421 F. App'x 38
2d Cir.
2011

Tracey ROBISCHUNG-WALSH, as the Executrix of the Estate of Dennis T. Walsh v. NASSAU COUNTY POLICE DEPARTMENT, County of Nassau, Lawrence Mulvey, Police Commissioner, James Lawrence, Former Police Commissioner, individually and in their official сapacities

No. 10-1596-cv

United States Court of Appeals, Second Circuit

April 29, 2011

cause according to its terms it must be distributed to all employees, not just those whose employment it governs. In any event, one would expect MacInnis to need a copy of the handbook to discharge his supervisory duties over employees covered by its terms.

Because MacInnis had no protected property interest in his employment, his termination did not violate his due process rights. We need not consider MacInnis‘s argument that Director of Park and Recreation is not an Appointed Office under Article IX of the town‘s charter, because the town‘s belief to the contrary sufficed to negative any implied offers of tenure, and any property right that may have arisen if the positiоn were an Appointed Office under the charter would have lapsed when MacInnis‘s formal term ended in 2001—over six years before his termination.

We have considered all of MacInnis‘s arguments and conclude that they lack merit. For the foregoing reasons, we hereby AFFIRM the judgment of the district court.

Tracey ROBISCHUNG-WALSH, as the Executrix of the Estate of Dennis T. Walsh, Plaintiff-Appellаnt, v. NASSAU COUNTY POLICE DEPARTMENT, County of Nassau, Lawrence Mulvey, Police Commissioner, James Lawrence, Former Police Commissioner, individually and in their official capacities, Defendants-Appelleеs.*

No. 10-1596-cv.

United States Court of Appeals, Second Circuit.

April 29, 2011.

Rick Ostrove, Leeds Morelli & Brown, P.C., Carle Place, NY, for Plaintiff-Appellant.

Jackie L. Gross, Deputy County Attorney (Nazneen Malik, on the brief), for John Ciampoli, Nassau County Attorney, Mineola, NY, for Defendants-Appellees.

Present: DENNIS JACOBS, Chief Judge, PIERRE N. ‍​‌​​​‌​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌‌​‌​​‌‌‌‌​​​​‌‍LEVAL and ROBERT A. KATZMANN, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Tracey Robischung-Walsh (“plaintiff“), in her capacity as executrix of the estate of her late husband, Dennis T. Walsh (“Walsh“), appeals from a judgment of the United States District Court for thе Eastern District of New York (Spatt, J.) dismissing her complaint. Plaintiff brought suit under 42 U.S.C. § 1983 after Walsh, who joined the Nassau County Police Department (“NCPD“) in 1990 as a police officer and was eventually promoted to the position of Detective Lieutenant, committed suicide in 2006. Plaintiff avers that Walsh took his life as a result of undiagnosed cumulative post-traumatic stress disorder (“CPTSD“). She further аlleges that the NCPD and other defendants exhibited deliberate indifference toward Walsh by failing to train him and other NCPD officers on suicide prevention, suicide risk assessment, or the effects of CPTSD. We presume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review.

“We review de novo the grant of a motion to dismiss for failure to state a claim upon whiсh relief can be granted under Federal Rule of Civil Procedure 12(b)(6).” Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). “We consider the legal sufficiency of the complaint, taking its factual allegations to be true and drawing all reasonable inferences in the рlaintiff‘s favor.” Id.

Where, as here, a plaintiff brings a § 1983 claim against a county, “proper analysis requires us to separate two different issues ...: (1) whether plaintiff‘s harm was caused by a constitutional violation, and (2) if so, whethеr the [county] is responsible for that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). In the opinion below, the district court focused primarily on plaintiff‘s allegations regarding the defendants’ responsibility for what it assumed was a violation of Walsh‘s constitutional rights, and determined that those ‍​‌​​​‌​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌‌​‌​​‌‌‌‌​​​​‌‍allegations were implausible or otherwise lacking. For the following reasons, we affirm on the basis that plaintiff has failеd to state a claim that Walsh‘s suicide involved a violation of his constitutional rights.

Plaintiff‘s complaint asserts that the defendants violated rights guaranteed to Walsh under the Due Process Clause of the Fourteenth Amendment. In particular, plaintiff relies on the “substantive component” of the Due Process Clause, which “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.‘” Id. at 125, 112 S.Ct. 1061 (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). As a general matter, the Due Process Clause has not been construed as “a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago Cnty. Dep‘t of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). However, we have recognized that in certain “exceptional circumstances” a state actor may be under an affirmative constitutionаl obligation to protect an individual, “either because of a special relationship with an individual, or because the governmental entity itself has created or increаsed the danger to the individual.” Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir.1993) (citation omitted).

We are unpersuaded that plaintiff‘s claim involves circumstances of the sort that can serve as a basis for substantive due process liability. First, we decline to hold that the relationship between Walsh and the NCPD was a “special relationship” as that term is defined by our precedents. “Our own opinions have focused on involuntary сustody as the linchpin of any special relationship exception.” Matican v. City of New York, 524 F.3d 151, 156 (2d Cir.2008). Here, “[plaintiff] cannot maintain that the [county] deprived [Walsh] of his liberty when it made, and he voluntarily acсepted, an offer of employment.” Collins, 503 U.S. at 128, 112 S.Ct. 1061. Substantive due process does not support constitutional liability for claims based solely on a governmental ‍​‌​​​‌​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌‌​‌​​‌‌‌‌​​​​‌‍entity‘s alleged failure “to provide its employees with a safe working environment.” Id. at 126, 112 S.Ct. 1061.

Plaintiff‘s attempt to fit her claim within the “state-created danger” exception fares no better. Our cases recognizing this theory of liability involve sce-narios where, unlike here, “a government official takes an affirmative act that creates an opportunity for a third party to harm a victim (or increases the risk of such harm).” Lombardi v. Whitman, 485 F.3d 73, 80 (2d Cir.2007) (emphasis added); see also Okin v. Vill. of Cornwall-On-Hudson Police Dep‘t, 577 F.3d 415, 429 (2d Cir.2009) (“The affirmative conduct of a government official may give rise to an actionable due process violation if it communicates, explicitly оr implicitly, official sanction of private violence.” (emphasis added)). “It is not enough to allege that a government actor failed to protect an individual from a known dаnger of bodily harm or failed to warn the individual of that danger.” Lombardi, 485 F.3d at 79. Plaintiff‘s complaint is devoid of any allegations of affirmative, risk-creating acts by the defendants beyond the mere facts of Walsh‘s continued employment with and promotions by the NCPD. For the reasons stated above, the relationship between a government employer and its employee does nоt give rise to a constitutional obligation to protect the employee from a known risk of harm.

Even assuming arguendo that plaintiff sufficiently pleaded a special relationship or state-сreated danger, her substantive due process claim is deficient for the independent reason that it lacks allegations of conscience-shocking conduct. See Okin, 577 F.3d at 431 (“To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was ‘so egregious, so outrageous, that it may fairly be said to shock the cоntemporary conscience.‘” (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. ‍​‌​​​‌​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌‌​‌​​‌‌‌‌​​​​‌‍1708, 140 L.Ed.2d 1043 (1998))). While the alleged deliberate indifference of state actors may in some circumstances rise to a conscience-shocking level, this ordinarily is not so when the defendants are “subject to the pull of com-peting obligations.” Lombardi, 485 F.3d at 83. In particular, a substantive due process claim based on a municipal defendant‘s asserted failure to train its employees or warn them of job-related dangers does not allege conduct so arbitrary that it violates the right to substantive due process. Sеe Collins, 503 U.S. at 128, 112 S.Ct. 1061; see also id. at 128-29, 112 S.Ct. 1061 (“Decisions concerning the allocation of resources to individual programs ... and to particular aspects of those programs, such as the training and compеnsation of employees, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the bаsic charter of Government for the entire country.“).

Here, plaintiff‘s complaint acknowledges that Walsh received training regarding CPTSD and suicide prevention during his time at the Nassau Cоunty Police Academy and that he underwent a psychological examination upon applying to the NCPD. While plaintiff asserts that this training was inadequate and that further training would have mitigated the risks of officer suicide, she does not allege that the defendants recognized the inadequacy and wantonly withheld adequate advice or training. Her claims do not sustain a substantive due process violation, as the defendants’ decisions regarding the extent of such training necessarily involved the balancing of competing concerns and the allocation of limited resources. Although plaintiff‘s wish that the NCPD had done more to prevent Walsh‘s suicide is understandable, her allegations of deficiencies in the department‘s training program do not describe government behavior that is “arbitrary, conscience-shocking, or oppressive in a constitutional sense.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.1995).

For the foregoing reasons, we concludе that plaintiff‘s complaint fails to plead a violation of Walsh‘s substantive due process rights, and therefore have no need to address the defendants’ responsibility for the alleged violation. Accordingly, we AFFIRM the district court‘s judgment.

Notes

*
The Clerk of Court is directed to amend ‍​‌​​​‌​‌‌​‌​‌​‌‌‌​‌​​​‌‌​‌‌​​​‌‌​‌‌​‌​​‌‌‌‌​​​​‌‍the caption as set forth above.
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