Bradberry v. Pinellas County

• Decision Date: 23 May 1986
• Docket Number: No. 85-3535,85-3535
• Citation: 789 F.2d 1513
• Parties: Louella T. BRADBERRY, Individually and as Personal Representative of the Estate of Kenny Ray Thomas, deceased, et al., Plaintiffs-Appellants, v. PINELLAS COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1513

789 F.2d 1513

Louella T. BRADBERRY, Individually and as Personal Representative of the Estate of Kenny Ray Thomas deceased, et al., Plaintiffs-Appellants, v. PINELLAS COUNTY, Defendant-Appellee.

No. 85-3535.

United States Court of Appeals, Eleventh Circuit.

May 23, 1986.

Joseph C. Whitelock, St. Petersburg, Fla., for plaintiffs-appellants.

Joseph H. Saunders, Asst. Co. Atty., Clearwater, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HILL, Circuit Judge, HENDERSON ^* and BROWN, ^** Senior Circuit Judges.

HENDERSON, Senior Circuit Judge:

This appeal involves yet another attempt to litigate a state law tort claim in federal court under the guise of a suit brought pursuant to the provisions of 42 U.S.C. Sec. 1983. The district court dismissed this case for failure to state a claim upon which relief could be granted. Fed.R.Civ.Pro. 12(b)(6). We affirm the district court's dismissal but for reasons different than those stated by that court.

On September 5, 1983, Kenny Ray Thomas entered a non-designated swimming area off a beach in Florida near DeSoto Beach Park owned by Pinellas County (County). He apparently was heading toward a sandbar located some distance from the shore. While he was swimming toward the sandbar, he was directed by a lifeguard employed by the County to swim back to the shore. The lifeguard had been stationed at a designated swimming area not far from where Thomas entered the water. While he was heading back to the shore, Thomas tired and drowned.

On March 12, 1985, the appellants, Thomas' mother both individually and in her capacity as the personal representative of the estate, and the half brother and sisters of Thomas, filed this action in the Middle District of Florida alleging that Pinellas County violated Thomas' constitutional rights by inadequately training its lifeguards. On June 11, 1985, the district court dismissed the complaint for failure to state a claim upon which relief could be granted because the "drowning was an isolated act and not the often repeated, constant violations that constitute custom and policy." Record Excerpts at 28 (quoting Bennett v. City of Slidell, 728 F.2d 762, 768 at n. 3 (5th Cir.1984). The appellants then filed a timely appeal to this court.

It is well established that a complaint should not be dismissed for failure to state a claim pursuant to Fed.R.Civ.Pro. 12(b)(6) "unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, 84 (1957). The appellants in this case allege that the County violated 42 U.S.C. Sec. 1983 because its

policy or custom of training and employing lifeguards caused the death of Kenny Ray Thomas, deceased, in that the said policy or custom, instituted by Defendant, Pinellas County, was grossly inadequate to insure that a sufficient number of qualified lifeguard personnel and lifesaving devices were deployed on North Beach at Fort DeSoto Park on September 5, 1983. Said conduct constituted a gross disregard for the safety of Kenny Ray Thomas, deceased.

Record Excerpts at 5 (emphasis added).

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... 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....

Before a county or municipality can be held liable under Section 1983, a plaintiff must establish that he suffered a constitutional deprivation and that the deprivation resulted from an official custom or policy. See e.g., Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir.1985).

The sole constitutional violation alleged by the plaintiffs is that contained in the fourteenth amendment's prohibition against the deprivation of life, liberty or property without due process of law. Thus, the primary issue before us is whether, assuming the truth of the plaintiffs' factual allegations, the county's failure to provide adequately trained lifeguards "deprived" Kenny Ray Thomas of his life without due process of law. We conclude that Thomas suffered no constitutional deprivation. ¹

The Seventh Circuit Court of Appeals recently decided two cases that shed significant light on the issues before us. In Jackson v. Byrne, 738 F.2d 1443 (7th Cir.1984), the plaintiffs were the relatives of children who died in a fire that occurred while Chicago firemen were on strike. Striking firemen, aware of the fire, attempted to gain access to one of the city's firestations but were not allowed to do so by local police who were acting under orders promulgated by the Mayor. The court of appeals held that the plaintiffs could not recover under Section 1983 from city officials because "[a]lthough there were deaths in this case, the state did not, within the meaning of the fourteenth amendment, 'deprive' plaintiffs' decedents of life. The fire killed (the children), government officials did not." Id. at 1446. The court went on to hold that the city had no constitutional obligation to provide firemen and therefore could not be held liable for their failure to respond because of the strike. Id. at 1446-1447. The court also rejected the plaintiffs' argument that the city acquired a continuing constitutional duty to provide fire services once it established itself as the provider of such services because the adoption of such a position "would open the way for scrutiny by the federal courts of virtually every municipal decision to reallocate protective resources. Neither the fourteenth amendment nor Section 1983 was meant to give the federal courts such a role." Id. at 1447.

In the present case, the plaintiffs alleged that the County deprived their decedent of his life without due process of law by failing to adequately protect him from his unauthorized swim off the Florida coast. Their contention that the County was grossly negligent by not having enough qualified lifeguards on duty on the day of Thomas' death presupposes an obligation on the part of the County to provide lifeguards. We agree with the Seventh Circuit Court of Appeals, however, that because counties and municipalities have no constitutional obligation to provide such protective services, they cannot be held liable when someone is injured because of a lack of such services. ² Therefore, the appellants' argument that Pinellas County can be held liable under Sec. 1983 for not providing a sufficient number of lifeguards on the beach where Thomas drowned is without merit.

The appellants also allege that Pinellas County deprived Thomas of his life without due process of law by inadequately training the lifeguard who instructed Thomas to swim back to shore. They maintain that this inadequate training proximately caused Thomas' death because he would not have drowned had the lifeguard been trained properly. For the purposes of our inquiry at this stage of the proceedings, we must, of course, accept the truth of the appellants' allegations.

In Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983), two people were trapped inside a burning car that had swerved off a road. A few minutes later, a policeman arrived at the scene but he did not attempt to determine whether the car was occupied. Instead, he called the fire department and directed traffic away from the burning car. Subsequently, other policemen arrived at the scene of the accident but they also did not help either of the people in the car. Eventually an ambulance was called but one of the occupants of the car was already dead and the other one died at the hospital. The decedents' relatives filed a Section 1983 suit against the police officers, their superiors, and the city alleging that the decedents would not have died had the officers aided them in getting out of the car, had not prevented other potential rescuers from saving them, or had tried to put out the fire themselves. The Jackson court held that the complaint's allegations did not state valid claims under Section 1983.

The Jackson court began with the premise that there is no common law duty to rescue a stranger, but once someone attempts to rescue a person in danger he must do so in a non-negligent manner. See Restatement (Second) of Torts Sec. 323 (1965). This general maxim, however, is not grounded in the Constitution but in state tort law. The Jackson court then concluded that a negligent or grossly negligent rescue attempt by a state employee is not the equivalent of a deprivation of right to life without due process of law. The court stated If the defendants deprived the plaintiffs' decedents of anything it was of some right to competent rescue services. But, as we have been at pains to stress, there is no such right in the Fourteenth Amendment. Of all the forms of state oppression of the individual that which consists of trying but failing to assist at accidents must rank very low. It is not 'oppression' at all; it is essentially inaction; and it was remote from the concerns of the framers of the Fourteenth Amendment.

City of Joliet, supra at 1205. Based on this analysis, the appeals court held that the plaintiffs' complaint did not state a claim under Sec. 1983 because the decedents suffered no constitutional deprivation.

In the present case, the plaintiffs alleged that Pinellas County was grossly negligent because it inadequately trained lifeguards and one of those lifeguards proximately caused the death of Kenny Ray Thomas. We find that, on these facts, this allegation is insufficient to state a claim under Section 1983. It is beyond peradventure that Sec. 1983 did not make every tort...