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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT
OF MICHIGAN, SOUTHERN DIVISION
MARY SIMMONS,
Personal
Representative of the Estate of Shala Enwana Gee Simmons, Deceased,
Plaintiff,
v. City of
Inkster,
Defendant.
323 F. Supp. 2d 812
June 9, 2004, Decided
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS BROUGHT UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
This matter
comes before the Court on Defendant City of Inkster's motion to dismiss,
brought under Fed. R. Civ. P. 12(b)(6), arguing that Plaintiff cannot state a
claim for relief under the Fourth and Fourteenth Amendments of the United
States Constitution and thus her claims under 42 U.S.C. § 1983 must be
dismissed. For the reasons stated below, this Court GRANTS Defendant's motion.
I. Facts
This case arises out of shooting
death of Shala Enwana Gee Simmons by her husband, Dwayne Gee, who then took his
own life. The following facts are alleged in Plaintiff's complaint. n1
Plaintiff alleges that the
following events took place on November 18, 2001. n2 Shala [*814] Gee Simmons
was living with her two minor children and her husband, Dwayne Gee, in the City
of Inkster, Michigan, but had a personal protection order (PPO) against her
husband and was attempting to separate from him physically. (Compl. at PP 5,
6.) Shala Gee Simmons told her husband that she was going to church. To ensure
her return, Mr. Gee told his wife that he would keep her minor children at the
house and would kill them if she did not return. (Id. at P 7.) Shala Gee
Simmons left the home and went to the Inkster Police Department. She told them
that she feared imminent physical harm from her husband if she returned to her
home unescorted by the police because her husband had become irrational and
violent, possessed at least one handgun, was holding her minor children and had
threatened their lives if she did not return, and had previously threatened her
life if she attempted to leave him. (Id. at P 8.) Officers were dispatched to
accompany Shala Gee Simmons to her home.
The officers entered the home
with Shala and encountered her husband, Dwayne Gee, who was wearing a jogging
jacket with kangaroo-style pockets. His hands were in his pockets. (Id. at PP
9, 10.) The officers did not search Mr. Gee for weapons and did not segregate
him in the home to prevent him from having physical contact with his wife. (Id.
at 11.) While Shala Gee Simmons was on her third trip to the bedroom to
retrieve a bag of personal belongings, her husband, in plain view of the
officers, walked down the hallway and into the bedroom where his wife was
located, drew a .380 revolver, which he had in his possession since the
officers had arrived, and fired a single shot killing his wife. He then turned
the weapon on himself, killing himself as well. (Id. at P 12.)
Plaintiff brings this § 1983
action asserting municipal liability against the City of Inkster and alleging
that the City's training and supervision of its officers was so grossly
inadequate that it constitutes deliberate indifference to Shala Gee Simmons'
Fourth and Fourteenth Amendment rights. Specifically, the complaint alleges
that the City failed to properly train and supervise its officers in the
handling of domestic violence situations and allowed the decedent's
constitutional rights to be violated when the officers failed to prevent her
husband, Dwayne Gee, from killing her in their presence. (Id. at PP 19, 20.)
Plaintiff alleges that the officers violated Shala Gee Simmons' Fourth and
Fourteenth Amendment rights by failing to: 1) run a warrant check on Dwayne
Gee; 2) establish a plan to secure the scene at the house before or after
arrival; 3) have an officer in charge at the scene or failing to get instruction on how to proceed from
supervisory officers; 4) observe generally accepted police procedure for
handling the situation at the house; 5) request that Dwayne Gee remove his
hands from his pockets and to empty his pockets in their presence; 6) make sure
that he did not have a weapon in his possession by patting him down or
otherwise conducting a search of his person; 8) prevent Dwayne Gee from
obtaining access to a firearm while the officers were present in the home; 9)
secure or segregate Dwayne Gee in a way that would prohibit him from having
physical contact with his wife while she was moving in and out of the house;
10) segregate Dwayne Gee from the minor children in the home despite knowledge
that he had threatened to harm or kill them; 11) adequately observe Dwayne Gee
and his movements in
relation to his wife; and 12) ascertain that Dwayne Gee had physical possession
of an illegal weapon and was in violation of probation, and thus should have
been arrested. (Id. at P 19(a)-(m).) Plaintiff also alleges that Shala Gee
Simmons' constitution rights were violated when the officers lulled her into a
false [*815] sense of personal security and prevented her from taking steps to
protect and preserve her own life. (Id. at P 19(n).)
This matter
is before the Court on Defendant City's motion to dismiss, arguing that
Plaintiff has failed to state a claim for relief under 42 U.S.C. § 1983 because
she cannot allege a Fourth or Fourteenth Amendment violation. Plaintiff
concedes that she cannot state a claim for relief under the Fourth Amendment.
(Pl.'s Resp. at 4.) Accordingly, the City's motion as to Plaintiff's Fourth
Amendment claims is GRANTED, and all such claims are dismissed. The Court's
discussion will focus on Plaintiff's Fourteenth Amendment substantive due
process claims.
II. Motion to Dismiss Standard
A Rule
12(b) (6) motion to dismiss tests the sufficiency of a complaint. In a light
most favorable to the plaintiff, the court must assume that the plaintiff's
factual allegations are true and determine whether the complaint states a valid
claim for relief. See Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d 114, 114
S. Ct. 807 (1994); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir.
1996); Forest v. United States Postal Serv., 97 F.3d 137, 139 (6th Cir. 1996).
This
standard of review "'requires more than the bare assertion of legal
conclusions.'" In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th
Cir. 1997) (quoting Columbia Natural Resources, Inc. v. Tatum, 58 F.3d
1101,1109 (6th Cir. 1995)). The complaint must include direct or indirect
allegations "respecting all the material elements to sustain a recovery
under some viable legal theory." See In re DeLorean Motor Co., 991 F.2d
1236, 1240 (6th Cir. 1993) (citations omitted). A court should not grant a
12(b)(6) motion unless the movant shows "beyond doubt that the plaintiff
can prove no set of facts in support of his claim." Conley v. Gibson, 355
U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
III. Analysis
Plaintiff's
§ 1983 claim asserts that the City's officers violated Shala's Fourteenth
Amendment substantive due process rights when they failed to prevent her
husband from killing her, and further asserts that the Defendant City is liable
for this constitutional violation because it failed to adequately train and
supervise its officers in the handling of domestic violence situations. Because
there can be no § 1983 municipal liability as a matter of law absent the
finding of a constitutional violation, this Court first addresses the issue
whether Shala's substantive due process rights were violated. Weeks v. Portage
County Executive Offices, 235 F.3d 275, 279 (6th Cir. 2000).
Plaintiff acknowledges the
Supreme Court's holding in DeShaney v. Winnebago County Dep't of Social Servs.,
489 U.S. 189, 197, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), that "a State's failure to protect an
individual against private violence simply does not constitute a violation of
the Due Process Clause." Likewise, Plaintiff concedes that the Due Process
Clause of the Fourteenth Amendment places limits "on the State's power to
act," and does not serve "as a guarantee of certain minimal levels of
safety and security." DeShaney, 489 U.S. at 195. Nonetheless, Plaintiff
argues, the facts of this case give rise to both the in-custody and
state-created-danger exceptions to the rule announced in DeShaney and its
progeny. Accordingly, Plaintiff seeks to hold the City responsible, under §
1983, for the private act of violence that resulted in Shala's death at the
hands of her husband.
This Court finds Plaintiff's
arguments unpersuasive. Plaintiff has not and cannot allege facts that fit
either the in-custody or [*816] state-created-danger exceptions to DeShaney,
and thus Defendant's Rule 12(b)(6) motion is GRANTED in its entirety.
The Sixth Circuit recognizes two exceptions
to the general rule stated in DeShaney. Cartwright v. City of Marine City, 336
F.3d 487, 491 (6th Cir. 2003). The first recognizes that "an injury
suffered in state custody" is "constitutionally cognizable."
Bukowski v. City of Akron, 326 F.3d 702, 709 (6th Cir. 2003). The second
recognizes a substantive due process violation when "affirmative acts by
the state ... either create or increase the risk that an individual will be
exposed to private acts of violence." Id. n3
A.
In-Custody Exception
Plaintiff argues that her
substantive due process claim should be analyzed under the state custody
exception to DeShaney because, at the time of Shala's death, the City's
officers were "in control" of the marital home, of Shala's
activities, and of her husband's activities. Moreover, Plaintiff argues, the
officers were present at the home for the purpose of protecting her from
physical harm by her husband, who was the subject of an existing personal
protection order ("PPO").
In DeShaney, the Court carved out a narrow
custodial exception to the general "no duty to protect from private
harm" rule. The exception applies:
when the State
by the affirmative exercise of its power so restrains an individual's liberty
that it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs -- e.g., food, clothing, shelter, medical
care, and reasonable safety ... In the substantive due process analysis, it is
the State's affirmative act of restraining the individual's freedom to act on
his own behalf -- through incarceration, institutionalization, or other similar
restraint of personal liberty -- which is the "deprivation of
liberty" triggering the protections of the Due Process Clause, not its
failure to act to protect his liberty interests against harms inflicted by
other means.
DeShaney, 489 U.S. at 200 (citations and footnote
omitted).
The City officers did not take
Shala into custody or restrain her freedom to act on her own behalf. Rather,
the officers, at Shala's request, accompanied her to her home so that she could
pack her belongings and leave. The Sixth Circuit defines
"custody" as "the 'intentional application of physical force and
show of authority made with the intent of acquiring physical control.'"
Cartwright, 336 F.3d at 491-92 [*817] (quoting Ewolski v. City of Brunswick,
287 F.3d 492, 506 (6th Cir. 2002)). The facts of this case do not fit that
definition.
Moreover,
despite Plaintiff's arguments to the contrary, the custodial exception does not
apply merely because the City officers were aware of Shala's predicament or
from their intent to help her. As the DeShaney Court observed, "the
affirmative duty to protect arises not from the State's knowledge of the
individual's predicament or from its expressions of intent to help him, but
from the limitation which it has imposed on [the individual's] freedom to act
on his own behalf." DeShaney, 489 U.S. at 200.
B.
State-Created Danger Exception
Plaintiff also argues that the
state-created danger exception to DeShaney applies under the facts of this
case. Specifically, Plaintiff contends that the officers "enhanced the
danger" Shala faced because they "lulled [her] into a totally false
sense of security by their presence at the scene." Plaintiff further
contends that Shala would never have gone to her home to remove her personal
property and her children without police protection. (Pl.'s Resp. at 7.)
To show a
state-created danger, the Sixth Circuit requires Plaintiff to show:
1) an affirmative act by the state which either
created or increased the risk that the plaintiff [was] exposed to ...; 2) a
special danger to the plaintiff wherein the state's actions placed the
plaintiff specifically at risk, as distinguished from a risk that affects the
public at large; and 3) the state knew or should have known that its actions
specifically endangered the plaintiff.
Cartwright, 336 F.3d at 493.
As to the
first element, Plaintiff does not complain about the police officers'
affirmative acts. Rather, she complains about their failure to: 2) run a
warrant check on Dwayne Gee; 1) establish a plan to secure the scene at the
house before or after arrival; 3) ascertain that Dwayne Gee had physical
possession of an illegal weapon, was in violation of probation, and should be
arrested; and 4) secure or segregate Dwayne Gee in a way that would prohibit
him from having physical contact with his wife while she was moving in and out
of the house. (Compl. at P 19(a)-(m).) The Sixth Circuit has observed that [a "failure to act is not an
affirmative act under the state-created danger theory." Id. Because her
substantive due process claim is based on the Inkster police officers' alleged
failure to act, Plaintiff has failed to state a claim that fits under the
state-created danger exception to DeShaney. See Sargi v. Kent City Bd. of
Educ., 70 F.3d 907, 912-13 (6th Cir. 1995) (finding that the plaintiff's
allegations that the defendants failed to provide bus drivers with a plan or
policy to manage medical emergencies on their buses and failing to communicate
the decedent's medical condition to her school bus driver did not state
"affirmative action that exposed decedent to any danger to which she was
not already exposed" and thus there was "no state-created
danger"); Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994)
(rejecting arguments that the defendants' failure to rescue a kidnap victim and
the defendant police officer's decision not to investigate the car wash where
the victim was last seen or her bank account and then lying about it made the
victim more vulnerable to danger than she would otherwise have been, and
finding that the defendants "did not 'create the danger' in which the
victim found herself").
Plaintiff's additional argument,
that the officers' presence at Shala's home enhanced the danger she faced
because they lulled her into a false sense of security, is to no avail.
In a case with similar facts, the Sixth Circuit recently rejected the argument
that the state-created danger exception [*818]to DeShaney applies "because
the officers came to [the victim's] home, thereby imparting a false sense of
security." Perry v. Wildes, 1998 U.S. App. Lexis 7621 at *5, No. 97-3372,
1998 WL 322651, *3 (6th Cir. May 18, 1998) (per curiam). "The question is
not whether the victim was safer during
the state action, but whether [she] was safer before the state action
than [she] was after it." Cartwright, 336 F.3d at 493. Plaintiff has not
and cannot allege that Shala was safer before the police accompanied her to her
home than she was after they did so. The Perry case illustrates this point.
In Perry,
the plaintiffs' decedent was murdered by her former boyfriend. The police had
issued a warrant for the boyfriend's arrest for kidnaping the victim a month
earlier. The officers knew the ex-boyfriend had been sighted near the victim's
home and that he had said he would kill himself before he would go to jail. Two
police officers went to the decedent's home, explained that they could not
arrest the ex-boyfriend that night because of the lack of manpower, and stayed
on the front porch "for some time" waiting for him but he did not
appear. 1998 U.S. App. Lexis 7621 *5, [WL] at *2. Shortly after they left, he
arrived and fatally shot his ex-girlfriend and then killed himself. Id. The
plaintiffs claimed that "they abandoned their plans to either flee to a
relative in Salem, Ohio, or to arm themselves because the officers came to
their home, thereby imparting a false sense of security." Id. In rejecting
the plaintiffs' contention that the officers created a "special
danger," the Sixth Circuit held:
It is clear
that [the defendant police officer] did not place any physical restraint on
[the victim]'s "freedom to act on her own behalf," or the freedom of
anyone else to act on her behalf. She remained free to leave her parents' home
... Finally, we are unwilling to say that police response to a citizen's call
for assistance subjects the officers to potential liability for creating a
"special danger" premised upon a heightened sense of security.
1998 U.S. App. Lexis *10, [WL] at *3.
Similar to the plaintiffs in
Perry, Plaintiff here has not and cannot allege facts showing that the
state-created danger exception to DeShaney applies. The police officers did not
place any physical restraint on Shala's freedom to act on her own behalf, and
they did not make her any less safe than she was before they accompanied her to
her home.
C. Municipal
Liability
The
Defendant City can only be held liable under § 1983 if Plaintiff can show that
its police officers violated Shala's constitutional rights. Because Plaintiff
has not and cannot satisfy this requirement, Plaintiff's claims against the
City must be dismissed. Cartwright, 336 F.3d. at 495.
IV. Conclusion
For the
above-stated reasons, Defendant's motion to dismiss is GRANTED.
s/
Nancy G.
Edmunds
United States
District Judge
Dated: June 9, 2004
JUDGMENT
The Court
having reviewed the pleadings in this matter and being fully advised in the
premises;
IT IS HEREBY
ORDERED AND ADJUDGED that Defendant's motion to dismiss is hereby GRANTED, and
the case is DISMISSED.
SO ORDERED.
s/
Nancy G.
Edmunds
U.S.
District Judge
Dated: June 9, 2004
FOOTNOTES:
n1 Plaintiff is the personal representative of the
Estate of Shala Enwana Gee Simmons.
n2 Plaintiff's motion identifies this date as November
21, 2001.
n3 As the Sixth Circuit recently observed, in
DeShaney, "the Court recognized ... that if a state has created a 'special
relationship' with the victimized individual, then the state may have an
affirmative duty to protect that individual. Such a 'special relationship'
exists, for example, where the state has some sort of control or custody over
the individual, as in the case of prisoners, involuntarily committed mentally
ill persons, or foster children ... A number of circuit courts - including the
Sixth Circuit -- have relied on this passage in DeShaney to acknowledge that
liability may exist where the state creates a dangerous situation or renders
citizens more vulnerable to danger." Sheets v. Mullins, 287 F.3d 581, 587
(6th Cir. 2002) (citing DeShaney, 489 U.S. at 201, Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998), and Gazette v. City of Pontiac,
41 F.3d 1061, 1065 (6th Cir. 1994)). To summarize, the Sixth Circuit recognizes
an exception to the DeShaney rule when the state creates a "special
relationship" by either (1) placing the victimized individual in state
custody, or (2) by creating a dangerous situation or rendering the victimized
individual more vulnerable to danger.
Because Plaintiff's
§ 1983 action alleges a violation under the Fourteenth Amendment, its reliance
on Michigan's public duty doctrine and
Michigan's test for determining when a special relationship exists is
misplaced.
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