Abbott et al v. Shumway et al CV-96-167-B 03/28/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Abbott, et a l .

v. Civil No. 96-167-B

David Shumway, et a l .

MEMORANDUM AND ORDER

Robert and Janice Abbott commenced this action by filing a

complaint in state court alleging that they and their children

were injured when defendant David Boyd, a mentally ill ward of

the New Hampshire Guardianship and Public Protection Program,

left a secure residential facility located in the Abbotts'

Chichester neighborhood and "attacked" their home with a shovel.

The Abbotts sued Boyd, the current and former directors of

the Mental Health Division of the New Hampshire Department of

Health and Human Services (the "Mental Health Division"), two

employees of the New Hampshire Guardianship and Public Protection

Program ("Guardianship Program") , the current and former

presidents of Riverbend Community Mental Health, Inc.

("Riverbend"), a non-profit corporation that allegedly provided

Boyd with mental health services, the president and other

unidentified employees of Independent Services Network, Inc. ("ISN"), a for-profit corporation that allegedly provided Boyd

with security, and the Chichester police chief. In addition to

asserting various state law claims, the Abbotts allege that all

of the defendants except Boyd and the unnamed ISN employees are

liable pursuant to

because they violated the

Abbotts' right to substantive due process by failing to prevent

Boyd's attack.

The defendants removed the case to federal court and now

move to dismiss the federal claims pursuant to Fed. R. Civ. P.

12 (b) (6) .

I. BACKGROUND1

A. Boyd's Placement in the Community

David Boyd allegedly has a long and unfortunate history of

violent mental illness. He is a ward of the Guardianship Program

and he has been arrested approximately 44 times in Boscawen and

approximately 20 times in Concord. Prior to 1992, Boyd was

confined at the New Hampshire State Hospital's Secure Psychiatric

Unit.

I draw the background facts from the complaint and describe them in the light most favorable to the plaintiff. The Guardianship Program purchased a home for Boyd in the

Abbotts' Chichester, New Hampshire neighborhood in 1992. State

and federal funds were used to remodel the home. The renova­

tions included: (1) securing the second floor so that Boyd could

not leave without the permission of his guards; (2) bolting all

the movable items located on the second floor to the structure of

the building; (3) installing unbreakable glass in the windows of

the home; and (4) creating a self-contained living area on the

first floor for Boyd's 24-hour per day guards. After completing

the renovations, the Mental Health Division, the Guardianship

Program, and Riverbend contracted with ISN to provide security

services for Boyd at his new residence.

The Abbotts allege that the Division of Mental Health, the

Guardianship Program and Riverbend developed the plan to place

Boyd outside the traditional mental health system because Boyd

was using a disproportionate share of the limited number of bed-

days that were available to Riverbend for other clients who also

needed to be confined to the State Hospital's secure psychiatric

unit.

B. The February 20, 1993 Incident

On February 20, 1993, certain unnamed ISN employees

allegedly permitted Boyd to leave his residence. Once outside.

3 Boyd began walking toward the Abbotts' home. According to the

complaint, none of Boyd's guards attempted to stop, restrain, or

inhibit him from walking away from the residence.

Janice Abbott and her two children were in their first floor

kitchen when Boyd approached their home. After noticing that

Boyd was standing on the elevated deck adjacent to the kitchen,

Abbott opened the kitchen door to ask Boyd if he needed help.

However, she guickly shut and locked the door after an ISN

employee who was following Boyd instructed her not to let Boyd

into the house. Boyd then became enraged and repeatedly smashed

the Abbotts' home with a snow shovel that had been leaning

against an outside wall. Using the shovel, Boyd broke the

windows in the kitchen door and bent the aluminum door frame. He

also repeatedly swung the shovel at the side of the home,

breaking two kitchen windows, cutting the vinyl siding, and

bending a number of the screws which held the siding in place.

Robert Abbott raced upstairs to see what was wrong after

Janice Abbott began screaming in response to Boyd's attack. He

instructed his wife to take the kids downstairs and phone the

police. Understandably, the Abbotts' children, Joshua and Tasha,

were afraid and crying. Robert Abbott then ran back downstairs

to get a firearm and ammunition to protect his family in case

4 Boyd broke into the house. When Abbott returned, he saw Boyd

stop his attack and walk down the outside stairs, taking the

shovel with him. Boyd then went over to the Abbotts' garage and

broke several windows in two different garage doors. Boyd

eventually left the Abbotts' property and re-entered his home on

his own accord.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

reguires the court to review the allegations of the complaint in

the light most favorable to plaintiffs, accepting all material

allegations as true, with dismissal granted only if no set of

facts entitles plaintiffs to relief. See, e.g., Scheuer v.

Rhodes,

(1974); Berniqer v. Meadow Green-

Wildcat Corp.,

(1st Cir. 1991); Dartmouth Review v.

Dartmouth College,

(1st Cir. 1989). Notwith­

standing the liberal reguirements of notice pleading and the

deferential reading of a litigant's complaint reguired under Rule

12(b)(6), a district court must ensure that "each general

allegation is supported by a specific factual basis." Fleming v.

Lind-Waldock & Co.,

(1st Cir. 1990) . Thus, a

district court need not accept subjective characterizations, bald

5 assertions, or unsubstantiated conclusions. See Correa-MartInez

v. Arrillage-Belendez,

(1st Cir. 1990); Dewey

v. University of New Hampshire,

(1st Cir. 1982) .

Moreover, while "the line between 'facts' and 'conclusions' is

often blurred," Dartmouth Review,

, the line must

be drawn. For

[i]t is only when such conclusions are logically compelled, or at least supported, by the stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability that "conclusions" become "facts" for pleading purposes.

Id.; see Fleming,

; Correa-MartInez,

.

Care is reguired in determining the sufficiency of a

complaint to insure that "heightened pleading" reguirements are

invoked only if such reguirements are specifically authorized by

the Federal Rules of Civil Procedure. See Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit,

(1993) (comparing Fed. R. Civ. P. 8(a) (2)'s general

pleading reguirement with the particular pleading reguirements of

Fed. R. Civ. P. 9(b) and holding that a heightened pleading

standard does not apply to civil rights claims). However, even

under the general pleading reguirements of Fed. R. Civ. P. 8(a),

6 a complaint will not withstand a motion to dismiss if the

plaintiffs have merely recited the elements of the complaint's

causes of action in conclusory terms. Doyle v. Hasbro, Inc.,

(1st Cir. 1996); see also Romero-Barello v.

Hernandez-Agosto,

(1st Cir. 1996).

III. ANALYSIS

The Abbotts claim that the defendants other than Boyd and

the unnamed ISN employees violated the Abbotts' right to

substantive due process by (1) placing Boyd in the Abbotts'

residential neighborhood where he was a danger to others, and

(ii) failing to properly supervise the unnamed ISN employees who

allegedly allowed Boyd to leave the facility and assault the

Abbotts' home.2 I examine each contention in turn.3

A. Improper Placement

2 Counts I and II are based on a supervisory liability theory and Counts III and IV assert that defendants are liable based on their own conduct. The Abbotts also assert in Count II that defendants violated the Fourth Amendment. I decline to address this contention in detail as it plainly has no merit. See Evans v. Avery,

(1st Cir. 1996), petition for cert, filed,

(U.S. Feb. 28, 1997) (No. 96- 1390)(rejecting Fourth Amendment claim where state defendants' conduct was not directed toward the plaintiff).

3 I assume without deciding that the defendants other than Boyd were all acting under the color of state law when they engaged in the conduct that forms the basis of the plaintiffs' complaint. 7 A state actor generally will not be held liable under the

due process clause for acts of private violence committed by

third parties unless either the injured plaintiffs have a

"special relationship" with the state defendants, or the

defendants are responsible for creating the danger that led to

the plaintiffs' injuries. DeShanev v. Winnebago County Dept, of

Social Services,

(1989); Frances-Colon v.

Ramirez, No. 96-1293,

(1st Cir. Feb. 24,

1997); Uhlriq v. Harder,

, 572 (10th Cir. 1995), cert.

denied, 116 S. C t . 924 (1996). The "special relationship"

exception is inapplicable in this case because the Abbotts were

not in state custody or subject to a comparable state-imposed

limitation on their liberty when Boyd committed his assault. See

Souza v. Pina,

(1st Cir. 1995) (murder

suspect not in state custody did not have "special relationship"

with state defendants); Monahan v. Dorchester Counseling Ctr.,

Inc.,

(1st Cir. 1992) (voluntarily committed

mental patient does not have "special relationship" with state

defendants). Thus, the Abbotts' improper placement claim depends

upon whether the claim gualifies under the danger creation

exception to the general rule of non-liability.

A state official who "affirmatively placets] the plaintiff in a position of danger," can be liable for subsequent harm

caused by a private actor. Wood v. Ostrander,

, 589-

90 (9th Cir. 1989) (woman who was raped after a police officer

impounded her vehicle and left her stranded in a high crime area

at 2:30 a.m. had a triable substantive due process claim); Evans

v. Avery,

(1st Cir. 1996), petition for

cert, filed,

(U.S. Feb. 28, 1997) (No. 96-1390)

(recognizing viability of substantive due process claims in

creation of danger cases). However, "[n]ot every negligent, or

even willfully reckless state action that renders a person more

vulnerable to danger takes on the added character of a violation

of the federal constitution." Soto v. Flores,

(1st Cir. 1997) (internal quotation and citation

omitted)(distinguishing between conventional torts and

constitutional violations, as well as between state inaction and

action). In this circuit, a successful substantive due process

claim premised on a creation of danger theory must assert both

that the defendants acted with deliberate indifference4 to the

plaintiffs' constitutional rights and that the defendants'

conduct "shocks the conscience". Evans,

; see

4 The First Circuit has also described this standard as a "reckless or callous indifference" test. See Torres Ramirez v. Bermudez Garcia,

(1st Cir. 1990) . also Uhlriq, 64 F.3d at 572.

Deliberate indifference, in the context of a substantive due

process claim, is best viewed as a lesser form of intent rather

than as a heightened degree of negligence. An intentional

violation of a person's constitutional rights occurs if the

official desires to cause such a violation or recognizes that his

or her conduct is certain to result in such a violation. A

deliberately indifferent violation, in contrast, occurs if the

official believes (or reasonably should believe) that his or her

conduct is very likely (but not certain) to result in such a

violation. Germany v. Vance,

(1st Cir. 1989);

Febus-Rodriquez v. Betancourt-Lebron,

(1st Cir.

1994); Landol-Rivera v. Cruz Cosme,

(1st Cir.

1990); Torres Ramirez v. Bermudez Garcia,

(1st

Cir. 1990); Bowen v. City of Manchester,

(1st

Cir. 1992). I assume without deciding that the Abbotts have

alleged sufficient facts to support their claim that defendants

acted with deliberate indifference.

The "shock the conscience" standard reguires more than

deliberate indifference. Evans,

; Uhlriq, 64

F.3d at 574. Conduct will be held to shock the conscience only

in the most egregious of cases where a defendant both disregards

10 a substantial risk of serious injury and engages in conduct that

is lacking in the kind of justification that a civilized society

would accept as reasonable under the circumstances. See Uhlriq,

64 F.3d at 574. Accordingly, courts applying the standard have

declined to recognize substantive due process claims where:

(i) state actors allegedly caused a person to commit suicide by

encouraging the media to link him with a serial murder investi­

gation, Souza,

; (ii) minors were compelled to

attend a sexually explicit AIDS assembly. Brown v. Hot, Sexy and

Safer Productions, Inc.,

(1st Cir. 1995), cert.

denied, 116 S. C t . 1044 (1996); (ill) the police allegedly caused

a pedestrian to be seriously injured by conducting a police chase

at 50 miles per hour in a busy neighborhood, Evans,

; and (iv) state actors allegedly caused a state employee's

death by transferring the criminally insane person who murdered

her into the general state hospital population, Uhlriq, 64 F.3d

at 574-76. While the shock the conscience standard obviously is

difficult to satisfy, it reflects the Supreme Court's determina­

tion that the due process clause should not serve as a substitute

for state tort law. DeShanev,

.

11 Although the Abbotts allege that the defendants engaged in

conduct that shocks the conscience, the facts do not support

their conclusory assertion. Without passing judgment on the

wisdom of the defendants' alleged decision to place Boyd in a

facility in a residential neighborhood, the decision hardly is

conscience shocking. The complaint alleges that substantial

security enhancements were made to the facility before Boyd was

permitted to move in. Moreover, the Abbotts concede that 24-hour

per-day guards were hired to ensure that Boyd was not left

unattended. Under these circumstances, defendants' decision to

place Boyd in the Abbotts' neighborhood does not shock the

conscience even when the complaint is liberally construed under

the Rule 12(b)(6) standard.5

B. Supervisory Liability under § 1983

The Abbotts also argue that a number of the defendants are

liable for failing to properly supervise the unnamed ISN

employees who allegedly allowed Boyd to leave his residence and

assault the Abbotts' home. Supervisors can be held liable for a

§ 1983 claim only based on their own acts and omissions. Sanchez

5 I reach a similar conclusion with respect to the Abbotts' related claim that the Chichester Police Chief is liable for allowing the placement to occur. 12 v. Alvarado,

(1st Cir. 1996). Moreover, a

supervisor can be held liable only if (1) a subordinate commits a

constitutional violation and (2) the supervisor's action or

inaction is affirmatively linked to the behavior of the

subordinate in that it could be characterized as "supervisory

encouragement, condonation or acquiescence" or "gross negligence

amounting to deliberate indifference."

(quoting Lipsett v.

University of Puerto Rico,

(1st Cir. 1988).

In the present case, the Abbotts offer nothing more than

their bald assertion that several of the defendants are liable as

supervisors because they "failed to take sufficient remedial

action to prevent or mitigate" the unconstitutional acts of their

alleged subordinates. Such a vague claim simply is not

sufficient to establish the necessary affirmative link between

the supervisor's action or inaction and the subordinate's

unconstitutional acts.6 Accordingly, this claim fails as well.

IV. CONCLUSION

While Boyd's alleged conduct was tragic and unsettling, it

6 Because I determine that the Abbotts have failed to sufficiently allege an "affirmative link" between the defendants' supervisory conduct and the allegedly unconstitutional acts of the unnamed ISN employees, I need not determine whether the subordinates' alleged conduct was unconstitutional.

13 was not caused by state conduct that shocks the conscience.

Further, the Abbotts have failed to sufficiently plead a

substantive due process claim based on a supervisory liability

theory. Accordingly, I grant defendants' motion to dismiss

(document no. 15) insofar as it applies to the Abbotts' federal

claims (Counts I-IV). Having disposed of the federal claims, I

decline to exercise my discretion to retain supplemental

jurisdiction over the remaining state claims. These claims are

remanded to state court.

SO ORDERED.

Paul Barbadoro United States District Judge

March 28, 1997

cc: Scott W. Flood, Esg. Lucy C. Hodder, Esg. John D. McIntosh, Esg. Robert J. Lanney, Esg. James C. Wheat, Esg. Steven Hengen, Esg. Barry M. Scotch, Esg.

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