                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0026p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                        X
                                                         -
 JAMES CARVER, Administrator of the estate of

                                   Plaintiff-Appellee, -
 DAVID ALLEN CARVER, deceased,
                                                         -
                                                         -
                                                             No. 06-3230

                                                         ,
           v.                                             >
                                                         -
                                                         -
                              Defendants-Appellants. -
 CITY OF CINCINNATI, et al.,

                                                         -
                                                         -
                                                        N
                         Appeal from the United States District Court
                        for the Southern District of Ohio at Cincinnati.
                   No. 05-00427—S. Arthur Spiegel, Sr., District Judge.
                                     Argued: October 31, 2006
                               Decided and Filed: January 18, 2007
                    Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Peter J. Stackpole, CITY OF CINCINNATI, Cincinnati, Ohio, for Appellant. Jay P.
Cauhorn, ERPENBECK & BLANK, Covington, Kentucky, for Appellee. ON BRIEF: Peter J.
Stackpole, CITY OF CINCINNATI, Cincinnati, Ohio, for Appellant. Jay P. Cauhorn,
ERPENBECK & BLANK, Covington, Kentucky, for Appellee.
         SILER, J., delivered the opinion of the court, in which GRIFFIN, J., joined. GILMAN, J.
(p. 5), delivered a separate concurring opinion.
                                        _________________
                                            OPINION
                                        _________________
        SILER, Circuit Judge. Plaintiff James Carver, administrator of the estate of David Carver
(Carver), brought an action against the City of Cincinnati, Ohio, and some of its individual police
officers and firefighters/emergency medical technicians (EMTs), under 42 U.S.C. § 1983. Carver
argued that the officers violated his substantive due process rights under the Fourteenth Amendment.
The officers appeal the district court’s denial of their motion to dismiss based on qualified immunity.
The district court held that the officers were not entitled to qualified immunity because they
unreasonably cut off access to medical care for Carver without providing an adequate alternative.


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No. 06-3230           Carver v. City of Cincinnati, et al.                                       Page 2


Because we conclude that the officers did not violate Carver’s constitutional rights, we REVERSE
and REMAND.
                                        I. BACKGROUND
        In 2005, Cincinnati police officers and EMTs responded to a 911 call for a suspected cardiac
arrest at a local apartment. When they arrived, the EMTs found Sandra Smith-Sandusky dead on
the floor. Carver was lying on a couch in the same room. The police and EMTs secured the
apartment as a crime scene, asked all those present to leave, and took the apartment keys away from
a roommate in the apartment. When the police and EMTs cleared the apartment of all those present,
they left Carver on the couch, asleep, unconscious, or passed out.
        The police searched the apartment for evidence and found prescription pill bottles for various
drugs, including Oxycontin. Carver alleges that the police and EMTs knew or should have known
that Smith-Sandusky had overdosed on Oxycontin or other drugs, and that Carver was in imminent
danger because he had also overdosed on drugs. The EMTs did not treat Carver or transport him
to a medical facility. At some point, Carver died on the couch, but the complaint does not allege
whether death occurred while the officers were present or after they left the premises.
                                          II. DISCUSSION
        This court reviews the district court’s denial of qualified immunity de novo. Jackson v.
Schultz, 429 F.3d 586, 590 (6th Cir. 2005). We may dismiss Carver’s complaint only if a violation
of a clearly established right could not be “found under any set of facts that could be proven
consistent with the allegations or pleadings.” Id. (citing Copper v. Parrish, 203 F.3d 937, 944 (6th
Cir. 2000)).
        This court’s analysis of the affirmative defense of qualified immunity requires two steps.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). First, Carver must plead that the defendant’s
actions violated a constitutional or statutory right. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Second, Carver must show that the constitutional right the officers allegedly violated was clearly
established at the time of the conduct at issue. Id. We are required to consider these steps in the
proper sequence in order to further “the law’s elaboration” from case to case. Saucier v. Katz, 533
U.S. 194, 201 (2001). If we were to consider the clearly established prong first, we would deprive
future litigants of an answer on the constitutional question and thereby create a situation where a
particular constitutional violation could occur repeatedly without ever becoming clearly established.
See id.
A. Whether there was a Constitutional Violation
         “It is not a constitutional violation for a state actor to render incompetent medical assistance
or fail to rescue those in need.” Jackson, 429 F.3d at 590 (finding no constitutional violation where
the gunshot victim was placed in an ambulance but received no treatment). Thus, the officers were
under no general duty to aid Carver. There are, however, two exceptions to this rule: 1) the custody
exception and 2) the state-created danger exception. DeShaney v. Winnebago County Dep’t of
Social Services, 489 U.S. 189, 199-201 (1989). If neither exception applies, no constitutional
violation has taken place. See id. at 196-97.
        1. Custody Exception
       The mere fact that the police exercise control over an environment is alone insufficient to
demonstrate that a person is seized. Ewolski v. City of Brunswick, 287 F.3d 492, 507 (6th Cir. 2002).
“The affirmative duty to protect arises not from the State's knowledge of the individual’s
predicament or from its expressions of intent to help him, but from the limitation which it has
No. 06-3230           Carver v. City of Cincinnati, et al.                                    Page 3


imposed on his freedom to act on his own behalf.” Deshaney, 489 U.S. at 200; see also Estelle v.
Gamble, 429 U.S. 97, 103 (1976). Custody requires a restraint of personal liberty. See, e.g.,
DeShaney, 489 U.S. at 200; Stemler v. City of Florence, 126 F.3d 856, 867-68 (6th Cir. 1997).
        In Jackson, we held that an unconscious person can be taken into custody, but “some state
action that applies force (or the threat of force) and show of authority made with the intent of
acquiring physical control” is required. 429 F.3d at 590. An example would be an unconscious
drunk whom the police handcuff and take to jail. Id. We also found it persuasive that the state
officers were not the cause of the plaintiff’s unconscious state. Id.
        Here, there was no physical restraint over Carver by the officers, nor did the officers direct
any actions toward him. Carver’s incapacity, like that of the plaintiff in Jackson, was self-induced.
The officers did not place a restraint on Carver’s personal liberty when they secured the area to
conduct an investigation into the death of Smith-Sandusky. Perhaps the officers had probable cause
to restrain Carver if they had wanted, but that is not what happened. The custody exception is
inapplicable because the officers never restrained Carver’s personal liberty in any fashion.
       2. State-Created Danger Exception
        For the state-created danger exception to apply, the plaintiff must allege: 1) an affirmative
act that creates or increases a risk that the decedent would be exposed to private acts of violence;
2) a special danger to the decedent, such that the defendants’ acts placed decedent specifically at
risk; and 3) that defendants knew or should have known their actions specifically endangered the
decedent. Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998).
        Carver asserts that the officers created a danger by cutting off his access to private aid. In
Jackson, we looked for “evidence that any private rescue was available or attempted” and whether
the officers interfered with that aid. Jackson, 429 F.3d 586 at 592. Because the officers did not
discourage aid to the plaintiff and no one had attempted to rescue or render aid to the plaintiff, we
found that no constitutional violation had taken place. Id.
       Here, the officers removed everyone from the apartment and they controlled the keys to the
apartment. It has not been suggested that anyone tried to enter the apartment to render aid to Carver.
Nor has it been established that anyone, whether it be the officers or the people removed from the
apartment, knew of Carver’s need for assistance. Therefore, there is no “evidence that any private
rescue was available or attempted.” Id.
        The officers’ act of closing off the apartment to conduct an investigation into the death of
Smith-Sandusky did nothing in and of itself to increase the risk of harm to Carver. No allegation
has been made that Carver died while the officers were inside the apartment with him. The fact that
Carver died from an apparent self-induced drug overdose is tragic. This tragedy, however, does not
allow us to usurp Supreme Court precedent that the officers were under no general duty to render
aid to Carver. DeShaney, 489 U.S. at 196. In the absence of any allegation that a private rescue was
attempted, the officers did not commit a constitutional violation by securing the apartment and
leaving Carver lying on the couch.
B. Whether the Law was Clearly Established
        Even assuming arguendo that Carver asserted a viable constitutional claim, he must still
plead facts, which, taken in a light most favorable to him, show a violation of a clearly established
right in order to overcome the officers’ motion to dismiss on the basis of qualified immunity. See
Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987). In order for the law to be clearly established,
it must be clear to a reasonable officer that his conduct was unlawful. Brosseau v. Haugen, 543 U.S.
194, 199 (2004). Ordinarily, a Supreme Court or Sixth Circuit decision on point is necessary. See
No. 06-3230           Carver v. City of Cincinnati, et al.                                     Page 4


Jackson, 429 F.3d at 592. Further, “[i]t is important to emphasize that this inquiry ‘must be
undertaken in light of the specific context of the case, not as a broad general proposition.’”
Brosseau, 543 U.S. at 198 (citing Saucier, 533 U.S. at 201). There are no cases that present facts
similar to Carver’s situation that would make it “clear to [an objectively] reasonable officer that his
conduct was unlawful in the situation he confronted.” Id. (citing Anderson v. Creighton, 483 U.S.
635, 640 (1987)). In this case, “Brosseau compels a finding that such a violation is not clearly
established” because the unlawfulness of the officers’ actions would not be apparent to a reasonable
officer in like circumstances. Jackson, 429 F.3d at 592.
        The district court, citing to Beck v. Haik, 377 F.3d 624, 643 (6th Cir, 2004), found it clearly
established that the officers violated Carver’s constitutional rights. Beck, however, stands for the
proposition that the state may not cut off access to private rescue without providing an adequate state
alternative of aid. In this case, unlike Beck, there were no allegations of any attempted private
rescue. There are no other cases from this circuit or the Supreme Court with analogous facts to the
one before us. Therefore, the law was not clearly established at the time of the alleged constitutional
violation.
                                        III. CONCLUSION
        The Cincinnati police officers and EMTs are entitled to qualified immunity. Therefore, we
REVERSE the district court’s denial of qualified immunity and REMAND this case to the district
court for further proceedings consistent with this decision.
No. 06-3230          Carver v. City of Cincinnati, et al.                                    Page 5


                                       _________________
                                        CONCURRENCE
                                       _________________
         RONALD LEE GILMAN, Circuit Judge, concurring. I fully concur in the reasoning and
result reached by the lead opinion. My purpose in writing separately is simply to point out my total
befuddlement as to why the EMTs would not have attended to Carver under the circumstances as
alleged in the complaint. But the complaint fails to bring this case within either of the exceptions
set forth in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
In contrast to the facts of Beck v. Haik, 377 F.3d 624, 636 (6th Cir. 2004), the present complaint
makes no allegation that the defendants “cut off private sources of rescue” that otherwise would
have intervened to save Carver. If there had been allegations of a private rescue attempt aborted by
the defendants’ actions, I would have concluded that qualified immunity was not appropriate on a
motion to dismiss.
