Nishiyama v. Dickson County

Ralph and Gabrielene Nishiyama, brought this action under 42 U.S.C. § 1983 against Dickson County, Tennessee, Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser as well as Dickson County. The Nishiyamas allege the sheriffs’ policy and practice of entrusting fully-equipped official patrol cars to inmate Charles Hartman, a convicted felon, deprived their daughter Kathy of her life without due process of law. Hartman was allegedly cruising alone in a patrol car when he stopped and then murdered Kathy Nishiyama. The district court dismissed the Nishiyamas’ complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

A three-judge panel of this Court initially affirmed the district court’s order, but on reconsideration, the same panel reversed that decision, 779 F.2d 52. On motion, a majority of the judges in active service voted to rehear the case en banc, thus vacating the panel opinion and the previous opinion of the Court. Rule 14, Rules of the Sixth Circuit. Following supplemental briefing the case was argued before the full Court.

A motion under Rule 12(b)(6) tests whether a claim has been adequately stated in the complaint. The basic requirements for a pleading are set out in Rule 8(a) and call for “a short and plain statement of the claim showing that the pleader is entitled to relief____” In considering a Rule 12(b)(6) motion, the court must accept as true all factual allegations in the complaint. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d50 (1984). The court must deny the motion to dismiss unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

The facts that we must accept as true, as alleged by the Nishiyamas, are that at about 8:30 p.m. on November 16, 1981, Kathy Nishiyama was driving on Lafayette Road in Montgomery County, Tennessee. She responded to the signals of a Dickson County Sheriff’s Department patrol car that directed her to pull over to the side of the road. When she did, Charles Hartman, the patrol car’s sole occupant, approached her and beat her to death.

Hartman, a convicted felon and an inmate in the custody of the Dickson County Sheriff’s Department, was operating the patrol car with the permission and authorization of defendants Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser. These defendants had placed Hartman on “trusty” status following his transfer from state custody to the Dickson County Jail. They were also on notice that Hartman was dangerous and had assaulted a young woman in the past.

Sheriff Wall and Deputy Sheriff Fiser had a policy and practice of several months standing which allowed Hartman to have unsupervised use of Dickson County patrol cars equipped with standard blue flashing lights and official identifying markings. Hartman used the cars to perform official and personal tasks for the two officers and personal tasks for himself. A Dickson County grand jury eventually investigated this policy and recommended that it cease.

On the night of the murder, Hartman drove Deputy Fiser from the jail to Fiser’s farm. After arriving, Fiser told Hartman to drive the fully-equipped and clearly marked patrol car back to the jail. From this point onward, he had full unsupervised possession of the car. He then began roaming the highways of Dickson, Houston, and Montgomery Counties, and stopped several motorists by flashing the patrol car’s, blue lights. When Montgomery County officials learned that a Dickson County Sheriff’s car was stopping motorists in their county, they notified the Dickson County dispatcher, who in turn notified Wall and Fiser. Wall and Fiser did nothing. Not until ten hours after he had left the jail did Hartman finally return. The Nishiyamas contend that during the interim he used the patrol car, a clear instrument of law enforcement, to pull over their daughter’s car and murder her. They further contend that Wall and Fiser’s policy of allowing Hartman unsupervised use of an official patrol car and their actions in accordance with that policy were grossly negligent and proximately caused Kathy Nishiyama’s death.

In order to sustain a claim under section 1983, the plaintiffs must satisfy the following requirements: 1) the conduct at issue must have been under color of state law; 2) the conduct must have caused a deprivation of constitutional rights; and 3) the deprivation must have occurred without due process of law. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). After careful review of the claims and assuming the facts as alleged to be true, we hold that the Nishiyamas have successfully stated a claim as required by Rule 8(a) of the Federal Rules of Civil Procedure and that their complaint was improperly dismissed as a matter of law under Rule 12(b)(6).

In considering the first prong of the test, the district court correctly concluded that the defendants’ practice of providing Hartman with a marked and fully-equipped patrol car was action taken under color of state law. The sole issues left for our consideration then are whether the conduct of the defendants caused a deprivation of Kathy Nishiyama’s constitutional rights and if so, whether this deprivation occurred without due process of law.

Kathy Nishiyama’s interest in preserving her life is one of constitutional dimension. While the fourteenth amendment does not guarantee life, it guarantees that the state cannot deprive an individual of life without due process. First we consider whether the state deprived Kathy Nishiyama of her life by the conduct of its agents.

The Supreme Court in recent years has considered the limits of liability of government officials under section 1983 for a murder committed by someone other than a government official. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the plaintiffs sought to hold California parole officers liable under section 1983 for the parole board’s decision to release a parolee, who five months later murdered plaintiffs’ daughter. The Court concluded that the plaintiffs had failed to state a claim. In determining the issue of proximate cause, the Court emphasized three factors: 1) the parolee was in no sense an agent of the parole board; 2) the parole board had no reason to know that the decedent, as distinguished from the public at large, faced any special danger; and 3) the death was too remote a consequence to hold the parole board responsible under the federal civil rights law. Id. at 285, 100 S.Ct. at 559. On similar facts this Court held in Janan v. Trammell, 785 F.2d 557 (6th Cir.1986), that the death of Paul Janan at the hand of a parolee within eight weeks of his release was too remote to support a claim against the parole board under section 1983. The Nishiyamas’ claims present a different framework from the situations presented in Martinez and Janan; an analysis of the factors to be considered when determining proximate cause will illustrate why Martinez does not govern the current action and why we decide today that there is an arguable claim that the state deprived Kathy Nishiyama of her constitutional interest in life.

Unlike the released parolees in Martinez and Janan, Hartman remained in the custody of the Dickson County Sheriff’s Department before, during, and after the murder. There is no indication that Hartman ever attempted to flee this custody. During Hartman’s ten-hour journey from Fiser’s farm to the Dickson County Jail, the defendants never reported or otherwise treated him as an escapee. In accordance with established practice, Wall and Fiser authorized Hartman to use and have sole control over the patrol car for his own private purposes. This custodial relationship between Hartman and the Dickson County Sheriffs supports a finding that Wall and Fiser had the power and authority to direct Hartman's actions in a way that was absent in Martinez and Janan.

Further, unlike Martinez and Janan, the Nishiyamas claim that Wall and Fiser should have known that their practice of allowing Hartman to have unsupervised use of the patrol car made motorists like Kathy Nishiyama particularly vulnerable to potentially dangerous situations. This is not a case like Martinez where the parolee had been out of police custody for several months and thus the identity of potential victims was difficult to define. Here the radius of harm is more distinct. When Fiser and Wall allowed Hartman to drive unescorted between the jail and Fiser’s farm, persons in the vicinity were at risk, particularly motorists who out of respect for and fear of law enforcement vehicles respond to blue flashing lights. The identification of potential victims became even easier once the sheriff’s department was notified that its patrol car was stopping motorists in Montgomery County. The defendants should have known that Hartman was stopping unwitting motorists under the aura of law enforcement represented by the patrol car and that, as a result, drivers like Kathy Nishiyama in Montgomery and surrounding counties were in jeopardy.

In final contrast, the death of Kathy Nishiyama cannot be viewed as so remote a consequence of the defendants’ actions as to automatically preclude liability under section 1983. Through their established practice of entrusting the police car to Hartman, Wall and Fiser set in motion the specific forces that allowed him to commit his crime. They apparently saw no need to respond to the dispatcher’s report alerting them to the possibility that Hartman was using the Dickson County patrol car to stop vehicles travelling the roads of Montgomery County. These subsequent failures to act extended Hartman’s opportunity. Neither on that night nor on any other occasion did they do anything to stop or disavow Hartman’s use of the patrol car for his private purposes. Because of this practice of the sheriff’s department, Hartman was able to use the apparent authority of the patrol car to direct Kathy Nishiyama to stop several blocks from her home and thus become his victim.

None of the cases following Martinez contains a similarly close relationship between the criminal acts and the defendants’ acts under color of state law. See Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985) (no special relationship between rape victim and state employees who released rapist); Fox v. Custis, 712 F.2d 84 (4th Cir.1983) (no constitutional duty to protect general public from random criminal violence absent a special relationship); Humann v. Wilson, 696 F.2d 783 (10th Cir.1983) (victim’s rape too remote a consequence of state’s decision to transfer inmate from jail to minimum security facility to sustain civil rights claim); Wright v. City of Ozark, 715 F.2d 1513 (11th Cir.1983) (rapist had no relationship with city officials who allegedly suppressed information concerning prior rapes in the city); and Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982) (mental health officials not responsible for subsequent criminal acts of mental patient released from their care). In these cases the state officers possessed information that circumstances endangering the public existed. Yet in none of the cases did the state officers by their acts facilitate the crime by providing the criminal with the necessary means and the specific opportunity to commit his crime. In Martinez and Janan, the only action of the state officers was their decision to release from custody the person who subsequently committed murder. In the present case, the officers gave Hartman the car and the freedom to commit the crime.

In sum, accepting all of the allegations of the Nishiyamas as true, we hold that the Nishiyamas have established a claim that the defendants’ conduct under color of state law deprived Kathy Nishiyama of a constitutionally-protected interest in life. We next consider whether the deprivation occurred without due process of law.

In Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir.1985), this Court recognized that section 1983 provides a remedy for both procedural and substantive due process violations, and the Supreme Court made clear in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986), that there are certain types of government acts that violate the Due Process Clause regardless of the procedures used to implement them. When the government engages in such conduct, there is a remedy under section 1983. The Due Process Clause forbids these actions in order to prevent “governmental power from being ‘used for purposes of oppression.’ ” Daniels, 106 S.Ct. at 665 (quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.) 272, 277, 15 L.Ed. 372 (1856)). Whether dealing with procedural or substantive due process, “[t]he touchstone ... is protection of the individual against arbitrary action of government.” Daniels, 106 S.Ct. at 665 (quoting Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889)).

The Nishiyamas allege that the defendants’ gross negligence resulted in a violation of substantive due process. We must address therefore whether such conduct is a sufficient basis for a substantive due process violation.

The Supreme Court recently decided the question of whether mere negligence provides a basis for a claim under section 1983. In Daniels, 106 S.Ct. at 663, the Court held that due process “is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property.” (Emphasis in original.) This conclusion is based on the premise that simple negligent conduct does not constitute a “deprivation” within the meaning of the term in the Due Process Clause. Id. at 665. The Court found no occasion, however, to consider “whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause.” Id. at 667 n. 3.

Similarly, this Court has not previously decided the question of whether something less than an intentional act but more than simple negligence might invoke due process protection. In Wilson v. Beebe, 770 F.2d at 586, this Court held that the mere negligence of a state police officer who wounded an arrestee while trying to handcuff him did not constitute a substantive due process violation of the type described in Bochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1951) (pumping suspect’s stomach to recover physical evidence “shocks the conscience”) and Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (unjustified attack on suspect by police officers violated due process).

In Janan v. Trammell, 785 F.2d at 558, the plaintiffs alleged gross negligence in their complaint against the parole board. However, in that case, we declined to deal with the relationship between varying degrees of negligence and possible due process violations. Relying on the ruling in Martinez, we held that Janan’s death was too remote a consequence to sustain an action under section 1983. Specifically, we left unresolved the question of whether the actions of the parole officers constituted a degree of negligence akin to the “mere negligence” of Daniels, and therefore precluded a due process cause of action, or something greater.

We believe that the allegation in the present complaint of gross negligence on the part of the defendants was sufficient to charge them with arbitrary use of government power. The complaint also pled that the result of this abuse of power was the death of Kathy Nishiyama. These allegations are sufficient to state a claim for a substantive due process violation that would withstand a motion to dismiss.

We acknowledge that the term “gross negligence” evades easy definition. In our view, a person may be said to act in such a way as to trigger a section 1983 claim if he intentionally does something unreasonable with disregard to a known risk or a risk so obvious that he must be assumed to have been aware of it, and of a magnitude such that it is highly probable that harm will follow. The defendants in this case intentionally gave Hartman full unsupervised use of the officially marked and equipped patrol car. After they were notified that one of their patrol cars was stopping motorists in Montgomery County they intentionally failed even to investigate, much less attempt to recall Hartman to the jail.

The defendants should have appreciated the risk of permitting Hartman to have unsupervised use of the Dickson County Sheriff’s car. After they learned their patrol car was being used to stop motorists, the risk ceased to be speculative. Undeniably, there was a high probability of harm resulting from the fact that Hartman, a convicted felon entrusted to their custody, was allowed unsupervised use of an official patrol car. This is tragically underscored by the harm that eventually befell Kathy Nishiyama.

The wanton disregard on the part of the defendants amounted to more than mere thoughtlessness. The defendants continued the practice of giving trusties use of patrol cars even after the murder. Only on the recommendation of the grand jury did the custom of the sheriff’s department end. The defendants’ actions cannot be attributed to simple inattention or carelessness. Rather, the defendants consciously established a policy of allowing trusties to have use of official patrol cars with a seeming indifference to the consequences. The defendants consciously and voluntarily failed to respond to the danger presented by Hartman’s use of the car to stop motorists. We hold that such reckless indifference to the risk posed by their actions is sufficient to establish a violation of substantive due process under section 1983. It is particularly troubling when persons charged with ensuring public peace and order engender peril as a result of their outrageous conduct.

Viewing the facts alleged as true as we must under Rule 12(b)(6), the defendants’ conduct is the type of governmental action which is inherently impermissible. We hold that the Nishiyamas’ allegations establish a claim. As to the specific liability of Dickson County itself, we leave that decision to the district court which did not reach that particular issue before.

The judgment of the district court is reversed.