               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0641n.06

                                         No. 12-6025

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

YOLANDA CHIGANO and                   )
MICHAEL CHIGANO,                      )                                         FILED
                                      )                                      Jul 10, 2013
      Plaintiffs-Appellants,          )                               DEBORAH S. HUNT, Clerk
                                      )
v.                                    )
                                      )
CITY OF KNOXVILLE; STERLING OWEN, IV; )
KNOXVILLE COUNTY, TENNESSEE; )
CHARLES Q. LINDSEY; TIM RIDDLE,       )                ON APPEAL FROM THE UNITED
                                      )                STATES DISTRICT COURT FOR THE
      Defendants,                     )                EASTERN DISTRICT OF TENNESSEE
                                      )
                                      )
KITTY HATCHER and                     )
ROBERTA BIANUCCI,                     )
                                      )
      Defendants-Appellees.           )


       Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge*

       OLIVER, District Judge. Plaintiffs-Appellants, Yolanda and Michael Chigano (collectively,

“Plaintiffs”), appeal the order of the district court granting summary judgment in favor of

Defendants-Appellees Kitty Hatcher (“Hatcher”) and Roberta Bianucci (“Bianucci”). For the

following reasons, we AFFIRM the judgment of the district court.

                   I. FACTUAL AND PROCEDURAL BACKGROUND




       *
       The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the
Northern District of Ohio, sitting by designation.
                                            No. 12-6025

       This case arises from events that occurred on January 31, 2007, at Fulton High School

(“Fulton”). M.C., Plaintiffs’ then minor daughter, was a sophomore special education student with

autism in Bianucci’s class. Bianucci, in alignment with school policy, had a rule that cell phones

must be turned off and not visible during the school day. The school policy indicated that, upon the

first violation of this policy by a student, the cell phone would be confiscated and must be picked

up by the parent or legal guardian from the front office.

       On the day in question, M.C. had her cell phone out at multiple times during the morning.

Bianucci stated that she asked M.C. several times to put her cell phone away. Eventually, Bianucci

confiscated the phone and placed it in her teaching assistant’s desk drawer. M.C. attempted to

retrieve her cell phone from the teaching assistant’s drawer after lunch. As a result, Bianucci took

M.C.’s cell phone to the front office. M.C. followed Bianucci to the office asserting repeatedly that

she wanted her phone. Bianucci gave the phone to the secretary who placed it in a drawer.

       After the school day ended, M.C. returned to the front office in an effort to retrieve her

phone. Bianucci accompanied her. M.C. arrived at the office and spoke to the principal, Hatcher,

asking for the return of her phone. Hatcher refused to return the cell phone and informed M.C. that

it would only be released to her parents. Shortly thereafter, Tracey Fields, M.C.’s sister, entered the

office to take M.C. home, but M.C. refused to leave without her cell phone.

       Two school security officers entered the office and tried to talk M.C. into leaving the office.

A few minutes later Knoxville Police Department Officer Tim Riddle (“Officer Riddle”) entered.

He also attempted to get M.C. to leave of her own volition, but M.C. was uncooperative. Thereafter,

Officer Riddle and M.C. engaged in a struggle as he attempted to remove her from the office. The


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two security officers assisted Officer Riddle with handcuffing M.C. and escorting her to Officer

Riddle’s police vehicle. Part of the confrontation was captured on video.

       M.C. was transported to a juvenile detention center where she was charged with disorderly

conduct and resisting arrest. She was then released to the custody of her parents. Later, the charges

were dropped. At some point, Officer Riddle informed M.C.’s mother that had he known that M.C.

was a special needs or autistic child, he would not have taken her to the juvenile detention center.

       Plaintiffs filed a lawsuit individually and on behalf of M.C., alleging violations of M.C.’s

constitutional rights pursuant to 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964. They

also alleged violations of state law. These claims were asserted against Hatcher, Bianucci, Officer

Riddle, and others not relevant to this appeal.1 Hatcher, Bianucci, and Officer Riddle filed motions

for summary judgment, which the district court granted on all of the federal law claims while

dismissing the remaining state law claims without prejudice.

       The district court determined that the Complaint alleged two federal causes of action: (1) a

race-based claim for violation of Title VI of the Civil Rights Act; and (2) a claim pursuant to 42

U.S.C. § 1983. The district court determined that there was no evidence that M.C. was treated

differently than any other student due to her race and entered summary judgment in favor of each

Defendant on the Title VI claim. Plaintiffs did not appeal this decision.

       Plaintiffs asserted claims under 42 U.S.C. § 1983 for constitutional deprivations of her

Fourth, Eighth, and Fourteenth Amendment rights, based on the fact that neither Hatcher nor


       1
         Plaintiff also asserted claims against the City of Knoxville, Chief of Police Sterling Owen,
IV, Knox County, and Former Superintendent Charles Q. Lindsey (“Lindsey”), all of whom were
voluntarily dismissed or had summary judgment granted in their favor.

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                                            No. 12-6025

Bianucci informed Officer Riddle that M.C. was autistic. The district court determined there had

been no violation of these provisions of the Constitution. First, the court found that the Eighth

Amendment did not apply because its protections do not attach until after conviction and sentencing,

which did not occur. Next, the court examined the remaining claims against Bianucci and Hatcher

and held that a reasonable jury could not find that Bianucci or Hatcher violated M.C.’s constitutional

rights under the Fourth or Fourteenth Amendment. The court found that M.C. did not allege that

Bianucci or Hatcher used force against her. Therefore, there could be no recovery against them for

a claim of excessive force. It also found that:

       At most, M.C. claims that Ms. Bianucci and Ms. Hatcher failed to adequately relay
       information about M.C.’s disability to Officer Riddle, and that, as a result, M.C. was
       not treated with respect and dignity. The Plaintiffs have not cited any case holding
       that the failure to communicate information about a person’s disability to an arresting
       officer is a violation of the Constitution.

(R. at 758). Thereafter, the court determined that it was undisputed that Bianucci and Hatcher

confiscated M.C.’s phone and held it in the school office pursuant to Fulton’s cell phone policy and

that their enforcement of the cell phone policy did not amount to a constitutional violation. Because

each of Plaintiffs’ federal claims failed, the district court declined to exercise supplemental

jurisdiction over the state law claims and dismissed such claims without prejudice. On appeal,

Plaintiffs only challenge the district court’s finding with respect to the Fourteenth Amendment

claim.2 Thus, the only issue is whether the district court’s order granting summary judgment in favor




       2
          Plaintiffs initially sought to challenge the district court’s decision granting summary
judgment in favor of Officer Riddle in regard to the § 1983 claim. Subsequently, the Plaintiffs filed
a stipulation of dismissal with prejudice with respect to their claim against Officer Riddle.

                                                  4
                                            No. 12-6025

of Hatcher and Bianucci with respect to the § 1983 claim for the alleged violation of M.C.’s

Fourteenth Amendment rights was proper.



                                          II. ANALYSIS

       An order granting summary judgment is subject to de novo review. Waters v. City of

Morristown, Tenn., 242 F.3d 353, 385 (6th Cir. 2001).

       Plaintiffs argue that the district court erred in granting Hatcher and Bianucci’s motion for

summary judgment because Hatcher’s and Bianucci’s actions deprived M.C. of her Fourteenth

Amendment liberty interest in bodily security in violation of the substantive component of the Due

Process Clause. They maintain that Hatcher and Bianucci’s summoning of the police to the front

office to assist with M.C. and their failure to inform Officer Riddle that M.C. was autistic prior to

his interaction with her created, then increased, the danger to which M.C. was exposed. They further

argue that Hatcher and Bianucci’s actions caused M.C. to be physically and emotionally injured by

the school security officers and Officer Riddle. In making these arguments on appeal, they rely on

the state-created danger doctrine that courts have derived from DeShaney v. Winnebago County

Department of Social Services, 489 U.S. 189 (1989).

       Hatcher and Bianucci contend that Plaintiffs never presented this legal theory to the district

court and that the district court did not consider such theory when dismissing the claims brought

against them; thus, Plaintiffs may not raise it on appeal. They further contend that even if the court

finds the issue was properly raised on appeal, the district court must still be affirmed.




                                                  5
                                             No. 12-6025

        Based on the district court’s determination that Plaintiffs did not cite any case holding that

a failure to communicate information about a person’s disability to an arresting officer is a violation

of the Constitution, it is apparent that Plaintiffs’ DeShaney analysis, raised here, was not fully

developed below. Thus, Hatcher and Bianucci are correct in arguing that Plaintiffs neither cited nor

clearly articulated that their legal theory relied upon DeShaney or its progeny. However, because

it can be argued that the court, in granting summary judgment in favor of Defendants, rejected such

a theory when it said that “[t]he Plaintiffs have not cited any case holding that the failure to

communicate information about a person’s disability to an arresting officer is a violation of the

Constitution,” the court will address the issue raised by Plaintiffs on appeal.

                                     A. Constitutional Violation

        To establish a § 1983 claim, the plaintiff must show “that a person acting under color of state

law deprived the plaintiff of a right secured by the Constitution or laws of the United States.”

Waters v. City of Morristown, Tenn., 242 F.3d 353, 358–59 (6th Cir. 2001). Because Hatcher and

Bianucci raised a qualified immunity defense, Plaintiffs must first show that Hatcher and Bianucci

violated one of M.C.’s constitutional rights and that such right was clearly established. Jones v.

Reynolds, 438 F.3d 685, 690 (6th Cir. 2006).

        As discussed above, Plaintiffs specifically allege that Hatcher and Bianucci violated M.C.’s

Fourteenth Amendment right to substantive due process. The Fourteenth Amendment’s Due Process

Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. It “bars certain arbitrary, wrongful [State]




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                                              No. 12-6025

government actions ‘regardless of the fairness of the procedures used to implement them.’”

Zinermon v. Burch, 494 U.S. 113, 125 (1990).

        While the Due Process Clause prohibits the State from depriving any person of life or liberty,

it does not affirmatively require the State to protect the life and liberty of its citizens against actions

by private actors. DeShaney, 489 U.S. at 194–95. In DeShaney, the Supreme Court recognized that

“[a]s a general matter . . . a State’s failure to protect an individual against private violence [] does

not constitute a violation of the Due Process Clause.” 489 U.S. at 197. Only when the State

affirmatively acts in a manner to restrain a persons’s freedom to act on her own behalf does a

deprivation of liberty arise that triggers the protections of the Due Process Clause. Id. at 200.

Accordingly, the court explained that under the Due Process Clause, a State may have an affirmative

duty to protect a person against violence by private actors if a special relationship exists between the

State and the person, such as when the person is in actual or constructive custody of the State. Id.

at 199–200. Using this principle, the court determined in DeShaney that even though the

Respondent, a state government social services agency, failed to intervene and prevent the DeShaney

child from being abused by his father, despite their knowledge that his father might be abusing him,

such failure to intervene did not violate the Due Process Clause.

        The Court also stated that, “[w]hile the State may have been aware of the dangers that [the

DeShaney child] faced in the free world, it played no part in their creation, nor did it do anything to

render him any more vulnerable to them.” Id. at 201. This court has interpreted this phrase to create

another exception to the state’s non-liability for acts of violence by private actors, the state-created

danger theory of liability. Jones v. Reynolds, 438 F.3d at 690. If the state actor created or increased


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                                              No. 12-6025

the danger to its citizen through its own affirmative acts, a duty to protect the citizen arises. Id.

However, Plaintiffs argue that Hatcher and Bianucci’s failure to inform Officer Riddle that M.C. was

autistic deprived her of her liberty interest in bodily security. Generally, as indicated above, the

failure to protect a person from violence at the hands of a third party is not a constitutional violation.

        Plaintiffs argue that their case is an exception to the DeShaney rule and that Hatcher and

Bianucci are liable for injuries to M.C. under a state-created danger theory. As explained above,

while the Due Process Clause prohibits the State from depriving any person of life or liberty, it does

not explicitly require the State to protect the life and liberty of its citizens against actions by private

actors.3 DeShaney, 489 U.S. at 194–95. Courts have recognized two exceptions to this general rule.

The State may be held liable for failing to protect a citizen if the citizen was in the functional custody

of the State when the injury occurred or the State actor created or increased the danger to the citizen.

Jones v. Reynolds, 438 F.3d at 690 (acknowledging the exceptions, but finding that on-duty police

officers who arrived at an illegal drag race before it began and expressly permitted the participants

to proceed with the race were not liable for creating or increasing the danger to the spectator who

was hit and killed by the vehicle of participant who lost control while driving). Plaintiffs do not

argue that M.C. was in the functional custody of the State. Instead, they argue that Hatcher and

Bianucci created or increased the danger to M.C. To establish a constitutional violation under the

Fourteenth Amendment under a state-created danger theory, the plaintiff must show:


        3
         The court notes that it is arguable that DeShaney would be inapplicable because the actor
causing the violence on these facts is not a private actor, but a state police officer with his own set
of obligations and privileges that permit him to lawfully engage in acts that may be considered acts
of violence if undertaken by a private citizen. For purposes of this appeal only, the court assumes
that a police officer would be treated the same as a private actor under the DeShaney analysis.

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                                            No. 12-6025

       (1) an affirmative act by the state which either created or increased the risk that the
       plaintiff would be exposed to an act of violence by a third party; (2) a special danger
       to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as
       distinguished from a risk that affects the public at large; and (3) the state knew or
       should have known that its action specifically endangered the plaintiff.

Id.

       Plaintiffs argue that Hatcher and Bianucci created the risk of danger to M.C. by summoning

Officer Riddle to the front office. However, the facts do not indicate that Hatcher or Bianucci called

or directed someone else to call Officer Riddle to the front office to remove M.C. The secretary

alerted the regular school resource officer of what was happening in the front office after he called

to discuss another matter, and he sent Officer Riddle to handle the situation. Therefore, if the

summoning of Officer Riddle is the precipitating factor that created the risk that M.C. would be

exposed to an act of violence, then Plaintiffs cannot show that an affirmative act by Hatcher or

Bianucci created the risk to M.C.

       Plaintiffs argue in their brief that Hatcher and Bianucci increased the risk of danger to M.C.

by failing to inform Officer Riddle that M.C. was autistic. However, at oral argument, counsel for

Plaintiffs stated the he was not arguing the case under a failure to act theory. Nonetheless, such

argument would fail because, while the facts indicate that Hatcher and Bianucci did not inform

Officer Riddle that M.C. was autistic, for purposes of the state-created danger theory, a failure to act

is not an affirmative act. Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003); see

also Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th Cir. 1995) (holding that school officials’

failure to communicate a student’s medical condition to her school bus driver was not an affirmative

act exposing the plaintiff to danger under the state-created danger theory, where the student suffered


                                                   9
                                            No. 12-6025

from a seizure disorder and a heart condition and the bus driver, thinking the student was having a

seizure, did not seek immediate medical attention); Koulta v. Merciez, 477 F.3d 442, 445–46 (6th

Cir. 2007) (finding that the police officers’ failure to determine the level of intoxication of a driver

who informed them that she had drunk a 40-ounce bottle of malt liquor before permitting the driver

to drive was not an affirmative act exposing the person that the driver subsequently killed in a car

accident to danger). Therefore, Plaintiffs cannot show that an affirmative act by Hatcher or Bianucci

created or increased the risk to M.C. Thus, Plaintiff also cannot show any affirmative act by Hatcher

or Bianucci that created a special risk to M.C. that they knew or should have known endangered her.

Consequently, the court finds that there was no deprivation of M.C.’s liberty, and thus no

constitutional violation. In so finding, the court is not called upon to determine whether it would

have been better if, during these rapidly unfolding events, Hatcher and Bianucci had thought to

inform Officer Riddle that M.C. was autistic, only whether M.C.’s constitutional rights were

violated.

                                    B. Clearly Established Right

        The court need not determine whether the constitutional right asserted was clearly established

because there was no finding of a constitutional violation.

                                        III. CONCLUSION

        For the foregoing reasons, we affirm the district court’s granting of summary judgment in

favor of Hatcher and Bianucci.




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