several circuits, including this circuit, have cited this statement as
support for recognizing a constitutional violation under a "state-created
danger" theory of liability. See, e.g,
Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); Mitchell
v. Duval County Sch. Bd., 107 F.3d 837, 839 (11th Cir. 1997); Kneipp v. Tedder,
95 F.3d 1199, 1205 (3d Cir. 1996); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.
1996) Uhlrig v. Harder, 64 F.3d 567, 572 n. 7 (10th Cir. 1995); Dwares v. City
of New York, 985 F.2d 94, 99 (2d Cir. 1993); Reed v. Gardner, 986 F.2d 1122,
1125 (7th Cir.), cert. denied, 510 U.S. 947, 114 S. Ct. 389, 126, 126 L. Ed. 2d 337 (1993); Freeman v. Ferguson, 911
F.2d 52, 55 (8th Cir.1990).
In this Circuit, we have recognized the possibility of using the
"state-created danger" theory to hold a state or state actor liable
under the Fourteenth Amendment for private acts of violence. See, e.g., Jones
v. City of Carlisle, 3 F.3d 945, 949-50 (6th Cir. 1993); Gazette v. City of
Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994); Sargi, 70 F.3d 907 at 912-13; Stemler,
126 F.3d at 868. However, it was not until Kallstrom that we actually held a
state actor liable for private acts of violence under the
"state-created" danger theory. In Kallstrom, we held that the city's
policy of freely releasing certain information n5 from undercover police
officers' personnel files created a constitutionally cognizable "special
danger" giving rise to liability under § 1983. Kallstrom, instructs that a
plaintiff resting its § 1983 claim on a "state-created danger" theory
of liability must demonstrate the following: (i) the plaintiff was a member of
a limited and specifically defined group; (ii) the defendant's conduct put the
plaintiff (and other members of the group) at substantial risk of immediate and
proximate harm; (iii) the risk was known or obvious; and (iv) the defendant
acted recklessly in conscious disregard
of that risk. Kallstrom, 136 F.3d at
1066.
Here,
applying the "state-created danger" theory to this case, the
Plaintiff's complaint alleges facts which demonstrate that Ms. Taylor, as a
food service steward at TCF, was a member of a limited and specifically
definable group. The complaint also alleges facts that the Defendant's conduct
(in promulgating, adopting or otherwise acquiescing to the offending TCF
policies, practices and procedures contained in Plaintiff's complaint) put Ms.
Taylor and the other members of that
[*51] group at substantial risk
of serious, immediate and proximate harm. Furthermore, the Plaintiff's
complaint alleges facts which demonstrate that the risks were known or obvious.
Finally, the complaint contains factual allegations supporting a reasonable
inference that the Defendant acted recklessly in conscious disregard of these risks.
b. Dismissal On Grounds of
Qualified Immunity
We review the district court's denial of qualified immunity de
novo. Risbridger v. Connelly, 275 F.3d 565, 568 (6th Cir. 2002). Qualified
immunity is an affirmative defense that shields government officials performing
discretionary functions from liability for civil damages insofar as their
conduct does "not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The
defendant bears the burden of pleading the defense, but the plaintiff bears the
burden of showing that the defendant's conduct violated a right so clearly
established that a reasonable official in his position would have clearly
understood that he or she was under an
affirmative duty to refrain from such conduct.
Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir.1992). The
ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity. Wegener
v. Covington, 933 F.2d 390, 392 (6th Cir.1991). Here, the Plaintiff has failed
to carry this burden.
We hold
that the district court erred in concluding that the Defendant was not entitled
to qualified immunity. In denying the Defendant's motion for qualified immunity
the district court stated as follows:
In the absence of exigent circumstances, it is well settled that
an executive official cannot act with deliberate indifference in the creation
of policies and practices. Hence in the employment context, the defendant could
neither punish Ms. Taylor by exposing her to an existing risk nor affirmatively
create a new danger that made her more vulnerable to a harm. In this
jurisdiction, the Constitution prevents an executive official from materially
increasing the danger to which he renders other identifiable persons
vulnerable.
The Court concludes that the rights which were allegedly
violated by Trippett have been clearly established. Moreover, a reasonable
responsible person, such as the warden in the case at bar, should have been
aware of these basic standards. The precedential opinions in this area of law
have frequently been discussed or have arisen in the context of prison
management. See, e.g., County of
Sacramento v. Lewis, 523 U.S. 833, 851-54, 140 L. Ed. 2d 1043, 118 S. Ct. 1708
(1998) (discussing varying standards controlling creation of prison policy and
suppression of prison riots.)
See J.A. at 112-13.
We conclude that the district court described the right that the
Defendant allegedly violated too broadly. As the Supreme Court explained in Anderson
v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), the
"clearly established" standard becomes meaningless if the relevant
"legal rule" is defined in abstract or general terms. Sheets v. Mullins, 287 F.3d 581, 589 (6th
Cir. 2002). Instead, the relevant "legal rule" must be articulated in
a particularized sense, such that the contours of the rule are sufficiently
clear to put a reasonable official on notice that what he is doing is probably
unlawful. Sheets, 287 F.3d at 589
(citing Gable v. Lewis, 201 F.3d 769, 771 (6th Cir. 2000) (recognizing that the
constitutional right asserted must be clearly established [*52]
in a particularized sense); Azeez
v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986) (explaining that "the
words 'clearly established ... constitutional rights' may not be used to read
the defense of immunity out of federal tort law by the facile expedient of
stating constitutional rights in the most general possible terms")).
Contrary to the district court's conclusion, we do not believe that the relevant "legal rule," here, the "state-created danger," was articulated in a particularized sense at the time of the Defendant's challenged conduct in May 1998. To be sure, in 1989 in DeShaney, the Supreme Court suggested, but did not hold, that state actors may be liable if they help create the danger that causes an individual's injury by a private party or if they render an individual more vulnerable to injury by a private party. The DeShaney Court did not specify how a state might create the danger causing an individual's injury, what actions of a state would render an individual more vulnerable to danger, or by how much the state must increase an individual's risk of injury from a third party before that individual's substantive due process rights are violated. Although it could be said that the state actors in DeShaney increased the risk that Joshua would be harmed by his abusive father, the Court, in fact, found no substantive due process violation under the particularized circumstances before it. Those circumstances involved state actors, faced with strong evidence of abuse, removing Joshua from the custody of his father, then returning Joshua to his father, then -- despite continued evidence of abuse -- failing to again remove Joshua from the father whose abuse ultimately killed him.
In this Circuit, until recently, the "state-created
danger" theory, the relevant "legal rule" at issue, was not
clearly established. Prior to 1998, although we had never held a state or state
actor liable under the Fourteenth Amendment for private acts of violence, we
nevertheless had recognized the possibility of doing so under the
"state-created danger" theory. See Jones v. City of Carlisle, 3 F.3d 945, 949-50 (6th Cir. 1993);
Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994); Sargi v. Kent
City Bd. of Educ., 70 F.3d 907, 912-13 (6th Cir. 1995). In Jones, we concluded
that the liability for private acts would lie only where the victim of such
acts faced a special danger apart from the rest of society. 3 F.3d at 949. In Gazette, we indicated that
courts are required by DeShaney to ask whether a state actor has rendered an
individual more vulnerable to the danger he or she was already in. 41 F.3d 1061
at 1065. Like the Supreme Court in DeShaney, however, we rejected the
plaintiff's substantive due process claim given the particularized
circumstances before it--that is, where police officers not only failed to
investigate reports of an abduction but also lied about their actions. Finally,
in Sargi, we rejected the plaintiff's argument for liability premised on the
"state-created danger" theory, because we determined that the
plaintiff in that case failed to provide evidence that the defendant took any
affirmative action that exposed the decedent to any danger to which she was not
already exposed. 70 F.3d 907 at 913. Thus, in Sargi, we concluded that
decedent's medical condition, not the defendants or its employees, created the
decedent's peril; the defendants neither increased decedent's risk of harm nor
rendered her more vulnerable to the
injury she suffered. Id. Needless to say, in none of these cases did we specify
what state action would have been necessary, hypothetically, to support the
imposition of liability for a substantive due process violation in the
non-custodial setting. [*53]
In Kallstrom, decided in February of 1998, we noted that no
court within the Sixth Circuit had yet held the state or a state actor liable
for private acts of violence under the "state-created danger"
theory. 136 F.3d at 1066. Indeed,
before Kallstrom was decided and probably during the period we presume that the
defendant's conduct would have taken place, there was only one reported
decision from a court within this circuit that had even allowed a
private-act-of-violence case to survive a motion for summary judgment. See Smith v. City of Elyria, 857 F. Supp.
1203 (N.D. Ohio 1994). In Smith, the district court denied the city the
defendant's motion for summary judgment because there was evidence that the
victim's abusive ex-husband may have used the apparent authority given to him
by police officers--who told him to remain in his ex-wife's home against her
will--to facilitate the killing of his victim. Although we know the case
survived a motion for summary judgment, we do not have the benefit of a
reported decision to let us know how the case was ultimately resolved.
While each
of these cases generally suggests that a state actor might be liable if he or
she renders a victim more vulnerable to danger, not one of them convinces us
that, in the period after DeShaney and before Ms. Taylor's death, the Defendant should have known that, by
acting as he did, he would violate Ms. Taylor's substantive due process rights.
Absent law that would have put the Defendant on notice that his particular
conduct offended the Constitution, we find that he is entitled to qualified
immunity.
III. CONCLUSION
For
the foregoing reasons, we AFFIRM the district court's order denying the
Defendants' motion to dismiss for failure to state a claim and REVERSE the
district court's order denying the Defendant's motion to dismiss on grounds of
qualified immunity.
FOOTNOTES:
n1 In Michigan, criminal offense levels are
classified by prison authorities on the scale of one (I) through six (VI) with
Level I covering the least egregious offenses and representing the lowest
security risk and Level VI for the most egregious offenses and posing the
highest security risk.
n2 In this regard, the complaint simply
states that the Defendant "failed to heed the fears and advice of Doris
Taylor that [Barnes] should not be allowed near her." See J.A. at 5,
Complaint at P 19(g). It does not identify whom Ms. Taylor told of her concerns
about the prisoner.
n3 State action here is premised on the
Defendant"s actions, in his individual capacity as warden of TCF, a
Michigan state correctional facility, in promulgating, adopting or otherwise
acquiescing to the offending TCF policies, practices and procedures contained
in the Plaintiff's complaint.
n4
We only address the merits of the Plaintiff's claim of substantive due process
violation. Issues which were raised in the district court, yet not raised on
appeal, are considered abandoned and not reviewable on appeal. See, e.g, Enertech Elec., Inc. v. Mahoning County
Comm'rs, 85 F.3d 257, 259 (6th Cir. 1996). On appeal, the Plaintiff's notes in
his brief that the complaint includes a statement that the Defendant violated
Ms. Taylor's substantive and procedural due process rights. We note, however, that
the merits of this appeal, as briefed by the parties, only addresses a
substantive due process claim. Furthermore, the Plaintiff makes no attempt to
explain or defend a procedural due process claim here on appeal.
n5 Pursuant to the policy, the city freely
released undercover police officers' addresses, phone numbers, drivers'
licenses, the officers' families' names, addresses, and phone numbers to
defense counsel for persons that these undercover officers were investigating.