                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0390n.06

                                            No. 17-5543

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                    FILED
 SUSAN SUMMER DURHAM, As Widow and                         )                  Aug 03, 2018
 Administratrix of the Estate of Christopher Durham        )              DEBORAH S. HUNT, Clerk
 and on Behalf of the Wrongful Death Beneficiaries of      )
 CHRISTOPHER DURHAM, deceased,                             )
                                                           )
         Plaintiff-Appellant,                              )      ON APPEAL FROM THE
                                                           )      UNITED STATES DISTRICT
 v.                                                        )      COURT FOR THE WESTERN
                                                           )      DISTRICT OF TENNESSEE
 ESTATE OF GUS LOSLEBEN, Deceased, By and                  )
 Through the Estate’s Administrator, Lloyd Tatum,          )      OPINION
 Esquire;    HARDIN         COUNTY          FIRE           )
 DEPARTMENT;           HARDIN           COUNTY,            )
 TENNESSEE; JOHN DOES 1–10,                                )
                                                           )
         Defendants-Appellees.                             )




       Before: MOORE, THAPAR, and BUSH, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. This appeal arises from a tragic collision that took the
lives of a logger and a fireman on a rural Tennessee road. Plaintiff Susan Durham (“Plaintiff”)

alleges that her decedent Christopher Durham (“Durham”) was driving northbound on Holland

Creek Road in Hardin County, Tennessee, when fireman Gus Losleben, driving his fire truck

southbound, entered Durham’s lane and crashed into him, killing both men. Because there were

no witnesses and because both men died at the scene, scant evidence is available to shed light on

the moments leading up to the accident. Plaintiff’s complaint thus fails to state facts that would

plausibly implicate Losleben as having engaged in the sort of egregious, conscience-shocking

behavior that is required for Plaintiff to state a claim against Losleben or Hardin County for federal
No. 17-5543, Durham v. Estate of Losleben, et al.


constitutional liability. Plaintiff may have a remedy for her loss in the Tennessee state courts, but

she cannot state a civil-rights claim under 42 U.S.C. § 1983. We therefore affirm the district

court’s dismissal of Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6).1

                                                 I
         Plaintiff alleges that Losleben was driving “at an excessive rate of speed prior to the

collision” even though he “was not responding to any fire service emergency at the time.”

According to Plaintiff’s complaint, “Losleben crossed into Durham’s lane while driving the fire

truck at an excessive rate of speed,” “Losleben knew, or should have known, that his conduct in

driving the fire truck at an excessive rate of speed created a significant risk and likelihood of

serious injury and death to foreseeable motorists,” and “Losleben’s decision to operate the fire

truck at an excessive rate of speed on narrow Holland Creek Road was reckless and deliberately

indifferent to the safety of other motorists . . . including Durham.” Plaintiff describes Losleben’s

driving as exhibiting “reckless disregard,” “deliberate indifference,” and “conduct which shocks

the conscience.” But Plaintiff’s complaint fails to state facts sufficient to prove that Losleben did

more than speed and enter Durham’s lane. The district court thus held that, under controlling

Supreme Court precedent, Plaintiff’s allegations do not rise to the level of a federal constitutional

violation. Durham v. Estate of Losleben, No. 16-1042-STA-egb, 2017 WL 1437209, at *7 (W.D.

Tenn. Apr. 21, 2017). Plaintiff timely appealed, and we review de novo, accepting as true all and

only the allegations in Plaintiff’s complaint and construing Plaintiff’s complaint in her favor. See

Cooey v. Strickland, 479 F.3d 412, 415–16 (6th Cir. 2007).




         1
          Because our resolution of the 12(b)(6) issue suffices to affirm the district court’s dismissal, we decline to
review the district court’s alternative holding as to Hardin County that Plaintiff’s claim was untimely. And because
no party has asked us to, we do not inquire into the adequacy of any remedy available to Plaintiff in the state courts.

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                                                 II

       Section 1983 offers a federal remedy when a state actor deprives a person of “rights,

privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Sometimes, plaintiffs

use § 1983 to seek a remedy for a violation of a “specific” constitutional provision, such as a claim

for malicious prosecution (a Fourth Amendment claim, see King v. Harwood, 852 F.3d 568, 580

(6th Cir. 2017)) or a claim for deliberate indifference to a prisoner’s medical needs (an Eighth

Amendment claim, see Bays v. Montmorency Cty., 874 F.3d 264, 268 (6th Cir. 2017)). And the

Supreme Court tells us that when “a constitutional claim is covered by a specific constitutional

provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard

appropriate to that specific provision.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)

(emphasis added) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). But when no

such “specific” provision is in play, then a § 1983 claim for deprivation of life is cognizable as a

Fourteenth Amendment substantive-due-process claim. Id. at 842–43.

       Under Lewis, a state actor’s deprivation of another’s life is a violation of due process when

it is “arbitrary.” Id. at 845. But “only the most egregious official conduct can be said to be

‘arbitrary in the constitutional sense.’” Id. at 846 (quoting Collins v. City of Harker Heights,

503 U.S. 115, 129 (1992) (no substantive-due-process claim lay against city where sanitation

worker died of asphyxia after entering manhole to unstop sewer line)). Accordingly, only “conduct

‘that shocks the conscience’ and violates the ‘decencies of civilized conduct’” is actionable as a

substantive-due-process violation under § 1983. Ibid. (quoting Rochin v. California, 342 U.S. 165,

209–10 (1952)). The Court has “made it clear that the due process guarantee does not entail a

body of constitutional law imposing liability whenever someone cloaked with state authority

causes harm.” Id. at 848 (emphasis added); see also ibid. (“[T]he Fourteenth Amendment is not a



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‘font of tort law to be superimposed upon whatever systems may already be administered by the

States.’” (quoting Paul v. Davis, 424 U.S. 693, 701 (1976))). Thus, the Court has “categorically”

rejected mere negligence as violative of constitutional due process. Id. at 849. On the other hand,

“conduct intended to injure” is the “most likely to rise to the conscience-shocking level” and thus

count as egregious for the purpose of stating a substantive-due-process claim. Ibid. Lewis thus

sets forth a standard—“the most egregious,” conscience-shocking behavior—and provides outside

parameters (mere negligence is insufficient, while purpose to injure is more likely to be sufficient

but not always necessary) for the imposition of liability. Id. at 846.

       When it comes to firemen engaged in tortious driving while not responding to an

emergency, however, it is unsettled exactly where the line falls between merely tortious conduct

and constitutionally deficient conduct. What about gross negligence? Recklessness? Willful

blindness? Or conduct where a state actor knows (or has substantial certainty) that it will cause

injury but does not intend such injury?

       The cases provide some guidance. In Lewis itself, the Supreme Court held that no

substantive-due-process claim lay where a boy was killed during a high-speed police chase: even

an allegation of deliberate indifference to the boy’s survival was insufficient to state a claim, the

Court held, because an officer engaged in such a chase in which decisions were made

instantaneously or instinctively could be held liable only if he had “an improper or malicious

motive.” Id. at 854–55. For our part, we have held that whether conduct falling in the middle

ground between negligence and intent to injure is constitutionally deficient depends on such factors

as “(1) the voluntariness of the relationship between the government and the plaintiff, especially

whether the plaintiff was involuntarily in government custody or was voluntarily a government

employee; (2) whether the executive actor was required to act in haste or had time for deliberation;



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and (3) whether the government actor was pursuing a legitimate governmental purpose.” Hunt v.

Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 536 (6th Cir. 2008) (affirming dismissal of

substantive-due-process claim by teacher’s aide against school board for dangerous working

conditions arising from assault of aide by autistic student). Essentially, the more voluntary the

plaintiff-government relationship, or the less time the state actor has to deliberate, or the greater

the extent to which the state actor is pursuing a legitimate end, the less arbitrary we should deem

a bodily injury or death caused by the state actor.

                                                 III

       Plaintiff relies on the Hunt factors by arguing that Durham had no voluntary relationship

with Defendants, that Losleben had sufficient time to deliberate as to whether to speed (because

Losleben was not under any present obligation to act in haste), and that Losleben was not pursuing

any legitimate interest that would compete with driving safely. Appellant’s Br. 27–28. But, other

than to repeat the refrain from Plaintiff’s complaint that Losleben was driving “at an excessive rate

of speed,” Plaintiff states no facts that would support a conclusion that Losleben’s conduct was

any more than grossly negligent, even granting Plaintiff all reasonable inferences. The Hunt

factors are meant to help us, in cases of uncertainty, to decide whether conduct is actionable under

§ 1983. But given Plaintiff’s allegations, there is no uncertainty that Plaintiff has failed to state

anything more than negligence or, at most, gross negligence on the part of Losleben. At worst,

given the facts stated in the complaint, Losleben was speeding down a narrow road for no reason

and crossed into Durham’s lane. The result of that allegedly tortious conduct was a tragic loss of

life. But roadway fatalities caused by speeding and failure to stay within one’s lane are, sadly,

regular occurrences. Without more, Plaintiff’s allegations simply cannot rise to the level of

arbitrary, conscience-shocking, egregious conduct that a substantive-due-process claim requires.



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No. 17-5543, Durham v. Estate of Losleben, et al.


Thus, we need not craft a particularized rule of liability for firemen who cause fatal accidents when

not responding to emergency service calls, for the Court’s holding in Lewis suffices to decide this

case and to foreclose Plaintiff’s pursuit of a federal remedy.

        At oral argument, Plaintiff relied chiefly on Servin v. Anderson, No. 3:11-cv-539, 2012

WL 171330 (D. Conn. Jan. 20, 2012), and Browder v. City of Albuquerque, 787 F.3d 1076 (10th

Cir. 2015), as cases in which a federal court allowed an ostensibly analogous claim to go forward.

But in Servin, the defendant police officers were driving as fast as ninety-five miles per hour in a

forty-mile-per-hour zone while heading back to the station when one of the officers caused a fatal

accident en route. Servin, 2012 WL 171330, at *2. Here, Plaintiff has alleged only that Losleben

was driving at an “excessive” speed; one might reasonably infer that this means a speed in excess

of the speed limit, but we cannot infer that this means a conscience-shocking speed. And indeed,

even the Servin court thought it was “unquestionably a closer call,” id. at *5, whether the officers’

conduct was conscience-shocking there; the court denied the defendants’ motion to dismiss only

after granting the plaintiff the inference that it was “possible that, for example, the police officers

were only driving at high speeds because they knew they were clothed with the authority of state

law,” id. at *3.

        In Browder, the Tenth Circuit affirmed the denial of a motion to dismiss (including the

denial of qualified immunity) where an off-duty police officer sped through 8.8 miles of city streets

before running through a red light and killing the plaintiff’s decedent. (The officer was also

charged criminally with reckless vehicular homicide.) Browder, 787 F.3d at 1077. The court held

that because a jury could reasonably infer “a conscious contempt of the lives of others and thus a

form of reckless indifference to a fundamental right,” the lawsuit should move forward. Id. at 1081.

Indeed, the officer there knew the light was red, had the occasion to deliberate, and yet “pressed



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No. 17-5543, Durham v. Estate of Losleben, et al.


the gas pedal, ignored the light,” and caused the fatal crash. Id. at 1077. This was joyriding, plain

and simple, and the Tenth Circuit compared the officer’s alleged conduct to a medieval king’s

exercise of the “power of destroying at pleasure.” Id. at 1079. In contrast, even if we were to

accept Browder’s reckless-indifference rule as the law of our circuit, Plaintiff here has not alleged

facts to support such a finding of “conscious contempt” by Losleben.

       High-speed-chase cases like Lewis are, of course, distinguishable from cases like the

instant case because an officer engaged in a high-speed chase (like, perhaps, a fireman speeding

to the site of a burning dwelling) must make spur-of-the-moment decisions unimpeded by the

threat of liability, whereas Losleben, as Plaintiff argues, had occasion to consider whether to speed

or drive negligently. But even if that distinction supports a lower culpability threshold for firemen

who cause accidents in non-emergency cases than for officers engaged in high-speed pursuits,

Losleben’s alleged conduct here still falls short of whatever that lower threshold might reasonably

be. And because Plaintiff has not stated a § 1983 claim against Losleben, neither can Plaintiff

state a claim against Hardin County for municipal liability for a § 1983 violation. See Collins, 503

U.S. at 120. The Supreme Court’s Lewis framework thus decides this case, and the district court

was correct to dismiss Plaintiff’s complaint for failure to state a claim.

                                                 IV

       In sum, we AFFIRM the district court’s dismissal of Plaintiff’s claims against Losleben

and Hardin County.




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