Caldwell v. Louisville , 120 F. App'x 566 ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0153n.06
Filed: December 9, 2004
No. 03-5342
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
CHRISTY CALDWELL, ADMINISTRATRIX OF )
THE ESTATE OF REBECCA CAY CALDWELL, )
DECEASED, )
) ON APPEAL FROM THE UNITED
Plaintiff-Appellee, ) STATES DISTRICT COURT
) FOR THE WESTERN DISTRICT OF
v. ) KENTUCKY
)
CITY OF LOUISVILLE, )
)
Defendant-Appellant. )
)
Before: KRUPANSKY,* COLE, Circuit Judges; COOK, District Judge.**
COOK, District Judge. The Appellant, Christy Caldwell, the Mother and Administratrix
of the Estate of Rebecca Cay Caldwell, deceased, initiated this cause of action on April 4, 2001,
with the filing of a complaint against the City of Louisville (“City”) in the United States District
Court for the Western District of Kentucky. In this lawsuit, she claims that her deceased daughter,
Rebecca Cay Caldwell,1 was (1) denied her constitutional right to substantive due process, as
*
The Honorable Robert B. Krupansky participated in oral argument on this case but did
not participate in this decision due to his untimely death on November 8, 2004.
**
The Honorable Julian Abele Cook, Jr., United States District Judge for the Eastern
District of Michigan, sitting by designation.
1
For purposes of clarity and to avoid any confusion with her mother, Rebecca Cay
Caldwell will be identified in the text of this opinion only as “Rebecca.”
guaranteed by the United States Constitution, and (2) fatally injured as a direct result of the City’s
negligence, as defined by Kentucky law.2
On February 26, 2003, the district court rejected both of her claims and entered a summary
judgment after concluding, in part, that (1) no reasonable finder of fact would determine that the
City’s culpability had risen to the level of “conscience shocking,” and (2) the requisite elements
for a claim of negligence under Kentucky law could not be satisfied.
For the reasons that have been outlined below, we affirm, in part, and reverse, in part, the
decision of the district court.
I.
This case involves a domestic dispute that began on July 4, 2000 when Rebecca called the
Louisville Police Department (“LPD”) and reported that she had been physically assaulted by her
live-in boyfriend, Benjamin Mills. The call was immediately processed and forwarded to Detective
Mary Lett who thereafter made numerous attempts to establish contact with Rebecca, including
leaving messages on her telephone answering machine and at the door of her residence, all of which
were unsuccessful.
Approximately one month later, on August 9, 2000, Rebecca talked with Lett by telephone
and complained that Mills had assaulted her again, contemporaneously with an ominous threat by
him that “no one was going to leave alive.” Lett and her partner, Detective Susan Fisher, responded
to the call by traveling to Rebecca’s apartment, but were unable to garner a response. Later during
the day, the two officers returned to Rebecca’s apartment and found her crying and physically
2
The claims of Christy Caldwell were submitted in her dual capacities as (1) the
administrator of her deceased daughter’s estate, and (2) Rebecca’s mother who seeks to obtain
derivative damages for the allegedly tortious conduct by the City.
2
bruised. They escorted her to the warrant clerk’s office of the LPD where she would be able to
initiate a complaint against Mills. Lett, who described this volatile situation as an “exigent
circumstance,” hand-carried the warrant to a local prosecutor, submitted it to a judge, and returned
the document to the warrant clerk for official processing.3 Lett also spoke with Rebecca’s landlord,
to whom she suggested that the locks on her apartment be changed.
While Lett was involved in processing the warrant, her partner attempted to obtain an
emergency protective order against Mills. Her effort, however, was thwarted because Rebecca
refused to complete the requisite paperwork. As an additional expression of her resistance to any
further assistance from the LPD, she scrawled a word of profanity across the uncompleted papers4
and left the police department.
A few hours later, Mills was arrested. Upon being advised of his arrest, Rebecca pointed
out to Lett, with emphasis, “I didn’t call you, I don’t need you, I don’t even know why you’re
here.” J.A. at 231. In fact, Rebecca told Lett that the City’s law enforcement officers “were
causing the problem, and that she and Mr. Mills wanted to get married.” J.A. at 217.
Twelve days later (August 21, 2000), Rebecca remained steadfast in her opposition to the
efforts by the LPD to pursue the case against Mills. On the following day, Lett, after personally
initiating a criminal complaint against Mills for his criminal conduct on July 4th, was successful
in obtaining another arrest warrant against him.5 However, seven days later, Rebecca filed an
3
The warrant charged Mills with misdemeanor offenses of (1) Terroristic Threatening,
Assault in the Fourth Degree, and (2) Unlawful Imprisonment in the Second Degree.
4
Rebecca “wrote ‘f[_ _]k you’ across the paperwork of the Emergency Protective
Order.” Joint Appendix (J.A.) at 107.
5
Inasmuch as Mills was already in custody, this second arrest warrant was not executed.
3
internal affairs complaint against Lett and Fisher, contending that these two officers had “over
executed their authority” when she was (1) transported by them to the City’s Fifth District police
headquarters against her will, (2) denied an opportunity to call her mother, (3) coerced to sign
documents against her will, and (4) forced to swear out a warrant against Mills.
On the following day, Mills’ bond was reduced to $1,000 after his father assured “the judge
that he would keep [Mills] with him at his home.” The court also set aside the outstanding warrant
and authorized Mills’ release from custody after his father posted the requisite bond.
The Jefferson County Attorney (“County Attorney”) filed an appeal to the Jefferson County
Circuit Court, protesting Mills’ release from custody. In his argument to the State court, the
County Attorney maintained that “if . . . [Mills] is allowed to be released on his own recognizance
there is a serious safety concern . . . for the victim.” J.A. at 29. He also contended that if Mills “is
allowed to be released and freely roam and have unlimited access to the victim, the Commonwealth
verily believes that [he] will further intimidate and harm the victim.” Id.
The State court judge agreed and instructed the district court judge to issue a bench warrant
for Mills’ arrest. Out of his concern for Rebecca’s safety, the County Attorney promptly
telephoned Lett and advised her that the warrant had been reissued. However, Lett told him in
response that she needed to confer with her superiors at the LPD before picking up the warrant in
light of Rebecca’s pending internal affairs complaint. The arrest warrant remained in the LPD’s
warrant processing system for six days before it finally reached the Department’s field office for
implementation.6
6
Captain Steve Conrad, who oversees the retrieval and issuance of warrants for the LPD,
was questioned during the trial regarding the delay in this case. He said that warrants should
have been (1) picked up from the courthouse on a daily basis, (2) sorted into one of the five
4
On September 18, 2000, while the warrant for Mills’ arrest was still being processed, the
LPD Internal Affairs Department initiated its evaluation of the allegations within Rebecca’s
complaint. Lett, who was interviewed during this inquiry, declared, “I won’t serve [the warrant],
I’ll have someone else serve it, but I won’t go over there to serve it.” J.A. at 235. On the same day
and prior to the service of the warrant, Mills attacked Rebecca once again and, in so doing,
strangled her to death.
II.
In our assessment of this appeal, we must evaluate the challenged summary judgment
decision by the district court on a de novo basis. See Farm Labor Organizing Committee v. Ohio
State Highway Patrol, 308 F.3d 523, 532 (6th Cir. 2002). In 1986, the Supreme Court opined that
“[o]ne of the principle purposes of the summary judgment rule is to isolate and dispose of factually
unsupportable claims or defenses . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
Nevertheless, such a request for dispositive relief should be granted only if the moving party
police districts within the City, and (3) delivered to each district by a courier. Notwithstanding,
Conrad acknowledged that (1) he was uncertain about the frequency with which the courier
made pick-ups and deliveries to the various districts, (2) there was no record of when warrants
were received by his Department, (3) the LPD did not have any method of tracking the location
or status of warrants in their system, and (4) there was no policy dictating a time period for how
long it should take to process a warrant. Finally, Conrad, referring to the arrest warrant against
Mills, said that it should have “come in with all the rest of the warrants, and it would have been
processed like all the rest of the warrants.” J.A. at 197.
Colonel Greg Smith, the Chief of the LPD, was also questioned during the trial regarding
the delay in the issuance of the warrant. He acknowledged that a six-day delay in the issuance of
a warrant was unacceptable, the LPD did not keep a log of when warrants were submitted to or
released from the Department’s headquarters, and there was no policy that detailed the
promptness or priority with which arrest warrants were to be processed by headquarters.
Significantly, these problems persisted despite Smith’s admission that in June 1999, fifteen
months prior to Rebecca’s murder, a committee had been established to “review . . . the warrant
process and outstanding warrants.” J.A. at 265.
5
“show[s] that there is no genuine issue as to any material fact and that [it] is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). Thus, it is incumbent that we examine all pleadings,
depositions, answers to interrogatories, admissions, and affidavits in a light that is most favorable
to the non-moving party in the district court. See United States v. Diebold, Inc., 369 U.S. 654, 655
(1962); Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991); Bender v. Southland Corp.,
749 F.2d 1205, 1210-11 (6th Cir. 1984).
III.
In her appearance in the district court, Christy Caldwell contended that the City had a duty
to protect Rebecca who, in her judgment, had been made more vulnerable to danger through its
inadequate warrant processing system and subsequent pursuit of a case against Mills. In response,
the City denied this allegation, submitting that no casual connection ever existed between its
challenged conduct and Mills’ private acts of violence. In its ruling, the district court determined
that it was not enough for Christy Caldwell to allege a “state-created danger,” but declared that she
must also demonstrate that the claimed municipal misconduct “shocks the conscience.” The district
court, while declining to rule on whether the facts could sufficiently support Christy Caldwell’s
assertions of a “state-created danger,” granted a summary judgment against her because it
concluded “that no reasonable finder of fact could find that the City’s culpability rose to the level
of ‘conscience shocking.’”
A.
Christy Caldwell asserted her claim against the City under 42 U.S.C. § 1983, which
provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
6
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. . . .
In evaluating a claim against a municipality under this statute, this court must seek to
determine “(1) whether [the aggrieved party’s] harm was caused by a constitutional violation, and
(2) if so, whether the [City] is responsible for that violation.” Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992).
In so doing, we will initially address the issue involving municipal “culpability,” and then
consider whether Christy Caldwell adequately alleged that the City “caused” a constitutional
violation. City of Canton, Ohio v. Harris, 489 U.S. 378, 385-86 (1989) (“our first inquiry in any
case alleging municipal liability under § 1983 is the question whether there is a direct causal link
between a municipal policy or custom and the alleged constitutional deprivation”); see also Board
of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997) (“a plaintiff must
show that the municipal action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the deprivation of federal
rights”).
B.
In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690 (1978),
the Supreme Court held that “Congress . . . intend[ed] municipalities and other local government
units to be included among those persons to whom § 1983 applies.” The Monell Court also
“conclude[d] that a municipality cannot be held liable solely because it employs a tortfeasor--or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
7
Monell, 436 U.S. at 659. On the other hand, a municipality may be held liable if the “action
pursuant to official municipal policy of some nature caused a constitutional tort.” Id.
In addition to identifying some form of “conduct [that is] properly attributable to the
municipality,” a plaintiff must establish that the challenged municipal action carries a sufficient
degree of culpability. Brown, 520 U.S. at 404. If the claim alleges that the municipal action
violates a federal law (e.g., a facially unconstitutional policy), then the culpability issue is readily
apparent. On the other hand, “a plaintiff seeking to establish municipal liability on the theory that
a facially lawful municipal action has led an employee to violate a plaintiff's rights must
demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or
obvious consequences.” Id. at 407. The phrase, “deliberate indifference,” requires the production
of evidence “that a municipal actor disregarded a known or obvious consequence of his action.”
Id. at 410.
Applying these principles to the present case, we find that the deficiencies in the LPD’s
warrant processing policies were well known by police officials during the August and September
months of 2000, but were never corrected. There is also evidence that the LPD knew or should
have known that their practices could render citizens more vulnerable to danger.7
7
In support of her case before the district court, Christy Caldwell obtained the opinion of
an expert witness, Joseph J. Stine, who had 10 years of experience as the former Police Chief of
New Britain Township, Pennsylvania, and 25 years of experience in every rank from patrolman
through inspector with the Philadelphia Police Department. In his opinion,
The LPD in the person of Detective Lett was aware of the danger
[that Mills] posed to [Rebecca]. . . . Detective Lett had correctly
identified that . . . Mills was a threat by September 12, 2000. In
fact as an experienced Domestic Violence officer Detective Lett
must have been aware that the danger to [Rebecca] had actually
increased. Perpetrators of domestic violence are known to be
8
Under the circumstances of this case and viewing the evidence in a light that is most
favorable to Christy Caldwell, the LPD, at a minimum, failed to implement a reasonable policy for
processing warrants despite its recognition for such a need and in spite of the obvious risks that its
actions would violate a constitutional right.
C.
Having found the existence of municipal culpability from the City’s failure to correct its
deficient warrant processing and execution polices, we now turn to an examination as to whether
the City caused a constitutional violation. Here, Christy Caldwell complains that, as a result of the
LPD’s failed policies, her daughter’s fundamental right to substantive due process were trammeled.
The Supreme Court has called upon the lower courts to give careful scrutiny of all substantive due
process claims that are brought under § 1983 “because guideposts for responsible decision making
in this unchartered area are scarce and open-ended.” Collins, 503 U.S. at 125 (citing Regents of
Univ. of Mich. v. Ewing, 474 U.S. 214, 225-26 (1985)). In addition, the Supreme Court has
declared that “nothing in the language of the Due Process Clause itself requires the State to protect
the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v.
Winnebago County Dept. of Social Services, 489 U.S. 189, 195 (1989). The Due Process Clause
“is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels
more likely to increase the frequency and severity of their abuse in
the period immediately after the victim seeks assistance from the
Criminal Justice System.
J.A. at 67 (emphasis added). In an affidavit, he specifically opined that Rebecca was “at a
substantially increased risk of harm from Benjamin Mills upon his release from custody on
August 30, 2000. It is well-known that abusers are more dangerous upon being release from
custody, as they usually try to reassert their power and control over the victim.” J.A. at 165.
9
of safety and security.” Id. “Its purpose was to protect the people from the State, not to ensure that
the State protected them from each other.” Id. at 196. Consequently, the Due Process Clause does
not confer an affirmative right to governmental aid.
As a general rule, the State does not have an affirmative duty to protect its citizens from
private acts of violence. On the other hand, the Supreme Court in DeShaney explicitly recognized
one exception to this rule and alluded to another. The first exception can occur “when the State
takes a person into its custody and holds him there against his will.” Id. at 199-200. In such a
situation, the Constitution imposes “a corresponding duty [upon the State] to assume some
responsibility for his safety and general well-being.” Id. at 200. The affirmative duty to protect
a citizen in custody “arises not from the State’s knowledge of the individual’s predicament or from
its expressions of intent to help him, but from the limitation which it has imposed on his freedom
to act on his own behalf.” Id. at 200. In those situations in which the State has acted affirmatively
to restrain the individual’s freedom and deprive him of liberty, this affirmative action triggers the
protections of the Due Process Clause. See id.
The second exception has been recognized in every court of appeals, including this Circuit,
and has evolved from the language in DeShaney, wherein the Supreme Court stated that while “the
State may have been aware of the dangers that [the victim] faced in the free world, it played no part
in their creation, nor did it do anything to render him any more vulnerable to them.” Id. at 201.
This passage has become known as the “State-created danger” exception. “Even in noncustodial
settings, . . ., State officials may violate the Due Process Clause when their affirmative actions
directly increase the vulnerability of citizens to danger or otherwise place citizens in harm’s way.”
Ewolski v. City of Brunswick, 287 F.3d 492, 509 (6th Cir. 2002). Under the State-created danger
10
exception, “many State activities have the potential to increase an individual’s risk of harm.”
Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998). So, in Kallstrom, this Court
held that “we require plaintiffs alleging a constitutional tort under § 1983 to show ‘special danger’
in the absence of a special relationship between the State and either the victim or the private
tortfeasor.” Id. We further explained that an aggrieved party faces a “special danger” when “the
State’s actions place the victim specifically at risk, as distinguished from a risk that affects the
public at large.” Id.
The situation in which Rebecca was involved does not satisfy the custodial or “special
relationship” exception. It is uncontested that she was not in the custody of the State at the time
of her death. Although her mother argues that it is enough for the victim or the private tortfeasor
to have this “special relationship,” it is also quite evident that Mills was not in State custody when
he strangled Rebecca.
In her briefing papers, Christy Caldwell urges the Court to find the existence of a “special
relationship” because, in her opinion, the LPD (1) knew of Mills’ criminal history, as well as the
potential for violence that he presented to her daughter, (2) had taken him into custody prior to the
date of the murder, and (3) failed or refused to serve the warrant on him in violation of Kentucky
law. With regard to her first two arguments, neither the LPD’s knowledge of Mills’ past antisocial
conduct nor its prior custody of him creates a “special relationship” as that term was used by the
Supreme Court. Christy Caldwell has not cited any authority to support her position on this issue.
Moreover, as it concerns her third point, we have rejected the notion that the mere violation
of a state law may give way to a constitutional violation under the Due Process Clause. In Jones
v. Union County, Tenn., 296 F.3d 417, 430 (6th Cir. 2002), we held that “whatever duty Union
11
County owed to Plaintiff as a matter of Tennessee tort law does not give rise to a constitutional
duty.” See also DeShaney, 489 U.S. at 202 (“A State may, through its courts and legislatures,
impose such affirmative duties of care and protection upon its agents as it wishes. But not all
common-law duties owed by government actors were constitutionalized by the Fourteenth
Amendment.”) (internal quotation omitted). As a result, it was our conclusion that the aggrieved
party did not demonstrate a “special relationship” because this “exception in the due process
context has been limited to situations in which the State affirmatively acts to restrain an individual
to act for himself or herself.” Jones, 296 F.3d at 430. Applying these principles to the present case
clearly reveals that the adoption of a “special relationship” or custodial exception would not be
appropriate here.
On the other hand, we reach a different conclusion with regard to the applicability of the
“State-created danger” exception. Under this exception, it is enough if “the City’s actions . . .
substantially increas[ed] the likelihood that a private actor would deprive [Rebecca] of [her] liberty
interest in personal security.” Kallstrom, 136 F.3d at 1067. In addressing this issue, Christy
Caldwell contends that the LPD took some affirmative steps which increased the risk of harm to
her daughter. She also maintains that Rebecca was forced by the LPD detectives to accompany
them downtown against her will and to process paperwork in support of the first warrant, which
eventually led to Mills’ arrest. As evidence of her unwillingness to seek Mills’ criminal
prosecution, Christy Caldwell focuses upon Rebecca’s refusal to cooperate with law enforcement
authorities and her subsequent complaint against Lett and Fisher. Thus, viewing the evidence in
a light most favorable to Christy Caldwell and accepting the validity of the opinion of her expert
12
witnesses, we conclude that the LPD undertook some affirmative conduct which ultimately
increased Rebecca’s risks of harm.
D.
Although she has established a causal connection between the State action and the criminal
conduct of Rebecca’s abusive boyfriend in order to assert a violation of substantive due process,
Christy Caldwell, as the aggrieved party in this litigation, must still show that the State acted with
the requisite culpability. It is “not enough to show a causal connection between State action and
an act of private violence. . . . [She] must demonstrate that the State acted with the requisite
culpability to establish a substantive due process violation under the Fourteenth Amendment.” The
Supreme Court has explained that “the touchstone of due process is protection of the individual
against arbitrary action of government,” County of Sacramento v. Lewis, 523 U.S. 833, 845-46
(1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)), and “that only the most egregious
official conduct can be said to be ‘arbitrary in the constitutional sense.’” Lewis, 523 U.S. at 846
(quoting Collins v. City of Harker Heights, 503 U.S. 115,129 (1992)). Finally, the Court said that
“for half a century now we have spoken of the cognizable level of executive abuse of power as that
which shocks the conscience.” Lewis, 523 U.S. at 846.
In determining whether State action “shocks the conscience,” this Court has recognized that
this standard is “no calibrated yard stick.’” Ewolski, 287 F.3d at 510 (quoting Lewis, 523 U.S. at
847). Thus, in our review, we note that at one end of the spectrum, “the standard requires a
showing beyond mere negligence.” Ewolski, 287 F.3d at 510. Mere negligence cannot be said to
shock the conscience. “At the other end of the spectrum, it is generally agreed that Fourteenth
Amendment liability will attach to conduct intended to injure in some way unjustifiable by any
13
governmental interest.” Id. However, it is obvious that the culpability which is attendant to an
official’s conduct will often lie somewhere between mere negligence and actual intent. “Whether
the point of the conscience shocking is reached when injuries are produced with culpability falling
within the middle range, following from something more than negligence but less than intentional
conduct, such as recklessness or gross negligence, is a matter for closer calls.” Lewis, 523 U.S. at
849. Two years ago, we wrote:
Whether conduct falling within this ‘middle range’ reaches the level of conscience
shocking depends upon the facts and circumstances of the individual case. As the
Supreme Court recently explained, conduct 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.
Ewolski, 287 F.3d at 510. An evaluation of a challenged conduct in this “middle range” has
typically turned on whether, in the individual case, it can be said that the State officials were
deliberately indifferent. Notably, the Lewis Court declared that “the deliberate indifference
standard is sensibly employed only when actual deliberation is practical.” Lewis, 523 U.S. at 851.
Thus, in assessing whether the State officials were deliberately indifferent, “the critical
question . . . is whether the circumstances allowed the State actors time to fully consider the
potential consequences of their conduct.” Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d
365, 373 (9th Cir. 1998). For example, deliberate indifference on the part of prison officials can
subject them to due process liability because they presumptively enjoy the luxury of “having time
to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by
the pulls of competing obligations.” Lewis, 523 U.S. at 853. However, in the context of a high
speed vehicle chase, “a Fourteenth Amendment violation occurs only when the police act with
malice and an ‘intent to harm.’” Ewolski, 287 F.3d at 511 (quoting Lewis, 523 U.S. at 854). This
14
is so because “when unforseen circumstances demand an officer’s instant judgment, even
precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that
implicates the large concerns of the governors and the governed.” Ewolski, 287 F.3d at 511
(internal quotation omitted).
Drawing upon the decision by the Supreme Court in Farmer v. Brennan, 511 U.S. 825, 837
(1994), this Circuit has said that
Deliberate indifference has been equated with subjective recklessness, and requires
the § 1983 plaintiff to show that the State official knows of and disregards an
excessive risk to [the victim's] health or safety. Thus, the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Having drawn the inference, the
official must act or fail to act in a manner demonstrating reckless or callous
indifference toward the individual's rights.
Ewolski, 287 F.3d at 513 (emphasis added). Similarly, in Upsher v. Grosse Pointe Public School
System, 285 F.3d 448, 453 (6th Cir. 2002), this Court held that “in order to succeed on a § 1983
claim in a non-custodial setting, a plaintiff must prove either intentional injury or ‘arbitrary conduct
intentionally designed to punish someone--e.g., giving a worker a particularly dangerous
assignment in retaliation for a political speech . . . or because of his or her gender.’” (quoting
Lewellen v. Metropolitan Government of Nashville and Davidson County, Tenn., 34 F.3d 345, 351
(6th Cir. 1994).
Under the circumstances which have been placed upon the record, it is our judgment that
Christy Caldwell can succeed in establishing that Lett was deliberately indifferent to the risks and
dangers that her daughter faced during the mid-months of 2002. The record establishes that the
County Attorney called Lett immediately after the State court reissued a warrant for Mills’ arrest
on September 13th. Her refusal to act upon the warrant and the City’s existing internal law
15
enforcement practices and policies resulted in a six day delay in its execution. In refusing to act
upon the arrest warrant, Lett demonstrated neither mere negligence nor an actual intent to bring
about a specific harm upon Rebecca. Thus, her culpability would appear to fall within the “middle
range,” and require this Court to determine if she was deliberately indifferent under the
circumstances. Clearly, Lett had several days in which to fully consider and reflect upon her
decision not to serve the warrant on Mills. The evidence also indicates that she was aware of facts
from which a reasonable inference could be drawn that Rebecca faced a substantial risk of serious
harm. The evidence also suggests that Lett’s failure or refusal to process the warrant in a timely
manner stemmed from an animus toward Rebecca who had (1) refused to provide the LPD
authorities with any semblance of cooperation in dealing with a potentially dangerous situation, and
(2) filed allegations of police misconduct against her. In the face of a real danger about which Lett
knew or should have known, her adamant refusal to serve the warrant or have it served upon Mills
by another law enforcement official clearly equates to the kind of deliberate indifference which is
forbidden by the Constitution.
Having found the existence of a “State-created danger” and of deliberate indifference by
a State actor, we conclude that Christy Caldwell has asserted a viable claim for a violation of her
daughter’s constitutional right to substantive due process.
IV.
Turning to Christy Caldwell’s claim of negligence under Kentucky law, the district court
correctly awarded a summary judgment in favor of the City. In City of Florence, Kentucky, et al.
v. Chipman, 38 S.W.3d 387, 392 (2001), the Kentucky Supreme Court rejected a wrongful death
negligence claim:
16
In order for a claim to be actionable in negligence, there must be the existence of a
duty and unless a special relationship was present, there is no duty owing from any
of the police officers to Black to protect her from crime or accident. In order for the
special relationship to exist, two conditions are required: (1) the victim must have
been in State custody or otherwise restrained by the State at the time the injury
producing act occurred, and (2) the violence or other offensive conduct must have
been committed by a State actor.
Id. at 392 (emphasis added). Thus, in order to establish such a duty, Kentucky law requires an
aggrieved party to demonstrate the existence of a special relationship. To satisfy this requirement,
Christy Caldwell is obliged to demonstrate that (1) Rebecca was in State custody or otherwise
restrained by the State at the time of her death, and (2) her death was caused by a State actor. Even
when examining the pleadings in a light that is most favorable to Christy Caldwell, there is no
allegation or evidence that Rebecca was ever in State custody or that her untimely demise was
committed by a State actor. As such, she cannot establish a wrongful death negligence claim
against the LPD pursuant to Kentucky law. Accordingly, the City was entitled to a summary
judgment on this claim.
V.
For the reasons that have been articulated above, we AFFIRM, in part, and REVERSE, in
part, the decision of the district court, and REMAND this cause of action for proceedings that are
consistent with this opinion.
17