Waybright v. Frederick County, MDWaybright v. Frederick County, MD
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- Before:
- Wilkinson
Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge GREGORY joined.
OPINION
WILKINSON, Circuit Judge:
Andrew Waybright died by accident while training to join the Frederick County Fire Department in Maryland. His parents brought suit on state constitutional and tort law grounds — but also, with the same conduct in view, under
I.
A little before seven on the morning of July 3, 2002, new recruits for the Freder
A 23-year-old recruit named Andrew Waybright started looking sick and pale during the workout. Another recruit asked if Waybright wanted to say something to Coombe, but Waybright said no. Just before 8:10 A.M., as the session was concluding and everyone was heading back to the Training Center, Waybright collapsed in the grass. He tried to crawl back to the Training Center, saying “I want to finish with my class,” and was able to get up briefly. But his legs were shaky and Coombe told him to rest where he was.
As Waybright lay there, two bystanders came by and offered to call 911, but another firefighter, Eckhardt (who was also an emergency medical technician), said that Waybright was “just played out,” no need to call. Coombe stayed with Waybright briefly, but did not administer first aid. Before leaving, Coombe assigned Eckhardt to watch over Waybright. At the Training Center, Coombe told a second firefighter, Grossnickle, to get a pickup truck to pick Waybright up.
While Eckhardt waited with him, Way-bright lost consciousness. Eckhardt had no phone or radio, but when Grossnickle arrived in the truck, Eckhardt told him to call 911. Grossnickle returned to the Training Center, told another firefighter to call 911, and brought a paramedic back to the scene. He returned to the Training Center to look for medical equipment, which he couldn’t find.
At about 8:15, Waybright went into cardiac arrest. The paramedic administered CPR, and soon thereafter an ambulance arrived and took Waybright to the emergency room — where, at 9:22, he died. An autopsy revealed that he had no preexisting conditions and died of hyperthermia (heat stroke).
A Frederick County Board of Inquiry was impaneled and, after considerable investigation, issued a report in January 2003. With respect to Coombe, the report found that he failed to bring water to the training session (contrary to protocol), overlooked the recruits’ distress during the session, and failed to recognize the emergency situation that occurred when Way-bright collapsed. With respect to Frederick County’s recruiting school, the report found that its staff was overloaded and undertrained (Coombe, for example, had no certification in physical fitness), and that the school simply could not be run safely without substantial reform. It also found that at least one supervisor knew about these problems to some extent. In response to the incident and report, the recruiting school was shut down for several years and training outsourced to other jurisdictions.
In March 2004, Andrew Waybright’s parents filed a tort suit in state court against Jeffrey Coombe, various co-workers in the Frederick County Fire Department, and the Department itself. The complaint alleged wrongful death, loss of solatium, and survival, all premised on
Before the state court could rule on the remainder of the case, plaintiffs filed an amended complaint adding new defendants and new causes of action, some of which were federal. Defendants, invoking federal question jurisdiction, removed to federal district court — where over the next two- and-a-half years, the case ballooned, swelling in complexity to such an extent that the second amended complaint, at seventy-nine pages, was almost six times the original state complaint’s length, and the district court needed a chart to keep track of the claims and defendants. See Waybright v. Frederick County Md. Dep’t of Fire & Rescue Servs., 475 F.Supp.2d 542, 548 (D.Md.2007). When all was said and done, plaintiffs had lodged three types of claims against four types of defendants.
First was a
Defendants moved for summary judgment, and, in March 2007, the district court granted it with respect to plaintiffs’ federal and state constitutional claims, but remanded the tort claims to the Circuit Court for Frederick County.
Waybright, 475
F.Supp.2d 542. First, the district court rejected plaintiffs’
II.
The
A.
The Fourteenth Amendment’s Due Process Clause protects a set of interests — ■ life, liberty, and property — that are also protected by state tort law. Together with
Two principles stand out in these cases. The first involves a certain sense of constitutional magnitude — a sense that, as due process at the core combats
“arbitrary
action” of government,
County of Sacramento,
523 U.S. at 845, 118 S.Ct. 1708 (emphasis added), applying the Clause to the ordinary run of governmental neglect, inaction, and bad policy would diminish it. Thus we find the Court remarking that “only the most egregious official conduct can be said to be arbitrary in the constitutional sense,”
id.
at 846, 118 S.Ct. 1708 (quotation omitted); that the Constitution “deals with the large concerns of the governors and the governed,”
Daniels,
474 U.S. at 332, 106 S.Ct. 662; that courts should exercise “judicial self-restraint” and “utmost care” in novel substantive due process cases,
Collins,
503 U.S. at 125, 112 S.Ct. 1061; and that the Clause “was intended to prevent government from abusing its power, or employing it as an instrument of oppression,”
DeShaney,
489 U.S. at 196, 109 S.Ct. 998 (quotation omitted), and it would not do to “trivialize” it,
Daniels,
474 U.S. at 332, 106 S.Ct. 662. Repeatedly, the Court quotes Chief Justice Marshall’s great admonishment: “[W]e must never forget, that it is
a constitution
we are expounding.”
McCulloch v. Maryland,
4 Wheat. 316, 407, 4 L.Ed. 579 (1819) (emphasis in original),
quoted in County of Sacramento,
523 U.S. at 846, 118 S.Ct. 1708;
Daniels,
474 U.S. at 332, 106 S.Ct.
Second is concern for the authority of state governments over areas traditionally assigned to state law — and with that, disquiet at the potentially staggering practical consequences of empowering federal judges to oversee everything from pillows left on prison stairs (Daniels) to sewer maintenance (Collins) with the inflexible instrument of constitutional law. Thus
Collins
states that decisions about how to allocate resources in state government “involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.” 503 U.S. at 129, 112 S.Ct. 1061. And
Paul v. Davis,
“pausing] to consider the result” should
With these principles in mind, the Supreme Court has, for half a century now, marked out executive conduct wrong enough to register on a due process scale as conduct that “shocks the conscience,” and nothing less. County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). The shocks-the-conscience test turns on degree of fault. For a due process challenge to executive action to succeed, the general rule is that the action must have been “intended to injure in some way unjustifiable by any government interest.” County of Sacramento, 523 U.S. at 849, 118 S.Ct. 1708. As to “negligently inflicted harm,” it is “categorically beneath the threshold of constitutional due process.” Id. And as to “culpability falling within the middle range, following from something more than negligence but less than intentional conduct,” the Court has allowed that it may have constitutional implications, but only in special circumstances. Id. (quotation omitted). As to what those special circumstances are, the Court has issued no general rule except that judges should proceed with “self-restraint” and “utmost care,” Collins, 503 U.S. at 125, 112 S.Ct. 1061, and make “an exact analysis” of the circumstances presented “before any abuse of power is condemned as conscience shocking,” County of Sacramento, 523 U.S. at 850, 118 S.Ct. 1708.
What this body of law on the whole makes clear is that, where a claim sounds both in state tort law and substantive due process, state tort law is the rule and due process the distinct exception. In other words, the Supreme Court has established a strong presumption that
Plaintiffs’
B.
Plaintiffs’ first and major argument for recognizing a federal substantive due process claim is that Coombe, in their view, had time before Waybright’s collapse to deliberate about the dangers awaiting recruits. Coombe knew how dangerous it was to exercise outside in the heat without adequate hydration; he had given a PowerPoint presentation on the subject just the day before the fatal run. And although one might disagree as to whether Coombe had time to deliberate after Way-bright collapsed, plaintiffs argue, he certainly had time beforehand to make an unrushed decision about the need to have water on hand. According to plaintiffs, it was this time to deliberate that transmuted what might otherwise be ordinary negligence into a form of deliberate indifference cognizable under the U.S. Constitution.
The support for this argument comes from the Sixth Circuit’s remarks in Estate of Owensby v. City of Cincinnati that “[t]he determining factor” when deciding whether deliberate indifference shocks the conscience should be “whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct.” 414 F.3d 596, 602 (6th Cir.2005) (quotation omitted). But the case law as a whole is against a general rule that time to deliberate transforms negligent error into constitutionally shocking conduct. The D.C. Circuit has rejected the rule, holding that “[t]he opportunity for deliberation alone is not sufficient to apply” a lower bar to substantive due process claims. Fraternal Order of Police Dep’t of Corr. Labor Comm. v. Williams, 375 F.3d 1141, 1146 (D.C.Cir.2004). And the Supreme Court, we think, has done the same. In holding that due process does not require governmental employers to provide a safe workplace, but that state tort law may, see Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), the Court necessarily rejected the time to deliberate theory — for employers most often have time to deliberate about workplace conditions. The Court has also held that there is no deliberate indifference without actual knowledge of a danger, see Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) — and of course one can have time to deliberate about danger without having actual knowledge of it.
The time to deliberate theory is also difficult to apply. What part of the challenged conduct matters? Does the opportunity to deliberate begin months or weeks before an accident, the night before, or at the time events unfolded? This question would emerge in many cases besides Way-bright’s because longstanding conditions often lead to rapidly unfolding harm. Also, when has one had enough time to deliberate? What kind of prior notice of potential danger causes the deliberative duty to kick in? These and other questions have real litigious potential. Indeed, they threaten more cases like the present one, where confusion over what belongs in state and.what in federal court leads to delay for plaintiffs in getting relief and
Plaintiffs’ second argument is that a federal question arises because Coombe and Waybright were in what the Supreme Court has called “a special relationship.” See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 197-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). It is true that, where the state is in a special relationship to a private individual, it acquires a duty to act on that individual’s behalf and its failures to act are measured on a deliberate indifference standard; that is why a conscious disregard of the rights of prisoners, pretrial detainees, and committed mental patients have traditionally been examined for deliberate indifference. See Patten v. Nichols, 274 F.3d 829, 836-37 (4th Cir.2001). The problem is that “special relationship” is a term of art that does not apply to Coombe and Waybright.
As DeShaney indicates and our case law specifies, a “special relationship” is all but synonymous with a custodial relationship. See DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998 (“[W]hen 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 and general well-being.”); Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir.1995) (en banc) (“This Court has consistently read DeShaney to require a custodial context before any affirmative duty can arise under the Due Process Clause.”). The idea of a custodial relationship is a circumscribed one, grounded in the rationale De-Shaney gives for it: “[W]hen 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 . . . it transgresses the substantive limits on state action.... ” 489 U.S. at 200, 109 S.Ct. 998. Thus “[sjome sort of confinement” is needed to render a relationship custodial, such as “incarceration, institutionalization, or the like.” Pin-der, 54 F.3d at 1175. Coombe did not confine Waybright in this sense. Way-bright was free to walk away from the exercise session and the job. See Collins, 503 U.S. at 128, 112 S.Ct. 1061 (holding that a city employee in a dangerous workplace is not in a custodial relationship because he has “voluntarily acceptedf] an offer of employment”).
Plaintiffs’ third argument is that a substantive due process claim arises because Coombe created the danger Waybright faced. As we stated in Pinder, “[w]hen the state itself creates the dangerous situation that resulted in a victim’s injury, the absence of a custodial relationship may not be dispositive.” 54 F.3d at 1177. Here, plaintiffs argue, the training session should qualify as a state-created danger because a state actor, Coombe, “used his authority to create an opportunity for danger that otherwise would not have existed,” and thereby knowingly put Waybright in harm’s way. Rivas v. City of Passaic, 365 F.3d 181, 194 (3d Cir.2004).
To apply the state-created danger theory in this context, however, would run afoul of the Supreme Court’s unanimous decision in Collins, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261, which held that due process does not impose a duty on municipalities to provide their employees with a safe workplace or warn them against risks of harm (though state tort law may). The case is right on point, for plaintiffs’ state-created danger claim, in essence, is that Coombe created an unsafe workplace that caused a prospective employee harm. And while we recognize that Collins involved a municipal rather than an individual defendant, the case speaks decisively to the situation here.
C.
Plaintiffs’ attempt to create a federal claim is thus all but at a close. The facts reveal a terribly sad occurrence, but not conduct that meets the constitutional threshold.
The Supreme Court has held that “only the most egregious official conduct” can shock the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Successful claims in this area typically feature quite extreme governmental wrongdoing. See, e.g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (pumping a suspect’s stomach to look for drugs). But here, under no plausible reading of the facts did Coombe even know that Waybright was in serious, let alone mortal, danger. When Waybright started to feel ill during the workout, he did not tell Coombe. (Another recruit, who did tell Coombe when he felt dizzy, was given a break.) When Waybright collapsed, he did not immediately lose consciousness, and indeed “got back up under his own power” and “kept saying, T want to finish with my class,’ ” according to the Board of Inquiry report. No one at that time seems to have recognized how serious Waybright’s situation was; hence the remark by another firefighter, when two passers-by offered to call 911, that there was no need to call because Waybright was “just played out.” In addition, Coombe did not ignore or disregard Waybright’s distress when he learned of it. After Way-bright stood up in an effort to continue, it was Coombe who told him to rest instead. Coombe also assigned a second firefighter (one with medical training) to look after Waybright, and told a third firefighter to get a vehicle to pick Waybright up. This conduct is a far cry from shocking the conscience. It was, rather, as the Board of Inquiry concluded, an under-reaction— that is, a misjudgment. Whether it was a negligent misjudgment is not for us to say, but misjudgments such as these are “categorically beneath the threshold of constitutional due process.” County of Sacramento, 523 U.S. at 849, 118 S.Ct. 1708.
We therefore affirm the district court’s denial of plaintiffs’
III.
The federal side of this case is at an end. What remain, however, are plaintiffs’ state constitutional claims under Article 24 of the Maryland Declaration of Rights and the state tort claims with which this case began. The district court dismissed the constitutional claims because, according to Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218, 1224 (2001), Article 24 and the federal Due Process Clause are to be interpreted “in pari materia.” But the court declined to exercise supplemental jurisdiction over the tort claims, and remanded them, because they “involve novel and complex arguments regarding the interplay between” various state statutes, as well as the “impact of those rulings” already made in this case in the Circuit Court for Frederick County. Waybright v. Frederick County Md. Dep’t of Fire & Rescue Sens., 475 F.Supp.2d 542, 556-57 (D.Md.2007).
We agree with the district court’s decision as to the tort claims, but it erred in passing on the merits of plaintiffs’ Article 24 claim. Since Pickett was decided, Dua v. Comcast Cable of Md., Inc., 370 Md. 604, 805 A.2d 1061, 1072 (2002), stated that federal decisions about the Due Process Clause “are no more than persuasive authorities” when it comes to applying Article 24, and Koshko v. Haining, 398 Md. 404, 921 A.2d 171, 194 (2007), noted that “the extent of protection bestowed upon liberty interests recognized as being enshrined within the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution does not dictate necessarily the full complement of safeguards extended to liberty interests available under the Maryland due process analog found in Article 24.”
We decline to make a close analysis of the issue, however, because there is an even more important reason to decline supplemental jurisdiction here. The upshot of our analysis is that this case is basically a state case gone awry. With all its federal questions gone, there may be the authority to keep it in federal court under
IV.
This case started life as a perfectly sensible state tort suit. Then, a little repackaging turned its state tort claims into fed
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED