Laurie Range v. Kenneth DouglasLaurie Range v. Kenneth Douglas
v.
Kenneth DOUGLAS, Defendant,
Estate of Bernard Kersker, Individually and in his official capacity as an employee of Hamilton County, Ohio; Estate of Dr. Frank Cleveland, on behalf of Dr. Cleveland in all his capacities; Hamilton County, Board of County Commissioners, Defendants-Appellants (12-3857), Defendants-Appellees/Cross-Appellants (12-4190 & 12-4192).
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
OPINION
JANE B. STRANCH, Circuit Judge.
These cases arose when the family members of murdered young women discovered that the bodies of their loved ones had been sexually abused. Kenneth Douglas, a former morgue attendant for the Hamilton County Morgue, sexually abused an untold number of bodies while he was drunk or high and on duty at the morgue. Three of the bodies Douglas sexually abused belonged to family members of Plaintiffs. Plaintiffs sued Douglas himself, who was convicted of the crimе of gross abuse of a corpse, but the civil claims against him are not part of these appeals. Plaintiffs also sued several Hamilton County Defendants alleging state law claims and a claim under
In Case No. 12-3857, the County Defendants bring an interlocutory challenge to the denial of Ohio immunity regarding the state claims. Because a jury could find that the County Defendants recklessly and wantonly failed to supervise Douglas despite the known risks he posed to the bodies, we AFFIRM the denial of Ohio statutory immunity and remand those claims for further proceedings.
In Case Nos. 12-4190 and 12-4192, Plaintiffs bring a Rule 54(b) challenge to the grant of summary judgment based on qualified immunity to the County Defendants on the § 1983 claim, and the County Defendants cross-appeal. While we have no doubt as to the special naturе of the relationship between Plaintiffs and their deceased relatives, we conclude that they cannot establish a constitutional violation as to the County Defendants. Therefore, we must AFFIRM the grant of summary judgment to the County Defendants on the § 1983 claim.
I. BACKGROUND
A. Facts
Over a number of years, Kenneth Douglas sexually abused the dead bodies of murder victims held at the Hamilton County Morgue. He sexually abused the body of Karen Range in 1982, an action that led to a false rape conviction of the man who was convicted of her murder. He sexually abused the bodies of Charlene Appling and Angel Hicks in 1991. Douglas’s actions were discovered in 2007 after advances in forensic science allowed testing that matched his DNA to semen found in the bodies.
Douglas was regularly alone at the morgue, usually during the late afternoon or
During his time at the morgue, Douglas was directly supervised by Bernard Kersker, the morgue director, who was in turn supervised by Carol Maratea, the morgue administrator. Maratea was supervised by Dr. Frank Cleveland, the Coroner. Much in this case depends on what Kersker and Dr. Cleveland knew or had reason to know. For purposes of all issues on appeal, we must view the facts in the light most favorable to Plaintiffs.
Kersker admitted having concerns about Douglas’s tardiness and dependability as far back as 1980. Douglas was often tardy and he used a significant number of sick days, especially in 1990 and 1991. Kersker said that he disciplined Douglas by docking his pay, making him stay late, and by having him talk to Dr. Cleveland, but that “I was going to keep him because I needed him.”
There is also evidence on the record suggesting that Kersker knew or should have known about Douglas’s alcohol use and perhaps his drug use. A co-worker testified that he often smelled alcohol on Douglas before, during, or after his shift; that Douglas looked like “he had been partying every night” both at the beginning and end of his shift; and that he sometimes came to work drunk. Douglas testified that his cocaine addiction was so bad by 1992 that he could not perform his job duties because of heavy shaking.
Douglas’s former wife, Patricia Chavis, testified that she called Kersker to complain that Douglas was drinking at work. Twice around 1987, she told Kersker that Douglas was coming home intoxicated and that she knew he was drinking аt work because she called Douglas at the morgue fifteen minutes before he arrived at home. Kersker told her to stop calling the morgue and hung up on her. Kersker denied having these conversations, but another employee testified that he heard Kersker discussing them with Douglas.
The record also suggests that Kersker may have known that Douglas was having sex with live women at the morgue, something he apparently did with some frequency. Kersker himself took messages from the women who constantly called the morgue for Douglas, and Douglas’s wife stated during one of her calls to Kersker that Douglas came home “smelling like sex.” Chavis also told Maratea that she believed Douglas was having sex at the morgue, warned her about Douglas’s drinking, and told her that other morgue employees were using cocaine.
Finally, Douglas himself testified that Kersker knew about his numerous run-ins with the law, including a domestic violence charge and twо DUI’s, because Douglas had to request vacation time for the period of incarceration. Douglas also testified that he told Kersker about his suicide attempt via overdose and his ensuing psychiatric hospital stay as well as his alcoholism.
During all this time, Kersker’s supervision of Douglas never changed. There is testimony suggesting that the environment at the morgue was very “laid back” and that other employees were also drug users. At least one employee made lewd comments about the bodies of women that
B. Procedure
The claims in these appeals are against the “County Defendants”: Hamilton County through the Hamilton County Board of Commissioners, Kersker, and Dr. Cleveland.1 Plaintiffs brought three claims under Ohio tort law, alleging negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent retention and supervision, and one claim under
After much discovery, the district court issued an order granting partial summary judgment to the County Defendants. As to the state claims, the court denied summary judgment on the basis of Ohio statutory immunity to the County Defendants because it found that there were genuine issues as to whether they supervised Douglas in a wanton and reckless manner, but granted Ohio common law immunity to Kersker and Dr. Cleveland regarding claims brought by the family of Karen Range. As to the § 1983 claim alleging a substantive due process violation, the district court granted summary judgment to the County Defendants. The court granted qualified immunity to Kersker and Dr. Cleveland because nothing in the record indicates that they knew Douglas might sexually abuse the bodies, and granted summary judgment to Hamilton County because Plaintiffs could not establish deliberate indifference.
As to the state claims, the County Defendants appealed the denial of Ohio immunity and moved for certain tort-law questions to be certified to the Ohio Supreme Court. As to the § 1983 claim, Plaintiffs received certification under Federal Rule of Civil procedure 54(b) and appealed the grant of summary judgment. The County Defendants cross-appealed, alleging errors in the district court’s reasoning. We consolidated the cases for argument.
II. CASE No. 12-3857, STATE CLAIMS
The County Defendants claim immunity under Ohio law from the state claims, but the basis for immunity varies depending on the Ohio immunity law in effect at the time each alleged act occurred. Hubbard v. Canton City Sch. Bd. of Educ., 97 Ohio St. 3d 451, 780 N.E.2d 543, 547 (2002). For claims arising out of the 1982 abuse of Karen Range, Hamilton County relies on Ohio common law immunity.2 For claims arising out of the 1991 abuse of Charlene Appling and Angel Hicks, Hamilton County claims immunity under
A. Choice of Law
Generally, state substantive law and federal procеdural law apply to state claims. E.g., Tompkins v. Crown Corr., Inc., 726 F.3d 830, 837 n.4 (6th Cir. 2013) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938)). Federal procedural law governs
B. Jurisdiction
This interlocutory appeal presents jurisdictional issues, though the parties do not raise them. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (holding that courts must ensure that it has jurisdiction, even if sua sponte); Smyrna, 723 F.3d at 644 (noting that courts must address interlocutory jurisdiction). Our jurisdiction is normally limited under
1. Jurisdiction over Hamilton County common law municipal immunity
For claims arising out of the abuse of the body of Karen Range, Hamilton County seeks common law immunity under Enghauser Manufacturing Co. v. Eriksson Engineering, Ltd., which formerly provided municipalities certain limited immunity from liability. 6 Ohio St. 3d 31, 232 (1983); see also Chesher, 477 F.3d at 793 (noting that Ohio statutory immunity prior to 2003 provided only immunity from liability); Greyhound Food Mgmt., Inc. v. City of Dayton, 852 F.2d 866, 868 (6th Cir. 1988) (explaining that Ohio statutory immunity prior to 2003 was a reenactment of common law immunities). Because Enghauser provided immunity from liability and not from suit, we do not have interlocutory jurisdiction over the immunity claim arising out of the abuse of Karen Range.
2. Jurisdiction over statutory immunity of the County Defendants
For claims arising out of the abuse of the bodies of Charlene Appling and Angel Hicks, the County Defendants all seek immunity under
Emotional distress claims “accrue not when the underlying activity occurs, but rather when the plaintiffs suffer emotionally by learning of it.” Chesher, 477 F.3d at 794. According to the Complaint,
For the negligent retention and supervision claims, however, the accrual date is not dispositive because we may exercise pendent jurisdiction “where the appealable and non-appealable issues are inextricably intertwined.” Tucker v. City of Richmond, 388 F.3d 216, 224 (6th Cir. 2004) (internal quotation marks omitted). The analysis of Ohio statutory immunity is identiсal for all three state claims. Because they are thus “inextricably intertwined,” we have interlocutory jurisdiction over the County Defendants’ state immunity claims arising out of the abuse of Charlene Appling and Angel Hicks.
3. Scope of Jurisdiction: Motion to Certify and Other Issues
Interlocutory jurisdiction for denials of immunity is limited to the specific issue of whether immunity was properly denied. Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 605 (6th Cir. 2005) (citing Tucker v. City of Richmond, 388 F.3d 216, 224 (6th Cir. 2004)). Therefore, although the parties’ arguments often stray into the underlying merits of the state tort claims—including issues of foreseeability, causation, tortious interference, evidence of harm, duty of care, and intervening causation—these questions are not properly before us. Nor do we consider any questions of fact because our jurisdiction is limited “‘to the extent that [the appeal] turns on an issue of law.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). For purposes of this appeal, the County Defendants “must concede the most favorable view of the facts to the [P]lаintiff[s].” Id. at 309-310 (internal quotation marks omitted).
The County Defendants have also moved to certify to the Ohio Supreme Court four questions regarding duties existing under state tort law. All of these questions are outside the scope of immunity issues on interlocutory appeal and may be raised only after final judgment. Therefore, we deny the motion. The parties will have sufficient opportunity to raise these issues before the court below.
C. State Immunity for Claims Relating to the Abuse of Appling and Hicks
We review a denial of summary judgment based on state immunity de novo. Chesher, 477 F.3d at 796. Summary judgment is proper only when there are no genuine issues of fact and the moving party is entitled to judgment as a matter of law.
In 1985, Ohio passed the Political Subdivision Tort Liability Act, codified in
Ohio uses a three-tier analysis to determine if a person or entity is immune. Lambert, 927 N.E.2d at 588. Under Tier 1, political subdivisions and their employees receive a general grant of immunity for acts in connection with a government function. Id.; see also
1. Hamilton County’s Claims of Immunity Under Ohio Revised Code § 2744.03(A)(3)
Hamilton County claims that it is entitled to immunity under two separate provisions, the first of which reads:
(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
For example, in a case where a school district was sued because a baseball coach failed to properly supervise practice or train the players, the Ohio Supreme Court held that the (A)(3) defense did not apply because the coach’s position did not involve
In the present case, the actions or failures to act that gave rise to the negligent supervision claim were the decisions of various morgue employees regarding supervision of Douglas. The actions or failures to act that gave rise to the emotional distress claims included those actions as well as the abuse itself. The abuse cannot qualify as a policy-making or planning decision. We turn to the other actions, viewing the facts in the light most favorable to Plaintiffs. Protection might be afforded to tasks that could arguably be considered policy-making or planning, such as hiring the morgue director, hiring staff and determining their responsibilities, designing a rotating schedule, or managing day-to-day operations. But this record contains facts from which a jury could conclude that Hamilton County employees were not engaged in policy-making or planning but were instead making factual, employee-specific decisions. Such facts include detailed decisions about: what shift to assign to Douglas; whether to administer drug tests to him; how to respond to Douglas’s continuing tardiness and dependability problems; whether to make unannounced visits while Douglas was alone at the morgue; whether to confront Douglas or change the level of supervision after his wife called to complain about alcohol and sex at the morgue; whether to supervise Douglas differently after Douglas told Kersker about his DUI and suicide attempt; and whether to look into Chavis’s allegations that some of the other employees were doing drugs. These specific, fact-based single employee decisions do not involve discretionary acts of an employee with respect to policy-making, planning, or the kind of “creative exercise of political judgment” required for the (A)(3) defense.
The district court did not err by denying (A)(3) immunity to Hamilton County.4
2. Hamilton County’s Claims of Immunity Under Ohio Revised Code § 2744.03(A)(5)
Hamilton County also claims that it is entitled to immunity under the following provision:
(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
In Ohio, the question of whether a government employee has acted in a reckless or wanton manner is a question of fact for a jury. Fabrey v. McDonald Vill. Police Dep’t, 70 Ohio St. 3d 351, 639 N.E.2d 31, 35 (1994). “Wanton” conduct is generally “the failure to exercise any care whatsoever,” characterized by perversity of being “conscious that [the] conduct will in all probability result in injury.” Id. It implies knowledge of the probability of harm and the “reckless disregard of consequences.” Addis v. Howell, 137 Ohio App. 3d 54, 738 N.E.2d 37, 40 (2000). “Reckless” means that the conduct was committed with knowledge or with reason to know of facts that would cause a reasonable person to realize that the conduct in question creates an unreasonable risk that is greater than mere negligencе. Rankin v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 118 Ohio St. 3d 392, 889 N.E.2d 521, 527 (2008). Thus, the question is whether the employees consciously disregarded a serious risk of harm that they knew or should have known about. For example, it was not reckless conduct for a state agency to place a child with a father who eventually killed the child when the father was not a known placement risk. Chesher, 477 F.3d at 799 (citing Jackson v. Butler City Bd. of Comm’rs, 76 Ohio App. 3d 448, 602 N.E.2d 363, 366-68 (1991)). Conversely, it was reckless conduct where a physical education teacher assumed that a child floating face down in the water was “joking around,” sent three different students to attempt to pull the child out, and only afterward attempted CPR. Id. at 800 (citing Thompson v. Bagley, 2005 WL 940872, at *1, 11 (Ohio Ct. App. 2005)).
Our previous opinion in Chesher is particularly relevant. Family members sued the Hamilton County Morgue and its employees for permitting an artist to photograph, disrupt, and pose their deceased relatives at the morgue. Id. at 787-92. After considering a similar immunity question, we held that a jury could find that: the various morgue employees were reckless because each knew or had reason tо know of some risk of harm, and the risk the employees disregarded was substantially greater than the type of risk necessary to make the conduct merely negligent. Id. at 801-05; see also Moss v. Lorain Cnty. Bd. of Mental Retardation, 185 Ohio App. 3d 395, 924 N.E.2d 401, 407 (2009) (finding enough evidence of recklessness to defeat immunity where supervision of special needs child was so lax that a child was able to wander undetected to the kitchen and retrieve a pot of hot coffee).
Turning to the record here, there is significant evidence that by the time of the abuse of the two women, Kersker knew that Douglas was an alcoholic and knew that he drank and had sex while on duty at the morgue. Two witnesses—Douglas and Chavis—said they told Kersker about the drinking and sex, and this was corroborated by one of Douglas’s co-workers. Others testified that Douglas came to work smelling like booze, shaking from drug-use, and disheveled-looking. This is suffi-
The district court did not err by denying (A)(5) immunity to Hamilton County.
3. Kersker and Dr. Cleveland’s Claim of Immunity Under Ohio Revised Code § 2744.03(A)(6)(b)
As defendants in their individual capacity, Kersker and Dr. Cleveland rely on an Ohio law that provides immunity to an employee of a political subdivision unless the acts or omissions “were with malicious purpose, in bad faith, or in a wanton or reckless manner.”
The record as to Dr. Cleveland is slightly different. Kersker was most immediately responsible for supervising Douglas, he designed the shift rotation scheme that left Douglas alone, and the evidence suggests that it was Kersker whо knew about Douglas’s drinking and sex at the morgue. The clearest indication of Dr. Cleveland’s knowledge is testimony from Kersker that he kept Dr. Cleveland informed and told Dr. Cleveland about Douglas’s tardiness and dependability problems. But there is additional circumstantial evidence from which a jury could infer that Dr. Cleveland had knowledge of an unreasonable risk. See, e.g., Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 151-52 (6th Cir. 1995) (reversing grant of summary judgment on immunity grounds because district court should have considered circumstantial evidence). If a jury were to conclude that Kersker knew of Douglas’s actions, it could conclude that Dr. Cleveland, whom Kersker kept informed, also knew. Knowledge of the risk factors could be inferred as well because Maratea, Dr. Cleveland’s direct subordinate, heard allegations from Chavis that Douglas drank alcohol and had sex at the morgue and that other employees did drugs at the morgue. Even if the jury found that Dr. Cleveland only knew about the serious dependability problems, a jury could conclude that he should have been more concerned about Douglas in general and instructed his subordinates to provide more supervision.
III. CASE Nos. 12-4190/12-4192, § 1983 CLAIM
We now turn to the second appeal, which involves the question of whether the district court erred in granting summary judgment to the County Defendants on the § 1983 substantive due process claim. Plaintiffs argue that the County Defendants are not entitled to qualified immunity because a jury could find that Kersker and Dr. Cleveland were deliberately indifferent to the known risk that Douglas would harm the bodies. They allege that extending unsupervised access to someone who would touch the bodies with no forеnsic purpose “shocks the conscience” and violates the substantive due process rights to family association and privacy. Plaintiffs argue that the rights at stake are obvious and that Hamilton County had a policy of deliberate ignorance to known risks of harm.
The County Defendants cross-appeal arguing that the district court erred by failing to use this Court’s “plainly obvious” and “particular injury” test. They also argue that the Board of Commissioners of Hamilton County, as well as Kersker and Dr. Cleveland in their official capacities, should be dismissed as parties.
This appeal is before us after the district court granted the Plaintiffs’ motion under
A. Standard of Review
We review the district court’s grant of summary judgment to the County Defendants de novo. Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Summary judgment is apрropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
B. Qualified Immunity for Kersker and Dr. Cleveland
1. Substantive Due Process
Under the Fourteenth Amendment, “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.”
Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (internal quotation marks omitted). It protects a narrow class of interests, including those enumerated in the Constitution, those so rooted in the traditions of the people as to be ranked fundamental, and the interest in freedom from government actions thаt “shock the conscience.” Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th Cir. 2003).6 It also protects the right to be free from “arbitrary and capricious” governmental actions, which is another formulation of the right to be free from conscience-shocking actions. Bowers, 325 F.3d at 763; Pearson, 961 F.2d at 1216-17.
Plaintiffs’ argument has two parts. They contend that Kersker and Dr. Cleveland deprived them of an unenumerated fundamental right guaranteed by due process. They frame this right primarily as the right to the “protection of the bodies of [their] deceased family members.” But they also invoke the right to privacy of a grieving family member, the right to “the protection and dignified treatment of their loved one’s bodies,” the right of family members to “privately grieve” and “make decisions regarding the disposition of the body,” and the right to “non-interference with a family’s remembrance of a deceased loved one.” Independent of whether any identifiable unenumerated right is at issue, they also argue that the conduct of Kersker and Dr. Cleveland was undertaken with deliberate indifference to a known risk that Douglas would harm the bodies and that this “shocks the conscience.”
At least one of our sister circuits has found that the “common law right to non-interference with a family’s remembrance of a decedent” is so rooted in our traditions that publication of death photos is a deprivation under the Fourteenth Amendment. Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 164-65, 168 (2004) (suggesting in a FOIA case that family members of the deceased had a right to privacy over death-scene photos and noting that a family’s control over a body has been long-recognized at common law). We have also found, in the context of procedural due process claims, that relatives have at least
Our case law on substantive due process is somewhat conflicted as to whether an underlying constitutionally-protected right must be established in order for a government action to violate one’s rights by shocking the conscience. EJS Props., 698 F.3d at 861-62. In the context of zoning decisions, our cases hold that government action will not shock the conscience unless it touches on a protectable interest, but in other contexts we have held that, “government action may certainly shock the conscience or violate substantive due process without a liberty or property interest at stake.” Id. Under either formulation, we acknowledge that “substantive due process is not a rigid conception, nor does it offer recourse for every wrongful action taken by the government” and that the “shocks the conscience” standard sets a high bar: “Substantive due process affords only those protections so rooted in the traditions and conscience of our people as to be ranked as fundamental.” EJS Props., 698 F.3d. at 862 (internal quotation marks omitted).
Over the years, the courts have used several tropes to explain what it means to shock the conscience. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). Conduct shoсks the conscience if it “violates the ‘decencies of civilized conduct.’” Id. at 846 (quoting Rochin v. California, 342 U.S. 165, 172-73 (1952)). Such conduct includes actions “so ‘brutal’ and ‘offensive’ that [they do] not comport with
Our cases recognize the difficulty of determining where conscience-shocking behavior resides on the continuum of actions. The bookends present the easier cases. Merely negligent tortious conduct is categorically beneath constitutional due process, but conduct on the other extreme end of the culpability spectrum, that which is “intended to injure” without any justifiable government interest, most clearly rises to the “conscience-shocking” level. Id. at 848-49. Conduct that is more akin to recklessness or gross recklessness, such as deliberate indifference, is a “matter for closer calls.” Id. at 849. These middle states of culpability “may or may not be shocking depending on the context.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th Cir. 2008). “Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Lewis, 523 U.S. at 850.
We have identified several considerations that bear on the question of whether deliberate indifference amounts to conscience-shocking behavior: 1) the voluntariness of the plaintiff’s relationship with the government, 2) whether there was time for the government actor to deliberate, and 3) whether the governmеnt actor was pursuing a legitimate governmental purpose. Hunt, 542 F.3d at 536. A critical question in deliberate indifference cases is “whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct.” Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002) (internal quotation marks omitted). So a police officer who exhibits a reckless disregard for life during a high-speed chase does not shock the conscience because the circumstances require instant judgment, Lewis, 523 U.S. at 853-54 (discussing Daniels v. Williams, 474 U.S. 327, 332 (1986)), but an officer who has five hours to decide whether to use tear gas and forced entry during a standoff might shock the conscience if the officer is deliberately indifferent to the risks posed to hostages, Ewolski, 287 F.3d at 511-12.
As Plaintiffs correctly point out, the time-to-deliberate consideration is especially relevant here because it appears that Kersker and Dr. Cleveland had ample time, years even, to appreciate whatever risks they could glean from the alleged knowledge that Douglas was drinking and having sex with live women at the morgue. Plaintiffs, however, misunderstand the nature of the time-to-deliberate consideration. The purpose of the time element is not to transform any reckless action from a tort to conscience-shocking behavior simply because the government actor had time to appreciate any risk of harm. Time is instead one element in determining whether the actor’s culpability “inch[es] close enough to harmful purpose to spark the shock that implicates” substantive due process. Lewis, 523 U.S. at 853. For assessing whether conduct indicates harmful purpose and, thus, constitu-
Deliberate indifference in the constitutional sense requires that the officials knew of facts from whiсh they could infer a “substantial risk of serious harm,” that they did infer it, and that they acted with indifference “toward the individual’s rights.” Ewolski, 287 F.3d at 513 (internal quotation marks omitted); see also Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001) (A government actor who has time to deliberate shocks the conscience if the actions “were taken with deliberate indifference towards the plaintiff’s federally protected rights.” (emphasis added and internal quotation marks omitted)). So, it is the entirety of the situation that must be assessed, including a defendant’s awareness of the kind and degree of risk, and of the right threatened. For example, a prison official who has time to appreciate a known risk to an inmate’s medical needs can shock the conscience by failing to provide medical care. Lewis, 523 U.S. at 850-51. A police officer who has five hours to deliberate the known risks of bodily injury to hostages shocks the conscience by making a tactical decision to use tear gas and forced entry. Ewolski, 287 F.3d at 511-12. And an officer who has an opportunity to deliberate the risk to life shocks the conscience by placing a drunk woman in the passenger seat of a car with a drunk driver who is known to be violent. Stemler v. City of Florence, 126 F.3d 856, 862-63, 870 (6th Cir. 1997). In each case, the risk, i.e. the probability of harm, was substantial, the harm at issue was “serious,” and there was evidence from which a jury could find that the defendants knew of the scope and substance of the risk. Thus, the type of harm, the level of risk of the harm occurring, and the time available to consider the risk of harm are all necessary factors in determining whether an official was deliberately indifferent.
We are not convinced by Plaintiffs’ argument that “any touching” of the bodies without a forensic purpose amounts to a “serious harm” in the constitutional sense. If a drunk person moves a dead body’s arm, it may amount to inappropriate behavior or even a tort violation. If done intentionally by a government actor, it’s even arguаble that it’s a constitutional violation. See generally Chesher v. Neyer, No. 1:01-cv-0056 (S.D. Ohio July 28, 2004) (holding that certain touching done intentionally met the shocks-the-conscience standard). But we cannot say that protection against the possible risk of such an occurrence is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” See EJS Props., 698 F.3d at 862. Nor can we agree that a jury could find that Kersker and Dr. Cleveland were aware of a “substantial risk” of what might be a more serious constitutional harm such as desecrating a body. While we agree that lapses in judgment by people under the influence are generally recognized, Plaintiffs have pointed to no cases, scientific or sociological knowledge, or literature suggesting that there is a substantial risk that an inebriated person will desecrate a body. Nor is there evidence that these Defendants knew of such a risk.
Viewing the fаcts in the light most favorable to Plaintiffs, a jury could find much to condemn in the conduct of Kersker and Dr. Cleveland, perhaps even recklessness. But a jury could not conclude that these Defendants were aware of facts from which they could infer a substantial risk of the kind of serious harm that occurred here, that they did infer it, and that they acted with indifference toward the rights of the families involved. We simply
C. County Liability
“Where, as here, [a county’s] liability is alleged on the basis of the unconstitutional actions of its employees, it is necessary to show that the employees inflicted a constitutional harm.” Ewolski, 287 F.3d at 516; see also Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (explaining that municipalities and other local governments are liable only if an employee takes an action pursuant to official policy that causes the injury). Having concluded that, as to County employees Kersker and Dr. Cleveland, Plaintiffs have not shown a genuine issue of material fact regarding a violation of Plaintiffs’ constitutional rights, we must also conclude that the district court properly granted summary judgment to Hamilton County on this claim.
D. Cross-Appeal
Although the County Defendants prevailed on the § 1983 claims below, they “cross-appeal” alleging various errors in the district court’s analysis. We generally have “no appellate jurisdiction when the appellant does not seek a change in the relief ordered by the judgment appealed from.” Wheeler v. City of Lansing, 660 F.3d 931, 939-40 (6th Cir. 2011). This cross-appeal is dismissed.
IV. CONCLUSION
Accordingly, as to Case No. 12-3857 regarding the state claims, we do not have jurisdiction to resolve the question of common law immunity as to claims arising out of the abuse of Karen Range, but we AFFIRM the district court’s denial of Ohio statutory immunity for claims arising out of the abuse of Charlene Appling and Angel Hicks and DENY the motion to certify questions of Ohio tort law to the Ohio Supreme Court. The state claims are REMANDED to the district court for further proceedings.
As to Case Nos. 12-4190 and 12-4192 regarding the § 1983 claim alleging a substantive due process violation, we AFFIRM the district court’s grant of summary judgment for the County Defendants. The cross-appeal is DISMISSED.