Susan Durham v. Estate of Gus Losleben ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0390n.06
No. 17-5543
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
SUSAN SUMMER DURHAM, As Widow and ) Aug 03, 2018
Administratrix of the Estate of Christopher Durham ) DEBORAH S. HUNT, Clerk
and on Behalf of the Wrongful Death Beneficiaries of )
CHRISTOPHER DURHAM, deceased, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
ESTATE OF GUS LOSLEBEN, Deceased, By and )
Through the Estate’s Administrator, Lloyd Tatum, ) OPINION
Esquire; HARDIN COUNTY FIRE )
DEPARTMENT; HARDIN COUNTY, )
TENNESSEE; JOHN DOES 1–10, )
)
Defendants-Appellees. )
Before: MOORE, THAPAR, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. This appeal arises from a tragic collision that took the
lives of a logger and a fireman on a rural Tennessee road. Plaintiff Susan Durham (“Plaintiff”)
alleges that her decedent Christopher Durham (“Durham”) was driving northbound on Holland
Creek Road in Hardin County, Tennessee, when fireman Gus Losleben, driving his fire truck
southbound, entered Durham’s lane and crashed into him, killing both men. Because there were
no witnesses and because both men died at the scene, scant evidence is available to shed light on
the moments leading up to the accident. Plaintiff’s complaint thus fails to state facts that would
plausibly implicate Losleben as having engaged in the sort of egregious, conscience-shocking
behavior that is required for Plaintiff to state a claim against Losleben or Hardin County for federal
No. 17-5543, Durham v. Estate of Losleben, et al.
constitutional liability. Plaintiff may have a remedy for her loss in the Tennessee state courts, but
she cannot state a civil-rights claim under 42 U.S.C. § 1983. We therefore affirm the district
court’s dismissal of Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6).1
I
Plaintiff alleges that Losleben was driving “at an excessive rate of speed prior to the
collision” even though he “was not responding to any fire service emergency at the time.”
According to Plaintiff’s complaint, “Losleben crossed into Durham’s lane while driving the fire
truck at an excessive rate of speed,” “Losleben knew, or should have known, that his conduct in
driving the fire truck at an excessive rate of speed created a significant risk and likelihood of
serious injury and death to foreseeable motorists,” and “Losleben’s decision to operate the fire
truck at an excessive rate of speed on narrow Holland Creek Road was reckless and deliberately
indifferent to the safety of other motorists . . . including Durham.” Plaintiff describes Losleben’s
driving as exhibiting “reckless disregard,” “deliberate indifference,” and “conduct which shocks
the conscience.” But Plaintiff’s complaint fails to state facts sufficient to prove that Losleben did
more than speed and enter Durham’s lane. The district court thus held that, under controlling
Supreme Court precedent, Plaintiff’s allegations do not rise to the level of a federal constitutional
violation. Durham v. Estate of Losleben, No. 16-1042-STA-egb, 2017 WL 1437209, at *7 (W.D.
Tenn. Apr. 21, 2017). Plaintiff timely appealed, and we review de novo, accepting as true all and
only the allegations in Plaintiff’s complaint and construing Plaintiff’s complaint in her favor. See
Cooey v. Strickland, 479 F.3d 412, 415–16 (6th Cir. 2007).
1
Because our resolution of the 12(b)(6) issue suffices to affirm the district court’s dismissal, we decline to
review the district court’s alternative holding as to Hardin County that Plaintiff’s claim was untimely. And because
no party has asked us to, we do not inquire into the adequacy of any remedy available to Plaintiff in the state courts.
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II
Section 1983 offers a federal remedy when a state actor deprives a person of “rights,
privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Sometimes, plaintiffs
use § 1983 to seek a remedy for a violation of a “specific” constitutional provision, such as a claim
for malicious prosecution (a Fourth Amendment claim, see King v. Harwood, 852 F.3d 568, 580
(6th Cir. 2017)) or a claim for deliberate indifference to a prisoner’s medical needs (an Eighth
Amendment claim, see Bays v. Montmorency Cty., 874 F.3d 264, 268 (6th Cir. 2017)). And the
Supreme Court tells us that when “a constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)
(emphasis added) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). But when no
such “specific” provision is in play, then a § 1983 claim for deprivation of life is cognizable as a
Fourteenth Amendment substantive-due-process claim. Id. at 842–43.
Under Lewis, a state actor’s deprivation of another’s life is a violation of due process when
it is “arbitrary.” Id. at 845. But “only the most egregious official conduct can be said to be
‘arbitrary in the constitutional sense.’” Id. at 846 (quoting Collins v. City of Harker Heights,
503 U.S. 115, 129 (1992) (no substantive-due-process claim lay against city where sanitation
worker died of asphyxia after entering manhole to unstop sewer line)). Accordingly, only “conduct
‘that shocks the conscience’ and violates the ‘decencies of civilized conduct’” is actionable as a
substantive-due-process violation under § 1983. Ibid. (quoting Rochin v. California, 342 U.S. 165,
209–10 (1952)). The Court has “made it clear that the due process guarantee does not entail a
body of constitutional law imposing liability whenever someone cloaked with state authority
causes harm.” Id. at 848 (emphasis added); see also ibid. (“[T]he Fourteenth Amendment is not a
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‘font of tort law to be superimposed upon whatever systems may already be administered by the
States.’” (quoting Paul v. Davis, 424 U.S. 693, 701 (1976))). Thus, the Court has “categorically”
rejected mere negligence as violative of constitutional due process. Id. at 849. On the other hand,
“conduct intended to injure” is the “most likely to rise to the conscience-shocking level” and thus
count as egregious for the purpose of stating a substantive-due-process claim. Ibid. Lewis thus
sets forth a standard—“the most egregious,” conscience-shocking behavior—and provides outside
parameters (mere negligence is insufficient, while purpose to injure is more likely to be sufficient
but not always necessary) for the imposition of liability. Id. at 846.
When it comes to firemen engaged in tortious driving while not responding to an
emergency, however, it is unsettled exactly where the line falls between merely tortious conduct
and constitutionally deficient conduct. What about gross negligence? Recklessness? Willful
blindness? Or conduct where a state actor knows (or has substantial certainty) that it will cause
injury but does not intend such injury?
The cases provide some guidance. In Lewis itself, the Supreme Court held that no
substantive-due-process claim lay where a boy was killed during a high-speed police chase: even
an allegation of deliberate indifference to the boy’s survival was insufficient to state a claim, the
Court held, because an officer engaged in such a chase in which decisions were made
instantaneously or instinctively could be held liable only if he had “an improper or malicious
motive.” Id. at 854–55. For our part, we have held that whether conduct falling in the middle
ground between negligence and intent to injure is constitutionally deficient depends on such factors
as “(1) the voluntariness of the relationship between the government and the plaintiff, especially
whether the plaintiff was involuntarily in government custody or was voluntarily a government
employee; (2) whether the executive actor was required to act in haste or had time for deliberation;
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and (3) whether the government actor was pursuing a legitimate governmental purpose.” Hunt v.
Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 536 (6th Cir. 2008) (affirming dismissal of
substantive-due-process claim by teacher’s aide against school board for dangerous working
conditions arising from assault of aide by autistic student). Essentially, the more voluntary the
plaintiff-government relationship, or the less time the state actor has to deliberate, or the greater
the extent to which the state actor is pursuing a legitimate end, the less arbitrary we should deem
a bodily injury or death caused by the state actor.
III
Plaintiff relies on the Hunt factors by arguing that Durham had no voluntary relationship
with Defendants, that Losleben had sufficient time to deliberate as to whether to speed (because
Losleben was not under any present obligation to act in haste), and that Losleben was not pursuing
any legitimate interest that would compete with driving safely. Appellant’s Br. 27–28. But, other
than to repeat the refrain from Plaintiff’s complaint that Losleben was driving “at an excessive rate
of speed,” Plaintiff states no facts that would support a conclusion that Losleben’s conduct was
any more than grossly negligent, even granting Plaintiff all reasonable inferences. The Hunt
factors are meant to help us, in cases of uncertainty, to decide whether conduct is actionable under
§ 1983. But given Plaintiff’s allegations, there is no uncertainty that Plaintiff has failed to state
anything more than negligence or, at most, gross negligence on the part of Losleben. At worst,
given the facts stated in the complaint, Losleben was speeding down a narrow road for no reason
and crossed into Durham’s lane. The result of that allegedly tortious conduct was a tragic loss of
life. But roadway fatalities caused by speeding and failure to stay within one’s lane are, sadly,
regular occurrences. Without more, Plaintiff’s allegations simply cannot rise to the level of
arbitrary, conscience-shocking, egregious conduct that a substantive-due-process claim requires.
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Thus, we need not craft a particularized rule of liability for firemen who cause fatal accidents when
not responding to emergency service calls, for the Court’s holding in Lewis suffices to decide this
case and to foreclose Plaintiff’s pursuit of a federal remedy.
At oral argument, Plaintiff relied chiefly on Servin v. Anderson, No. 3:11-cv-539, 2012
WL 171330 (D. Conn. Jan. 20, 2012), and Browder v. City of Albuquerque, 787 F.3d 1076 (10th
Cir. 2015), as cases in which a federal court allowed an ostensibly analogous claim to go forward.
But in Servin, the defendant police officers were driving as fast as ninety-five miles per hour in a
forty-mile-per-hour zone while heading back to the station when one of the officers caused a fatal
accident en route. Servin, 2012 WL 171330, at *2. Here, Plaintiff has alleged only that Losleben
was driving at an “excessive” speed; one might reasonably infer that this means a speed in excess
of the speed limit, but we cannot infer that this means a conscience-shocking speed. And indeed,
even the Servin court thought it was “unquestionably a closer call,” id. at *5, whether the officers’
conduct was conscience-shocking there; the court denied the defendants’ motion to dismiss only
after granting the plaintiff the inference that it was “possible that, for example, the police officers
were only driving at high speeds because they knew they were clothed with the authority of state
law,” id. at *3.
In Browder, the Tenth Circuit affirmed the denial of a motion to dismiss (including the
denial of qualified immunity) where an off-duty police officer sped through 8.8 miles of city streets
before running through a red light and killing the plaintiff’s decedent. (The officer was also
charged criminally with reckless vehicular homicide.) Browder, 787 F.3d at 1077. The court held
that because a jury could reasonably infer “a conscious contempt of the lives of others and thus a
form of reckless indifference to a fundamental right,” the lawsuit should move forward. Id. at 1081.
Indeed, the officer there knew the light was red, had the occasion to deliberate, and yet “pressed
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the gas pedal, ignored the light,” and caused the fatal crash. Id. at 1077. This was joyriding, plain
and simple, and the Tenth Circuit compared the officer’s alleged conduct to a medieval king’s
exercise of the “power of destroying at pleasure.” Id. at 1079. In contrast, even if we were to
accept Browder’s reckless-indifference rule as the law of our circuit, Plaintiff here has not alleged
facts to support such a finding of “conscious contempt” by Losleben.
High-speed-chase cases like Lewis are, of course, distinguishable from cases like the
instant case because an officer engaged in a high-speed chase (like, perhaps, a fireman speeding
to the site of a burning dwelling) must make spur-of-the-moment decisions unimpeded by the
threat of liability, whereas Losleben, as Plaintiff argues, had occasion to consider whether to speed
or drive negligently. But even if that distinction supports a lower culpability threshold for firemen
who cause accidents in non-emergency cases than for officers engaged in high-speed pursuits,
Losleben’s alleged conduct here still falls short of whatever that lower threshold might reasonably
be. And because Plaintiff has not stated a § 1983 claim against Losleben, neither can Plaintiff
state a claim against Hardin County for municipal liability for a § 1983 violation. See Collins, 503
U.S. at 120. The Supreme Court’s Lewis framework thus decides this case, and the district court
was correct to dismiss Plaintiff’s complaint for failure to state a claim.
IV
In sum, we AFFIRM the district court’s dismissal of Plaintiff’s claims against Losleben
and Hardin County.
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