Slaughter v. Mayor & City Council of Balt.

• Decision Date: 07 June 2012
• Docket Number: No. 10–2436.,10–2436.
• Citation: 682 F.3d 317
• Parties: Virginia Dean SLAUGHTER, Individually and as Personal Representative of the Estate of Racheal Michelle Wilson; C.W.R., by his father and next friend Adrian Richardson; P.J.D., by her father and next friend Larry Craig Davis, Jr., Plaintiffs–Appellants, v. MAYOR AND CITY COUNCIL OF BALTIMORE; Kenneth Hyde, in his official capacity as former Division Chief of the Baltimore City Fire Department; Joseph Crest, in his official capacity as former Lieutenant of the Baltimore City Fire Department; Barry Broyles, in his official capacity as former Lieutenant of the Baltimore City Fire Department, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

682 F.3d 317

Virginia Dean SLAUGHTER, Individually and as Personal Representative of the Estate of Racheal Michelle Wilson; C.W.R., by his father and next friend Adrian Richardson; P.J.D., by her father and next friend Larry Craig Davis, Jr., Plaintiffs–Appellants,

v.MAYOR AND CITY COUNCIL OF BALTIMORE; Kenneth Hyde, in his official capacity as former Division Chief of the Baltimore City Fire Department; Joseph Crest, in his official capacity as former Lieutenant of the Baltimore City Fire Department; Barry Broyles, in his official capacity as former Lieutenant of the Baltimore City Fire Department, Defendants–Appellees.

No. 10–2436.

United States Court of Appeals,Fourth Circuit.

Argued: March 22, 2012.

Decided: June 7, 2012.

ARGUED:Paul David Bekman, Salsbury, Clements, Bekman, Marder & Adkins, Baltimore, Maryland, for Appellants. David Eugene Ralph, Baltimore City Department of Law, Baltimore, Maryland, for Appellees. ON BRIEF:Emily C. Malarkey, Salsbury, Clements, Bekman, Marder & Adkins, Baltimore, Maryland, for Appellants. Ashlea Brown, Amy Beth Leasure, Baltimore City Department of Law, Baltimore, Maryland, for Appellees.

Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge DAVIS joined. Judge WYNN wrote a separate opinion concurring in the result.

OPINION

NIEMEYER, Circuit Judge:

After Racheal Wilson, a new recruit for the Baltimore City Fire Department, tragically died during a “live burn” training exercise, her survivors and estate commenced this action under 42 U.S.C. § 1983 against the Mayor and City Council of Baltimore,^* alleging that the Baltimore City Fire Department violated Wilson's substantive due process rights by staging the exercise with deliberate indifference to Wilson's safety, so as to shock the conscience.

The district court granted the Fire Department's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), concluding that the deliberate indifference standard is normally applied only to those in the government's custody and that Wilson was not in custody and had an option of declining to participate in the exercise, or even declining to be a firefighter. The court instead applied a standard requiring the showing of intent to harm and concluded that “however reckless” the Fire Department may have been, its actions did not “rise to the level of a constitutional violation.”

Applying Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), and Waybright v. Frederick County, 528 F.3d 199 (4th Cir.2008), we affirm. We conclude that because the complaint does not purport to allege that the Fire Department staged the live burn training exercise with the purpose of causing harm to Wilson or to any other recruit, it falls short of alleging a substantive due process violation in the context of the facts alleged, even though it might well allege causes of action under state law, as the complaint purports to do in other counts.

I

The amended complaint alleges that on February 9, 2007, Racheal Wilson, a new recruit with the Baltimore City Fire Department, participated in a live burn training exercise staged at a vacant three-story building in Baltimore. The live burn exercise was required as part of the training program for aspiring Baltimore City firefighters. To stage the building for the exercise, officials of the Fire Department tore down wall-boards and ceilings to create debris and stuffed walls with highly flammable excelsior. Then they lit fires at multiple locations on the first and second floors. After a period of delay, Fire Department officials instructed Wilson and her team to proceed to the third floor, with Wilson carrying the hose.

The team encountered “severe fire conditions,” and by the time they reached the third floor, they realized that their “lives were in danger.” Accordingly, the team began to evacuate the building “through a small window in the back of the dwelling that opened onto the rear roof of the second floor,” but Wilson “had difficulty getting through the window,” and, when others were unable to pull her through, she fell back into the building. Although the team ultimately managed to get Wilson through the window, she had by then become unconscious. She was immediately taken to the University of Maryland Shock Trauma unit, where she was pronounced dead on arrival. Her autopsy confirmed thermal injury and asphyxia as the causes of death.

The complaint alleges that Wilson's death was avoidable with adequate preparations for the exercise and that the Fire Department created unduly dangerous conditions in staging the exercise. The complaint alleges:

— that it was improper for the Fire Department to stage the building by tearing down wallboards and ceilings, by leaving debris, and by adding flammable excelsior to the walls; and that Fire Department officials “knew that [such a] building was unsuitable” for a training exercise;

— that the Fire Department did not conduct a pre-burn orientation, walkthrough, and planning, as is required for such exercises;

— that the Fire Department did not properly equip recruits and, more specifically, that it did not give Wilson appropriate protective clothing;

— that instructors were not equipped with radios and were not trained to supervise a live burn;

— that, contrary to the National Fire Protection Association's standards, the Fire Department set fires at multiple locations in the building;

— that the Fire Department allowed the fires to burn too long before recruits entered the building; and

— that the water supply for fighting the fire was inadequate, as it was taken from only one hydrant.

In summary, the complaint claims that these and other conditions and circumstances amounted to “willful violations of nationally-recognized safety standards for live burn training exercises.”

Based on these factual allegations, Count I of the complaint, brought under 42 U.S.C. § 1983, asserts that the Fire Department's conduct “shocks the conscience and was either intentional, reckless, grossly negligent, and/or deliberately indifferent towards Ms. Wilson's ... life and liberty,” in violation of her Fourteenth Amendment rights. In other counts, the complaint alleged violations of the Maryland Constitution and other state law duties.

On the Fire Department's motion to dismiss, the district court dismissed Count I of the complaint because it failed to state a claim under the Fourteenth Amendment, and it dismissed the remaining counts without prejudice, to be resolved in state court. From the district court's judgment, dated December 3, 2010, the plaintiffs filed this appeal.

II

The plaintiffs argue that their complaint sets forth facts sufficient to state a substantive due process violation insofar as it alleges that the Fire Department's conduct was deliberately indifferent to the life and safety of Wilson in circumstances where the Fire Department itself created the danger that caused her death. While they concede that the Fire Department did not intend Wilson's harm, which is usually necessary to satisfy the shocks-the-conscience test for a substantive due process violation, see Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the plaintiffs argue that cases also recognize that a showing of deliberate indifference can be sufficient to establish a substantive due process violation when the State either created the danger or was in a special relationship with the plaintiff, such as having custody over her. But the plaintiffs candidly acknowledge that, apart from situations involving custody, the Supreme Court has never applied a “deliberate indifference” standard merely because the State created a danger that resulted in harm. Rather, they rely on the statement in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 201, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), where the Court explained, in refusing to hold a department of social services liable for not protecting a child from an abusive father, that “[w]hile the State may have been aware of the dangers that [the child] 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.” (Emphasis added).

Defendants contend that the government's conduct in this case can only violate the substantive due process guarantee of the Constitution if the government's conduct was “intended to injure in some way unjustifiable by any government interest.” Lewis, 523 U.S. at 849, 118 S.Ct. 1708. They conclude that because the facts alleged in the complaint do not suggest that Fire Department officials were motivated by any intent to injure Wilson, or for that matter, any other recruit, the complaint fails to state a claim under 42 U.S.C. § 1983 on which relief can be granted.

“The touchstone of due process is protection of the individual against arbitrary action of government.” Lewis, 523 U.S. at 845, 118 S.Ct. 1708 (emphasis added) (internal quotation marks and alteration omitted). “Arbitrary action,” however, is used in a constitutional sense, which encompasses “only the most egregious official conduct,” namely that which “shocks the conscience.” Id. at 846, 118 S.Ct. 1708. Defining conduct that shocks the conscience does not draw on any traditional standard of liability from tort law but rather refers, as a constitutional construct of substantive due process, to “conduct intended to injure in some way unjustifiable by any government interest.” Id. at 849, 118 S.Ct. 1708.

To be sure, a lower level duty of culpability may amount to a substantive due process violation in those situations where the government is required “to take care of those who have already been deprived of their liberty”—such as pretrial detainees, persons in mental institutions, convicted felons, and persons under arrest. See Collins, 503 U.S. at 127, 112 S.Ct. 1061 (collecting case...