                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0205n.06

                                            No. 08-3978                                   FILED
                                                                                      Apr 01, 2010
                                                                                LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

JEREMY GARRETT,

       Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
BELMONT COUNTY SHERIFF’S                               SOUTHERN DISTRICT OF OHIO
DEPARTMENT; BELMONT COUNTY JAIL,

       Defendants-Appellees.
                                                /             OPINION




BEFORE:          SILER, MOORE, and CLAY, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff, Jeremy Garrett, an Ohio state prisoner proceeding pro se,

appeals the July 9, 2008 sua sponte dismissal of his 42 U.S.C. § 1983 claim for failure to state a

claim upon which relief can be granted. For the reasons set forth below, we REVERSE the district

court’s order.

                                         BACKGROUND

       All facts are taken from the complaint and from Plaintiff’s objections to the magistrate

judge’s Report and Recommendation (“R&R”) since those were the facts considered by the district

court in its order. Plaintiff alleges that his wife was incarcerated or detained by the Belmont County

Sheriff’s Department (“Belmont”) and was placed on suicide watch while in Belmont’s custody
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because she had attempted suicide. She was subsequently released on “probation/bond” for some

time; while on release, she again attempted suicide. (Dist. Ct. Doc. No. 5, Pl.’s Obj. to R&R, 2).

Plaintiff further alleges that Belmont placed his wife in a mental facility where she continued to

threaten to commit suicide through letters to Plaintiff. Plaintiff’s wife was again released on bond

and then succeeded in committing suicide shortly thereafter.

       Plaintiff alleges that he repeatedly tried to get prison guards and other officials working for

Belmont to investigate the matter when his wife sent him numerous letters between February 6,

2006, and February 28, 2006 threatening to commit suicide. He alleges that, instead of investigating

the matter, Defendants mocked him and ignored his request for help. Finally, Plaintiff alleges that

he and his children suffered emotional distress because of the loss of their loved one, resulting from

Defendants’ conduct.

       Plaintiff was incarcerated by Belmont at all relevant times and is scheduled to remain

incarcerated until 2012. He and his wife have six children, and the pleadings fail to make clear their

current situation now that Plaintiff’s wife is deceased. Plaintiff seeks monetary damages, burial

costs, counseling costs, and an investigation of the prison guards and sheriff’s employees implicated,

the county jail, and the sheriff’s department (collectively “Defendants”).

       Plaintiff filed a complaint, proceeding pro se, on May 9, 2008, along with a motion to

proceed in forma pauperis in district court, alleging Eighth Amendment and Fourteenth Amendment

violations raised under 42 U.S.C. § 1983. The motion to proceed in forma pauperis was granted on

June 19, 2008 when the magistrate judge filed a R&R recommending that Plaintiff’s case be

dismissed under 28 U.S.C. § 1915(e)(2) for failure to state a claim upon which relief can be granted.


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Plaintiff filed objections to the R&R on June 27, 2008 and the district court entered an order on July

9, 2008 adopting the magistrate judge’s R&R with some additional reasoning. This timely appeal

followed, which resulted in the case being remanded to the district court to determine whether

Plaintiff could proceed in forma pauperis on appeal. On February 5, 2009, the district court entered

an order directing partial payments for filing fees on appeal and certifying that the appeal is not being

taken in good faith, and on August 6, 2009 the district court denied Plaintiff’s request for counsel

on appeal. Plaintiff also appeals the denial of his request for counsel on appeal.

                                             DISCUSSION

I.      Standard of Review

        This Court reviews de novo a district court’s sua sponte dismissal of a pro se litigant’s claim

at the pre-docketing screening stage under 28 U.S.C. § 1915(e)(2) for failure to state a claim.

Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). All well-pleaded allegations in the complaint

must be accepted as true at this stage of the litigation. Id. See also Ashcroft v. Iqbal, --- U.S. ---, 129

S.Ct. 1937, 1951 (2009) (Courts must “consider the factual allegations in [the] complaint to

determine if they plausibly suggest an entitlement to relief.”). Pro se complaints are to be held “to

less stringent standards than formal pleadings drafted by lawyers,” and should therefore be construed

liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see Martin v. Overton, 391 F.3d 710, 712

(6th Cir. 2004). Liberal construction of pro se complaints can include additional allegations set forth

in objections to the magistrate judge’s R&R at the discretion of the district court and this Court. See

Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993) (construing additional allegations in pro




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se petitioner’s objections to magistrate judge’s R&R as part of allegations of ineffective assistance

of counsel in habeas corpus proceeding); Sellers v. Morris, 840 F.2d 352, 355 (6th Cir. 1988) (same).

       Because the complaint initially appears on its face to raise claims related to Plaintiff’s prison

conditions due to the prison guards’ alleged actions ignoring his requests for assistance, at first

glance it would appear that the restrictions of the Prison Litigation Reform Act (“PLRA”) would

apply. This Circuit has held that district courts have no discretion to allow leave to amend to avoid

sua sponte dismissal under the PLRA. See McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir.

1997). However, the PLRA did not abrogate the discretion to liberally construe pro se complaints.

See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (continuing to liberally construe pro se

complaints from prisoners under PLRA). Because this Court finds that Plaintiff’s allegations once

liberally construed are best interpreted as falling outside the scope of the PLRA, our Circuit’s

limitation on the authority to grant leave to amend is no longer applicable. See Jones v. Bock, 549

U.S. 199, 203-05 (2007) (discussing the policy goals of PLRA as specifically targeting prisoner

lawsuits regarding prison conditions); 42 U.S.C. § 1997e(c)(1) (“The court shall on its own motion

or on the motion of a party dismiss any action brought with respect to prison conditions under [42

U.S.C. § 1983]. . . .”) (emphasis added).

II.    Analysis

       Plaintiff alleges essentially two claims that are both actually better understood as raised in

his capacity as the legal representative of his deceased wife: 1) an Eighth Amendment claim for

failure to provide appropriate medical treatment on behalf of his wife; and 2) a Fourteenth

Amendment claim based on substantive due process for failure to assist his wife when she was


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suicidal. While Plaintiff might also be claiming that his own constitutional rights were violated by

the prison and its employees, especially in light of the damages sought, taking both his complaint

and objections to the R&R together, his arguments are primarily directed at the two claims on behalf

of his wife. On both claims, the district court erred by failing to liberally construe Plaintiff’s

complaint to argue a theory upon which relief could be granted – namely that Belmont and the other

Defendants failed to provide proper medical treatment and were deliberately indifferent to Plaintiff’s

wife’s life during the time in which she was in state custody, particularly in the mental institution.

Instead, for both claims, the district court found that since Mrs. Garrett was released on bond at the

time of her suicide, the state did not have a special relationship with her and she was not in custody;

therefore, Plaintiff’s claims must be dismissed for failure to state a claim.

        A.      Standing

        As an initial matter, this Court must consider whether Plaintiff is raising a claim based on

an infringement of his own constitutional rights or of his wife’s rights. In this Circuit “a § 1983

claim is ‘entirely personal to the direct victim of the alleged constitutional tort.’” Barber v. Overton,

496 F.3d 449, 457 (6th Cir. 2007) (quoting Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir.

2000)); see also Jaco v. Bloechle, 739 F.2d 239, 242 (6th Cir. 1984). Therefore, only the victim or

her estate’s representative may bring a § 1983 claim, and “no cause of action may lie under § 1983

for emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly

suffered personally by the victim’s family members.” Claybrook, 199 F.3d at 357. Those kinds of

injuries are appropriately raised in a state tort law cause of action.




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        Plaintiff alleges some injuries that would not be cognizable as § 1983 claims under Barber

and Claybrook, namely, Plaintiff’s and his children’s distress at the loss of their loved one. See

Barber, 496 F.3d at 457-58; Claybrook, 199 F.3d at 357-58. The district court implicitly construed

the complaint as bringing a cause of action implicating Mrs. Garrett’s constitutional rights as well.

However, interpreting Plaintiff’s claim as raising Mrs. Garrett’s constitutional rights as her estate’s

representative, the question then becomes whether Plaintiff has sufficiently alleged that he is the

legal representative of her estate. Again, construing his complaint liberally, Plaintiff has clearly

alleged that he is Mrs. Garrett’s surviving spouse. Under Ohio law, if Mrs. Garrett died intestate and

all of her children are also Plaintiff’s children, which Plaintiff also alleges, then Plaintiff would be

entitled to the entire estate as the surviving spouse. OHIO REV . CODE ANN . § 2105.06(B) (2009).

As the sole person entitled to inherit under Ohio intestacy law, Plaintiff is the most appropriate legal

representative of the estate. Therefore, since Plaintiff did allege that he is her spouse and that Mrs.

Garrett is deceased, this Court interprets that allegation as sufficient to state a claim that Plaintiff is

the legal representative of Mrs. Garrett’s estate.

        B.      Eighth Amendment

        Plaintiff alleges an Eighth Amendment violation for failure to give appropriate medical

attention to his wife. In order to state a claim under this theory, Plaintiff must show that his wife was

a prisoner, that she had a serious medical condition, and that Defendants displayed a deliberate

indifference to her health. Estelle v. Gamble, 429 U.S. 97, 102-06 (1976) (deliberate indifference

can be “manifested by prison doctors in their response to the prisoner's needs or by prison guards in

intentionally denying or delaying access to medical care or intentionally interfering with the


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treatment once prescribed.”); Wilson v. Seiter, 501 U.S. 294, 302-04 (1991) (reiterating the deliberate

indifference standard articulated in Estelle). The seriousness of the medical condition at issue is

usually considered an objective inquiry. Prison officials must provide medical care to prisoners and

protect prisoners from conditions that might cause future harm. Helling v. McKinney, 509 U.S. 25,

33 (1993) (prison officials violate Eighth Amendment if they do not protect prisoners from harms

of second-hand smoke). The deliberate indifference standard is analyzed as a subjective prong:

Plaintiff would need to show that Defendants in fact knew of his wife’s medical condition, should

have concluded a substantial risk existed, and actually drew that conclusion. Farmer v. Brennan,

511 U.S. 825, 839 (1994). If prison officials reasonably respond to the risk, they will not be held

liable even if ultimately the harm is not avoided. Id. at 844. Deliberate indifference requires more

than simple medical malpractice, and has been described as “an unnecessary and wanton infliction

of pain” or to be “repugnant to the conscience of mankind.” Estelle, 429 U.S. at 105-06.

       Plaintiff alleges through his additional allegations in the objections he filed that his wife was

a prisoner in the custody of Belmont when she first attempted suicide. She was then released on

bond, attempted suicide again, and was returned to the custody of Belmont when placed in a mental

institution. Finally, she was released again from the mental institution, and then she committed

suicide in “the exact way she said she would.” (Dist. Ct. Doc. No. 5, Pl.’s Obj. to R&R, 2).

       The district court seems to have assumed that Plaintiff’s claims only related to his attempts

to get assistance for his wife from prison guards after his wife was released the second time, ignoring

the likelihood that his claim also includes an allegation that it was deliberate indifference to release

Mrs. Garrett from the mental institution in the first place. Perhaps this assumption has its roots in


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Plaintiff’s original complaint that did not include the information about Mrs. Garrett’s relationship

to Belmont. A more complete reading of Plaintiff’s allegations would include those alleged in his

filed objections or the district court should have allowed leave to amend to include such allegations.

Therefore, construing the complaint to include the factual allegations about Mrs. Garrett’s

confinement by Belmont in prison and in the mental institution, Plaintiff’s allegations should be

understood to include the claim that his wife was in custody when her Eighth Amendment rights

were violated.

       The district court also seems to have assumed that Belmont was required to release Mrs.

Garrett from the mental institution or that they did not have any duty to continue to hold her.

However, these assumptions seem to contradict the factual allegations Plaintiff added to his

objections. Both times Mrs. Garrett was released, Plaintiff alleges that she was on bond. If the state

had the authority to place Plaintiff’s wife in the mental institution because of her suicide attempt

while on bond, it is unclear why they would not have had the authority and the duty to continue to

hold her in that institution through the duration of her probation/bond if proper medical care while

in state custody (i.e., while in the mental institution) would have included continued confinement.

While Belmont might be able to prove that it was required to release Plaintiff’s wife and/or that they

had no duty to continue to place her in the mental institution because it was not medically necessary,

Plaintiff has alleged that his wife was in the custody of Belmont at the mental institution and that she

did not receive necessary medical assistance but instead was released.

       The district court found that Mrs. Garrett was not in custody at the time of her suicide and

so did not address the other two parts of the claim that must be addressed in order for Plaintiff to


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                                            No. 08-3978

survive the review of his complaint under 28 U.S.C. § 1915. However, the allegations in Plaintiff’s

complaint show quite clearly that Defendants were aware of Mrs. Garrett’s suicidal nature and the

fact that she was suffering from a serious medical condition.        Plaintiff has further alleged that

Defendants “ignored and mocked” the threats of suicide Plaintiff received from his wife, from which

it seems plausible that Plaintiff could prove the subjective prong of deliberate indifference. (Dist.

Ct. No. 2, Compl. ¶ 1). Construing Plaintiff’s complaint to include the allegations added in his filed

objections and reading those allegations liberally, we find that Plaintiff has alleged that his wife was

denied appropriate medical care while in Belmont’s custody either because her suicidal ideation was

not treated sufficiently or because she should not have been released from the mental institution.

Therefore, the Eighth Amendment claim should have survived the failure to state a claim analysis.

        C.      Fourteenth Amendment

        Plaintiff also alleges a related Fourteenth Amendment claim arguing that his wife’s

substantive due process rights were violated when Defendants failed to take action to protect Mrs.

Garrett, knowing of her suicidal ideation. Generally, there is no constitutional duty for “a state or

local government entity to protect its citizens from private violence, or other mishaps not attributable

to the conduct of its employees.” DeShaney v. Winnebago County Dept. of Soc. Svs., 489 U.S. 189,

193-94 (1989) (internal citations omitted). However, there are two recognized exceptions to that

general rule. The first is where there is a special relationship between the state and the plaintiff,

which usually arises only when the state restrains an individual’s liberty. Sargi v. Kent City Bd. of

Educ., 70 F.3d 907, 910-11 (6th Cir. 1995) (collecting cases in which courts have found such a

special relationship and noting that it was only in cases of imprisonment and commitment to a


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mental institution). The second, and less common, exception is where the danger faced by a plaintiff

is state-created, i.e., the state took actions, or failed to take actions, that created or increased the risk

of exposure to private violence. Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.

1998). The district court found that Plaintiff failed to state a claim under either theory.

        Once a person is no longer in state custody, the state no longer has a special relationship that

falls within the exception that gives rise to a duty to protect that person. Bynum v. City of Magee,

Miss., 507 F. Supp. 2d 627, 633 (S.D. Miss. 2007). It was on this basis that the district court

dismissed Plaintiff’s claim on the theory of a special relationship. Bynum also held that the

“Constitution does not impose upon a city a duty to hold a suicidal individual for the sole purpose

of providing him with medical care.” Id. However, in addition to not being binding on our Circuit,

Bynum is distinguishable from this case because in Bynum, the deceased had not been placed in a

mental institution by the state and then released, nor was the decedent subject to the supervision of

the state through probation or bond, as in this case. Plaintiff’s wife was in state custody – both

incarcerated and in a mental institution – for some of the relevant time, during which time the state

had a duty to protect her from suicide. See Heflin v. Stewart County, Tenn., 958 F.2d 709, 716 (6th

Cir. 1992).

        Additionally, since Plaintiff has alleged that his wife was released on bond both times, it

seems apparent from the allegations that the state maintained authority to confine Mrs. Garrett,

confirmed by her alleged commitment to the mental institution; consequently, if proper medical

treatment required continued commitment to that institution, the state could have confined her on

the basis of her probation in addition to her suicidal ideation. It is, of course, possible that


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Defendants could assert viable defenses to Plaintiff’s claim, such as that they no longer had the

authority to confine his wife in the mental institution or they did sufficiently respond to her threats

of suicide, but those defenses are not before this Court since this case was dismissed before

Defendants were served and before they filed any responsive pleadings.

       The district court was correct in finding that Plaintiff failed to state a claim for the state-

created danger exception since he alleged no facts that would tend to support a theory that

Defendants acted in any way that created or increased the risk of suicide. For this theory of relief,

Plaintiff’s case is very similar to Bynum, where police came upon a suicidal person and were called

to assist him several other times, because in the instant case Plaintiff’s wife was suicidal throughout

her interactions with Defendants and Defendants did nothing to encourage those tendencies and in

fact tried to assist her by putting her on suicide watch and in a mental institution. See Bynum, 507

F. Supp. 2d at 634-35.

       The information about Mrs. Garrett’s relationship with Belmont was presented for the first

time in Plaintiff’s objections to the R&R. However, the district court was presented with that

information and still dismissed the case for failure to state a claim. The district court erred in not

construing Plaintiff’s allegations to include a claim that Mrs. Garrett’s constitutional rights were

infringed while she was in the custody of Belmont, i.e., while she did have a recognized special

relationship with Defendants. In other words, Plaintiff has sufficiently alleged a claim that

Defendants violated Mrs. Garrett’s Fourteenth Amendment right to be protected from suicide when

she was released from the mental institution instead of continuing her treatment while she was on

probation/bond.


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                                             No. 08-3978

        D.      Plaintiff’s Complaint Was Improperly Dismissed

        Plaintiff’s pleadings, when liberally construed, state a claim based on the theory that

Plaintiff’s wife was in state custody – either incarcerated or held in the mental institution

involuntarily – at the time when the appropriate medical attention was not given to her, resulting in

her release and opportunity to commit suicide. Since the facts as Plaintiff alleged are sufficient to

support that theory, Plaintiff should have been able to proceed past the initial pre-screening process

in this case on both the Eighth and Fourteenth Amendment claims. This case is best understood as

raising Mrs. Garrett’s constitutional rights asserted by Plaintiff as Mrs. Garrett’s estate’s

representative. If Plaintiff’s wife had a special relationship with Defendants at the time when the

alleged deprivation of medical care took place, then Plaintiff has stated a claim for relief based on

violations of the Eighth and Fourteenth Amendments. While Plaintiff, as a pro se litigant, may not

have included all of the specific factual allegations usually required to show that he is his wife’s legal

representative and that he was raising her claims, it seems quite apparent that he intended to raise

her Eighth and Fourteenth Amendment claims. Because this Court allows pro se litigants some

leeway in pleading standards, this litigation should proceed to resolve whether the factual

underpinnings of Plaintiff’s claims might be proven.

                                           CONCLUSION

        Therefore, we REVERSE the district court’s order dismissing Plaintiff’s 42 U.S.C. § 1983

claim for failure to state a claim and REMAND with instructions to the district court to permit

Plaintiff to proceed as the legal representative of his wife’s estate, to permit the filing of the

complaint, and to consider whether to appoint counsel to assist Plaintiff in this matter. If the district


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court deems it necessary and proper, Plaintiff should be given leave to amend to clarify his legal

theory of raising his wife’s constitutional claims as the representative of his wife’s estate and to

sufficiently allege the required factual allegations to support that theory since that claim is not

covered by the PLRA.




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        SILER, Circuit Judge, dissenting. I respectfully dissent from the majority opinion in this

case for the reasons stated hereafter.

        First, there is a valid issue concerning standing on the part of Jeremy Garrett, the plaintiff.

As the majority concluded, “a §1983 claim is ‘entirely personal to the direct victim of the alleged

constitutional tort.’” Barber v. Overton, 496 F.3d 449, 457 (6th Cir. 2007) (quoting Claybrook v.

Birchwell, 199 F.3d 350, 357 (6th Cir. 2000)). Accordingly, only the victim or her estate’s

representative may prosecute a § 1983 claim and “no cause of action may lie under [§] 1983 for

emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly suffered

personally by the victim’s family members.” Claybrook, 199 F.3d at 357. As the majority correctly

observes, Garrett does not declare in the complaint that he is prosecuting this action as the fiduciary

of his wife’s estate. Instead, he seeks relief based on injuries that he suffered as a result of her death.

Although Garrett might be entitled to the entire estate as the surviving spouse under Ohio law, he

is still not the legal representative of the estate, who must be appointed by a court. Nevertheless,

because the issue of standing was not raised nor discussed in the district court, I believe that it would

be more appropriate to discuss the case on the merits.

        Therefore, my second point of disagreement concerns the merits of the dismissal of the

complaint by the district court. The dismissal of a complaint by the district court under 28 U.S.C.

§§ 1915(e)(2) and 1915A(b) is reviewed de novo. Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007).

        As a threshold matter, Garrett must allege some state action upon which to ground his § 1983

claim. He argues that the defendants knew his wife was suicidal when they took her into custody.


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He reasons that by taking her into custody, the defendants assumed the duty to hold her and to

provide her with mental health treatment. He takes the position that by releasing her from custody

after she had attempted suicide and over the objections of Garrett and other family members, the

defendants violated due process.

        However, the Due Process Clause does not impose upon the state an affirmative duty to act.

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). Thus, the “State’s

failure to protect an individual against private violence”—including violence directed toward one’s

self—does not violate due process. Id. at 197. However, we have recognized two exceptions to the

DeShaney rule: (1) the “special relationship” exception, and (2) the state-created danger exception.

Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998).

        Neither exception applies here. The fact that Mrs. Garrett was released from custody prior

to her suicide is fatal to the “special relationship” exception. Id. A suicidal person does not have

a constitutional right to remain in custody indefinitely for her own protection. See DeShaney, 489

U.S. at 201 (noting that “the State does not become the guarantor of an individual’s safety by having

once offered him shelter”). “Liability under the state-created-danger theory is predicated upon

affirmative acts by the state which either create or increase the risk that an individual will be exposed

to private acts of violence.” Kallstrom, 136 F.3d at 1066. Garrett claims that the defendants acted

affirmatively when they released his wife from custody even though she was suicidal. However, no

facts suggest that the defendants made Mrs. Garrett vulnerable to “any danger to which she was not

already exposed,” i.e., her own suicidal tendencies. Sargi v. Kent City Bd. of Educ., 70 F.3d 907,

913 (6th Cir. 1999). The defendants arguably knew that Mrs. Garrett was potentially suicidal when


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they released her from custody, but they did not create that risk—it was ever present. See Jones v.

Reynolds, 438 F.3d 685, 691 (6th Cir. 2006) (stating a failure to act is not an affirmative act under

the state-created-danger theory”). The majority opinion suggests that there may be a constitutional

claim under the Eighth Amendment that Mrs. Garrett was not given medical attention while she was

in state custody. However, the complaint filed in this case does not make such an allegation. Garrett

is not claiming that his cause of action is based upon cruel and unusual punishment to his wife while

she was in jail, but that it was cruel and unusual punishment for her to be released on bond.

Therefore, I would affirm the district court’s dismissal in this case.




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