McClendon v. City of Columbia

• Decision Date: 26 July 2001
• Docket Number: No. 00-60256,00-60256
• Citation: 258 F.3d 432
• Parties: (5th Cir. 2001) PETER CLAYTON MCCLENDON, Plaintiff-Appellant, v. CITY OF COLUMBIA; ET AL., Defendants, CITY OF COLUMBIA; JAMES R. CARNEY, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 432

258 F.3d 432 (5th Cir. 2001)

PETER CLAYTON MCCLENDON, Plaintiff-Appellant, v. CITY OF COLUMBIA; ET AL., Defendants, CITY OF COLUMBIA; JAMES R. CARNEY, Defendants-Appellees.

No. 00-60256

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 26, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Southern District of Mississippi

Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

Peter McClendon appeals an adverse grant of summary judgment dismissing his claims against the City of Columbia and Officer James Carney. For the reasons assigned, we affirm in part and reverse in part.

BACKGROUND

On July 12, 1993 Kevin Loftin shot Peter McClendon with a gun he received from Officer Carney of the Columbia, Mississippi Police Department. Carney alleges that the gun which was "loaned" to Loftin had been seized by the police department in a raid on an unrelated suspect's home, and that Officer Carney had been keeping it in his desk at work. Loftin was a confidential informant for the Columbia Police Department, working directly with Carney. Loftin had informed Carney that he was worried of a possibility of violence between himself and McClendon because McClendon was angry with Loftin for supplying a gun to someone who shot McClendon's cousin. Carney then allegedly agreed to give Loftin the gun out of his desk to use as "protection" against McClendon until Loftin was able to get another gun. Carney admittedly was aware that Loftin did not have access to a gun because Loftin's gun was in evidence for the aforementioned shooting of McClendon's cousin. Approximately one week later, Loftin allegedly used the gun he received from Carney to shoot McClendon in the face, permanently blinding him.

McClendon's instant action against Carney and the City of Columbia alleges deprivation of his substantive due process and equal protection rights. He maintains that the City's failure to train Carney with regard to the use of informants displayed a deliberate indifference to his rights, proximately causing his injury. Additionally, he claims that there was pervasive custom and policy in the City condoning the storage of evidence, weapons, and city property in accessible areas, rather than a locked and controlled room, and that this custom and policy proximately caused his injury. Finally, he claims that Carney knowingly and affirmatively created a dangerous situation by providing Loftin with a gun when he was aware that violence was likely to erupt between them. Accordingly, Loftin maintains that Carney is liable for his injuries under the "state created danger" theory of liability.

Carney moved for summary judgment after the completion of discovery. The magistrate judge granted the motion. The case against the City was set for trial but was postponed at its request. The City then sought allowance to file a motion for summary judgment out of time. That motion was granted and the subsequent motion for summary judgment was also granted. This timely appeal followed.

ANALYSIS

We review a grant of summary judgment de novo, applying the same standards as the district court, while viewing all disputed facts and reasonable inferences "in the light most favorable to the nonmoving party. . . ."¹ Summary judgment is appropriate only where "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law."² To survive summary judgment, however, the nonmoving party is required to do more than merely allege a material issue of fact, instead he must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial."³

I. State Created Danger Theory

We have recognized that, "When state actors knowingly place a person in danger, the due process clause of the constitution has been held to render them accountable for the foreseeable injuries that result from their conduct, whether or not the victim was in formal state 'custody.'"⁴ In Johnson v. Dallas Independent School District,⁵ we discussed the history of and set forth the elements of the "state created danger" theory without expressly adopting the theory. We acknowledged that other courts uniformly have held that "state actors may be liable if they created the plaintiffs' peril, increased their risk of harm, or acted to render them more vulnerable to danger."⁶

In Piotrowski v. City of Houston (I),⁷ we noted the basic requirements of the state created danger theory: "First, a plaintiff must show that the state actors increased the danger to her. Second, a plaintiff must show that the state actors acted with deliberate indifference."⁸ In Johnson we noted that to establish deliberate indifference, the plaintiff must show:

[T]he environment created by the state actors must be dangerous; they must know it is dangerous; and, to be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third party's crime to occur. Put otherwise, the defendants must have been at least deliberately indifferent to the plight of the plaintiff.⁹

Since Johnson, we have continued to recognize the existence of the theory and observed that other circuits have found this theory to be constitutionally sound.¹⁰ We have not heretofore explicitly adopted and enforced this theory. We do so now.

In general, state and local governments are under no affirmative duty to protect persons from the acts of private citizens. In DeShaney v. Winnebago County Department of Social Services,¹¹ the Supreme Court clearly held that:

[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.¹²

The Court went on to note, however, that, "It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals."¹³ Other circuits have recognized two such limited circumstances--when the state has a special relationship with the person and when the state exposes a person to a danger of its own creation.¹⁴ The latter has evolved into the state created danger theory. Most courts adopting the theory have based their decision on language from DeShaney:

DeShaney did not rule that custody was required where the state affirmatively causes the harm. In addition to pointing out that Joshua DeShaney was not in state custody when injured, the Court noted that "[w]hile the State may have been aware of the dangers that Joshua 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." DeShaney thus suggests that had the state created the danger, Joshua might have recovered even though he was not in custody.¹⁵

As we stated in Johnson, the key element in the state created danger theory is a determination that the state actor created the danger to the plaintiff or at least made him more vulnerable to it. If the plaintiff advances a genuine issue of material fact that a state actor created such a danger, his claim under § 1983 for a violation of due process rights should not be dismissed on summary judgment.

Johnson involved a student killed at a high school by a person not authorized to be on the campus. The evidence established that the shooter, Brown, rode a school bus to the campus that morning and was allowed to enter the school even though he was not wearing a student ID badge. There was also evidence that, although the school had installed metal detectors, they were not being used that day. We found that, assuming the state created danger theory was constitutionally sound, the pleadings in the case fell short of the high standard required for liability. We noted that the school could not be assumed to be a dangerous environment, nor was there any actual knowledge on the part of the school of the danger to the student. Finally, we found no sufficiently culpable affirmative conduct on the part of the school.¹⁶

Similarly in Doe v. Hillsboro Independent School District,¹⁷ we found that the school would have had no duty under the state created danger theory because there was no showing of a known danger. In Piotrowski v. City of Houston (I),¹⁸ we found that the plaintiff could not meet the elements of a state created danger theory, even if we were to adopt that theory, because she failed to demonstrate any causal connection between the City and her ultimate injury. Instead, the plaintiff merely demonstrated that certain officers increased her danger. Because the City could not be found liable under a respondeat superior theory, we found the plaintiff failed to support her § 1983 claim. In Piotrowski II,¹⁹ we found that Piotrowski still had not met the requirements of a state created danger theory, noting that the City actors did not create the danger that Piotrowski faced.

In the case at bar, the district court determined that, because this circuit had not yet adopted the state created danger theory of liability, Carney was entitled to judgment as a matter of law. It also found that, "Even assuming that the state-created danger theory was viable in this Circuit, McClendon's claim would fail because Carney did not affirmatively place McClendon in a...