LINDA SUE SEXTON; MICHAEL SEXTON, Plaintiffs-Appellees, v. THOMAS CERNUTO, Defendant-Appellant.
No. 21-1120
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
November 8, 2021
2021a0251p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:19-cv-12574—Mark A. Goldsmith, District Judge.
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
COUNSEL
ON BRIEF: Thomas L. Fleury, Gouri G. Sashital, Mindy Barry, KELLER THOMA, P.C., Southfield, Michigan, for Appellant. Jonathan R. Marko, MARKO LAW, PLLC, Detroit, Michigan, Issa G. Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for Appellees.
JANE B. STRANCH, Circuit Judge. In 2017, Linda Sexton was sexually assaulted while participating in a court-ordered work program. Thomas Cernuto and Larry Dunn supervised the program, and Sexton alleges that Cernuto actively sought to isolate her from other program participants to contribute to and enable Dunn to carry out the sexual assaults. Sexton and her husband, Michael Sexton, allege
We AFFIRM the district court‘s denial of qualified immunity to Cernuto.
I. BACKGROUND
A. Facts
In July 2017, Linda Sexton reported to the Redford Charter Township maintenance building to begin her assigned five days with the work-release program. Probationers performed clean-up tasks throughout the Township through the program, and Thomas Cernuto and Larry Dunn were the program supervisors. After receiving yellow vests and instructions to stay within yellow painted lines in the building, Sexton and other program participants were told the rules of the program: do not bring cellphones; do not leave the premises without a supervisor‘s permission; wear appropriate clothing; and follow the supervisors’ instructions. Sexton was the only woman in the group of approximately five program participants that first day.
Redford Charter Township policy prohibited supervisors from driving alone with female probationers, and the supervisors told the participants to ride in a van with Cernuto to a gas station. Dunn followed in a Township pickup truck. When Sexton tried to return to the van at the gas station, Cernuto instructed Sexton to get out of the vehicle and come over to where he and Dunn were talking. Cernuto explained to her that she would ride with Dunn in the pickup truck. According to Sexton, the men were laughing and whispering when they made this decision.
During the drive to the worksite, Dunn asked Sexton personal questions, including about her marital status. Dunn also told her she was beautiful, discussed his personal life, drove down a side street to show her his previous home with an ex-wife and to point out the houses of other family
After the work program finished picking up trash at that worksite, Sexton asked to return to the van, but Cernuto again insisted that she ride with Dunn in the pickup truck. During her second ride alone with Dunn that day, Dunn asked Sexton about her clothes and complimented her body, which made her uncomfortable. According to Sexton, this treatment continued throughout the day, with Dunn stating that he wanted to take her to his home and that he could find her anywhere. At one worksite, Dunn showed a cucumber to Sexton, making suggestive comments, and he touched her hand on their ride back to the maintenance building at the end of the day. Sexton considered telling Cernuto about her discomfort but decided against doing so because Dunn had told her that he was close with Cernuto and Cernuto had gotten him the work program job.
Dunn and Cernuto released the program participants early that day, leaving Sexton without a ride. As she began walking home, Dunn drove up to her and asked her to get in the car. Sexton declined. Before driving off, Dunn said that he knew where Sexton lived and that he could not wait to see her again.
When Sexton returned to the maintenance building the next day, Cernuto again ordered her to ride with Dunn in the pickup truck. Later in the day, Sexton heard Dunn and Cernuto talking about where the brooms, shovels, and weed whackers were. According to Sexton, the two were whispering and laughing immediately before Cernuto told Dunn to go to the maintenance building to get the equipment and to take Sexton with him.
Dunn began assaulting Sexton once they reached the equipment at the maintenance building. After handing Sexton two pieces of equipment, Dunn kissed her, put his tongue in her mouth, and touched her breasts. As Sexton let go of the equipment, Dunn put his hands in her pants and underwear. The assault culminated with Dunn touching and inserting his finger into her vagina. Sexton rode with Dunn back to the worksite and later to the maintenance building again. Before Sexton left the truck, Dunn explained to her that Cernuto had gotten him the supervisor job and that neither “told on” the other.
Later that afternoon, Cernuto again left Sexton with Dunn. Dunn took her to an old concession stand near the maintenance building to get a cooler and ice. After unlocking the door, Dunn instructed Sexton to go in first to the dark room and then began kissing and fondling her. Sexton told Dunn she was dizzy and left the concession building. When Sexton pointed out that there was no ice or water in the concession building, Dunn laughed and explained that he already had both in his truck.
At the end of the day, Sexton began walking home. Dunn drove up to her several blocks from the maintenance building and offered her a ride. She refused. Cernuto drove up while Dunn and Sexton were talking, told Dunn to “have a good time,” laughed, and drove off. Sexton understood this to mean that Cernuto knew what had happened between herself and Dunn. She did not return to complete the program.
Sexton reported the incidents to the Michigan State Police within a few weeks. Dunn initially denied to police that anything inappropriate had happened, but he later told the police that he and Sexton had consensually kissed. Dunn was later charged with criminal sexual conduct and pleaded no contest. The Township fired
B. Procedural History
In 2019, Sexton and her husband sued Cernuto, Dunn, and Redford Charter Township, alleging constitutional and state-law tort claims. At issue in this appeal are Sexton‘s claims against Cernuto for failure to protect (Count III)1 and bystander liability/joint tortfeasor (Count IV) under
The district court denied Cernuto‘s motion. It concluded that Cernuto could be liable for depriving Sexton of her right to personal security and bodily integrity because there were genuine disputes of material fact as to whether Cernuto took an active role in the assaults by isolating Sexton, and because a special relationship existed between Cernuto and Sexton such
that he had an obligation to protect her from the assaults.2 In denying Cernuto qualified immunity, the district court explained that “[i]t is a clearly established right under the substantive component of the Due Process Clause that an individual has a constitutional right to personal security and to bodily integrity,” and that “no rational individual could believe that sexual abuse by a state actor is constitutionally permissible under the Due Process Clause.” The court explained that “taking the facts in the light most favorable to Sexton, she has created a triable issue that Cernuto violated” that right.
Cernuto timely appealed.
II. ANALYSIS
A. Jurisdiction & Standard of Review
Subject matter jurisdiction derives from
Qualified immunity “shields government officials from ‘liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.‘” Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified immunity analysis has two parts. One prong requires the court to ask whether “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer‘s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). The court must also evaluate “whether the right was clearly established.” Id. On a summary judgment motion, the burden is on the plaintiff to satisfy both prongs. See Bunkley v. City of Detroit, 902 F.3d 552, 559 (6th Cir. 2018). “In so doing, the plaintiff must, at a minimum, offer sufficient evidence to create a ‘genuine issue of fact‘; that is, ‘evidence on which [a] jury could reasonably find for the plaintiff.‘” Id. (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
B. Violation of Constitutional Rights Prong
To prevail on her
The district court concluded that there were genuine disputes of material fact as to whether Cernuto is subject to bystander or joint liability (Count IV) because he was an active participant in violating Sexton‘s constitutional rights. The district court also concluded that Cernuto may be found liable on Sexton‘s failure to protect claim (Count III) under the “special relationship” theory.
Cernuto asserts that the district court improperly applied both prongs of the qualified immunity analysis. He argues that on the first prong of the qualified immunity analysis—whether Cernuto violated Sexton‘s constitutional rights—neither the “active” nor “specialrelationship” theory of liability is applicable as a matter of law to a co-supervisor of a probation program. Specifically, he asserts that his “co-supervisor” status means that there is no legal basis for supervisory liability under
Cernuto claims that, as a matter of law, he could not be liable for Sexton‘s assault under an “active role” theory because he was not Dunn‘s supervisor; instead, it is undisputed that the men “were co-supervisors of the work program.” He also argues that the facts presented to the district court are insufficient to create a genuine dispute of fact as to whether “Cernuto encouraged and facilitated the sexual assault of Sexton.”
Cernuto‘s focus on his relationship to Dunn misunderstands Sexton‘s joint liability claim. It is true that the cases in which courts have denied qualified immunity to a secondary actor for the constitutional tort of another government official often contain a supervisor and supervisee relationship. See, e.g., Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994). But that relationship is not a necessary component of the claim, because the basis of liability for such claims is the active role that the supervisor took in the constitutional tort. “Section 1983 liability of supervisory personnel ‘must be based on more than the right to control employees.‘” Griffith v. Franklin Cnty., 975 F.3d 554, 579 (6th Cir. 2020) (quoting Doe v. Claiborne Cnty., 103 F.3d 495, 511 (6th Cir. 1996)). Instead, “[t]here must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it.” Doe, 103 F.3d at 511 (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984), cert. denied, 469 U.S. 845 (1984)). In other words, the most pertinent factor for analyzing
Our cases indicate that genuine disputes of material fact as to whether an official actively participated in another official‘s alleged constitutional violation are sufficient to satisfy the first prong of the qualified immunity analysis. In Hall v. Shipley, 932 F.2d 1147 (6th Cir. 1991), Hall brought a
The evidence Sexton alleges creates a record resembling that in Hall. Viewed in the light most favorable to Sexton, the evidence raises a genuine dispute of material fact as to whether Cernuto facilitated the assaults against Sexton. On several occasions Cernuto ordered Sexton to ride alone in the pickup truck with Dunn, in violation of the Township‘s policy against female probationers riding alone with supervisors. Cernuto refused each of Sexton‘s requests to ride in the van with the other probationers. Sexton also pointed to circumstantial evidence that Cernuto was aware of Dunn‘s plans, including the whispered conversations and laughter between the men before Cernuto issued his orders to Sexton to go with Dunn and
2. Cernuto‘s Duty to Protect Sexton
The district court held that there was a special relationship between Sexton and Cernuto such that a reasonable jury could find Cernuto liable for failing to protect Sexton from the sexual assaults. According to Cernuto, Sexton was not in his custody or otherwise sufficiently under his control in the work program, meaning that no special relationship with Sexton existed that would give rise to a duty to protect under the Due Process Clause of the Fourteenth Amendment. He further argues that, even if a special relationship existed, the duty to protect is only against private violence, not the violence of other state actors.
In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court concluded 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.” Id. at 196. There are, however, two exceptions under which the Constitution “imposes upon [the government] a corresponding duty to assume some responsibility for [the] safety and wellbeing” of an individual. Id. at 200. The first exception is when a “special relationship” exists between the state and the private individual due to the state‘s significant restraint on that individual‘s personal liberty. Id.; see also Stemler v. City of Florence, 126 F.3d 856, 867-68 (6th Cir. 1997). The second exception—the state created danger doctrine—applies when “the state takes an affirmative act that increases the victim‘s risk of harm” from private acts of violence. Lipman v. Budish, 974 F.3d 726, 733 (6th Cir. 2020); see also Engler v. Arnold, 862 F.3d 571, 575 (6th Cir. 2017).
Although the district court rejected liability under the state created danger doctrine, it concluded that the facts supported application of the special relationship exception. Under this exception, the state has a duty to protect an individual when it has “so restrain[ed] 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.” Lipman, 974 F.3d at 743 (quoting DeShaney, 489 U.S. at 200). The application of this exception typically requires “some state action that applies force (or the threat of force) and show of authority made with the intent of acquiring physical control.” Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005). The state‘s obligation “arises not from the State‘s knowledge of the individual‘s predicament or from its expressions of intent to help him, but from thelimitation which it has imposed on his freedom to act on his own behalf.” DeShaney, 489 U.S. at 200.
Cernuto argues that the district court erred in finding that the facts, even viewed in the light most favorable to Sexton, could show the level of constraint on Sexton‘s personal liberty required to create a special relationship. Our cases analyzing whether a special relationship exists do not squarely address whether a work program for probationers is custodial
Cernuto devotes considerable attention to Sargi v. Kent City Board of Education, 70 F.3d 907 (6th Cir. 1995) to support his argument that a work program can never create a special relationship with the state. In Sargi, the family of a student who had died from heart failure on a school bus brought a
The work program, however, placed far more restrictions on Sexton‘s liberty and her ability to care for herself than did the compulsory education laws or involuntary medical care that this court has previously analyzed. Through the probation work program, the state retained authority to physically confine Sexton, even if her liberty as a probationer was greater than that she would have had in prison. That Sexton could leave the work program at the end of the day is not dispositive. In Garrett v. Belmont County Sheriff‘s Department, 374 F. App‘x 612, 618 (6th Cir. 2010), we found sufficient allegations that state officials violated the constitutional rights of a woman who killed herself after being confined to county custody, released on bond, placed in a mental facility, and then released on bond again. The court explained that even though the woman was no longer directly in state custody when she killed herself, the allegations that the state continued to have the authority to confine her under the terms of her bond, and had done so before, were sufficient to show the special relationship necessary to support the constitutional claim under
Cernuto‘s arguments from out-of-circuit cases do not change this conclusion. Cernuto points to Philadelphia Police & Fire Association for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989), contending that “intermittent custody” cannot create a special relationship. In that case, individuals with intellectual disabilities were requiredto participate in state-sponsored day programs and were “absolutely dependent upon the state.” Id. at 167-68. In a challenge to budgetary cuts, participants argued that the government had an affirmative duty to fund the programs. Id. at 158. The Third Circuit concluded that DeShaney foreclosed finding a duty without a custodial relationship because the program participants were only intermittently under state control and were allowed to leave at any time. Id. at 168. Cernuto also directs the court to a Pennsylvania decision holding that a probationer who “was required to report to his probation officer once a month, to work forty hours a week, and to participate in a program of mental health treatment” was not “in physical custody” and could provide for his own needs such that no special relationship existed. Taylor v. Garwood, 98 F. Supp. 2d 672, 677 (E.D. Pa. 2000), aff‘d, 275 F.3d 38 (3d Cir. 2001). But the evidence, when viewed in the light most favorable to Sexton, shows that the Redford work program placed far greater restrictions on Sexton‘s liberty, including the threat of incarceration and limitations on physical movement. The program participants in Philadelphia Police & Fire Association were not directly threatened with incarceration due to non-participation. And unlike Sexton, the probationer in the Eastern District of Pennsylvania case was not in physical custody for stretches of time. Looking to DeShaney, the restrictions on Sexton‘s physical movement and personal liberty during her time in the work program were sufficient to create a special relationship between Cernuto and Sexton.
Cernuto‘s other argument that he was not the type of public official who would have a special relationship with a probationer also fails. He argues that the cases the district court relied on to find a duty to protect Sexton from sexual assault did not analyze the special relationship exception, and he also contends that the exception exclusively applies to law enforcement officers. According to Cernuto, because he “was not a law enforcement officer and had no authority to arrest the work program participants,” the duty to protect cannot extend to him. This is a misreading of the cases on
Cernuto concludes with the argument that “the ‘special relationship’ exception has traditionally been used to impose constitutional liability on the State for the actions of a private party.” He asserts that even if he had a duty to Sexton through a special relationship, that duty to protect applies only to private acts of violence, not those of a state actor like Dunn. Cernuto points to language in our opinions specifying that the DeShaney exceptions are a means to hold public officials liable “for private acts of violence.” Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006); see also Peete, 486 F.3d at 223. The district court, however, correctly analyzed this private acts issue only in the context of the state created danger exception to DeShaney, explaining that while “[i]t is not clear why the distinction between state and private actors exists in the Sixth Circuit,” it was nevertheless necessary to find the state created danger exception inapplicable on that ground.
Cernuto‘s argument that the special relationship exception is also limited to protecting against private acts of violence would require an extension of our case law. As shown by the district court‘s analysis, it is our line of cases on the state created danger exception—not the special relationship exception—that includes the requirement that the state must expose the plaintiff “to private acts of violence.” Peete, 486 F.3d at 223; see also Estate of Barnwell by S.C.B. v. Grigsby, 681 F. App‘x 435, 443 (6th Cir. 2017).3 First, case law provides reasons not to apply this distinction to the special relationship exception. Enforcing the distinction between state and private actors does not necessarily follow from DeShaney. There, the question before the Court was whether state entities or agents had an obligation to protect a child from an abusive parent. DeShaney, 489 U.S. at 195. The Court did not address violence from a state actor because the violence in that case was by a parent, not a state actor. See id. at 201. And although DeShaney analyzed the duty to protect against private acts of violence, its holding includes the much broader proposition that “when the State takes a person into its custody and
holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety.” Id. at 199-200. To require that the violence complained of be private would significantly diminish this responsibility.
Second, the special relationship exception and the state created danger exception arise from different relationships, and that difference supports treating the two exceptions as distinct. The state created danger exception, as the Second Circuit has explained, “arises from the relationship between the state and the private assailant.” Pena v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005). In contrast, the special relationship exception, by definition, concerns the “relationship between the state and a particular victim.” Id. Paying greater attention to whether the harm arose from a state or private actor in the special relationship analysis would, therefore, introduce a distinction unrelated to the relationship from which the state obligation arises. In keeping with this logic, we have thus far limited the discussion of this apparent distinction between state and private violence to the state created danger
Because the work program placed significant limits on Sexton‘s personal liberties, she had a special relationship with Cernuto. Therefore, Cernuto had a duty to protect Sexton from harm while she was participating in the work program. When viewing the facts in the light most favorable to Sexton, a reasonable jury could find that Cernuto failed to protect Sexton from the sexual assaults. The district court did not err in reaching this conclusion.
C. Clearly Established Right Prong
Having determined that Cernuto could be liable for violating Sexton‘s constitutional rights under both of her
The district court correctly identified the constitutional right at issue for Sexton‘s
Cernuto argues that the panel must define the relevant constitutional right in very narrow terms, proposing a requirement of near factual identity. Although the court is to consider “whether the violative nature of particular conduct is clearly established,” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting al-Kidd, 563 U.S. at 742) (emphasis in original), it should also avoid a “rigid, overreliance on factual similarity” that could overwhelm the clearly established prong, Baynes v. Cleland, 799 F.3d 600, 612 (6th Cir. 2015) (quoting Hope v. Pelzer, 536 U.S. 730, 742 (2002)). Because he did not personally assault Sexton, Cernuto contends that the district court should have analyzed whether Sexton, “as a probationer in a work program, had a clearly established constitutional right that required Cernuto, a non-law enforcement, non-supervisory employee, to protect her from or intervene in a sexual assault by his co-worker.” Cernuto‘s formulation is flawed in several respects. First, it compels an “overreliance on factual similarity.” Second, as discussed above, Cernuto‘s assertion that
As to that duty to protect, even under Cernuto‘s narrower focus on whether it was clearly established that he had a duty, the answer is plain. Our case law has clearly established that government actors owe citizens “a constitutional duty to keep them from harm ... when the state has acted to deprive an individual of certain indicia of liberty.” Stemler v. City of Florence, 126 F.3d 856, 867 (6th Cir. 1997). In Stemler v. City of Florence, for example, we considered qualified immunity in the context of a
Cernuto points to cases that he contends require more factually identical case law to show that a right is clearly established. The cases he cites, however, are almost universally about
In contrast, an individual‘s right to be free from a government official‘s sexual assault was clearly established in July 2017, including that facilitating such an assault would also violate that right. In addition to this established law, the Supreme Court has explained that: “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741. Given the egregiousness of Dunn‘s sexual assault and Cernuto‘s alleged facilitation of it, Sexton‘s right to personal security and bodily integrity is so “obvious” that it can be deemed clearly established even without materially similar
Sexton‘s right to be free from sexual assault was clearly established in July 2017. The district court did not err in finding the second prong of the qualified immunity analysis satisfied and holding that Cernuto was not entitled to summary judgment on the qualified immunity issue.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court‘s denial of Cernuto‘s motion for summary judgment.