The DeShaney and Collins Obstacles for Injured Public Employees Seeking Section 1983 Damages
A public employee who has been injured and thereby deprived of his or her constitutional rights by the employer’s failure to prevent the injury has two major section 1983 affirmative duty hurdles to overcome.
One is the familiar hurdle presented by DeShaney v. County of Winnebago, 489 U.S. 189 (1989), which held that due process does not impose an affirmative duty on state and local governments to protect individuals from private harm. I have blogged about DeShaney and its application in the circuits numerous times. I also analyze it in sections 3:59-61 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016).
But even if the DeShaney hurdle can be overcome by showing a special relationship or danger-creation by government, there is the addition hurdle presented by Collins v. City of Harker Heights, 503 U.S. 115 (1992), which held that section 1983 provides no due process remedy “for a municipal employee who is fatally injured in the course of his employment because the city customarily failed to train or warn its employees about known hazards in the workplace.” Put another way, there is no affirmative due process duty to provide a safe workplace for a public employee. See section 3:58 of my treatise for analysis of Collins.
These two significant hurdles demonstrate why overcoming them both in the same case is highly unusual.
Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016)
In Pauluk v. Savage, a potentially significant case, the Ninth Circuit held that the injured public employee surmounted both hurdles, even though he ultimately lost on qualified immunity grounds. See chapter 8 of my treatise on qualified immunity.
Decedent’s legal representative sued a county health district and two employees, alleging that their deliberately indifferent exposure of decedent to a workplace environment known to be infested with toxic mold caused his death, thereby violating substantive due process. The Ninth Circuit noted that this case was at the intersection of the state-created danger doctrine on the one hand and Collins v. City of Harker Heights on the other.
Ultimately reversing the district court’s denial of summary judgment to the defendant employees, the court first found that a substantive due process claim was stated under the state-created danger doctrine even though the case involved a physical condition in the workplace. Under the state-created danger doctrine the plaintiff properly alleged and introduced evidence of a violation of substantive due process in that the defendants knowingly created, and continued to create, the danger to the decedent. But it still ruled that the substantive due process right asserted was not clearly established between 2003 and 2005, when the decedent worked despite his protests, with the result that the defendant employees were protected by qualified immunity.
In addition, and more to the present point, the Ninth Circuit went on to rule that the state-created danger doctrine was not foreclosed in this case by Collins. The court observed that Collins did not involve a claim under the state-created danger doctrine, as here, but rather the claim of a general due process right to a safe workplace. This distinction was significant and cut in favor of the decedent. However, there was no violation of clearly settled law because, unlike existing circuit precedent, this case involved harm by a physical condition where decedent worked. Thus, the defendant employees were entitled to qualified immunity on this ground as well.
Judge Murguia concurred in part and dissented in part, arguing that the plaintiff did not present a substantive due process claim of affirmative acts with deliberate indifference. 836 F.3d 1117 at 126. Judge Noonan dissented, contending that the defendant employees in fact violated clearly settled substantive due process law in the Ninth Circuit. 836 F.3d 1117 at 1132.
1. The Ninth Circuit’s qualified immunity decision applies only to the defendant employees sued in their individual capacities for damages. But there still remains a possible section 1983 remedy against the county health district that was also sued by the decedent’s legal representative but was not technically a party to the defendant employees’ interlocutory appeal.
2. Even though the Ninth Circuit resolved the case in favor of the defendant employees on qualified immunity grounds, Pauluk still established clearly settled due process law going forward.
3. The result on the due process merits in Pauluk is the consequence of good lawyering and a careful reading of Collins. Plaintiff’s attorneys persuaded the Ninth Circuit that once the danger-creation doctrine was available, Collins did not apply where a very specific affirmative act regarding the workplace allegedly violated due process.
4. DeShaney and Collins kinds of cases often present tragic circumstances. Still, plaintiffs in such cases typically lose. Pauluk stands out.
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I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm (of course, it’s more complicated than that). The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13; the fifth was on August 27, 2014, and the most recent was on April 10, 2015.
Here is a particularly disturbing DeShaney-related decision from the Fourth Circuit. I came across it when preparing the now-published 2016 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Doe 2 v. Rosa, 759 F.3d 429 (4th Cir. 2015)
In Doe 2, two brothers sued the president of a public military college under section 1983 and substantive due process, alleging that he failed to protect them from being sexually molested by a camp counselor, a former cadet, while at summer camp on campus.
Affirming the district court’s grant of summary judgment to the president, the Fourth Circuit found no liability under the state-created danger approach. Relying on its decision in Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), the Fourth Circuit determined that the president did not create or substantially enhance the danger that the boys faced.
The Fourth Circuit observed that the counselor began abusing the boys in 2005 and 2006, two years before the president could have been aware (through a complaint) that the counselor was a pedophile. Thus the president could not have created a danger that already existed.
Nor did he increase the risk to the boys: there was nothing that the counselor did to the boys during the early summer in 2007 that was not ongoing for two years, and this was all unrelated to any action by the president.
DeShaney had established that continued exposure to an existing danger by failure to intervene was not the equivalent of creating or increasing that danger.
Moreover, even if the boys did face a new or increased risk of abuse, this was not the result of any affirmative acts of the president: his inaction was solely his failure to alert the authorities about the counselor’s past conduct.
In these kinds of cases plaintiffs have the heavy initial burden of showing the existence of an affirmative due process duty to act in some manner. In order to get around the DeShaney no affirmative duty rule, plaintiffs typically attempt to use one or both of two exceptions: (1) special relationship and (2) danger creation. In Doe 2, there was no special relationship because the president did not himself place the brothers in a situation where they could not protect themselves. The circuits have typically held that even public school officials have no affirmative duty under a special relationship theory to protect their students from sexual abuse by teachers or other students.
That left the plaintiffs with the danger creation theory based on the allegation that he failed to alert the authorities about the counselor’s past conduct. But even that did not work for them because, according to the Fourth Circuit, the president did not play an affirmative causal role in creating or increasing the danger of sexual abuse to them. In other words, he did nothing that changed the situation in which they found themselves. This was determinative of the no-duty outcome in Doe 2, even though the president’s failure to notify authorities was plausibly related as a causal matter to the brothers’ continuing victimization.
Doe 2 is yet another example of the effectiveness of the DeShaney no-duty rule as a gatekeeper in keeping such section 1983 cases out of the federal (and state) courts. All that the plaintiffs alleged was the president’s failure to alert authorities about the counselor’s past conduct; they were not seeking any other form of affirmative protection from him. And still DeShaney applied.
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I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm. The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13 and the most recent was on August 28, 2014.
Here are four 2014 DeShaney-related decisions from the Fifth and Eighth Circuits and the Supreme Court of New Jersey. I came across these cases when preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Fifth Circuit: Lance v. Lewisville Independent School District
Where a fourth grade special needs student who had been bullied locked himself inside the school nurse’s bathroom and then took his own life, his parents and his estate sued the school district under § 1983 and substantive due process. The Fifth Circuit affirmed the district court’s grant of summary judgment to the school district. The Fifth Circuit rejected the application of the special relationship theory, the state danger-creation theory and the caused-to-be-subjected theory. No special relationship between the decedent and the school district existed in the case pursuant to the en banc decision of the Fifth Circuit in Doe ex rel Magee, 675 F.3d 849 (5th Cir. 2012)(en banc). Also, there was no genuine issue of material fact in dispute regarding the state-created danger theory even if that theory were to be applied: the school district did not affirmatively place the decedent in danger, there was no evidence that the school district knew that decedent’s suicide was imminent and the plaintiffs did not show that the school district created a dangerous environment for the decedent. Finally, the caused-to-be subject theory has not been adopted by the Fifth Circuit. Lance v. Lewisville Independent School District, 2014 WL 805452 (5th Cir. 2014).
Eighth Circuit: Montgomery v. City of Ames and Gladden v. Richbourg
The plaintiff sued a city, police officers and others alleging a substantive due process violation arising out of the shooting of the plaintiff by a third person who broke into her house and shot her three times. She alleged that the defendants created the danger that the assailant would attack her through their deliberate indifference. Montgomery v. City of Ames, 2014 WL 1387033 (8th Cir. 2014). Ruling for the defendants on this issue, the Eighth Circuit noted that the assailant was subject to a protective order, stemming from his conviction for domestic-abuse assault, which prohibited him from being near the plaintiff and from contacting her. However, it determined that the police officer who spoke with the assailant about the plaintiff’s allegations, but did not arrest him despite plaintiff’s warnings, did not act with the requisite deliberate indifference to her safety. There were conflicting accounts about whether the assailant had in fact violated the protective order, and this meant a reasonable jury could not conclude that the officer acted recklessly or in a conscience shocking manner just because he did not arrest the assailant before an investigation the next day.
In Gladden v. Richbourg, 2014 WL 3608521 (8th Cir. 2014), the decedent died of hypothermia after police officers, who had determined that he was mildly intoxicated, took him from a restaurant in a city to an isolated off-ramp outside the city at the county line even though he had asked the officers to take him to his sister’s house in the next county. The decedent’s due process rights were not violated, according to the Eighth Circuit. There was no special relationship because the harm suffered did not occur in police custody. Also, the officers did not act with the requisite reckless/conscience shocking state of mind under the danger creation theory because, even though it was bitterly cold, decedent was only mildly intoxicated, appeared functional to the officers throughout, and thus appeared able to make his way to a guard shack a short distance from where he was dropped off.
Supreme Court of New Jersey: Gormley v. Wood-El
In Gormley v. Wood-El, 2014 WL 2921824 (S. Ct. N.J. 2014), the plaintiff attorney, assigned to represent an involuntarily committed patient at a psychiatric hospital, was brutally attacked by her client in the hospital’s unsupervised day room, “a place where psychotic patients milled about and where violence frequently erupted.” The Supreme Court of New Jersey, ruling for the attorney in her § 1983 claim against hospital officials and others, held that the plaintiff had a substantive due process right to be free from state created dangers and that this right was clearly established in September 2005, when the attorney was attacked and seriously injured. The plaintiff was a member of a discrete class of victims subject to foreseeable harm in the volatile day room created by the defendants. Also, the defendants exercised total control over the plaintiff and the day room meeting and they knew of the special dangers that the client might pose to the unsuspecting plaintiff. Further, there was sufficient evidence of deliberate indifference constituting conscience shocking conduct. Among other things, expert testimony indicated that the level of violence in this psychiatric hospital was unique. Justice LeVecchia, joined by Justice Patterson, dissented, 2014 WL 2921824, *20, arguing that the plaintiff did not make out a substantive due process claim and that the defendants in any event did not violate clearly established law.
As I and others have frequently noted, DeShaney issues typically arise in tragic circumstances, and these cases are no exception. Plaintiffs attempt to end-run the DeShaney no affirmative duty rule by using either the special relationship theory or the danger-creation theory or both.
However, it remains difficult for plaintiffs to prevail even on these theories, as the Fifth and Eighth Circuit cases demonstrate. Only in Gormley did the danger-creation theory work in combination with the special relationship theory by virtue of the total control exercised by the hospital officials over the plaintiff attorney, as found by the Supreme Court of New Jersey.
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I have blogged previously about how the DeShaney decision has fared in the circuits. The first time was on 8-22-11; the second time was on 6-1-12; the third time was on 5-20-13; and the most recent was on 6-6-13.
Here are two DeShaney-related decisions from the Third and Tenth Circuits, and some comments. I came across these cases when preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Third Circuit: Henry v. City of Erie
The decedents’ estates sued a city’s housing authority and others alleging that they created the danger that led to decedents’ deaths by fire in Section 8 housing through their approval and subsidization of an apartment even though the apartment did not comply with Section 8’s housing standards because it lacked a smoke detector and a fire escape ladder. Henry v. City of Erie, 728 F.3d 275 (3rd Cir. 2013).
Ruling against the estates, the Third Circuit reasoned that they did not plausibly allege that the defendants’ acts were close enough in time and succession to the ultimate harm: there was a lengthy period of time as well as “intervening forces and actions.” Also, the estates did not allege that the defendants caused the fire or increased decedents’ susceptibility to it. Moreover, the defendants were not responsible for installing a smoke detector or fire escape. “[T]here were too many links in the causal chain after defendants acted and before tragedy struck.” The Third Circuit concluded with the observation that it was declining to expand the state-created danger exception.
Comment: Even though the Third Circuit acknowledged the state-created danger exception to DeShaney, it nevertheless ruled on what seem to be proximate cause grounds (with a hint of causation in fact) that the estates did not state section 1983 substantive due process claims. This was a way of avoiding the need to decide whether an affirmative duty existed in the first place.
Tenth Circuit: Estate of B.I.C. v. Gillen
Grandparents sued a social worker for damages under the substantive due process state danger-creation theory for her deliberate indifference to extensive evidence of abuse that allegedly led to the death of their granddaughter at the hands of the natural father’s girlfriend (later convicted of murdering the granddaughter). The granddaughter was living with the natural father and his girlfriend at the time. The Tenth Circuit found that the plaintiffs satisfied the requisite showing of affirmative conduct and private violence here.
For one thing, the plaintiffs showed that the defendant’s “inaction” was based on her animus; that is, there was a deliberate decision to ignore based on a decade-long animosity to the family. For another, there were affirmative acts such as the defendant’s refusal to return police phone calls, her refusal to accept photos showing injury, her lying about being in the father’s home, her telling the plaintiffs that allegations of abuse were not her issue but rather for law enforcement and her claiming that these allegations were unsubstantiated. Moreover, the defendant’s conduct was conscience-shocking. Finally, the defendant was not entitled to qualified immunity because she violated clearly settled law in fall 2007. Estate of B.I.C. v. Gillen, 702 F.3d 1182 (10th Cir. 2012). Judge Matheson concurred, 702 F.3d, at 1192, arguing that the court should not have addressed the question whether the defendant’s alleged intentional inaction constituted “affirmative conduct.”
Thereafter, the Tenth Circuit granted the defendant’s petition for rehearing in part, denied en banc review, ordered the original opinion to be withdrawn and substituted an amended version that affirmed in part, reversed in part and remanded. Estate of B.I.C. v. Gillen, 710 F.3d 1168 (10th Cir. 2013). In this amended opinion, the Tenth Circuit dealt only with the requirement of conscience shocking conduct and found it here, but remanded to the district court to determine whether other elements on a danger-creation claim, including affirmative conduct, were present.
Comment: The Tenth Circuit was obviously uncomfortable with the broad scope of its prior decision on the state-created danger issue. On rehearing, it therefore addressed only the easier state of mind issue, namely conscience shocking, and had little difficulty finding it here, particularly in light of the defendant’s previously displayed animus. However, in remanding, it wanted to get additional evidence on the affirmative conduct requirement for the state-created danger exception to DeShaney so as to be sure the claim involved more than failure to act.
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My last post was on DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), and the Fifth Circuit‘s restrained approach to affirmative duties.
So I thought it might also be useful to mention the Seventh Circuit‘s recent attempt at reformulating some of the doctrinal aspects of affirmative duties.
The Seventh Circuit’s Slade opinion
Slade v. Bd. of School Directors of City of Milwaukee, 2012 WL 6701869, *1 (7th Cir. 2012), involved the drowning of a public school student at a class outing. His parents and estate then brought a § 1983 substantive due process claim against various defendants.
The Seventh Circuit, in an opinion by Judge Posner, affirmed the district court’s grant of summary judgment for the defendants because there was at most gross negligence, which was insufficient as a matter of substantive due process.
In the course of his discussion, however, Judge Posner restated the applicable substantive due process test as follows: “A state does not deprive a person of his life in violation of the Fourteenth Amendment merely by failing to prevent his dying, but does violate the amendment if the death was caused by the reckless act of an employee of the state acting within the scope of his or her employment.” Read the rest of this entry »
Affirmative Duty Issues After DeShaney v. Winnebago County, 489 U.S. 189 (1989)
DeShaney issues continue to arise in the circuits in all-too-often tragic circumstances. I came across the following Fifth Circuit en banc decision as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012), published by West.
Doe ex rel Magee v. Covington County School Dist.
A panel of the Fifth Circuit addressed this question: “Are there circumstances under which a compulsory-attendance, elementary public school has a ‘special relationship’ with its nine-year-old students such that it has a constitutional ‘duty to protect’ their personal security?” The panel answered in the affirmative as a matter of first impression in the circuit. Doe ex rel Magee v. Covington County School Dist., 649 F.3d 335, 338 (5th Cir. 2011) , reh’g en banc granted and rev’d, 675 F.3d 849 (5th Cir. 2012)(en banc).
The plaintiffs, the father and grandmother of a nine-year-old girl, on whose behalf they acted, sued a county school district, board of education, school officials and others in connection with the repeated release of the girl into the custody of an unauthorized adult for the purpose of facilitating his taking her off school premises, where he raped her. The defendants thereby allegedly acted with deliberate indifference to her safety. The Fifth Circuit panel determined that there was a special relationship in this case between the school and the child because it repeatedly handed her over to the unauthorized adult during school hours, surrendering to him the school’s statutory full and exclusive custody over her. The school isolated her from her teachers and classmates without any school supervision and against her will and that of her grandmother (her legal guardian). It thus failed in its duty “to protect her from such a quintessential and widely known threat to young children as pedophilia.” Accordingly, the plaintiffs’ complaint survived the defense motion to dismiss under Rule 12(b)(6).
However, because this was a case of first impression in the circuit, the individual defendants sued in their individual capacities were protected by qualified immunity: the law was not clearly established when these events occurred in 2007. Indeed, some Fifth Circuit decisions at the time may have suggested that schools could never be in a special relationship with their students.
Judge King dissented, arguing that the panel got the special relationship issue wrong: “Our en banc court, and every other circuit to consider the issue, has unequivocally concluded that public school students do not have such a [protected liberty interest in remaining safe at school] under the Constitution. … The majority’s decision is an unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm….” Read the rest of this entry »
I blogged on August 22, 2011, about the Supreme Court’s controversial no-affirmative due process duty decision in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). I also set out several then-current circuit court decisions dealing with DeShaney issues. Please see that post for background.
I came across the following more recent decisions from the First, Fifth, Seventh and Eighth Circuits in the course of preparing the 2012 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(forthcoming in September).
Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011)
The decedent’s mother, representing the estate, sued police officer and others, alleging that they failed to provide medical services to her 21 year-old son who threatened suicide while in police custody following a one-car accident, and who in fact committed suicide about fourteen hours after his release by stepping in front of a train. During the time he was in custody he attempted to engage in self-destructive behavior and was deemed a high suicide risk. Nevertheless, he was not examined by a doctor but was released on his own recognizance. Reversing the district court and dismissing the complaint, the First Circuit stated: “We … hold that in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available.”
Comment: Note the proximate cause/remoteness problem for the plaintiff here in addition to the danger creation issue. Read the rest of this entry »
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Introduction: The DeShaney case
In DeShaney v. Winnebago County, 489 U.S. 189 (1989), a tragic case involving an attempt under section 1983 and substantive due process to hold social service officials personally liable in damages for their failure to prevent a father from physically abusing his infant son, the Supreme Court ruled that the Due Process Clause does not impose affirmative duties on governments and their officials to prevent private harm. Put another way, the Constitution is a “charter of negative liberties.” This decision gave rise to dissenting Justice Blackmun‘s famous lament about “Poor Joshua.”
However, the Court in DeShaney did go on to suggest that there were two ways in which this no-duty rule could be end-run. The first was where the government or its officials had a special relationship with the injured person, such that the injured person was disabled by government from protecting himself or herself. The second was where the government or its officials created the danger to the injured person.
These exceptions, though, are quite difficult for plaintiffs to satisfy, as the following three circuit court decisions illustrate. In addition, qualified immunity often protects a individual defendant from damages liability regardless of the possible existence of an affirmative duty.
Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010)
Police officers handcuffed a very intoxicated man at 1:33 a.m. after being called by employees of a bar, placed him in a squad car, told friends and relatives of the man that they would take him to his hotel but, instead, at 2:08 a.m., released him at his insistence at a gas station parking lot five or six miles from the hotel. About a half hour later the man was struck by a hit-and-run driver while walking to the hotel and subsequently died. Thereafter, the plaintiffs, on behalf of the decedent, filed a § 1983 substantive due process damages action against the officers. Reversing the district court’s denial to the defendants of summary judgment based on qualified immunity, the Fifth Circuit avoided deciding whether the decedent and the defendants had a special relationship, or had created the decedent’s danger, such that the defendants may have violated the decedent’s substantive due process rights. Instead, it held that in August 2007 the claimed right was not clearly established and that the defendants were therefore protected by qualified immunity. There was no case law on point at the time indicating that a special relationship could be created when a person was released from police custody. In addition, the Fifth Circuit, unlike other circuits, had not adopted the state-created danger theory in DeShaney cases. Read the rest of this entry »
This is Part II of the All My Posts Series to 10-12-15. Part I, also posted today, deals with Section 1983.
Please search within the post for any cases, topics and the like that you are interested in.
PART II: CONSTITUTIONAL LAW
TO MY READERS
It has been a while since I reorganized all of my posts (including videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 150 posts.
I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility. Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.
I encourage you to search within each post for case names, topics and the like, that you are interested in.
I thank all of you for your ongoing support of this blog. I also invite you to follow me on Twitter @NahmodLaw.
Sheldon Nahmod (email@example.com).
What follows is the first of four posts (three are rather long) comprising all of my posts (with links) divided into the following four parts and four corresponding posts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION
PART I: SECTION 1983