179 F.Supp.2d 724

United States District Court,
E.D. Michigan,
Southern Division.

Eric WALLER, as Personal Representative of the Estate of Doris Taylor, Deceased, Plaintiff,

v.

David TRIPETT, Individually, Defendant.

No. 01-71225.

Sept. 28, 2001.

Reconsideration Denied Nov. 28, 2001.
*726 Kelly A. Pruse, Norbert B. Leonard, Leonard Kruse, Bloomfield Hills, MI, P.C., for Plaintiff.
*727 Mark Matus, C. Adam Purnell, Lansing, MI, for Defendant.
ORDER

JULIAN ABELE COOK, Jr., District Judge.

In the case at bar, the Plaintiff, Eric Waller, acting in his capacity as the personal representative of the Estate of Doris Taylor, has charged the Defendant, David Tripett with promoting employment policies which caused his mother's death.
On April 5, 2001, Tripett filed a motion to dismiss the case, arguing that (1) the law does not support any cause of action against him, and (2) he is shielded from liability on the basis of the doctrine of qualified immunity. The two primary issues that are raised by this motion are reasonably straightforward. First, did Tripett violate the substantive component of the Due Process Clause of the Fourteenth Amendment? Second, if there was a constitutional violation, is he entitled to immunity for his actions? For the reasons that are set forth below, the Court will grant in part, and deny in part Tripett's motion.
I

At the time of her death, Taylor was working as a food service steward at the Thumb Correctional Facility in Michigan (TCF), where she had been employed for more than ten years.FN1 During all of the times that are relevant to this controversy, TCF was under the direction of Tripett, who served as its warden and as Taylor's ultimate supervisor.
FN1. The facility houses felons who have committed milder offenses and are between the ages of seventeen (17) and twenty-one (21). Offense levels are classified on a scale of one to six, with Level I covering the least egregious offenses. Although the correctional center generally houses inmates who have committed Level II offenses, it contained persons whose crimes warranted a Level III or IV classification at the time of Taylor's death.
On May 17, 1998, Gerald 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.
According to the Complaint, Taylor advised an unnamed party that she did not want Barnes to come near her because of his alleged history of knife related assaults. Nevertheless, Barnes was given access to knives in the kitchen while Taylor was there.FN2 Using one of these implements, he followed her out of the kitchen and into an unsecured hallway where she was stabbed. Taylor died a few hours later.
FN2. Contrary to an existing statewide policy, the kitchen knives were untethered.
Here, the Plaintiff maintains that Tripett had instituted several institutional policies and practices, all of which contributed to his mother's untimely death, in that Tripett (1) permitted felons to possess dangerous knives without providing adequate supervision and security precautions; (2) allowed inmates to handle deadly weapons without adequate background reviews; (3) failed to install sufficient emergency measures, such as a safety transceiver in the hallway where Taylor was murdered; and (4) neglected to maintain adequate medical staff and facilities.
II

In his motion, Tripett contends that Waller has failed to state a claim upon which relief can be granted. Under Federal Rule of Civil Procedure 12(b)(6), a party may present such a request to test *728 whether a cause of action has been adequately pled in the Complaint.FN3 The Court must accept Waller's allegations as true and will construe them liberally in his favor. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). At the same time, any legal conclusions or unwarranted factual inferences need not be assumed. See Morgan, 829 F.2d at 12; Westlake, 537 F.2d at 858.
FN3. The minimal pleading requirements of Federal Rule of Civil Procedure 8(a), which requires only a "short and plain statement of the claim," govern the assessment of the Complaint. Under this standard, a pleading is sufficient if it gives the Defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). By the same token, the cause must provide a " 'statement of circumstances, occurrences, and events in support of the claim presented """" [T]he complaint must disclose information with sufficient definiteness.' " Veney v. Hogan, 70 F.3d 917, 921-22 (6th Cir.1995) (citation omitted).
Importantly, the Court will not dismiss a pleading merely because it does not state all the elements which give rise to a legal basis of recovery or because the aggrieved party has misconceived the proper theory if relief can be granted under any theory. See Myers v. United States, 636 F.2d 166, 169 (6th Cir.1981). Instead, a dismissal should only be permitted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Allard v. Weitzman ( In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993).
III

The question of whether the Due Process Clause of the Fourteenth Amendment FN4 provides a right, which was allegedly infringed by Tripett in the fulfillment of his duties as a warden, appears to be an open one. The Supreme Court has never squarely addressed the rights of the public against a State in relation to those injuries that are caused by people who are within its custody.FN5 Likewise, the United States Court of Appeals for the Sixth Circuit has not had an opportunity to officially address a set of analogous circumstances.FN6
FN4. Waller has also invoked the Due Process Clause of the Fifth Amendment. However, whereas the Fourteenth Amendment applies directly to the States, the Fifth Amendment constrains federal action. See Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 250-51, 8 L.Ed. 672 (1833) (Fifth Amendment "is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states."), cited in United States v. Balsys, 524 U.S. 666, 674, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998). Hence, the Court will analyze Waller's claim under the strictures of the Fourteenth Amendment.
FN5. A milder form of the question was reserved in Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), and was left unresolved with respect to the instant issue in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196-97, and especially at 197 n. 4, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).
FN6. Only unreported opinions have expressly commented on this issue.
On the one hand, it is clear that when the State actively takes and holds a person without consent-as in the case of a prisoner or an involuntarily committed mental patient-there is "a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Thus, an inmate has *729 substantive rights under the Due Process Clause to receive certain protections of the State. On the other hand, it is equally well established that, in the absence of a State action which contributes to the claimed injury, the Fourteenth Amendment offers no substantive rights. See id.; see generally United States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (" 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' ") (quoting United States v. Williams, 341 U.S. 70, 92, 71 S.Ct. 581, 95 L.Ed. 758 (1951) (Frankfurter, J., dissenting)). If neither the aggressor nor the victim is in the State's custody, the Due Process Clause does not provide any relief to a person who suffers grave harms at the hands of another even if the danger is or should be evident to governmental officials. See DeShaney, 489 U.S. at 200, 109 S.Ct. 998. Since the State, in such circumstances, has neither aided the aggressor in the violent act nor prevented the victim from responding, it owes no constitutional duty to thwart the acts of violence.
However, the instant case falls somewhere between these two poles since the aggressor was in custody but the victim was not under similar institutional constraints.FN7 If (1) the State placed an individual in custody, (2) its officials knew or should have known that the inmate presented a particular kind of danger to other persons, and (3) the policies and practices of its officials gave the prisoner an opportunity, as well as the means, with which to continue his violent modus operandi, did the failure of the State to protect foreseeable victims constitute a deprivation of their lives or liberties without due process of law?
FN7. After DeShaney, the Supreme Court has offered no additional guidance that would be decisive. The case of Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), concerned the duties of the State in its capacity as an employer whose policies arguably result in death or injury. Here, however, the Court is not addressing responsibilities that allegedly arise out of the employment relationship. Instead, it is addressing the duties of a State that creates a danger by arming a prisoner. Thus, the principles of Collins are inapposite. County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), expressly pertains to extreme situations in which an official lacks any time for reflection. It does not govern situations, like those at issue, when an officer forms a policy after due reflection.
The Fourteenth Amendment provides, among other things, that a State shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1 cl. 3. At its core, the clause protects the public against arbitrary action by the State. See County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); 1 Lawrence H. Tribe, American Constitutional Law § 8-1, at 1335 (3d ed.2000). As such, it serves to " 'prevent the government from abusing [its] power, or employing it as an instrument of oppression,' " DeShaney, 489 U.S. at 196, 109 S.Ct. 998 (quoting Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)), quoted in Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), and it prohibits "the exercise of power without any reasonable justification in the service of a legitimate governmental objective." Lewis, 523 U.S. at 842, 118 S.Ct. 1708.

In furtherance of these aims, the clause dictates a baseline FN8 of acceptable*730 governmental conduct. FN9 Through its substantive component, it "protects individual liberty against 'certain governmental actions regardless of the fairness of the procedures used to implement them.' " FN10 Collins, 503 U.S. at 125, 112 S.Ct. 1061; see Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). With respect to executive actions, the litmus test for determining if the government abuses its power and infringes upon personal freedom is whether the contested act shocks the judicial conscience. See Lewis, 523 U.S. at 846-47, 861 n. 2, 118 S.Ct. 1708 (Scalia, J., concurring in the judgment) (the "shocks-the-conscience" test has been applied not only in connection with executive acts, but also with respect to at least one legislative action); FN11 Collins, 503 U.S. at 128, 112 S.Ct. 1061; Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
FN8. The line is not necessarily drawn so as to parallel the tort-related concept of reasonable care. See, e.g., Lewis, 523 U.S. at 848-49, 118 S.Ct. 1708 (explaining distinctions between State tort law and constitutional due process); Collins, 503 U.S. at 128, 112 S.Ct. 1061 (discussing settled principle that substantive due process is not equivalent of traditional tort law).
FN9. The general mores, which are embodied by the amendment, can be supplanted by specific constitutional provisions. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001) (discussing Graham v. Connor, 490 U.S. 386, 388, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); Lewis, 523 U.S. at 842, 118 S.Ct. 1708 (discussing Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion)); Graham, 490 U.S. 386, 109 S.Ct. 1865. Nevertheless, where more particular language is absent, it is well settled that the clause "guarantees more than fair process." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).
FN10. The doctrine of substantive due process has varied origins and applications, seeJohn E. Nowak & Ronald D. Rotunda, Constitutional Law ch. 11 (5th ed.1995), and attempts to articulate a unified theory are, at best, difficult. See Moore v. City of E. Cleveland, 431 U.S. 494, 502, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ("Substantive due process has at times been a treacherous field for th[e Supreme] Court.").
FN11. Insofar as the test applies to legislative action, the judicial conscience is shocked when the government attempts to regulate matters that are so personal as to warrant complete protection from encroachment. In this way, substantive due process protects freedoms " 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (Cardozo, J.), overruled on other grounds, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). Such interests are "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937) (Cardozo, J.), overruled on other grounds, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

To be recognized as an infringement upon a fundamental right, an act must, by an articulable analogy, be so tightly related to conduct that has long been deemed to be the object of clear repugnance. For example, the Supreme Court has held that such domains of personal liberty include the "freedom to enter into and carry on certain intimate or private relationships," Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987), cited in Boy Scouts of Amer. v. Dale, 530 U.S. 640, 698, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (Stevens, J., dissenting), the liberty "of parents in the care, custody, and control of their children," Troxel, 530 U.S. at 65, 120 S.Ct. 2054, the right to be free from the imposition of grossly excessive punishments upon tortfeasors, Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 1684, 149 L.Ed.2d 674 (2001), and the "rights to marry, to have children, """ to marital privacy, to use contraception, to bodily integrity, and to abortion." Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (numerous citations omitted).
Despite the potential breadth of these words, the Court uses caution in interpreting them in order to shun a slide *731 into utter subjectivity. The Due Process Clause, which ostensibly guards against arbitrariness, must not itself become arbitrary in its application. Years of precedent have provided some guidelines as to how to conduct the inquiry. See Lewis, 523 U.S. at 858, 118 S.Ct. 1708 (Rehnquist, J., concurring). When emergency circumstances are presented, an official's action will not shock the judicial conscience unless it evinces malice or an intent to inflict harm. See Lewis, 523 U.S. at 853-54, 118 S.Ct. 1708 (discussing Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). By contrast, if an official has the opportunity to deliberate over a matter, the judiciary will not be shocked unless an official acts in a way that exhibits deliberate indifference to others' rights. Id. at 851-53, 118 S.Ct. 1708 (discussing well settled standards controlling the creation of prison policy); but see id. at 855-56, 118 S.Ct. 1708 (Rehnquist, J., concurring) (describing "shocks the conscience" and "deliberate indifference" as two separate tests). The term "deliberate indifference" refers to "something more than mere negligence, [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (construing Eighth Amendment). When a person who is not a prisoner alleges that a constitutional tort has occurred, a policymaking official is deemed to be deliberately indifferent when he disregards an obvious risk of a harm that is likely to result in the violation of constitutional rights. Id. at 840-42, 114 S.Ct. 1970 (discussing City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)); compare id. at 837, 114 S.Ct. 1970 (in order to show deliberate indifference to prisoner's rights under Eighth Amendment "the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference"); Estate of George v. State of Mich., 136 F.Supp.2d 695, 701 (E.D.Mich.2001) (applying Eighth Amendment test to claim of injured pretrial detainee).