Opinion
1:02-cv-1622-JDT-WTL.
July 14, 2003.
ENTRY ON DEFENDANTS' MOTION TO DISMISS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This case is another reminder of the dangers to which the dedicated men and women who work in the nation's correctional facilities are regularly exposed. The Plaintiff, Lori Robertson, was employed as a corrections officer at the Shelby County jail, where she was held hostage and raped by one of the inmates. She brings suit under 42 U.S.C. § 1983 against Sheriff Thomas Debaun in his individual and official capacities as the person responsible for jail safety. The Defendants move the court to dismiss for failure to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6). Having considered the arguments of the parties, the court now rules as explained below.
I. The Complaint
The allegations are as follows. On Sunday, October 22, 2000, the Plaintiff was the sole corrections officer assigned to the processing area of the Shelby County jail, where she was responsible for the supervision of sixteen inmates. At around 5 p.m., Troy Terry, an inmate being held in a padded cell in the processing area, called the Master Control Room saying that he needed to go to the bathroom, and Master Control conveyed this message to the Plaintiff. The Plaintiff entered the cell and unlocked the bathroom door to allow Terry access. When Terry was finished in the bathroom, the Plaintiff reentered the cell, at which point Terry wrestled her to the ground, pulled her back into the bathroom, and locked the door so that it could not be opened from the outside. Terry held the Plaintiff hostage in the bathroom for over two hours, during which time he raped her.
The Plaintiff alleges, and the court accepts as true for the purposes of this motion, that the Defendants were negligent in a number of respects in ensuring her safety: her radio was not equipped with an "officer down" button because the Sheriff had removed these buttons due to excessive use; the padded cell did not contain video cameras which would have permitted Master Control to see that the Plaintiff had been attacked; the door to the bathroom of the padded cell was the sole remaining jail door with a double-sided lock, allowing it to be jammed from the inside (all other such locks had been replaced because they were considered security hazards for this reason); the Defendants failed to train jail employees in hostage situation response despite the previous occurrence of a similar hostage situation. The question posed by the Defendants' motion is whether any of these acts or omissions gives rise to constitutional liability on the part of the Defendants.
II. Motion to Dismiss Standard
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a complaint. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). Dismissal is appropriate only if it appears to a certainty that the movant could establish no set of facts consistent with the allegations which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In its review of the complaint, the court must treat all well-pleaded factual allegations as true, and draw all reasonable inferences from those facts in favor of the non-movant. Szumny v. American Gen. Fin., 246 F.3d 1065, 1067 (7th Cir. 2001); Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002).
III. Discussion
The Defendants claim and the Plaintiff does not deny that the Due Process Clause of the Fourteenth Amendment in its substantive guise is the sole potential basis for relief under § 1983. In addition to regulating the minimum procedural safeguards required where state action effects a deprivation of a liberty or property interest, the Supreme Court has interpreted the Due Process Clause as "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1998). However, "the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended." Collins v. City of Harker Heights 503 U.S. 115, 125 (1992) (citation omitted). To begin with, both parties agree that, as a general matter, the state has no duty "to protect life, liberty and property of its citizens against invasion by private actors," DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989) (department of social services not liable under Due Process Clause for failing to protect four-year old child from beatings by father even though department had ample indications of abuse). The Plaintiff also acknowledges the Court's holding in Collins that a governmental employer has no constitutional obligation to provide its employees with a safe working environment. 503 U.S. at 126. As the Court stated in Collins, "[t]he [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." Id. (quoting DeShaney, 489 U.S. at 195).
The parties' dispute, instead, centers on one of the two exceptions to the general rule against government liability for failure to protect against private harms. Both exceptions developed out of the idea expressed in DeShaney that in certain circumstances a "special relationship" with the state may be formed such that the government acquires "an affirmative duty of care and protection" it would not otherwise have. Wallace v. Adkins, 115 F.3d 427, 429 (7th Cir. 1997). With respect to the first, the Court in DeShaney suggested that where the state had affirmatively acted to limit a person's ability to protect him or herself, as in the case of incarceration or institutionalization, the government would owe a correspondingly greater duty to assure a person's safety from injury by private actors. 489 U.S. at 200. The Plaintiff does not try to fit herself within the custodial or limitation of freedom exception, and wisely so, as Collins holds that voluntary acceptance of government employment does not create a custodial relationship between employer and employee. 503 U.S. at 128. See also Wallace, 115 F.3d at 430 (rejecting argument that prison employee ordered to stay at post thereby placed in custodial relationship because "unlike a prisoner, a person involuntarily committed to a mental institution, or a child placed by state authorities in a foster home, Wallace was free to walk out the door any time he wanted.") Likewise here, the Plaintiff freely accepted the job of jail corrections officer along with its attendant risks. See Walker v. Rowe, 791 F.2d 507, 510 (7th Cir. 1986) (denying that corrections officers placed in danger by the state because "the state did not draft its guards; they enlisted, on terms they found satisfactory, and they were free to quit whenever they pleased.")
Walker thus responds to dicta from the earlier case of Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) cited by danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a protect those it throws into snake pits, but the state need not guarantee that volunteer snake charmers will not be bitten." 791 F.2d at 510. The point of the image, of course, is simply that a voluntary employee is not in the same position as persons incarcerated or institutionalized against their will.
The second, related exception to the DeShaney rule is based upon language in DeShaney stating that while the social service department was conscious of the dangers to which the child was exposed, "it played no part in their creation, nor did it do anything to render him any more vulnerable to them," Dykema v. Skoumal, 261 F.3d 701, 705 (7th Cir. 2001) (quoting DeShaney, 489 U.S. at 201). Seizing upon this phrase, the Seventh Circuit has held that state liability may attach where the state "creates, or substantially contributes to the creation of a danger or renders citizens more vulnerable to a danger than they otherwise would have been." Dykema, 261 F.3d at 705 (quoting Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993) (finding liability where police officer arrested driver of a car but left car keys with intoxicated passenger, who subsequently drove off and crashed into plaintiff's vehicle)). See also Wallace, 115 F.3d at 429 (defining second exception to DeShaney as applying when "the state affirmatively places the individual in a position of danger the individual would not have otherwise faced.") (quoting Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1174 (7th Cir. 1997)). The Seventh Circuit in Wallace further subdivided the state-created danger inquiry into two parts: what actions did the state affirmatively take, and what dangers would the plaintiff otherwise have faced. Id. at 430; Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir. 1998) (applying two part inquiry).
The Plaintiff argues that this second exception applies to her because the negligent acts and omissions of the Sheriff regarding jail safety detailed in the complaint and described above affirmatively placed her in danger which she would not otherwise have faced. The Plaintiff accordingly strains to show that omissions on the part of the Defendants ( e.g., no officer-down buttons on radio) were really affirmative acts (Sheriff had those buttons removed). These efforts misapprehend the nature of the second DeShaney exception, which cannot be satisfied by a public employer's policy decisions regarding workplace safety no matter how that decision is characterized; whether as negligent act or omission. In the present case, the Sheriff took no actions directed at the Plaintiff individually; all the acts and omissions cited in the complaint had to do with the general safety conditions in the jail. Whereas in cases where courts have found the affirmative act part of the state-created danger exception applicable, executive officers committed arbitrary or reckless acts directly placing a particular individual in danger. See, e.g., Wallace, 115 F.3d 430 (prison official ordered employee to stay at post); Monfils, 165 F.3d 514-515 (police released voice recording of informant resulting in his identification and subsequent murder); Reed, 986 F.2d at 1126 (police left inebriated passenger with car keys after arresting driver of car).
Wallace nonetheless upheld dismissal of the plaintiff's claim on the grounds that he was not subjected to any greater danger by the order to remain at his prison post than he would under a standing duty to stay at his post "whether or not prison officials said a word." Id. at 430.
To hold otherwise and render general workplace policy decisions actionable under the Fourteenth Amendment would, as the Defendants recognize, allow the exception in DeShaney to swallow the rule in Collins. In that case, the Supreme Court rejected a claim under the Due Process Clause that an employer failed to take reasonable safety steps that would have prevented the death of an employee. It noted that government administration is based on "a rational-decisionmaking process that takes account of competing social, political, and economic forces" and that decisions concerning the allocation of resources should be made by "locally elected representatives, not federal judges interpreting the basic charter of Government for the entire country." 503 U.S. at 128-129. See also Walker, 791 F.2d at 510 (dismissing due process claim based on injuries to corrections officers from inmate riot because, in part, democratic process should decide how much government spends on prison safety versus other valuable public goods). The Due Process Clause was simply not meant to "guarantee municipal employees a workplace that is free of unreasonable risks of harm." Collins, 503 U.S. at 129. Negligent policy decisions concerning the safety of a county jail, while they may trigger liability under state tort law, cannot therefore expose a public employer to suit under the Constitution consistent with the ruling in Collins. See also County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.").
The court thus concludes that the Defendants took no affirmative action with respect to the Plaintiff other than the implementation of (or failure to implement) general safety measures which cannot be the basis for liability under the Fourteenth Amendment. In short, the Sheriff cannot be said to have created the danger to which the Plaintiff was exposed, nor to have placed her in a situation where she had no other choice but to face that danger. This result is on par with precedent in the Seventh and other circuits respecting the liability of prison officials for the safety of corrections officers. See Wallace, 115 F.3d at 427 (relying on Walker and holding guard stabbed by inmate after warning prison officials of threats by inmate does not have constitutional claim); Walker, 791 F.2d at 512 (no government liability for guards injured and killed in inmate riot because state officials should have discretionary control over amount of resources expanded on safety of prison guards; guards assume risks inherent in the job and may quit at any time; and due process does not assure minimal levels of safety in government employment); see also Nobles v. Brown, 985 F.2d 235 (6th Cir. 1992) (affirming dismissal of Due Process Clause claim based on rape of corrections officer by inmate because due process not provide for minimal levels of safety and prison officials not liable for violence of inmates against guards). Because there is no possible interpretation of the complaint on which the Plaintiff could state a claim, her § 1983 suit does not survive the Defendants' motion.
The court's determination that no constitutional violation has occurred eliminates the need to consider the applicability of a qualified immunity defense.
IV. Conclusion
Nothing in the court's discussion is meant to minimize the gravity of the terrible act of violence suffered by the Plaintiff, nor to deny the possibility that negligence by the Sheriff may have contributed to decreased safety conditions in the Shelby County jail. It is only to affirm that there is no constitutional remedy for her injuries. The Defendants' motion should, therefore, be GRANTED.