      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0014P (6th Cir.)
               File Name: 00a0014p.06


UNITED STATES COURT OF APPEALS
             FOR THE SIXTH CIRCUIT
               _________________


                             ;
                              
ROYAL E. CLAYBROOK, JR.,
                              
GWANNETTE CLAYBROOK,
                              
PETRECE CLAYBROOK, CO-
                              
                                      No. 98-6029
ADMINISTRATORS OF THE
                              
ESTATE OF ROYAL                >
CLAYBROOK, SR., and           
                              
                              
QUINTANA CLAYBROOK,

                              
       Plaintiffs-Appellants,
                              
                              
          v.
                              
                              
                              
JESSE BIRCHWELL, STEVE

                              
LEWIS, KEN SPENCER,

                              
ROBERT KIRCHNER, and

GOVERNMENT OF NASHVILLE 
METROPOLITAN
                              
& DAVIDSON COUNTY,            
       Defendants-Appellees. 
                             1

     Appeal from the United States District Court
   for the Middle District of Tennessee at Nashville.
    No. 96-00157—John T. Nixon, District Judge.
              Argued: August 10, 1999
         Decided and Filed: January 11, 2000



                           1
2       Claybrook, et al. v. Birchwell, et al.              No. 98-6029         No. 98-6029     Claybrook, et al. v. Birchwell, et al.   23

    Before: KRUPANSKY, BOGGS, and CLAY, Circuit                                 and Four of the complaint. I would also reinstate the
                     Judges.                                                    supplemental state law claims.
                        _________________
                              COUNSEL
ARGUED: E. E. Edwards III, EDWARDS, SIMMONS &
OLIVER, Nashville, Tennessee, for Appellants. Kennetha
Sawyers, THE METROPOLITAN GOVERNMENT OF
NASHVILLE & DAVIDSON COUNTY DEPARTMENT OF
LAW, Nashville, Tennessee, for Appellees. ON BRIEF: E.
E. Edwards III, Wesley M. Oliver, EDWARDS, SIMMONS
& OLIVER, Nashville, Tennessee, for Appellants. Kennetha
Sawyers, THE METROPOLITAN GOVERNMENT OF
NASHVILLE & DAVIDSON COUNTY DEPARTMENT OF
LAW, Nashville, Tennessee, for Appellees.
   KRUPANSKY, J., delivered the opinion of the court, in
which BOGGS, J., joined. CLAY, J. (pp. 19-23), delivered
a separate opinion concurring in part and dissenting in part.
                        _________________
                            OPINION
                        _________________
   KRUPANSKY, Circuit Judge. The plaintiffs-appellants
Royal E. Claybrook Jr. (“Royal Jr.”), Gwannette Claybrook
(“Gwannette”), Petrece Claybrook (“Petrece”), and Quintana
Claybrook (“Quintana”) have disputed the district court’s
dismissal of their complaint for failure to state a claim, and/or
its award of summary judgment to the defendants,1 against the

    1
      The district court cast its ruling as an alternate dismissal of the
complaint for failure to state a claim and/or summary judgment adverse
to the plaintiffs.
     "Whether a district court has correctly dismissed a suit pursuant to
Fed. R. Civ. P. 12(b)(6) [failure to state a claim] is a question of law, and
therefore subject to de novo review. The district court must construe the
22   Claybrook, et al. v. Birchwell, et al.       No. 98-6029      No. 98-6029             Claybrook, et al. v. Birchwell, et al.               3

officers when Mr. Claybrook refused to throw down his gun,         defendants-appellees Jesse Birchwell (“Birchwell”), Steve
as opposed to firing at him. Indeed, the officers testified that   Lewis (“Lewis”), Ken Spencer (“Spencer”), Robert Kirchner
they attempted to pull out their badges only “during the           (“Kirchner”), and the Metropolitan Government of Nashville
gunfire,” or after the gunfire had already begun. Notably,         and Davidson County, Tennessee (“Nashville”). The
there were no emergency circumstances present so as to             plaintiffs have alleged that peace officers Birchwell, Lewis,
require the officers to begin shooting without following           and Spencer   used excessive force, in violation of 42 U.S.C.
protocol and without making a reasoned decision as to              § 1983,2 which resulted in the death of Royal Claybrook Sr.
whether the vehicle was occupied. Accordingly, under these
circumstances, a jury should decide whether the officers acted
with deliberate indifference to Ms. Claybrook’s rights. See
Lewis, 118 S. Ct. at 1719 (noting the instances of “deliberate     complaint in a light most favorable to the plaintiff, accept all of the factual
                                                                   allegations as true, and determine whether the plaintiff undoubtedly can
indifference” could be found in the context of pretrial custody    prove no set of facts in support of his claims that would entitle him to
where “forethought about an inmate’s welfare is not only           relief. When an allegation is capable of more than one inference, it must
feasible but obligatory under a regime that incapacitates a        be construed in the plaintiff's favor." Columbia Natural Resources, Inc.
prisoner to exercise ordinary responsibility for his own           v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted).
welfare”); see also Stemler v. City of Florence, 126 F.3d 856,     Although the complaint’s allegations are construed liberally for the
868 (6th Cir. 1997) (suggesting that under substantive due         plaintiff, a complaint which does not contain allegations sufficient to
                                                                   support a claim under any legal theory must be dismissed. Id. A court is
process, “‘a duty to protect can arise in a noncustodial setting   not bound to accept alleged legal conclusions or unwarranted factual
if the state does anything to render an individual more            inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.
vulnerable to danger’”) (quoting Gazette v. City of Pontiac,       1987).
41 F.3d 1061, 1065 (6th Cir. 1994)). Reasonable minds
surely could differ as to whether the plainclothes officers’           Following adequate opportunities for discovery and upon adversarial
decision to open fire on Mr. Claybrook at nine o’clock in the      motion, summary judgment under Fed. R. Civ. P. 56 must be entered
                                                                   against a plaintiff who has failed to produce evidence sufficient to support
evening outside of a market in an area where patrons of the        each element of his or her prima facie case. Celotex Corp. v. Catrett, 477
store could have been seated in their vehicles, when the           U.S. 317, 322-23 (1986). Because sufficiency of the evidence is a
officers admitted that they did not feel that they were in         question of law, a trial court’s grant of summary judgment, like a
imminent danger, rose to the level of deliberate indifference      dismissal under Fed. R. Civ. P. 12(b)(6), is subject to plenary scrutiny.
to Ms. Claybrook’s rights. Indeed, a reasonable person could       Painter v. Robertson, 185 F.3d 557, 566 (6th Cir. 1999); Grider v.
conclude that officers who open fire on a public street at nine    Abramson, 180 F.3d 739, 756 n.7 (6th Cir.), cert. denied, 120 S. Ct. 528
                                                                   (1999).
o’clock in the evening when they are in no imminent danger
have every reason to believe that they may recklessly injure           2
                                                                           Section 1983 provides, in pertinent segment:
members of the public. Under the facts presented by this
case, Ms. Claybrook should not be deprived of her right to                  Every person who, under color of any statute, ordinance,
trial on the question of whether the circumstances of the              regulation, custom, or usage, of any State . . . subjects, or causes
shooting violated her substantive due process rights.                  to be subjected, any citizen of the United States or other person
                                                                       within the jurisdiction thereof to the deprivation of any rights,
  Accordingly, I would reverse the district court’s dismissal          privileges, or immunities secured by the Constitution and laws,
                                                                       shall be liable to the party injured in an action at law, suit in
of Ms. Claybrook’s claim against the officers for violation of         equity, or other proper proceeding for redress[.]
her substantive due process rights as set forth in Counts Three
                                                                       In any action under section 1983, the plaintiff must prove that (1) he
                                                                   has been deprived of a right secured by the United States constitution or
4     Claybrook, et al. v. Birchwell, et al.           No. 98-6029       No. 98-6029        Claybrook, et al. v. Birchwell, et al.   21

(“Claybrook”) and the serious bodily injury of Quintana                  department rules requiring them to radio for a marked car and
Claybrook. They further contended that Kirchner, as the                  uniformed officers, and they made a conscious decision to
Chief Executive Officer of the Nashville-Davidson County                 request such support. The officers were also aware that the
Metropolitan Police Department, failed to properly train                 department rules mandated that they refrain from
and/or supervise the three faulted field officers, and neglected         investigating the situation unless emergency circumstances
to develop appropriate official departmental guidelines                  arose. Significantly, at the point when they discovered Mr.
restraining the unjustifiable utilization of lethal force. The           Claybrook standing outside with this gun, Officer Birchwell
trial court concluded that (1) Royal Jr., Gwannette, and                 testified that he did not believe that the officers were in
Petrece Claybrook (the children of Royal Sr.) lacked standing            imminent danger or that exigent circumstances requiring the
to recover for alleged personal losses derivatively generated            use of force existed. However, after having made a decision
by their father’s violent demise, and had failed to seek                 to request backup, the officers inexplicably proceeded to
recovery for Claybrook’s alleged constitutional injuries as              engage Mr. Claybrook in a violent confrontation without
representatives oft his estate; and (2) Quintana had suffered            awaiting the arrival of the uniformed officers. Contrary to the
no cognizable constitutional tort.                                       majority’s assertion, the officers here were hardly involved in
                                                                         a high-speed pursuit or any high-pressure confrontation at the
  On the evening of February 28, 1995, plainclothes                      time that they decided to act, as were the officers in Lewis.
caucasian undercover police officers Birchwell, Lewis, and               See 118 S. Ct. at 1720-21. As such, Ms. Claybook’s claims
Spencer of the Nashville Crime Suppression Unit were                     should be analyzed using the “deliberate indifference”
engaged in anti-crime surveillance, from an unmarked squad               standard; which is to say, her claim should be viewed in the
vehicle, in a high-crime Nashville neighborhood. At                      context of whether the officers had time to make a reasoned
approximately 9:11 p.m., they observed an African-American               judgment about their conduct. Id.; see Moreland v. Las Vegas
male (later identified as Royal Claybrook Sr.) standing near             Metro. Police Dep’t, 159 F.3d 365, 373 (9th Cir. 1998)
the street curb in the dimly-lit parking lot of the F & J Market         (recognizing that the critical question when applying the
(“the market”) while displaying a long gun at port-arms. A               appropriate standard of culpability under Lewis is “whether
gray Maxima automobile blocked the business’ entrance. The               the circumstances allowed the state actors time to fully
patrolmen knew that the market had been the target of recent             consider the potential consequences of their conduct”).
crimes. Suspecting that a robbery was in progress, the driver
of the incognito patrol car, Officer Birchwell, in conformity              When viewing the officers’ actions under this standard,
with his department’s standard operating procedures, radioed             questions of fact remain for the jury to decide with respect to
the police force headquarters to report the gunman’s location            whether the officers’ conduct violated Ms. Claybrook’s
and to request the immediate dispatch of a marked police                 substantive due process rights. For example, questions of fact
cruiser containing uniformed law enforcers.                              exist as to whether the officers observed Ms. Claybrook enter
                                                                         the car or reasonably should have known that Ms. Claybrook
 Birchwell then drove the undercover vehicle into the                    was in the car, in that if the officers passed by the market at
market’s parking lot. He intended to stop his vehicle on what            the time they claimed, a reasonable person could believe that
                                                                         they observed Ms. Claybrook leaving the market and entering
                                                                         the car. Furthermore, a question of fact exists as to whether
laws, (2) the defendants who allegedly caused that deprivation acted     the officers should have provoked the confrontation with Mr.
under color of state law, and (3) the deprivation occurred without due   Claybrook before the uniformed back-up officers arrived, and
process of law. O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th   whether they should have identified themselves as police
Cir. 1994).
20   Claybrook, et al. v. Birchwell, et al.     No. 98-6029      No. 98-6029        Claybrook, et al. v. Birchwell, et al.     5

   In Lewis, the Supreme Court reviewed the range of conduct     appeared to be a driveway or alleyway which abutted the
under which a substantive due process claim may arise under      building’s western side, to enable the officers to
the Fourteenth Amendment. See 118 S. Ct. at 1717. The            surreptitiously observe the firearm-toting suspect and the
Court began by reiterating the long-held standard that one       suspicious gray automobile, pending arrival of the summoned
may state a claim of deprivation of substantive due process by   marked squad car. However, Birchwell subsequently
alleging conduct “‘that shocks the conscience’ and violates      discovered that no contiguous roadway paralleled the
the ‘decencies of civilized conduct.’” Id. (quoting Rochin v.    structure’s west end. Consequently, while repositioning his
California, 342 U.S. 165, 172-73 (1965)). However, the           vehicle to prevent the armed suspect from facing the officers’
Court went on to recognize that the measure of “what is          backs, Birchwell maneuvered the unidentified patrol car
conscience-shocking is no calibrated yard stick,” and            towards the stationary gray automobile.
observed that “[r]ules of due process are not . . . subject to
mechanical application [such that] [d]eliberate indifference        That movement prompted the wary gunman to advance
that shocks in one environment may not be so patently            menacingly behind the hood of the gray Maxima while facing
egregious in another, and our concern with preserving the        the intruders.      Unbeknownst to the peace officers,
constitutional proportions of substantive due process demands    Claybrook’s daughter-in-law, Quintana Claybrook, worked at
an exact analysis of circumstances before any abuse of power     the market. Because that establishment served as a “front” for
is condemned as conscience-shocking.” Id. at 1717-1719.          an unlawful “numbers” gambling operation, thieves
The Court emphasized that liability may lie for actions that     occasionally targeted it. Quintana was responsible for
amount to “deliberate indifference” where the officials          depositing illegal betting proceeds. The associated physical
involved enjoyed the luxury of “time to make unhurried           danger prompted Claybrook habitually to escort Quintana,
judgments, upon the chance for repeated reflection, largely      while armed, from the store to her automobile. He
uncomplicated by the pulls of competing obligations.” Lewis,     customarily remained in the parking lot, holding his shotgun
118 S. Ct. at 1720. The Court explained as follows:              in plain view, until Quintana had exited the area. Claybrook
                                                                 was acting as a security guard for his daughter-in-law on the
  When such extended opportunities to do better are              evening of February 28, 1995. When the unmarked police
  teamed with protracted failure even to care, indifference      vehicle arrived at the scene, Quintana was already inside the
  is truly shocking. But when unforeseen circumstances           Maxima, seated behind the steering wheel with her back
  demand an officer’s instant judgment, even precipitate         towards the three defendant peace constables, although each
  recklessness, fails to inch close enough to harmful            of them testified that he did not know that anyone then
  purpose to spark the shock that implicates “the large          occupied that automobile.
  concerns of the governors and the governed.”
                                                                   Quintana testified that a passenger within the strange
Id. (quoting Daniels v. Williams, 474 U.S. 327, 332 (1986)).     vehicle (the unmarked police car) ordered Claybrook to drop
                                                                 his weapon, to which he responded, “no, you drop your gun.”
  When conducting an “exact analysis” of the facts of this       She further attested:
case in the light most favorable to Ms. Claybrook, it is clear
that the officers had sufficient time to make an unhurried            And then the next thing I know, I heard like a
judgment about their conduct upon seeing Mr. Claybrook             firecracker sound, and then I felt something in my back,
with his weapon such that a lower level of fault should be         and I kind of jumped, like, you know. And I really didn’t
applied. As the officers testified, they were aware of
6        Claybrook, et al. v. Birchwell, et al.           No. 98-6029        No. 98-6029         Claybrook, et al. v. Birchwell, et al.    19

    know what had happened, because, you know, I hadn’t                       ______________________________________________
    heard a gun shot, you know, before.
                                                                               CONCURRING IN PART, DISSENTING IN PART
       And then I kind of felt like I was wet, and so I kind of               ______________________________________________
    felt, and I was like, you know, -- and then I realized that
    I had been shot. And I kind of leaned over in the seat,                    CLAY, Circuit Judge, concurring in part and dissenting in
    and I looked up at my father-in-law, and he looked at me.                part. I concur in the majority’s decision to reverse the district
    He was still standing in front of my car.                                court’s dismissal of Counts One and Two of the complaint;
                                                                             however, because I believe that the district court’s dismissal
       And then I just -- you know, I saw like -- I guess it was             of Counts Three and Four should also be reversed, I
    a burst of fire or something. I don’t know what it was.                  respectfully dissent from the majority’s decision to affirm the
    It was just like some fire or something. And I heard a big               dismissal of these counts.
    boom. And then I just heard a whole bunch of just
    fireworks   and, you know. And then I heard another                         I disagree with the majority’s application of what it
    boom.3       And I was like, we're getting robbed.                       considers to be the appropriate standard under which the
    Somebody's robbing us.                                                   substantive due process claim of Quintana Claybrook (“Ms.
                                                                             Claybrook”), as set forth in Counts Three and Four, should be
   Tragically, Quintana’s back had been struck by a stray                    analyzed. The majority applies the “conscious shocking”
bullet. She testified that she unsuccessfully attempted to                   standard used for situations involving instances when police
telephone “911" on her cellular phone. She then called her                   officers are called to make “fast action[s]” such as when
husband, Royal Jr., to report that armed assailants were                     facing an ensuing prison riot or when in the throes of a high-
attempting to rob her and Claybrook. However, because she                    speed chase. Under such circumstances, a much higher
crouched inside her vehicle following the initial volley, she                standard of fault, such as “‘whether force was applied in a
did not witness the shoot-out.                                               good faith effort to maintain or restore discipline or
                                                                             maliciously and sadistically for the very purpose of causing
   During much of the ensuing firefight, Claybrook shielded                  harm,’” must be shown in order to hold a police officer liable.
himself behind the Maxima. Rounds discharged by                              See County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct.
Claybrook struck the windshield, hood, and door of the                       1708, 1720 (1998) (quoting Witley v. Albers, 475 U.S. 312,
officers’ cruiser. The three police officers testified, contrary             320 (1986)). Because the record does not support the
to Quintana’s assertion, that Claybrook discharged his firearm               majority’s application of this standard, the less stringent
at least twice before they were able to return the assailant’s               standard of culpability – that which is considered “something
fire. They further asserted that, following the initial exchange             more than negligence but less than intentional conduct, such
of gunfire, they endeavored to identify themselves as police                 as recklessness or gross negligence” – should be applied. See
officers by verbalizations reinforced by manual displays of                  Lewis, 118 S. Ct. at 1718 (internal quotation marks omitted).
their official badges which each wore on a neck chain.                       Under this standard, coined by the Supreme Court as
Nevertheless, Claybrook continued to shoot at them. Officer                  “deliberate indifference,” a question of fact remains for trial
                                                                             as to whether the officers’ conduct regarding Ms. Claybrook
                                                                             rose to this level.
     3
     Birchwell testified that "it's very easy to distinguish a pistol shot
from a shotgun. A pistol shot is sort of like a firecracker," while "a
shotgun is a deep, low boom."
18   Claybrook, et al. v. Birchwell, et al.      No. 98-6029      No. 98-6029        Claybrook, et al. v. Birchwell, et al.   7

Furthermore, because the charged official conduct did not         Birchwell sustained gunshot wounds to his right thigh and
inflict any constitutional deprivation upon Quintana,             knee and left foot. He then reported to the police dispatcher,
defendant Kirchner, in his official capacity as the Chief         via radio, that shots had been fired, and again requested
Executive Officer of the Nashville-Davidson County                immediate back-up assistance. At approximately that time,
Metropolitan Police Department, cannot be liable to her for       the suspected perpetrator fled behind the market. However,
any alleged neglect to train or supervise those officers, or      apparently rejecting the available option of escaping
failure to develop appropriate deadly force policies; therefore   unharmed by means of an adjacent street, Claybrook
the lower court’s summary dismissal of count four was also        circumambulated the structure in a bid to ambush the agents
proper. City of Los Angeles v. Heller, 475 U.S. 796, 799          from the rear.
(1986) (per curiam) (“If a person has suffered no
constitutional injury at the hands of the individual police          Claybrook concealed himself behind a slightly elevated
officer, the fact that the departmental regulations might have    concrete structure which afforded a dominant strategic firing
authorized the use of unconstitutionally excessive force is       posture. Each of the three officers testified that they once
quite beside the point.”) (emphasis the Court’s).                 again warned the assailant to drop his weapon. Instead, he
                                                                  aimed his shotgun directly at them. The officers defensively
  Accordingly, the summary judgments for the defendants           fired at the suspect, bringing him to the ground.
which disposed of counts three and four of the amended            Approximately at that same moment, marked police units
complaint are AFFIRMED; whereas the summary dismissals            transporting uniformed officers, as well as an ambulance
of counts one and two are REVERSED, and the action                containing emergency medical technicians (“EMTs”), arrived
REMANDED for further proceedings concerning those two             at the scene. The entire incident had transpired within only
causes of action as are consistent with this opinion.             one or two minutes.
                                                                    Claybrook, pronounced dead at the scene, had sustained a
                                                                  mortal head wound. Upon discovering the seriously injured
                                                                  Quintana inside the Maxima, the EMTs rushed her to
                                                                  Vanderbilt University Hospital, where she received
                                                                  emergency medical attention and subsequent extended
                                                                  hospitalization.
                                                                     On February 12, 1996, the plaintiffs instigated a complaint
                                                                  in district court under section 1983 and Tennessee law.
                                                                  Count one asserted that Royal Jr., Gwannette, and Petrece
                                                                  Claybrook, as the “heirs at law” of their deceased father,
                                                                  suffered injuries consequent to the three defendant officers’
                                                                  alleged violations of their parent’s civil rights. Via Count
                                                                  two, Claybrook’s three children sought recovery from Robert
                                                                  Kirchner, the Chief Executive Officer of the Nashville-
8       Claybrook, et al. v. Birchwell, et al.             No. 98-6029         No. 98-6029            Claybrook, et al. v. Birchwell, et al.            17

Davidson County Metropolitan Police Department,4 for his                       that no conscience-shocking behavior was implicated by a
alleged failure to (1) properly train and/or supervise the three               deputy sheriff’s emergency enlistment of a civilian
police officer defendants and/or (2) implement adequate                        bystander’s assistance in subduing a dangerous assailant
departmental policies circumscribing the application of deadly                 which prompted the perpetrator to slay the civilian),14 cert.
force. Count three advanced the claims of Quintana and her                     denied, 119 S. Ct. 869 (1999).
husband Royal Jr. for the officers’ averred infringements of
Quintana’s civil rights. Count four articulated Quintana’s                       Indeed, the record reflected, without contradiction, that the
claim against Kirchner anchored in allegations similar to                      three defendant undercover agents did not know that anyone
those stated in count two. Count five, asserted by all                         was present in the gray Maxima prior to, or during, the
plaintiffs, alleged that Birchwell,   Lewis, and Spencer had                   exchange of gunfire which caused Quintana’s injury. Thus,
committed state law torts.5                                                    the defendants could not have acted maliciously or
                                                                               sadistically towards that unknown individual. See Farmer v.
  Each of Claybrook’s three children requested $125,000 in                     Brennan, 511 U.S. 825, 835-36 (1994) (explaining that
actual damages, plus an equivalent sum in punitive damages,                    malicious or sadistic behavior entails unjustifiable intentional
against each defendant. Quintana sought $250,000 in                            conduct undertaken with the direct purpose of causing harm
compensatory damages for her personal injuries, plus an                        to the victim).
equivalent amount of punitives, against each defendant. The
plaintiffs further petitioned for an award of attorney fees                      Hence, construing all supported allegations and record
under 42 U.S.C. § 1988(b), an equitable declaration that the                   evidence most favorably for Quintana, no rational fact finder
Nashville police had violated their civil rights, and an                       could conclude that Officers Birchwell, Lewis, and/or
injunction compelling reform of the Nashville police                           Spencer violated her substantive due process rights, because
department’s deadly force policies.                                            the plaintiff cannot prove that they acted with malice or
                                                                               sadism towards her. Thus, the lower court’s summary
  Following the lodging of the defendants’ answers to the                      judgment for those defendants on count three of the amended
initial complaint, the plaintiffs, on May 23, 1996, filed a                    complaint was correct. See Lewis, 118 S. Ct. at 1714 n.5.
four-count amended complaint which reiterated, with
                                                                                   14
                                                                                        The Radecki court explained:
    4
      On April 10, 1997, the district court dismissed all claims asserted          Deputy Barela had no time for deliberation. The undisputed
against Chief Robert Kirchner in his individual capacity, but retained him         facts in this record make clear that Deputy Barela was
as an official capacity defendant, which ruling is not before this appellate       confronted with the kind of instantaneous judgment call that is
forum. An official capacity claim filed against a public employee is               so often required of law enforcement personnel, prison officials,
equivalent to a lawsuit directed against the public entity which that agent        and many other government actors called to emergency
represents. Kentucky v. Graham, 473 U.S. 159, 165 (1985).                          situations. Sometimes these decisions are negligent, sometimes
Municipalities and counties are “persons” exposed to litigation under              they are even reckless, sometimes indifferent. Under these
section 1983. Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir.), cert.             circumstances, however, where Plaintiffs have not even alleged
denied, 522 U.S. 914 (1997).                                                       that Deputy Barela acted with an intent to harm the participants
    5                                                                              or to worsen their legal plight, under the Lewis standard there is
     On April 10, 1997, the trial judge dismissed count five with                  no constitutional liability.
prejudice in the exercise of its statutory discretion to decline to extend
supplemental jurisdiction over a state law claim. 28 U.S.C. § 1367(c).         Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998), cert. denied,
That mandate is not before this reviewing forum.                               119 S. Ct. 869 (1999).
16     Claybrook, et al. v. Birchwell, et al.              No. 98-6029     No. 98-6029         Claybrook, et al. v. Birchwell, et al.      9

prompted by "unforeseen circumstances [which] demand[ed]                   modifications, causes one through four of their original
an officer's instant judgment," to a prison riot. Id. Thus, the            complaint. However, the plaintiffs added, inter alia, language
more exacting “malicious or sadistic” standard of proof,                   to their complaint intended to clarify that Royal Jr.,
rather than the comparatively relaxed “deliberate                          Gwannette, and Petrece Claybrook did not seek satisfaction
indifference” evidentiary criterion, controlled the “shocks the            for alleged losses personal to themselves; rather, they were
conscience” substantive due process element. Id. at 1720-21.               prosecuting the instant action, as representatives of the
Similarly, the “malicious or sadistic” test of conscience-                 decedent’s estate, for compensation of Claybrook’s pre-death
shocking behavior controls the instant action because, beyond              constitutional deprivations. The caption of the amended
controversy, Officers Birchwell, Lewis, and Spencer had no                 complaint listed the plaintiffs as:
opportunity to ponder or debate 13their reaction to the
dangerous actions of the armed man.                                          ROYAL E. CLAYBROOK, JR., GWANNETTE
                                                                             CLAYBROOK, PETRECE CLAYBROOK, CO-
   Hence, even if, as the plaintiffs have argued, the actions of             ADMINISTRATORS OF THE ESTATE OF ROYAL
the three defendant patrolmen violated departmental policy or                E. CLAYBROOK, SR., AND QUINTANA
were otherwise negligent, no rational fact finder could                      CLAYBROOK[.]
conclude, even after considering the evidence in the light
most favorable to Quintana, that those peace enforcement                   (Boldface added).
operatives acted with conscience-shocking malice or sadism
towards the unintended shooting victim. Lewis, 118 S. Ct. at                 The two counts advanced by Claybrook’s three children
1721 (dictating that, “[r]egardless whether [Deputy] Smith’s               related:
behavior offended the reasonableness held up by tort law or
the balance struck in law enforcement’s own codes of sound                                         COUNT ONE
practices, it does not shock the conscience, and petitioners are
not called upon to answer for it under § 1983.”). See Radecki                   33. On the basis of the allegations in paragraphs 1
v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998) (concluding                  through 32 [generally averring the plaintiffs' version of
                                                                             the events of February 28, 1995], defendants Birchwell,
                                                                             Lewis and Spencer are liable, both jointly and severally,
                                                                             to plaintiffs Royal E. Claybrook, Jr., Gwannette
     13
       The plaintiffs' contention that the defendant officers wrongfully
                                                                             Claybrook and Petrece Claybrook, the heirs at law of
incited the violence which injured Quintana by entering the parking lot      Royal E. Claybrook, Sr., for the defendants’ conduct,
and driving towards the stationary gray vehicle was misconceived. See        individually and in concert, to violate the civil rights of
Lewis, 118 S. Ct. at 1720-21. As the Seventh Circuit has commented:          Royal E. Claybrook, Sr. under the First, Second, Fourth,
                                                                             Fifth, Eighth and Fourteenth Amendments to the United
     Other than random attacks, all such cases [involving the use of         States Constitution. These rights include the right to be
     force by criminal justice personnel] begin with the decision of a
     police officer to do something, to help, to arrest, to inquire. If      free from unlawful arrest and from unreasonable and
     the officer had decided to do nothing, then no force would have         excessive use of police force, to freedom of movement,
     been used. In this sense, the police officer always causes the          to keep and bear arms, to be free from cruel and unusual
     trouble. But it is trouble which the police officer is sworn to         punishment, to due process of law and to equal
     cause, which society pays him to cause and which, if kept within        protection of law.
     constitutional limits, society praises the officer for causing.
Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994).
10    Claybrook, et al. v. Birchwell, et al.       No. 98-6029      No. 98-6029            Claybrook, et al. v. Birchwell, et al.           15

                       COUNT TWO                                       Fundamentally, the substantive component of the due
                                                                    process clause insulates citizens against the arbitrary exercise
    34. On the basis of the allegations in paragraphs 1             of governmental power. Id. at 1716. Accordingly, conduct of
  through 32, defendant Robert Kirchner is liable to                a law enforcement officer towards a citizen which “shocks the
  plaintiffs Royal E. Claybrook, Jr., Gwannette Claybrook           conscience” denies the victim fundamental substantive due
  and Petrece Claybrook, the heirs at law of Royal E.               process. Id. at 1717. In situations wherein the implicated
  Claybrook, Sr., for his failure to develop policies and           state, county, or municipal agent(s) are afforded a reasonable
  procedures, to properly train police conduct [sic] in             opportunity to deliberate various alternatives prior to electing
  undercover activities, to train with regard to the use of         a course of action (such as, for example, most occasions
  deadly force and to supervise and regulate adequately so          whereby corrections officials ignore an inmate’s serious
  as to protect Royal E. Claybrook, Sr. and to prevent the          medical needs), their actions will be deemed conscience-
  violations of the said Claybrook Sr.'s rights as alleged in       shocking if they were taken with “deliberate indifference”
  paragraph 30 [paragraph 33?] above.                               towards the plaintiff’s federally protected rights. Id. at 1719.
                                                                    In contradistinction, in a rapidly evolving, fluid, and
  Additionally, the amended complaint alleged (1) the parent-       dangerous predicament which precludes the luxury of calm
child relationship of Claybrook to Royal Jr., Gwannette, and        and reflective pre-response deliberation (such as, for example,
Petrece (paragraphs one through four); (2) that “Plaintiffs         a prison riot), public servants’ reflexive actions “shock the
Royal, Gwannette and Petrece Claybrook are co-                      conscience” only if they involved force employed
administrators of the Estate of Royal E. Claybrook, Sr."            “maliciously and sadistically for the very purpose of causing
(paragraph six); and (3) that "[a]s a result of the wrongful acts   harm" rather than  "in a good faith effort to maintain or restore
of the defendants, plaintiffs Royal E. Claybrook, Jr.,              discipline[.]"12 Id. at 1720 (citation omitted).
Gwannette Claybrook and Petrece Claybrook incurred
medical and funeral expenses, as well as great emotional loss         Applying those principles, the Lewis Court analogized a
associated with the wrongful death of their father." (paragraph     high-speed motorcycle chase, which led to the accidental
thirty-one). Furthermore, the plaintiffs’ Prayer for Relief         death of the pursued motorbike’s innocent passenger,
sought personal compensatory and punitive damage awards
for each of them, as well as collective equitable relief, in
conformity with their original complaint’s prayer; but it did
not expressly request any relief for the Estate of Royal E.             12
                                                                             As aptly observed by the Lewis Court:
Claybrook, Sr..
                                                                        [T]he police on an occasion calling for fast action have
   Following discovery, the district court, on July 1, 1998,            obligations that tend to tug against each other. Their duty is to
granted the defendants’ motions for dismissal of the amended            restore and maintain lawful order, while not exacerbating
                                                                        disorder more than necessary to do their jobs. They are
complaint and/or summary judgment. The plaintiffs noticed               supposed to act decisively and to show restraint at the same
a timely appeal on July 20, 1998.                                       moment, and their decisions have to be made in haste, under
                                                                        pressure, and frequently without the luxury of a second chance.
  In the Sixth Circuit, a section 1983 cause of action is
entirely personal to the direct victim of the alleged               County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (citations
constitutional tort. Jaco v. Bloechle, 739 F.2d 239, 241 (6th       omitted). See also Graham v. Connor, 490 U.S. 386, 397 (1989) (“police
                                                                    officers are often forced to make split-second judgments – in
Cir. 1984). See also Purnell v. City of Akron, 925 F.2d 941,        circumstances that are tense, uncertain, and rapidly evolving -- about the
948-49 n.6 (6th Cir. 1991); May v. County of Trumbull, 127          amount of force that is necessary in a particular situation.”).
14     Claybrook, et al. v. Birchwell, et al.              No. 98-6029         No. 98-6029            Claybrook, et al. v. Birchwell, et al.          11

  [sic] in undercover activities, to train with regard to the                  F.3d 1102 (Table), 1997 WL 651662, at **4 (6th Cir. Oct. 20,
  use of deadly force and to supervise and regulate                            1997) (per curiam); Tinch v. City of Dayton, 77 F.3d 483
  adequately so as to protect Quintana Claybrook and to                        (Table), 1996 WL 77445, at **1 (6th Cir. Feb. 20, 1996) (per
  prevent the violations of the said Quintana Claybrook's                      curiam). Accordingly, only the purported victim, or his
  rights as alleged in paragraph 32 [paragraph 35?] above.                     estate’s representative(s), may prosecute a section 1983 claim;
                                                                               conversely, no cause of action may lie under section 1983 for
   On review, Quintana has disputed only the trial court’s                     emotional distress, loss of a loved one, or any other
dismissal of her    Fourteenth Amendment substantive due                       consequent collateral injuries allegedly suffered personally by
process claim.10 Ordinarily, a charge that law enforcement                     the victim’s family members. Id. Despite the amended
personnel used excessive force to effect a plaintiff’s arrest,                 complaint’s caption, which named plaintiffs Royal Jr.,
which caused bodily injury to that individual, is assessed                     Gwannette, and Petrece as co-administrators of Claybrook’s
under Fourth       Amendment “objective reasonableness”                        estate, coupled with an express allegation at paragraph six to
standards.11 Graham v. Connor, 490 U.S. 386, 394-97                            that same effect, the district court construed counts one and
(1989); Tennessee v. Garner, 471 U.S. 1, 7-9 (1985).                           two as seeking only compensation for alleged personal losses
Accordingly, when an arrestee is “seized” by means of deadly                   and suffering experienced individually by Claybrook’s three
force, any dependent section 1983 claim initiated by the                       children. Consequently, the district court dismissed counts
target, or his or her estate, must be supported by proof that,                 one and two because the plaintiffs lacked standing to initiate
under the pertinent circumstances, the means used to detain                    personal claims stemming from alleged violations       of their
the suspect were objectively “unreasonable.” Id. However,                      deceased father’s federally protected liberties.6
the Fourth Amendment “reasonableness” standard does not
apply to section 1983 claims which seek remuneration for                         Upon de novo review of a trial court’s dismissal of a
physical injuries inadvertently inflicted upon an innocent                     complaint under Rule 12(b)(6), the allegations of the
third party by police officers’ use of force while attempting                  complaint should be construed liberally in the plaintiffs’
to seize a perpetrator, because the authorities could not                      favor. Lewis v. ACB Business Services, Inc., 135 F.3d 389,
“seize” any person other than one who was a deliberate object                  405 (6th Cir. 1998). “[A] complaint should not be dismissed
of their exertion of force. Brower v. County of Inyo, 489 U.S.                 for failure to state a claim unless it appears beyond doubt that
593, 596 (1989). Rather, constitutional tort claims asserted                   the plaintiff can prove no set of facts in support of his claim
by persons collaterally injured by police conduct who were                     which would entitle him to relief.” Conley v. Gibson, 355
not intended targets of an attempted official “seizure” are                    U.S. 41, 45-46 (1957) (emphasis added; note omitted). In this
adjudged according to substantive due process norms. County                    case, the lower court dismissed counts one and two on the
of Sacramento v. Lewis, 118 S. Ct. 1708, 1714-16 (1998).                       sole rationale that the plaintiffs had failed to plead that they
                                                                               sought damages as representatives of their deceased father’s
                                                                               estate for his alleged constitutional injuries. However,
     10                                                                        plenary scrutiny of the material allegations of the amended
       The Fourteenth Amendment to the United States Constitution              complaint reveals that, when construed in the light most
stipulates, in pertinent segment, that “No state shall . . . deprive any
person of life, liberty, or property, without due process of law[.]” U.S.
Const. amend. XIV, § 1.
                                                                                   6
     11                                                                               Because the lower court’s analysis of counts one and two focused
       The Fourth Amendment posits, in relevant portion, that “The right       exclusively upon the sufficiency of the amended complaint’s allegations,
of the people to be secure in their persons . . . against unreasonable . . .   this review construes the trial court’s dismissal of those causes of action
seizures, shall not be violated[.]” U.S. Const. amend. IV.                     as a Rule 12(b)(6) dismissal for failure to state a claim.
12       Claybrook, et al. v. Birchwell, et al.            No. 98-6029         No. 98-6029           Claybrook, et al. v. Birchwell, et al.         13

favorable for the plaintiffs, they have adequately requested                     By contrast, the district court correctly resolved that counts
compensation for Claybrook’s alleged constitutional injuries                   three and four of the amended    complaint were not supported
in their representative capacities as co-administrators of his                 by sufficient evidence.8 Those causes of action recited:
estate.
                                                                                                        COUNT THREE
   Notwithstanding that certain allegations of the amended
complaint also appear to aver that Claybrook’s children                             35. On the basis of the allegations in paragraphs 1
suffered personal losses caused by the defendants’ alleged                       through 32, defendants Birchwell, Lewis and Spencer are
impingements of their decedent’s constitutionally safeguarded                    liable, both jointly and severally, to plaintiff Quintana
interests, which created some ambiguity regarding the identity                   Claybrook for the defendants' conduct, individually and
of the person(s) whose injuries in fact were asserted in counts                  in concert, to violate the civil rights of Quintana
one and two, this reviewing forum regards those extraneous                       Claybrook under the First, Second, Fourth, Fifth, Eighth,
allegations to constitute mere surplusage which ultimately                       and Fourteenth Amendments to the United States
have no substantive effect. Because the plaintiffs have                          Constitution. These rights include the right to be free
unequivocally alleged in plain language that they have                           from unlawful arrest and from unreasonable and
prosecuted the subject action as the co-administrators of                        excessive use of police force, to freedom of movement,
Claybrook’s estate, matched with clear allegations in counts                     to keep and bear arms, to be free from cruel and unusual
one and two that the defendants’ actions had deprived                            punishment, to due process of law and to equal
Claybrook of his civil rights, it cannot be said that they have                  protection of law. Said defendants are liable to plaintiff
pleaded no set of facts in counts one and two which could                        Royal E. Claybrook, Jr. for the loss of companionship,
conceivably entitle them, as representatives of Claybrook’s                      love and affection of his wife, Quintana Claybrook.9
estate, to relief. Accordingly, the district court’s dismissal of
counts one and two for failure to state a claim, which was                                               COUNT FOUR
justified solely on the rationale that the plaintiffs had not pled
that they sought recovery for their late parent’s injuries as                      36. On the basis of the allegations in paragraphs 1
representatives of his estate, constituted legal error. Hence,                   through 32, defendant Robert Kirchner is liable to
the Rule 12(b)(6) dismissals of counts one and two are                           plaintiff Quintana Claybrook for his failure to develop
reversed, and the case remanded to the district court for                        policies and procedures, to properly train police conduct
further proceedings regarding7 those causes of action as are
consistent with this decision.
                                                                               the amended complaint.

     7                                                                             8
      This court emphasizes that, as to counts one and two of the amended           Because consideration of the sufficiency of the record evidence is
complaint, it rules only that the plaintiffs have sufficiently alleged that    necessary to dispose of counts three and four, as developed below, this
they are seeking monetary compensation, as the co-administrators of the        review construes the lower court’s rejection of those causes of action as
decedent’s estate, for alleged constitutional torts personally suffered by     a summary adjudication. See Fed. R. Civ. P. 12(b) & 56.
Claybrook, which affords them standing as vindicators of Claybrook’s               9
individual federal rights to the extent that his tort claims survived, under         For the reasons developed above, Royal Claybrook Jr. lacks
Tennessee law, beyond his own death. See Jaco v. Bloechle, 739 F.2d            standing under section 1983 to claim compensation for any indirect
239, 241-45 (6th Cir. 1984); Tenn. Code Ann. §§ 20-5-102 & 106 (1994           injuries allegedly caused to him by reason of any constitutional tort
& Supp. 1998). This reviewing forum expresses no opinion regarding the         suffered by his spouse Quintana Claybrook, irrespective of the potential
substantive merits of any claim asserted within counts one and/or two of       merits of Quintana’s personal claims.
