34 F.3d 345 (6th Cir. 1994), 93-5061, Lewellen v. Metropolitan Government of Nashville and Davidson County, Tenn.

Docket Nº:93-5061.
Citation:34 F.3d 345
Party Name:Bobby Joe LEWELLEN, Plaintiff-Appellant, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE and The Metropolitan Board of Public Education, Defendants-Appellees.
Case Date:August 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 345

34 F.3d 345 (6th Cir. 1994)

Bobby Joe LEWELLEN, Plaintiff-Appellant,



COUNTY, TENNESSEE and The Metropolitan Board of

Public Education, Defendants-Appellees.

No. 93-5061.

United States Court of Appeals, Sixth Circuit

August 25, 1994

Argued Dec. 3, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 12, 1994.

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Gayle Malone, Jr. (argued and briefed), Trabue, Sturdivant & DeWitt, Nashville, TN, for plaintiff-appellant.

John L. Kennedy (briefed), Stephen Nunn (argued and briefed), Metro Legal Dept., Nashville, TN, for defendants-appellees.

Before: MERRITT, Chief Judge; and NELSON and BOGGS, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This is a civil rights case brought by a workman who was accidentally injured on a school construction project. Contending that the accident was a result of intentional or grossly negligent acts and omissions on the part of the defendant school board, and characterizing the board's conduct as "reckless and/or undertaken with deliberate indifference to plaintiff's personal safety," the plaintiff brought suit under 42 U.S.C. Sec. 1983 against the board and the metropolitan government of which the board is an agency. The plaintiff's theory was that the defendants had deprived him of liberty and/or property without due process of law in violation of his "substantive" rights under the Fourteenth Amendment of the United States Constitution. (See Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986), explaining that the Due Process Clause bars "certain government actions regardless of the fairness of the procedures used to implement them;" this is the concept embodied in the phrase "substantive due process.")

The district court (Higgins, J.) granted summary judgment to the defendants. The court acknowledged the existence of a genuine dispute of fact as to whether the defendants had been negligent, but held as a matter of law--largely in reliance on the unanimous opinion of the Supreme Court in Collins v. City of Harker Heights, --- U.S. ----, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)--that no constitutional violation had occurred. We agree, and we shall affirm the judgment.


The plaintiff, Bobby Joe Lewellen, was employed as a carpenter by a company that held a contract to construct an elementary school building for the defendant board of education. The building was to be erected next to an existing structure that housed a middle school. A portion of the new building site lay directly beneath a 23,900-volt "open conductor" power line used to supply electricity to the existing school.

The architect's plans for the new building specified that the power line was to be moved in the course of construction. The construction contract provided that the general contractor or its electrical subcontractor would coordinate the move and would pay the local utility company for doing the work. It was anticipated that the relocation of the line would require an interruption of electrical service to the middle school for a period of six to eight hours.

At a pre-construction conference attended in the spring of 1988 by school officials, the general contractor, and others, it was recognized that the power line ought to be relocated before the middle school opened for classes in the fall. Unfortunately, however, the preliminary work necessary to effect the relocation was not completed until November 1, 1988.

The school board was unwilling to allow power to be shut off to the middle school while school was in session, and the utility company insisted on being paid the overtime costs that would be incurred in performing the changeover on a weekend or holiday. It was estimated that these costs would come to between $600 and $1,000. The school board, the contractor and the electrical subcontractor all denied responsibility for paying the additional overtime costs. Finally, on November 21, 1988, it was agreed that the changeover would be made on December 29, a weekday when school would not be in session because of Christmas vacation.

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Construction of the new school building had been proceeding throughout the summer and fall of 1988, and the structural work was essentially complete by mid-December. When the framework of the new building was finished, the top of the building came within seven feet of the power line.

It is uncontested that the presence of the energized power line this close to the new building violated applicable safety and electrical code standards. The construction contract made the contractor responsible for safety precautions on the job, but the school board had a contractual right to order that work be stopped if the contractor persistently failed to comply with the terms of the contract. The board did not order a stop, and it had no internal procedure for monitoring any of its construction sites (some seven different schools were under construction at the time) for safety violations. The board relied on its architect to monitor safety conditions, and neither the board, the architect, the contractor, nor anyone else warned construction workers about the power line.

On December 19, 1988, while plaintiff Lewellen was at work on the roof of the new building, a piece of steel bridging he was carrying came into contact with the power line. Mr. Lewellen sustained a severe electrical shock that caused extensive third-degree burns. His lower right leg, the big toe of his left foot, both index fingers, and the ring finger of his right hand all had to be amputated, and he lost much of the use of his hands.

Mr. Lewellen brought suit against the board of education, the metropolitan government, and others in September of 1989. The claims against the non-governmental defendants were eventually settled, and these defendants were dismissed from the lawsuit in December of 1990. The governmental defendants moved for summary judgment the following May, and the matter was referred to a magistrate judge. Disposition of the summary judgment motion was stayed after the Supreme Court granted certiorari in Collins v. Harker Heights.

Once Harker Heights had been decided, and notwithstanding the Supreme Court's rejection of the Sec. 1983 claim asserted there, the magistrate judge issued a report in the case at bar recommending that the defendants' summary judgment motion be denied. The district court rejected the recommendation and entered summary judgment for the defendants. This appeal followed.


In 1871--six years after the end of the Civil War and three years after the ratification of the Fourteenth Amendment--Congress enacted the statute now codified as 42 U.S.C. Sec. 1983. 1 The first sentence of Sec. 1983 reads as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The "threshold requirement" of this statute, the Supreme Court has told us, relates to "whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' " Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Unless a deprivation of some federal constitutional or statutory right has occurred, Sec. 1983 provides no redress even if the plaintiff's common law rights have been violated and even if the remedies available under state law are inadequate.

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The source of the federal right on which plaintiff Lewellen bases his case against the defendants here is the language in Sec. 1 of the Fourteenth Amendment declaring that "[no] State [shall] deprive any person of life, liberty, or property, without due process of law...." Mr. Lewellen did not lose his life in the accident, but his complaint alleges that he was deprived--without due process--of liberty, property, or both. His brief on appeal does not mention a property interest, but suggests that the accident deprived him of "a constitutionally guaranteed liberty interest ... in being free from bodily injury."

Historically, as the Supreme Court pointed out in Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986), the due process guarantee of the Fourteenth Amendment "has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." (Emphasis in original.) Our court made a similar observation in Wilson v. Beebe, where we held that Sec. 1983 provided no redress for a man negligently shot by a police officer who was attempting to handcuff him:

"We know of no case in which negligent conduct has been held to constitute a substantive due process violation of the type described in Rochin v. California [342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) ] and Johnson v. Glick [481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) ], and [we] conclude that a substantive due process violation of this kind does require an intentional act. The factors listed in Johnson v. Glick all relate to the purposeful infliction of injury." Wilson v. Beebe, 770 F.2d 578, 586 (6th Cir.1985) (en banc).

The Supreme Court has repeatedly noted, moreover, that the provision in Magna Carta from which our Due Process Clause stems was "intended to secure the individual from the arbitrary exercise of the powers of government." Albright v. Oliver, --- U.S. ----, ----,...

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