Mitchell v. McNeil, 06-5631.

Citation487 F.3d 374
Decision Date15 May 2007
Docket NumberNo. 06-5631.,06-5631.
PartiesLouis MITCHELL and Betty Foster, as parents and next friends of Daniel Mitchell, deceased, Plaintiffs-Appellants, v. Markus McNEIL a.k.a. Marcus McNeil; Myron Myles; Dressels Fox; Patrick B. Fox; James H. Bolden, Jr.; Bobby Todd; Memphis, Light, Gas & Water; Memphis Police Department; City of Memphis; and John Doe, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ON BRIEF: Jeffrey S. Rosenblum, Marc E. Reisman, Rosenblum & Reisman, Memphis, Tennessee, for Appellants. Lori Hackleman Patterson, Allan J. Wade, PLLC, Memphis, Tennessee, Jean E. Markowitz, Thomas Edwards Hansom, Law Offices of Thomas E. Hansom, Memphis, Tennessee, Henry L. Klein, Apperson, Crump & Maxwell, Memphis, Tennessee, for Appellees.

Before: SUTTON and COOK, Circuit Judges; GWIN, District Judge.*

OPINION

SUTTON, Circuit Judge.

At the heart of this dispute is the claim that the City of Memphis, several of its agencies and several of its police officers violated the substantive due process rights of Daniel Mitchell when they permitted a police officer to loan a personal vehicle to an informant who subsequently collided with—and killed—Mitchell while driving the vehicle. The district court concluded that the allegations did not state a cognizable substantive due process claim, and we agree.

I.

At 6:45 p.m. on February 18, 2004, Daniel Mitchell attempted to cross North Watkins Street in Memphis, Tennessee. As the 12-year-old boy started across the street at its intersection with Rugby Place, a large, white vehicle traveling northbound struck Mitchell and knocked him into another vehicle—coming from the opposite direction and driven by Myron Myles. Medical evidence indicated that Mitchell could have survived the initial impact alone, but the combination of impacts proved too much, and he died from the accident.

While the driver of the large, white vehicle attempted to avoid responsibility for the accident, the police learned that the vehicle was owned by a Memphis Police Officer (either Officer Dressels Fox or Officer Patrick Fox), and that the driver was Markus McNeil—a police informant with permission to use the vehicle. Memphis police officers, Mitchell's parents later learned, occasionally loaned their personal vehicles to informants in exchange for information. James Bolden (the former director of the Memphis Police Department), Bobby Todd (an inspector with the Memphis Police Department) and the City of Memphis knew about and permitted this practice.

Mitchell's parents filed this lawsuit in state court against a number of parties, including McNeil, Myles, the Fox brothers Bolden, Todd, the Memphis Police Department and the City of Memphis. The complaint raised several negligence claims under state law along with federal constitutional claims under 42 U.S.C. § 1983. As to the federal claims, plaintiffs alleged that the defendants (1) conspired to violate Mitchell's "constitutional rights under the Fourth and Fourteenth Amendments" by engaging in the "practice of encouraging police officers to provide automobiles to informants with known histories of drug and alcohol use," Complaint ¶ 38(i), (2) violated his constitutional rights by failing "to properly investigate [the] accident," id., and (3) violated his parents' "separate constitutional right to have their son's death properly investigated," id. ¶ 38(m).

With the consent of the other defendants, the City of Memphis removed the case to federal court. The district court granted the defendants' motion to dismiss the federal claims as a matter of law, see Mitchell v. McNeil, No. 05-2221 MA/V, 2006 WL 889370, at *1 (W.D.Tenn. Mar.30, 2006), and remanded Mitchell's state-law claims to state court, see Mitchell v. McNeil, No. 05-2221 MA/V, 2006 WL 1174461, at *1 (W.D.Tenn. May 1, 2006).

II.

We give fresh review to a district court's decision to dismiss a complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 901 (6th Cir.2003). And we treat "all well-pleaded allegations in the complaint" as true and will affirm the dismissal "only if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claims that would entitle it to relief." Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 562 (6th Cir.2003) (internal quotation marks omitted).

The constitutional claims against the city and its agencies implicate different liability standards from the claims against the individual defendants. Under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a local government may be held liable under § 1983 only for adopting a "policy or custom" that violates federally protected rights, id. at 694, 98 S.Ct. 2018. Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), government officials sued in their individual capacities may be held liable under § 1983 when they violate constitutional rights that are "clearly established," id. at 201, 121 S.Ct. 2151. Linking the two standards is the requirement that plaintiffs allege a cognizable constitutional claim. See Schroder v. City of Fort Thomas, 412 F.3d 724, 727 (6th Cir.2005).

In their complaint, plaintiffs allege a variety of constitutional violations. In challenging the district court's decision, however, plaintiffs have whittled their grievances down to two theories—that the defendants violated substantive due process (1) by permitting officers to lend their personal cars and trucks to informants and (2) by inadequately investigating the accident.

The standard for establishing that executive-branch officials (as well as executivebranch agencies) have violated an individual's substantive due process rights is not an easy one to satisfy. "[T]he due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Concerned that the Due Process Clause of the Fourteenth (and Fifth) Amendment not become a "font of tort law to be superimposed upon whatever systems may already be administered by the States," Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court has made it clear that mere negligence on the part of governments and their agents does not provide plaintiffs with a ticket to federal court to seek substantive due process relief, id.; Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); cf. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (observing that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors" and that the Due Process Clause does not guarantee "certain minimal levels of safety and security").

To state a cognizable substantive due process claim, the plaintiff must allege "conduct intended to injure in some way unjustifiable by any government interest" and that is "conscience-shocking" in nature. Lewis, 523 U.S. at 849, 118 S.Ct. 1708; see Stemler v. City of Florence, 126 F.3d 856, 869 (6th Cir.1997); Lewellen v. Metro. Gov't of Nashville & Davidson County, 34 F.3d 345, 350-51 (6th Cir.1994). The Mitchells' complaint does not meet this requirement with respect to either of their substantive due process theories.

As to their first theory, the Mitchells claim that the defendants had a "custom" of "encouraging police officers to provide automobiles to informants with known histories of drug and alcohol use, thereby placing the public at large, and Daniel Mitchell in particular, in severe danger." Complaint ¶ 38(i); Br. at 14. While the defendants deny that any such "custom" exists, we must accept this allegation as true given the pleading-stage nature of this dispute. We also will accept something else as true for purposes of resolving this case—that this is a strange policy, one that the city, its agencies and employees do not defend on its merits (except to say that it does not exist).

Strange though such a policy may be, its mere existence without more does not state a cognizable due process claim. For one, while plaintiffs allege that the policy placed individuals in danger, they never allege that the policy did so intentionally or recklessly. For another, even the most well-reasoned, insightful and far-sighted of law enforcement policies may place the public in danger. Consider a policy that says police should not fire their weapons at an armed and dangerous, fleeing suspect when the suspect enters a crowded area. Much as that sensible policy would protect many individuals from harm, it also would place other individuals (though fewer individuals) at risk.

Nor do plaintiffs make any allegations about the policy that would allow one to infer that the city defendants acted with intentional or reckless indifference to the safety of the public in adopting the policy—by, for example, pointing out that it had led to tragic accidents in the past. The same is true of their filings in the district court and this court. At no point do they identify any cases dealing with informant policies that remotely suggest that this policy would enter the forbidden world of conscience-shocking conduct. Cf. Hiser v. City of Bowling Green, 42 F.3d 382, 384 (6th Cir.1994) (holding that plaintiff failed to state a cognizable substantive due process claim where officers had encouraged an informant to move in with plaintiff and her boyfriend—the target of a drug investigation—and the informant murdered plaintiff); Smith v. Myers, No. 94-3605, 1995 WL 521158, at *6 (6th Cir. Sept. 1, 1995) (holding that plaintiff did not state a cognizable substantive due process claim...

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