Michael Pickle v. Keith McConnell , 592 F. App'x 493 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0117n.06
No. 14-1951
FILED
Feb 09, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
MICHAEL SCOTT PICKLE, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. )
COURT FOR THE EASTERN
)
KEITH MCCONNELL, Captain, ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
) OPINION
)
BEFORE: GIBBONS and COOK, Circuit Judges; GWIN, District Judge.
JULIA SMITH GIBBONS, Circuit Judge. Michael Pickle appeals the grant of
summary judgment to the defendant on his substantive due process claim.
Pickle, a Michigan corrections officer, was attacked and seriously injured while
attempting to transfer a violent inmate to a special segregation unit within the prison. In a state
court action for damages under 42 U.S.C. § 1983, Pickle claimed that the attack would not have
happened if his superior, Captain Keith McConnell, had followed the prison’s established
security protocols. Specifically, Pickle alleged that McConnell should have had more officers
present, should have had protective gear and tasers on hand, and should have had the inmate
strip-searched before entry to the segregation unit. McConnell removed the case to federal

The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 14-1951, Pickle v. McConnell
district court, where the judge granted him summary judgment after concluding that Pickle could
show neither a constitutional violation nor a clearly established constitutional right. Pickle
argues before this court that he has at least arguably shown a violation of his substantive due
process rights under DeShaney v. Winnebago County Department of Social Services, 489 U.S.
189 (1989).
DeShaney barred recovery against a State for failure to protect one’s life, liberty, or
property against private actors, unless the plaintiff meets one of two exceptions. The first
exception requires the claimant to have been in the State’s custody and does not apply here. See
Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910–11 (6th Cir. 1995); see also Washington v.
District of Columbia, 802 F.2d 1478, 1482 (D.C. Cir. 1986) (“Prison guards, unlike the prisoners
in their charge, are not held in state custody.”). The second exception, termed the “state-created
danger” doctrine, requires the plaintiff to show three things:
(1) an affirmative act by the State that either created or increased the risk that the
plaintiff would be exposed to private acts of violence; (2) a special danger to the
plaintiff created by state action, as distinguished from a risk that affects the public
at large; and (3) the requisite state culpability to establish a substantive due
process violation.
Jasinski v. Tyler, 729 F.3d 531, 539 (6th Cir. 2013) (internal quotation marks omitted).
Because corrections officers voluntarily enter into employment with the State and assume
the risk of an inherently dangerous job, we have expressed a willingness to find the “requisite
state culpability” only where the State acted with intent to injure the officer. See Hunt v.
Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 538–39 (6th Cir. 2008) (citing Nobles v.
Brown, 985 F.2d 235, 237–38 (6th Cir. 1992); Washington, 802 F.2d at 1482; Walker v. Rowe,
791 F.2d 507, 510 (7th Cir. 1986)); see also Burke v. Bradley Cnty. Gov’t, 478 F. App’x 994,
995 (6th Cir. 2012) (per curiam). Here, McConnell’s conduct identified in the record and
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No. 14-1951, Pickle v. McConnell
complaint simply does not suggest intent to injure Pickle. If anything, McConnell’s attempt to
help Pickle during the attack, in which he himself suffered some injury, strongly suggests the
opposite. Even granting Pickle’s allegations that McConnell failed to adhere to prison security
procedures, these errors are likely mere negligence and gross negligence at worst. Cf. Nobles,
985 F.2d at 238 (finding no intent to injure where “[t]he defendants . . . did not kill or injure the
guards; prisoners did . . .”) (internal quotation marks omitted); Rios v. City of Del Rio, 444 F.3d
417, 423–24 (5th Cir. 2006) (applying DeShaney to foreclose a claim by guards injured during
an attempted escape who asserted only gross negligence); de Jesus Benavides v. Santos, 883 F.2d
385, 388 (5th Cir. 1989) (same). Consequently, Pickle has no way to establish the requisite
culpability required for his substantive due process claim, now or at trial.
We therefore AFFIRM the judgment of the district court.
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