                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2006

Kaucher v. Bucks County
Precedential or Non-Precedential: Precedential

Docket No. 05-1598




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                                    PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT



                   No. 05-1598



    JOHN KAUCHER; DAWN KAUCHER, H/W,
                              Appellants

                        v.

              COUNTY OF BUCKS;
  MICHAEL FITZPATRICK, CHARLES MARTIN,
      SANDRA MILLER, Individually and as
          Bucks County Commissioners;
   GORDIAN EHRLACHER, Individually and as
      Director, Bucks County Dept. of Health;
    HARRIS GUBERNICK, Individually and as
     Director, Bucks Co. Dept. Of Corrections;
      WILLIS MORTON, Individually and as
    Warden, Bucks County Correctional Facility;
     LEWIS POLK, M.D., Individually and as
          Medical Director, Health Dept.;
JOAN CROWE, Individually and as Nurse, Health Dept.
      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
            D.C. Civil Action No. 03-cv-1212
               (Honorable Robert F. Kelly)



                Argued February 14, 2006

             Before: SCIRICA, Chief Judge,
           BARRY and FISHER, Circuit Judges

                  (Filed August 2, 2006)

DAVID RUDOVSKY, ESQUIRE (ARGUED)
Kairys, Rudovsky, Epstein & Messing
924 Cherry Street, Suite 500
Philadelphia, Pennsylvania 19107

MARTHA SPERLING, ESQUIRE
Silver & Sperling
107 North Broad Street, Suite 101
Doylestown, Pennsylvania 18901
       Attorneys for Appellants




                            2
FRANK A. CHERNAK, ESQUIRE (ARGUED)
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
       Attorney for Appellees



                 OPINION OF THE COURT



SCIRICA, Chief Judge.

        John Kaucher, a corrections officer at the Bucks County
Correctional Facility, and his wife, Dawn Kaucher, filed suit
under 42 U.S.C. § 1983 against the County of Bucks and several
County employees responsible for the operation of the
Correctional Facility, alleging a violation of their substantive
due process rights. The Kauchers contend they contracted
Methicilin Resistant Staphylococcus aureus infections as a
result of defendants’ conscience-shocking behavior in creating
unsanitary and dangerous conditions at the jail. The District
Court concluded the Kauchers failed to establish a substantive
due process violation and granted defendants’ motion for
summary judgment. For the reasons set forth, we will affirm.




                               3
                                I.

       Because this appeal comes to us from an order granting
summary judgment in favor of defendants, we present and
consider the facts in the light most favorable to plaintiffs. See
Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). John
Kaucher was hired by the County of Bucks in 1999 as a
corrections officer at the Bucks County Correctional Facility, a
medium to maximum security jail in Doyleston, Pennsylvania.
The jail employs approximately 170 corrections officers, who
are responsible for supervising inmates at work locations and in
housing units and for transporting inmates between institutions
and to and from outside appointments. The job description
notes that corrections officers will have daily contact with
incarcerated individuals and warns that “[w]ork involves regular
exposure to unpredictable conditions and occasionally requires
the expenditure of physical effort in restraining and subduing
prisoners.” (Suppl. App. 141.)

        The Pennsylvania Department of Corrections conducts
annual inspections of the jail to ensure compliance with
statutory standards. After the June 2002 inspection, the
Department of Corrections reported the jail was in compliance
with the state’s standards relating to personal hygiene,
sanitation, safety, clothing, and personnel.           It issued
recommendations for improvement with respect to findings of
mold, peeling paint, rusted vents, and leaking roofs, but noted
jail officials were making a “good faith effort” to address these
issues. In 2003, an expert in prison conditions inspected the jail

                                4
and reported, among other things, problems with overcrowding,
unsanitary conditions, food spoilage, and inadequate methods
for handling contaminated clothing.

       There had always been cases of inmates with skin
infections at the jail, but in July 2002, the County Health
Department noted an increase. The Health Department
determined the infections were caused by Methicilin Resistant
Staphylococcus aureus (MRSA), a drug-resistant strain of staph
bacteria. MRSA is only susceptible to a limited number of
antibiotics, but most MRSA skin infections can be treated
without antibiotics by draining the sores.

        MRSA can be spread through direct contact with infected
individuals or through contact with materials that have been
exposed to the bacteria. Conditions frequently associated with
corrections facilities—including overcrowding, shared facilities,
and close contact between inmates—can increase the risk of
spreading. Unsanitary conditions can exacerbate the problem.
The Kauchers contend the increase in skin infections among
inmates during the summer of 2002 was the result of
defendants’ role in creating unsanitary and dangerous conditions
at the jail.

       Jail medical officials responded to the spread of infection
by isolating infected inmates in single-occupancy cells. When
single-occupancy cells were not available, infected inmates were
isolated in a restricted housing unit, generally reserved for
inmates with disciplinary problems. The Kauchers contend


                                5
these efforts were counterproductive because fear of isolation
led many inmates to hide their infections.

        One of the County’s doctors recommended to two nurses
at the jail that inmates be treated with a particular antibiotic
proven effective in treating MRSA infections—vancomycin.
The doctor was informed that the drug was too costly and that
his recommendation should not appear in the jail’s medical
records. He later testified he believed a “cover-up” was in
effect.

        Kaucher contends the first infectious disease training he
received was in late 2003. But he does not dispute receiving a
copy of the jail’s standard operating procedures when he was
first employed in 1999. These procedures include policies for
supervising hospitalized inmates and handling inmates with
communicable diseases. They warn that “[e]very inmate should
be considered potentially infectious for communicable
diseases,” (Suppl. App. 174), and advise corrections officers to
wash their hands frequently and to wear gloves when coming
into direct contact with inmates and their possessions.

        Kaucher describes two incidents of transporting infected
inmates to a hospital for treatment, one during the summer of
2001 and the other during the fall of 2002. These incidents
involved handcuffing and shackling the infected inmates and
assisting them in using the hospital’s telephones and bathrooms.
Kaucher contends that in both cases, he was not advised of the
inmates’ infections or of the risk posed to his own health.


                               6
       On August 21, 2002, Harris Gubernick, the Bucks
County Director of Corrections, issued a memorandum to “quell
any concerns about MRSA,” and to reassure inmates and jail
employees that “the medical staff is aware of the situation and
is working diligently to treat those who have been diagnosed.”
(App. Vol. II 160.) The memorandum stated, “there are NO
known cases in the facility,” but advised that “proper hygiene is
always recommended” to prevent the spread of infection. (Id.)
It also reproduced a fact sheet about MRSA from the
Department of Health and Human Services’ Centers for Disease
Control and Prevention, describing colonization, infection, and
methods of prevention.

       On August 27, 2002, as part of an inmate class action suit
contesting conditions of confinement at the jail, a Magistrate
Judge ordered that all inmates and staff be screened for MRSA.
The order only required testing for MRSA infection, but the jail
tested for colonization as well. Colonization occurs when the
bacteria are present in the body without causing illness or
infection. According to the Centers for Disease Control and
Prevention, staph bacteria, including MRSA, are “commonly
carried on the skin or in the nose of healthy people,” and at any
given time, approximately 25% to 30% of people in the United
States have staph bacteria colonized in their noses. (App. Vol.
I 40.) Of the approximately 1,126 individuals who were tested
for colonization, 32 inmates and two corrections officers tested
positive. Though colonization does not require treatment, all of
the inmates and corrections officers who tested positive were


                               7
immediately informed and treated to eradicate the colonized
bacteria. At that time, Kaucher had no symptoms of an active
MRSA infection. But he was given medicated ointment and
advised to consult his personal physician.

        In 2003, several inmates filed an action for damages
against County and jail officials relating to MRSA infections
they contracted at the jail. In January 2004, a jury returned a
verdict for the plaintiffs. In sustaining the verdict, the District
Judge determined the jury had a sufficient basis for concluding
the defendants “through deliberate indifference allowed
conditions in the facility that were likely to cause disease, injury,
or suffering.” Keller v. County of Bucks, No. 03-4017, 2005
U.S. Dist. LEXIS 4537, at *4 (E.D. Pa. Mar. 22, 2005). The
district judge also determined the jury had a sufficient basis for
concluding the defendants “knew of the MRSA infection
spreading throughout the prison and failed to take necessary
steps to minimize the number of inmates affected.” Id. at *5.

        In April 2003, Kaucher developed MRSA lesions on his
chin and chest. He was treated surgically and received a 30-day
course of antibiotics. Dawn Kaucher developed an infection
earlier, in February 2002. She was hospitalized and received
surgical treatment in March 2002 and again in September 2002.
She was not employed at the jail, but an expert stated she most
likely contracted MRSA from her husband.

       On February 27, 2003, the Kauchers filed suit in the
District Court for the Eastern District of Pennsylvania, alleging


                                 8
substantive due process violations under 42 U.S.C. § 1983, state
law fraudulent misrepresentation, Pennsylvania constitutional
violations, and violations of the Family and Medical Leave Act
of 1993. Defendants filed a motion for summary judgment,
which was granted on all claims on February 7, 2005. The
Kauchers appeal, on the sole basis of their § 1983 claim.

                                II.

       The District Court exercised jurisdiction under 28 U.S.C.
§ 1331 and § 1343(a)(3). We have jurisdiction under 28 U.S.C.
§ 1291. We exercise plenary review over a district court’s order
of summary judgment. Shields v. Zuccarini, 254 F.3d 476, 481
(3d Cir. 2001).

        Summary judgment is proper “if there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue
is genuine only if there is a sufficient evidentiary basis on which
a reasonable jury could find for the non-moving party, and a
factual dispute is material only if it might affect the outcome of
the suit under governing law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If the non-moving party bears the
burden of persuasion at trial, “the moving party may meet its
burden on summary judgment by showing that the nonmoving
party’s evidence is insufficient to carry that burden.” Wetzel v.
Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998). In conducting our
review, we view the record in the light most favorable to the



                                9
Kauchers and draw all reasonable inferences in their favor. See
Nicini, 212 F.3d at 806.

                                  III.

        Section 1983 1 provides remedies for deprivations of
rights established in the Constitution or federal laws. It does
not, by its own terms, create substantive rights. Baker v.
McCollan, 443 U.S. 137, 145 n.3 (1979). To state a § 1983
claim, a plaintiff must demonstrate the defendant, acting under
color of state law, deprived him or her of a right secured by the
Constitution or the laws of the United States. Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999); Mark v.
Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
Accordingly, “[t]he first step in evaluating a section 1983 claim
is to ‘identify the exact contours of the underlying right said to
have been violated’ and to determine ‘whether the plaintiff has

   1
       42 U.S.C. § 1983 provides, in 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 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.

                                   10
alleged a deprivation of a constitutional right at all.’” 2 Nicini,
212 F.3d at 806 (quoting County of Sacramento v. Lewis, 523
U.S. 833, 841 n.5 (1998)).

       The District Court characterized the Kauchers’ claim as
alleging defendants failed in their duty to provide a safe working
environment for the jail’s corrections officers. Citing Collins v.
City of Harker Heights, Tex., 503 U.S. 115 (1992), the District


   2
    If we determined the Kauchers had alleged a deprivation of
a constitutional right, we would proceed to determine (1)
whether the individual defendants were entitled to qualified
immunity, and (2) whether the County of Bucks could be held
liable. But the initial inquiry under the doctrine of qualified
immunity and the doctrine of municipal liability asks whether
the plaintiff asserted a violation of a cognizable constitutional
right. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (qualified
immunity); Collins v. City of Harker Heights, Tex., 503 U.S.
115, 120 (1992) (municipal liability). Because we conclude the
Kauchers have not alleged a constitutional violation, our inquiry
under both doctrines proceeds no further. See Saucier, 533 U.S.
at 201 (“If no constitutional right would have been violated were
the allegations established, there is no necessity for further
inquiries concerning qualified immunity.”); Searles v. Se. Penn.
Transp. Auth., 990 F.2d 789, 794 (3d Cir. 1993) (“[W]e need not
reach the issue of whether [the municipal entity] could be held
liable where, as here, we have concluded that no constitutional
right was violated.”).

                                11
Court noted the Due Process Clause does not guarantee certain
minimal levels of workplace safety and security, nor does it
impose federal duties analogous to those imposed by state tort
law. (App. Vol. I 15.) The District Court concluded that under
Collins, the Kauchers had not alleged a deprivation of a
constitutional right.

        On appeal, the Kauchers acknowledge the failure to
provide minimum levels of workplace safety does not support an
actionable substantive due process claim. But they contend their
claim is not based on a right to safe working conditions at the
jail. Rather, it is based on defendants’ “conscience-shocking”
conduct in creating dangerous conditions that led to the spread
of infection, in failing to offer sufficient medical treatment to
infected inmates and corrections officers, and in misrepresenting
the risks of infection. They contend defendants should be held
liable for this conduct under the state created danger doctrine.

        For the reasons set forth, we agree with the District Court
that the Kauchers fail to state a cognizable substantive due
process claim. Under the facts alleged, the Kauchers cannot
establish defendants’ conduct was conscience shocking, nor can
they state a valid claim under the state created danger doctrine.
At base, they claim defendants failed to provide a safe working
environment at the jail, free from risk of infection. Collins
forecloses this claim as a basis for substantive due process
liability.




                               12
                               A.

        We begin our analysis with a review of Collins, where
the Supreme Court established the principle—previously applied
by lower courts—that the Constitution does not guarantee public
employees a safe working environment. See Collins, 503 U.S.
at 129. A city sanitation worker died of asphyxia after entering
a sewer that lacked adequate ventilation. The decedent’s
widow, who was the representative of his estate, brought a §
1983 claim against the city for providing an unsafe work
environment. She alleged that in failing to provide safety
warnings and safety equipment at job sites and in failing to train
employees to cope with the dangers of working in sewer lines
and manholes, the city violated the decedent’s “constitutional
right to be free from unreasonable risks of harm to his body,
mind and emotions and a constitutional right to be protected
from the [city’s] custom and policy of deliberate indifference
toward the safety of its employees.” Id. at 117 (quotation
omitted).

        The Court began by stressing the importance of “judicial
self-restraint” in the area of substantive due process, “because
guideposts for responsible decisionmaking in this uncharted area
are scarce and open-ended.” Id. at 125. Noting a need for “the
utmost care” in expanding the scope of protection under the Due
Process Clause, the Court focused on the nature of the
constitutional right alleged by the plaintiff. Id. On a “fair
reading” of the complaint, the Court found she alleged “the city
deprived [her husband] of life and liberty by failing to provide

                               13
a reasonably safe work environment.” Id. at 125–26. This claim
advanced two theories: that the Constitution imposes a duty on
the state to provide public employees with minimal levels of
workplace safety, and that the City acted with deliberate
indifference toward the safety of the decedent, constituting
conscience-shocking, arbitrary government action. Id. at 126.

       The Court dismissed the first theory by concluding
“[n]either the text nor the history of the Due Process Clause
supports petitioner’s claim that the governmental employer’s
duty to provide its employees with a safe working environment
is a substantive component of the Due Process Clause.” Id.
Citing DeShaney v. Winnebago County Dept. of Soc. Servs., 489
U.S. 189 (1989), the Court explained that the Due Process
Clause is “phrased as a limitation on the State’s power to act,
not as a guarantee of certain minimal levels of safety and
security.” Collins, 503 U.S. at 126 (quoting DeShaney, 489 U.S.
at 195).

        With respect to the second theory, the Court concluded
the City’s alleged deliberate indifference to the decedent’s safety
did not rise to the level of conscience-shocking, arbitrary
government action. Id. at 128. The Court characterized the
plaintiff’s claim as a “fairly typical state law tort claim” that
“[t]he city breached its duty of care to her husband by failing to
provide a safe work environment.” Id. It rejected this theory,
noting, “we have previously rejected claims that the Due Process
Clause should be interpreted to impose federal duties that are
analogous to those traditionally imposed by state tort law.” Id.

                                14
        The Court’s refusal to characterize the city’s actions as
arbitrary rested on other grounds as well—on “the presumption
that the administration of government programs is based on a
rational decisionmaking process that takes account of competing
social, political, and economic forces.” Id. The Court reasoned
that policy choices concerning resource allocation are best made
by locally elected representatives and not by federal judges
interpreting the Due Process Clause. See id. at 128–29.

        The Kauchers note that notwithstanding Collins’s well-
established principle that the Due Process Clause does not
guarantee public employees a workplace free of risks of harm,
an employee can allege a constitutional violation for an
employer’s behavior that “shocks the conscience.” See id. at
125; see also Fagan v. City of Vineland, 22 F.3d 1296, 1304 (3d
Cir. 1994) (en banc) (interpreting Collins as “unanimously
reaffirm[ing] the viability of the ‘shocks the conscience’
standard”). The Kauchers contend their claim lies not in the
deprivation of a right to a safe working environment, but rather
in the deprivation of a right to be protected against conscience-
shocking state behavior that affirmatively creates risks of
harm—a right to be free from state created danger.

                               B.

       In Lewis, the Supreme Court explained that “the core of
the concept” of due process is “protection against arbitrary
action,” County of Sacramento v. Lewis, 523 U.S. 833, 845
(1998), and that “only the most egregious official conduct can


                               15
be said to be arbitrary in the constitutional sense,” id. at 846
(quotation omitted).       The Court further explained, “the
substantive component of the Due Process Clause is violated by
executive action only when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.” Id.
at 847 (quotation omitted). Accordingly, in a substantive due
process challenge to an action taken by an executive branch
official, “the threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.” Id. at 847
n.8; see also United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 399–400 (3d Cir. 2003) (“[O]ur
cases have repeatedly acknowledged that executive action
violates substantive due process only when it shocks the
conscience.”).

       But “the measure of what is conscience shocking is no
calibrated yard stick,” Lewis, 523 U.S. at 847, and “[d]eliberate
indifference that shocks in one environment may not be so
patently egregious in another,” id. at 850. The question of
whether a given action “shocks the conscience” has an “elusive”
quality to it. Estate of Smith v. Marasco (Smith I), 318 F.3d
497, 509 (3d Cir. 2003). At one end of the spectrum of culpable
conduct, negligent behavior can never rise to the level of
conscience shocking. See Lewis, 523 U.S. at 849 (“[L]iability
for negligently inflicted harm is categorically beneath the
threshold of constitutional due process.”). At the other end of
the spectrum, actions “intended to injure in some way


                               16
unjustifiable by any government interest” are those “most likely
to rise to the conscience-shocking level.” Id. Acts that fall
between the extremes of mere negligence and harmful intent
require courts to make “closer calls,” based on a context-specific
inquiry. Id.

        Because the “exact degree of wrongfulness necessary to
reach the ‘conscience-shocking’ level depends upon the
circumstances of a particular case,” Miller v. City of
Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999), we evaluate the
conditions under which a defendant acted in order to ascertain
the relevant standard of culpability. See also Smith I, 318 F.3d
at 508 (“[O]ur cases have repeatedly acknowledged . . . that the
meaning of [the shocks the conscience] standard varies
depending on the factual context.”) (quoting United Artists, 316
F.3d at 399–400). Where a defendant is “confronted with a
hyperpressurized environment such as a high-speed chase . . . it
is usually necessary to show that the officer deliberately harmed
the victim.” Estate of Smith v. Marasco (Smith II), 430 F.3d
140, 153 (3d Cir. 2005) (quotations and citations omitted).
Where a defendant has “the luxury of proceeding in a deliberate
fashion . . . deliberate indifference may be sufficient to shock
the conscience.” Id. (quotations and citations omitted); see also
Nicini, 212 F.3d at 810. Where a defendant has to act with some
urgency, but does not have to make split-second
decisions—such as when a social worker attempts to remove a
child from the parents’ custody—the defendant’s actions must
“reach a level of gross negligence or arbitrariness that indeed


                               17
‘shocks the conscience.’” Miller, 174 F.3d at 375–76; see also
Smith I, 318 F.3d at 509 (“[E]xcept in those cases involving
either true split-second decisions or . . . those in which officials
have the luxury of relaxed deliberation, an official’s conduct
may create state-created danger liability if it exhibits a level of
gross negligence or arbitrariness that shocks the conscience.”);
Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002)
(“[W]e understand Miller to require . . . proof that the
defendants consciously disregarded, not just a substantial risk,
but a great risk that serious harm would result.”).

        Here, both parties characterize defendants’ decisions at
the jail as evolving over a period of more than two years. They
agree the appropriate standard is deliberate indifference. We
note defendants were under some pressure to respond quickly to
the spread of infection, and we question whether deliberately
indifferent conduct is truly conscience shocking in this context.3


   3
    In Lewis, the Court identified deliberate indifference as the
appropriate standard for holding prison officials liable for their
role in creating unsafe conditions of confinement. The Court
noted this standard “rests upon the luxury enjoyed by prison
officials of having time to make unhurried judgments, upon the
chance for repeated reflection, largely uncomplicated by the
pulls of competing obligations.” County of Sacramento v.
Lewis, 523 U.S. 833, 853 (1998). The Court then explained
deliberate indifference would not form the basis for liability
where a prisoner’s claim arose from a response to a prison riot

                                18
or other violent disturbance. “In this setting, a deliberate
indifference standard does not adequately capture the
importance of . . . competing obligations, or convey the
appropriate hesitancy to critique in hindsight decisions
necessarily made in haste, under pressure, and frequently
without the luxury of a second chance.” Id. at 852 (quoting
Whitley v. Albers, 475 U.S. 312, 320 (1986)).
        Here, defendants had much more time to deliberate than
they would in responding to a prison riot.                 But their
decisionmaking was neither “unhurried” nor “largely
uncomplicated by the pulls of competing obligations.” Id. at
853. Defendants faced time pressure to contain the spread of
infection. They faced competing obligations with respect to
financial and space resources and with respect to the need to
warn and educate inmates and staff without creating undue
alarm. Accordingly, we think the appropriate standard may be
higher than deliberate indifference. We note that at least one of
our sister courts of appeals has indicated a higher standard of
culpability may be required where a defendant’s decisionmaking
relates to workplace conditions. See White v. Lemacks, 183 F.3d
1253, 1258 (11th Cir. 1999) (“Although Lewis leaves open the
possibility that deliberate indifference on the part of government
officials or employees will ‘shock the conscience’ in some
circumstances, . . . it is clear after Collins that such indifference
in the context of routine decisions about employee or workplace
safety cannot carry a plaintiff’s case across that high threshold.”)

                                 19
But because we hold defendants’ conduct was not even
deliberately indifferent, we need not reach the question of
whether a higher standard of culpability would be necessary to
shock the conscience here.

       In a suit challenging prison conditions under the Eighth
Amendment, the Supreme Court has equated the concept of
deliberate indifference with the criminal law concept of
recklessness.4 See Farmer v. Brennan, 511 U.S. 825, 836
(1994) (“[A]cting or failing to act with deliberate indifference
to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk.”). The Court
rejected the “invitation to adopt an objective test for deliberate
indifference,” holding

        a prison official cannot be found liable . . . unless
        the official knows of and disregards an excessive
        risk to inmate health and safety; 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.


(citation omitted).
    4
     But in the context of municipal liability, the Court has
defined deliberate indifference as “a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Bd. of County Comm’rs v.
Brown, 520 U.S. 397, 410 (1997).

                                 20
Id. at 837.

        In Nicini, we recognized that Farmer’s subjective
deliberate indifference standard did not necessarily apply in
other contexts, but we “note[d] that after Farmer the courts of
appeals have shown a tendency to apply a purely subjective
deliberate indifference standard outside the Eighth Amendment
context.” Nicini, 212 F.3d at 812 n.10 (citing cases). Because
the defendants’ conduct in Nicini did not satisfy either standard,
we concluded there was no need to determine “whether an
official’s failure to act in light of a risk of which the official
should have known, as opposed to failure to act in light of an
actually known risk, constitutes deliberately indifferent conduct
in this setting.” Id. at 811. In dicta in Ziccardi v. City of
Philadelphia, we expressed approval of a subjective standard,
describing deliberate indifference as requiring “that a person
consciously disregard ‘a substantial risk of serious harm.’” 288
F.3d at 66 (quoting Farmer, 511 U.S. at 836).5


    5
     We have expressed approval of a subjective standard of
deliberate indifference in other § 1983 substantive due process
cases as well. See, e.g., Schieber v. City of Philadelphia, 320
F.3d 409, 421 (3d Cir. 2003); Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003). But we have not yet
definitively answered the question of whether the appropriate
standard in a non-Eighth Amendment substantive due process
case is subjective or objective. An objective standard would
move the concept of deliberate indifference, which lies

                               21
       Here, under either a subjective or an objective standard,
defendants’ conduct does not exhibit deliberate indifference to
a serious risk of prison officials contracting MRSA infections.
There is no evidence that at the time defendants made their
decisions as to conditions at the jail, they were aware, or should


“somewhere between the poles of negligence at one end and
purpose or knowledge at the other,” Farmer v. Brennan, 511
U.S. 825, 836 (1994), closer to the pole of negligence. Mindful
that “liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process,” Lewis, 523
U.S. at 849, and that the Supreme Court has expressed its
“reluctan[ce] to expand the concept of substantive due process,”
Collins, 503 U.S. at 125, we hesitate to do so. But we recognize
the Farmer standard was applied in an Eighth Amendment
context. In the context of municipal liability, the Court has held
the appropriate standard is objective. See, e.g., Brown, 520 U.S.
at 410–12; City of Canton v. Harris, 489 U.S. 378, 390 (1989).
The Court has also observed that actual knowledge can be
inferred if a risk is obvious, see Hope v. Pelzer, 536 U.S. 730,
738 (2002) (“We may infer the existence of this subjective state
of mind from the fact that the risk of harm is obvious.”) (citing
Farmer, 511 U.S. at 842–43), which sounds much like a
modified objective standard. We recognize strong arguments
weighing in favor of both standards. But because the conduct
in this case was not deliberately indifferent under either a
subjective or objective standard, we need not decide this issue.


                               22
have been aware, that their remedial and preventative measures
were inadequate to protect corrections officers from infections.
We note the Department of Corrections found the jail
substantially in compliance with state standards in 2002, giving
defendants reason to believe the measures were adequate.
Because only two of 170 corrections officers tested positive for
colonization in 2002, we think defendants could reasonably
believe the corrections officers did not face a great risk of
infection. And we think no reasonable jury could conclude
defendants knew, or should have known, the corrections officers
faced a substantial risk.

       Furthermore, defendants had in place policies and
procedures to ensure sanitary conditions in the jail, including
requirements that cells be regularly cleaned with an all-purpose
detergent and that showers be disinfected with a bleach and
water solution. After conducting their 2002 inspection, the
Department of Corrections noted jail officials’ good faith efforts
to improve conditions. When defendants recognized an
increased number of MRSA infections, they took various
remedial and preventative measures, including isolating and
treating infected inmates and distributing information to staff
and inmates. In retrospect, these actions may have been
insufficient to prevent the Kauchers’ infections. But we
evaluate defendants’ decisions at the time they were made. See
DeShaney, 489 U.S. at 202 (holding state’s failure to protect a
child from his father’s violence, “though calamitous in
hindsight,” did not constitute a due process violation); Nicini,


                               23
212 F.3d at 814 (explaining that “second-guess[ing]” the
plaintiff’s actions “from hindsight” is “not our task”). There is
no indication that at the time the decisions were made,
defendants were aware or should have been aware of the risks
posed to corrections officers, or that they acted with deliberate
indifference to those risks.6

     6
       The Kauchers draw our attention to a jury verdict for
inmates seeking to hold jail officials liable for their MRSA
infections, and to the district judge’s opinion in sustaining the
verdict: “[t]here was ample evidence from which the jury could
conclude that Defendants, including the County, knew of the
MRSA infection spreading throughout the prison and failed to
take necessary steps to minimize the number of inmates
affected.” Keller v. County of Bucks, No. 03-4017, 2005 U.S.
Dist. LEXIS 4537, at *4–5 (E.D. Pa. Mar. 22, 2005). The
Kauchers cite the jury verdict as evidence that defendants’
deliberate indifference created and increased the risk of
infection at the jail. They do not assert issue or claim
preclusion. The jury verdict addressed conduct affecting
inmates, not corrections officers. Id. at *2. The evidence the
district judge noted in supporting the verdict included grossly
inadequate medical treatment, a failure to keep the showers and
food handling areas in a sanitary condition, and a failure to
instruct inmates on prevention of infectious diseases. Id. at
*3–4. These conditions did not affect corrections officers, who
were free to seek outside medical treatment, who did not live in
the jail, and who received detailed instructions on infectious

                               24
        The Kauchers contend defendants acted with deliberate
indifference in providing false and misleading information
regarding the dangers of MRSA, and in covering up the extent
of the problem. They further contend corrections officers were
discouraged from taking preventative measures to protect
themselves because of defendants’ misrepresentations. This
claim rests largely on Gubernick’s memorandum, which states
“there are NO known cases in the facility.” (App. Vol. II 160.)
Read in its entirety, the memorandum summarizes the situation
at the jail as Gubernick understood it at the time it was issued,
and warns inmates and staff to take appropriate precautions.
The memorandum states, “[t]he medical staff is aware of the
situation and is working diligently to treat those who have been
diagnosed.” (Id.) A reasonable jury could not conclude the
memorandum was intended to mislead corrections officers as to
the harm they faced. Nor could a reasonable jury conclude that
by distributing it, Gubernick manifested deliberate indifference
to a “substantial risk of serious harm” to corrections officers.
Ziccardi, 288 F.3d at 66 (quoting Farmer, 511 U.S. at 836).

        The Kauchers contend Gubernick should have issued a
second memorandum when he realized there were, in fact,
confirmed cases of MRSA infections at the jail. They contend
his failure to do so evidences a “cover-up” of the problem,
intended to allow defendants to avoid facing the financial and
other costs of properly addressing the outbreak. In the absence



disease prevention in the jail’s standard operating procedures.

                               25
of other evidence, and in light of the warnings and suggested
precautions in Gubernick’s memorandum, we do not think
Gubernick’s failure to issue a second memorandum could lead
a reasonable jury to conclude that a cover-up was in effect or
that Gubernick had engaged in conscience-shocking behavior.
The first memorandum advised all inmates and staff of the
MRSA issue, and of means of protection and prevention. In
failing to update it with reports of diagnosed cases, Gubernick
neglected to keep inmates and staff fully apprised of the details
of the situation. But he did not misrepresent or cover up the
situation.

       The Kauchers note Dr. Lewis Brandt testified that he
suggested infected inmates be treated with a particular
antibiotic—vancomycin. He further testified he was informed
vancomycin was too expensive, and that he should not put his
recommendation in writing. The Kauchers contend this
provides further evidence that defendants engaged in a “cover-
up” of the problem. But Brandt testified that he made his
recommendation to two nurses, only one of whom is named as
a defendant. After both nurses rejected his suggestion, he did
not discuss vancomycin with any other County or jail official.
And at the nurses’ instruction, he did not put his suggestion in
writing. There is no evidence that any other defendant was
aware of Brandt’s suggestion. In light of this, there is
insufficient evidence that defendants’ decision to pursue
treatment options other than vancomycin reveals a coordinated



                               26
“cover-up,” designed to misrepresent the risk of infection faced
by corrections officers.

        Even assuming the jail might have been a safer place to
work had defendants treated all infected inmates with
vancomycin, defendants’ failure to provide a workplace free
from health risks cannot form the basis of a substantive due
process claim. And even assuming defendants breached a duty
to the inmates in failing to use vancomycin, there are well
recognized differences between the duties owed to prisoners and
the duties owed to employees and others whose liberty is not
restricted. See DeShaney, 489 U.S. at 199–200; Mark v.
Borough of Hatboro, 51 F.3d 1137, 1150 (3rd Cir. 1995). A
breach of a duty to a prisoner does not bear on duties owed to
corrections officers, who are free to leave the jail at any time.
Accordingly, even assuming defendants’ failure to treat infected
inmates with vancomycin increased the risk of infection faced
by inmates and corrections officers, it does not form a valid
basis for the Kauchers’ substantive due process claim. We note
that other Courts of Appeals have similarly concluded a failure
to devote sufficient resources to establish a safe working
environment does not violate the Due Process Clause. See, e.g.,
White v. Lemacks, 183 F.3d 1253, 1258 (11th Cir. 1999)
(“[W]hen someone not in custody is harmed because too few
resources were devoted to their safety and protection, that harm
will seldom, if ever, be cognizable under the Due Process
Clause.”); Walker v. Rowe, 791 F.2d 507, 510–11 (7th Cir.
1986).


                               27
         This case is distinguishable from the cases the Kauchers
cite, in which deliberate misrepresentations formed the basis of
substantive due process violations. See Kallstrom v. City of
Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (holding a city’s
release of personal information that it promised would remain
confidential increased undercover police officers’ “vulnerability
to private acts of vengeance,” and formed the basis of a
cognizable § 1983 claim); L. W. v. Grubbs, 974 F.2d 119, 121
(9th Cir. 1992) (holding a prison supervisors’ alleged promise
to prison nurse that she would not be left alone with violent sex
offenders could have “enhanced [the nurse’s] vulnerability to
attack,” and therefore formed the basis of a cognizable § 1983
claim). Here, a reasonable jury could not conclude defendants
deliberately or otherwise led the corrections officers to believe
there was no MRSA issue at the jail, no risk of infection, and no
need to take preventative measures.

       This case is also distinguishable from cases cited as
examples of conscience-shocking conduct in the workplace. In
Eddy v. Virgin Islands Water & Power Authority, 256 F.3d 204
(3d Cir. 2001), the plaintiff was electrocuted after being ordered,
without proper training, equipment, or protective clothing, to fix
a high voltage electrical wire. The plaintiff had been threatened
with discharge if he refused to perform the task. Id. at 213. We
concluded the defendants knew the plaintiff “would face a risk
of almost certain injury if he performed the work.” Id. at 211 n.5
(quotation omitted). In Hawkins v. Holloway, 316 F.3d 777 (8th
Cir. 2003), the defendant sheriff pointed loaded weapons at


                                28
employees, “deliberately abus[ing] his power by threatening
deadly force as a means of oppressing those employed in his
department.” Id. at 787. In upholding the district court’s denial
of summary judgment for the sheriff, the Court of Appeals for
the Eighth Circuit noted that while there is no constitutional
guarantee of a safe workplace, “the sheriff’s alleged conduct
cannot be characterized as an unreasonable risk incident to one’s
service as an employee in a sheriff’s department.” Id. So, too,
in Eddy, the danger faced by the plaintiff—working on a high
voltage electrical wire without proper precautions—cannot be
characterized as a safety risk inherent in the workplace. In both
cases, by forcing the plaintiffs to confront unreasonable dangers
at the risk of losing their jobs, the defendants engaged in
“arbitrary and conscience shocking behavior prohibited by
substantive due process.” Id. Here, in contrast, the risk of
contracting an infection was a “risk incident to [his] service as
an employee” at the jail, id., of which Kaucher was on notice
from the outset of his employment. Moreover, there is no
allegation that Kaucher was threatened with discharge if he
failed to confront a particular danger at the jail.

       We do not rule out the possibility that the evidence on the
record could support a jury finding that defendants acted
negligently. But the Kauchers have not alleged conduct that
rises to a level of deliberate indifference that could be
characterized as conscience shocking.




                               29
                               C.

       Nor have the Kauchers alleged a valid claim under the
state created danger doctrine. Generally, the Due Process
Clause does not impose an affirmative obligation on the state to
protect its citizens. See DeShaney, 489 U.S. at 195–96. But
under the state created danger doctrine, the state may assume
responsibility for the safety of an individual for whom it
affirmatively creates or enhances a risk of danger. See Kneipp
v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). We require the
following four elements of a meritorious state created danger
claim:

       (1)    the harm ultimately caused was
              foreseeable and fairly direct;

       (2)    a state actor acted with a degree of
              culpability that shocks the conscience;

       (3)    a relationship between the state and the
              plaintiff existed such that the plaintiff was
              a foreseeable victim of the defendant’s
              acts, or a member of a discrete class of
              persons subjected to the potential harm
              brought about by the state’s actions, as
              opposed to a member of the public in
              general; and

       (4)    a state actor affirmatively used his or her
              authority in a way that created a danger to


                               30
              the citizen or that rendered the citizen
              more vulnerable to danger than had the
              state not acted at all.

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.
2006) (quotations and footnotes omitted). Because we conclude
the Kauchers have not alleged conscience-shocking conduct on
the part of defendants, their state created danger claim
necessarily fails under the second element of this test.7 Their
claim also fails under the fourth element, because they have not



  7
    Furthermore, “[i]n order to prevail on a § 1983 claim against
multiple defendants, a plaintiff must show that each individual
defendant violated his constitutional rights.” Estate of Smith v.
Marasco (Smith II), 430 F.3d 140, 151 (3d Cir. 2005). Here, the
Kauchers have not alleged facts demonstrating personal
involvement of any named individual defendant other than
Gubernick, who they allege violated their substantive due
process rights by issuing the memorandum regarding MRSA in
the jail. Accordingly, the Kauchers cannot show that any other
individual defendant “through conduct sanctioned under the
color of state law, deprived [them] of a federal constitutional or
statutory right.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.
2000). As for Gubernick, though the Kauchers allege specific
conduct and involvement on his part, we conclude his actions in
issuing the memorandum did not violate their constitutional
rights.

                               31
alleged defendants acted affirmatively to create a risk of danger
that would otherwise not have existed.8

         The fourth element of the state created danger test asks
whether a defendant exercised his or her authority to create a
foreseeably dangerous situation. In Bright, we emphasized that
“[i]t is misuse of state authority, rather than a failure to use it,
that can violate the Due Process Clause.” 9 443 F.3d at 282. But



    8
     In addition, Dawn Kaucher has not alleged a relationship
with defendants such that she was a foreseeable victim. The
third element of the test asks whether a plaintiff was part of a
“discrete class of persons subjected to [a] potential harm.”
Morse v. Lower Merion Sch. Dist.,132 F.3d 902, 913 (3d Cir.
1997). Dawn Kaucher was not employed at the jail, and has no
basis for asserting she was a foreseeable victim.
        9
      We noted that “[i]f there were any inconsistency in the
holdings of our prior cases regarding the fourth element of a
state-created danger claim, the controlling precedent would be
our en banc decision in D.R. by L.R. v. Middle Bucks Area Vo.
Tech. School,” where we affirmed DeShaney. Bright v.
Westmoreland County, 443 F.3d 276, 283 n.6 (3d Cir. 2006).
We explained: “the Due Process Clause proscribes only state
action, and, accordingly, liability ‘under the state-created danger
theory [can only] be predicated upon the state’s affirmative acts
which work to plaintiffs’ detriment in terms of exposure to
danger.’” Id. (quoting D.R. by L.R., 972 F.2d 1364, 1374 (3d

                                32
a specific and deliberate exercise of state authority, while
necessary to satisfy the fourth element of the test, is not
sufficient. There must be a direct causal relationship between
the affirmative act of the state and plaintiff’s harm. Only then
will the affirmative act render the plaintiff “more vulnerable to
danger than had the state not acted at all.” Id. at 281; see also
Smith I, 318 F.3d at 510 (holding the fourth element asks if “but
for the defendants’ actions, the plaintiff would have been in a
less harmful position”).

        Accordingly, the fourth element is satisfied where the
state’s action was the “but for cause” of the danger faced by the
plaintiff. In Kneipp v. Tedder, we concluded a jury could find
this element satisfied where officers used their authority to
separate an intoxicated woman from her husband and send her
home unescorted. 95 F.3d at 1209. “[B]ut for the intervention
of the police, [her husband] would have continued to escort
[her] back to their apartment where she would have been safe.”
Id. In Rivas v. City of Passaic, 365 F.3d 181 (3d Cir. 2004), we
concluded a jury could find this element satisfied where EMTs



Cir. 1992)). We concluded there was no conflict with cases in
which the fourth element was phrased in terms of whether
“‘state actors used their authority to create an opportunity that
would not otherwise have existed’ for injury to the plaintiff”
because “‘state actors’ cannot ‘use their authority’ to create such
an opportunity by failing to act.” Id. (quoting Mark v. Borough
of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)).

                                33
called for police backup in handling an allegedly dangerous
individual coming out of a seizure and suffering convulsions,
and then neglected to inform the police of the individual’s
medical condition. “Were it not for those acts, Mr. Rivas
presumably could have remained in the apartment’s bathroom
for the duration of his seizure without incident.” Id. at 197. In
Smith I, we concluded a jury could find this element satisfied
where police flushed plaintiff from his house using tear gas and
other assaultive techniques, confined him to a densely wooded
area, blocked his return, and prevented his family or friends
from communicating with him over a loudspeaker. 318 F.3d at
509–10. We stated “it is ‘conceivable that, but for the
intervention of the police,’ . . . Smith would have returned home
on his own or with the encouragement of his family or friends.”
Id. at 510 (quoting Kneipp, 95 F.3d at 1209).

        Where the state’s action is not the “but for cause” of the
plaintiff’s harm, the fourth element is not satisfied. In Morse v.
Lower Merion School District, 132 F.3d 902 (3d Cir. 1997), a
teacher was killed in a daycare center, leased from the school
district, after a mentally ill attacker entered through a door that
had been unlocked by the center’s operator. In analyzing her
survivors’ state created danger claim, the district court identified
one arguably affirmative act—the defendants having unlocked
the back door to a school through which the plaintiff’s attacker
entered—and expressed uncertainty as to whether this
affirmative act was sufficient to establish liability.            In
concluding it was not, we noted the absence of a direct causal


                                34
relationship between the unlocking of the door and the
plaintiff’s attack by a mentally ill intruder. See id. at 915–16.10

       The Kauchers have not alleged affirmative acts that were
the “but for cause” of the risks they faced. They frame their
claim in terms of actions affirmatively creating dangerous
conditions and affirmatively misrepresenting dangers. But at
base, both aspects of their claim allege failures to take actions
sufficient to prevent the Kauchers’ infections. In the first


   10
     Other courts of appeals agree that under the state created
danger doctrine, a defendant’s actions must be the “but for
cause” that put the plaintiff in a position of danger that
otherwise would not have existed. See, e.g., Penilla v. City of
Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997) (finding a
due process violation where the state created a danger to the
plaintiff which, but for its affirmative acts, would not have
existed); Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir.
1996) (reviewing cases and noting due process violations were
found where the plaintiffs “would not have been in harm’s way
but for the government’s affirmative actions”); Reed v. Gardner,
986 F.2d 1122, 1125 (7th Cir. 1993) (finding the evidence
sufficient to support summary judgment for police officers
where “without state intervention, the same danger would
exist”); Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir. 1992)
(requiring evidence that the defendant left the plaintiff “in a
worse position than if the state official had never been
involved”).

                                35
instance, they contend defendants failed to act affirmatively to
improve conditions at the jail. In the second instance, they
contend defendants failed to act affirmatively to educate and
warn inmates and corrections officers about MRSA and to train
them in infection prevention.11

       Gubernick’s issuance of the memorandum regarding
MRSA is the one alleged act that might be characterized as
affirmative. But the memorandum was not the “but for cause”
of the Kauchers’ infections. There had always been cases of
staph infections at the jail, including MRSA infections, and
there had always been a corresponding risk of infection to
inmates and corrections officers. The increase in the number of
infections in the summer of 2002 occurred prior to Gubernick’s


  11
     We have held failures to act cannot form the basis of a valid
§ 1983 claim. See, e.g., Bright, 443 F.3d at 283–84 (failure to
hold revocation hearing for an individual in violation of his
parole prior to his killing an eight-year old girl); Morse,132 F.3d
at 907–08 (failure to prevent mentally disturbed individual from
entering school and attacking teacher); Searles, 990 F.2d at 794
(failure to maintain railcars in a safe condition); D.R. by L.R..,
972 F.2d at 1376 (failure of school officials to investigate and
stop instances of sexual abuse of students); Brown v.
Grabowski, 922 F.2d 1097 (3d Cir. 1990) (failure to file
criminal charges against individual who repeatedly threatened
and assaulted former girlfriend, despite reports to the police by
the victim and her family).

                                36
issuance of the memorandum. In fact, the memorandum was
issued in response to the outbreak.       Accordingly, the
memorandum was not the “but for cause” of the outbreak or of
the risk of infection faced by Kaucher. To the contrary, the
memorandum instructed Kaucher as to appropriate measures to
prevent an infection.

        In contending defendants caused the outbreak, the
Kauchers cite the jury verdict holding County and jail officials
liable for the conditions that led to MRSA infections among
inmates. But as noted, there are well recognized differences
between the duties owed to prisoners and the duties owed to
employees and other individuals whose liberty is not restricted.
See DeShaney, 489 U.S. at 199–200; Mark, 51 F.3d at 1150.
Regardless of whether omissions can form the basis of liability
in a suit by inmates, they cannot form the basis of liability in the
Kauchers’ suit.

       Though not based on the state created danger doctrine,
Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997), supports our
conclusion that the Kauchers’ allegations do not satisfy the
fourth element of the state created danger test. The plaintiff in
Wallace, a prison guard, tried to remove his § 1983 claim from
the Collins paradigm by alleging affirmative state action that led
to his harm, as opposed to a lack of state action that led to
unsafe conditions. He was assigned to duty in a prison housing
a violent inmate who had threatened to kill him. The inmate
attacked the plaintiff, and the plaintiff sought to hold a number
of the prison officials liable. He alleged the prison officials

                                37
created his harm by ordering him to stay at his post and
promising they would protect him against the inmate. The Court
of Appeals for the Seventh Circuit, affirming the district court’s
dismissal of the complaint, concluded the plaintiff had not stated
a valid substantive due process claim. Id. at 429–30. The court
reasoned that once the plaintiff had taken a job as prison guard,
his job obliged him to work in a dangerous place and concluded
this was “a far cry” from the custodial relationships that
normally give rise to a state duty under § 1983. Id. at 429.
“Unlike a prisoner, a person involuntarily committed to a mental
institution, or a child placed by state authorities in a foster home,
[the plaintiff] was free to walk out the door any time he
wanted.” Id. at 430. By means of a two-part inquiry, the court
addressed and answered the plaintiff’s contention that Collins
did not control, asking first what actions the prison officials
affirmatively took and then what dangers the plaintiff would
have faced in the absence of these actions. The affirmative acts
the plaintiff alleged were the prison officials’ order that he
remain at his post and their promise to protect him from the
violent inmate. The court concluded that even without these
acts, the plaintiff would have had a duty to remain at his post
and would have faced danger from the inmate: “[t]here is no
doubt that [the plaintiff] was in danger from [the inmate] on the
morning [in question], and that the officials knew of the danger
even before [the inmate] tried to make good on his threat. But
these are the risks of the guard’s job.” Id.




                                 38
        Here, too, Kaucher chose to remain employed at the jail,
in a position that obliged him to work amidst MRSA infections.
From the outset of his employment and well before Gubernick’s
memorandum was issued, he was aware of the safety risks
associated with working in a prison. He was on notice of the
jail’s standard operating procedures, which described proper
methods of handling inmates with communicable diseases.
Moreover, with the exception of those related to Gubernick’s
issuance of his memorandum, all of the Kauchers’ allegations
relate to defendants’ failure to take certain affirmative acts to
increase safety standards at the jail. Just as in Wallace, these
allegations of omissions are insufficient to trigger substantive
due process liability.

       The one alleged affirmative act was Gubernick’s
memorandum regarding MRSA. Under the second part of
Wallace’s inquiry, we ask what dangers the Kauchers would
have faced in the absence of the memorandum, and we conclude
the dangers would have been the same. With or without the
memorandum, jail employees risked MRSA infections. Had the
memorandum actually represented there was no MRSA bacteria
present at the jail, the Kauchers might have a claim that
Gubernick effectively discouraged corrections officers from
taking safety precautions and thereby created a risk for harm that
would not otherwise have existed. But we have already
concluded the memorandum did not constitute a
misrepresentation of the MRSA problem.



                               39
        Kaucher contends that when he transported infected
inmates to the hospital, he faced specific opportunities for harm,
created by defendants. He does not allege defendants forced
him to perform this part of the job (i.e., that Kaucher objected
and defendants insisted), that they forced him to perform it
without taking proper preventative measures, or that they
threatened to fire him if he declined. Even if defendants acted
affirmatively in ordering Kaucher to perform these duties, the
situation would be analogous to Wallace. Just as the Wallace
plaintiff would have faced danger from the violent inmate
whether or not he received a specific order to remain at his post,
Kaucher would have faced the danger of contracting an MRSA
infection whether or not he received an order to transport an
infected inmate to the hospital. In both cases, “these are the
risks of the guard’s job.” Wallace, 115 F.3d at 430.

       The Kauchers have not alleged an affirmative, culpable
act on the part of defendants sufficient to implicate the state
created danger doctrine. Nor have they alleged conscience-
shocking conduct on the part of defendants that could transform
a workplace safety claim into a substantive due process claim.
At base, the Kauchers contend defendants failed to provide a
working environment free from risk of infection—a claim
precluded by Collins.

                               D.

       Our conclusion that the Kauchers’ claims are precluded
by Collins is informed and supported by the Court’s admonition


                               40
that we refrain from importing traditional tort law into the Due
Process Clause. This principle, emphasized in Collins, was
established well before. See, e.g., DeShaney, 489 U.S. at 202
(“[T]he Due Process Clause of the Fourteenth Amendment . . .
does not transform every tort committed by a state actor into a
constitutional violation.”); Daniels v. Williams, 474 U.S. 327,
332 (1986) (“Our Constitution . . . does not purport to supplant
traditional tort law in laying down rules of conduct to regulate
liability for injuries that attend living together in society.”);
Baker v. McCollan, 443 U.S. 137, 146 (1979) (“Section 1983
imposes liability for violations of rights protected by the
Constitution, not for violations of duties of care arising out of
tort law.”).

        In Washington v. District of Columbia, 802 F.2d 1478
(1986), the Court of Appeals for the D.C. Circuit focused on this
principle in the relevant context of a prison guard’s § 1983 claim
against reformatory and local officials. The prison guard, who
was attacked by a prisoner known to be psychologically unstable
and violent, alleged the attack resulted from the reckless failure
of prison officials to address unsafe conditions. The Court of
Appeals, affirming the district court’s dismissal for failure to
state a claim, held the officials’ failure to provide safe prison
conditions did not form the basis of a substantive due process
claim. Id. at 1481–82. The court noted that under state tort law,
an employer may have a duty to provide, and an employee may
have a right to demand, a workplace free from unreasonable
risks of harm. But “[s]uch tort-law rights and duties . . . are


                               41
quite distinct from those secured by the Constitution or federal
law,” id. at 1481, and the Supreme Court has repeatedly warned
“that section 1983 must not be used to duplicate state tort law on
the federal level,” id. at 1480.

        Just as in Washington, the Kauchers have alleged what is
properly characterized as a tort law claim. They contend
defendants breached a duty of care by failing to provide Kaucher
a safe work environment. As the Court of Appeals for the D.C.
Circuit noted, defendants may have a duty under state law to
provide a working environment free from unreasonable risks of
harm, but they have no duty to do so under the Constitution. See
id. at 1481.

                                E.

        We conclude the Kauchers’ claims relate to a failure to
remedy conditions at the jail. The Kauchers allege defendants
failed to prevent MRSA from spreading through the jail, took
insufficient action to protect the jail’s corrections officers from
contracting an infection, and failed to warn and educate
corrections officers in infection prevention. Despite their
attempts to characterize defendants’ actions as affirmatively
creating dangerous conditions, they allege a failure to act to
prevent dangerous conditions. Under Collins, this claim must
fail. Kaucher “voluntarily accepted[] an offer of employment,”
Collins, 503 U.S. at 128, and the Due Process Clause does not
“guarantee municipal employees a workplace that is free of
unreasonable risks of harm,” id. at 129.


                                42
                            IV.

       For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment dismissing the Kauchers’
claim.




                             43
