                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0117n.06

                                           No. 14-1951
                                                                                      FILED
                                                                                 Feb 09, 2015
                              UNITED STATES COURT OF APPEALS                 DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

MICHAEL SCOTT PICKLE,                                    )
                                                         )
       Plaintiff-Appellant,                              )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
v.                                                       )
                                                                 COURT FOR THE EASTERN
                                                         )
KEITH MCCONNELL, Captain,                                )       DISTRICT OF MICHIGAN
                                                         )
       Defendant-Appellee.                               )
                                                         )       OPINION
                                                         )



       BEFORE:        GIBBONS and COOK, Circuit Judges; GWIN, District Judge.

       JULIA SMITH GIBBONS, Circuit Judge.                   Michael Pickle appeals the grant of

summary judgment to the defendant on his substantive due process claim.

       Pickle, a Michigan corrections officer, was attacked and seriously injured while

attempting to transfer a violent inmate to a special segregation unit within the prison. In a state

court action for damages under 42 U.S.C. § 1983, Pickle claimed that the attack would not have

happened if his superior, Captain Keith McConnell, had followed the prison’s established

security protocols. Specifically, Pickle alleged that McConnell should have had more officers

present, should have had protective gear and tasers on hand, and should have had the inmate

strip-searched before entry to the segregation unit. McConnell removed the case to federal


       
         The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 14-1951, Pickle v. McConnell


district court, where the judge granted him summary judgment after concluding that Pickle could

show neither a constitutional violation nor a clearly established constitutional right. Pickle

argues before this court that he has at least arguably shown a violation of his substantive due

process rights under DeShaney v. Winnebago County Department of Social Services, 489 U.S.

189 (1989).

       DeShaney barred recovery against a State for failure to protect one’s life, liberty, or

property against private actors, unless the plaintiff meets one of two exceptions. The first

exception requires the claimant to have been in the State’s custody and does not apply here. See

Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910–11 (6th Cir. 1995); see also Washington v.

District of Columbia, 802 F.2d 1478, 1482 (D.C. Cir. 1986) (“Prison guards, unlike the prisoners

in their charge, are not held in state custody.”). The second exception, termed the “state-created

danger” doctrine, requires the plaintiff to show three things:

       (1) an affirmative act by the State that either created or increased the risk that the
       plaintiff would be exposed to private acts of violence; (2) a special danger to the
       plaintiff created by state action, as distinguished from a risk that affects the public
       at large; and (3) the requisite state culpability to establish a substantive due
       process violation.

Jasinski v. Tyler, 729 F.3d 531, 539 (6th Cir. 2013) (internal quotation marks omitted).

       Because corrections officers voluntarily enter into employment with the State and assume

the risk of an inherently dangerous job, we have expressed a willingness to find the “requisite

state culpability” only where the State acted with intent to injure the officer. See Hunt v.

Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 538–39 (6th Cir. 2008) (citing Nobles v.

Brown, 985 F.2d 235, 237–38 (6th Cir. 1992); Washington, 802 F.2d at 1482; Walker v. Rowe,

791 F.2d 507, 510 (7th Cir. 1986)); see also Burke v. Bradley Cnty. Gov’t, 478 F. App’x 994,

995 (6th Cir. 2012) (per curiam). Here, McConnell’s conduct identified in the record and


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No. 14-1951, Pickle v. McConnell


complaint simply does not suggest intent to injure Pickle. If anything, McConnell’s attempt to

help Pickle during the attack, in which he himself suffered some injury, strongly suggests the

opposite. Even granting Pickle’s allegations that McConnell failed to adhere to prison security

procedures, these errors are likely mere negligence and gross negligence at worst. Cf. Nobles,

985 F.2d at 238 (finding no intent to injure where “[t]he defendants . . . did not kill or injure the

guards; prisoners did . . .”) (internal quotation marks omitted); Rios v. City of Del Rio, 444 F.3d

417, 423–24 (5th Cir. 2006) (applying DeShaney to foreclose a claim by guards injured during

an attempted escape who asserted only gross negligence); de Jesus Benavides v. Santos, 883 F.2d

385, 388 (5th Cir. 1989) (same). Consequently, Pickle has no way to establish the requisite

culpability required for his substantive due process claim, now or at trial.

       We therefore AFFIRM the judgment of the district court.




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