United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-20423 

____________ 

Oyinlola Zinsou, Individually and as a representative of the Estate 

of Olufemi Odutayo; Funmilola Olukemi Odutayo; 

Kolawole Odutayo; Olatunde Odutayo, 

Plaintiffs—Appellants, 

versus

Fort Bend County; Will Chen; Jose Diaz; James Smalley, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:21-CV-2151 

______________________________ 

Before Graves, Higginson, and Douglas, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

*

Oyinlola Zinsou, individually and as a representative of the Estate of 

Olufemi Odutayo, Funmilola Olukemi Odutayo, Kolawole Odutayo, and 

Olatunde Odutayo (collectively, “Plaintiffs”) appeal the district court’s 

dismissal of their complaint against Fort Bend County, Jose Diaz, James 

Smalley, and Will Chen (collectively, “Defendants”) for alleged violations 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 17, 2023 

Lyle W. Cayce 

Clerk 

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No. 22-20423 

2 

of their mother’s constitutional rights. The district court dismissed 

Plaintiffs’ claims because they failed to sufficiently allege that their mother 

was in a “special relationship” with the state. We AFFIRM. 

I. Background 

a. Factual Background 

Plaintiffs allege the following facts in their first amended complaint. 

On July 5, 2019, Olufemi Odutayo was having health problems in her home. 

At 3:36 a.m., one of her children called 911. Fort Bend County Emergency 

Medical Services dispatched a crew in response to the call including 

individual Defendants Chen, Diaz, and Smalley. When they arrived at Ms. 

Odutayo’s home at 3:52 a.m., they did not immediately initiate care. One 

crew member asked Funmilola Odutayo, one of Ms. Odutayo’s daughters, 

questions about her mother’s background because Ms. Odutayo could not 

speak English. Funmilola begged the crew to let her ride in the ambulance to 

the hospital so she could provide more information about her mother’s 

medication and health, but they refused. When the EMS crew was ready to 

load Ms. Odutayo into the ambulance, they made her get up and walk to the 

stretcher. Ms. Odutayo vomited twice, and the crew knew she was having 

trouble breathing. The EMS crew then took Ms. Odutayo off her home 

oxygen without knowing her flow rate and placed her on their own oxygen. 

Funmilola saw her mother gasping for air and told the crew the flow rate her 

mother needed, but the EMS crew did nothing. The crew started performing 

chest compressions on Ms. Odutayo once she was in the ambulance, but they 

did not leave to go the hospital for several more minutes. The ambulance left 

the scene at 4:25 a.m. and arrived at the hospital at 4:34 a.m. Ms. Odutayo 

was pronounced dead upon arrival at the hospital. 

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b. Procedural Background 

Plaintiffs sued Fort Bend County, Chen, Diaz, and Smalley for 

violating their mother’s Fourteenth Amendment right to adequate medical 

care by acting with deliberate indifference to her health needs. They also 

alleged that Fort Bend County had a custom or policy of depriving emergency 

patients of reasonable medical care. Defendants Fort Bend County, Smalley, 

and Diaz filed a motion to dismiss Plaintiffs’ first amended complaint for 

failure to state a claim. Defendant Chen later filed a similar motion. 

The district court granted the Defendants’ motions. It found that 

Plaintiffs failed to state a claim because they did not sufficiently allege that 

their mother had a “special relationship” with the state giving rise to a 

constitutional duty to provide for her safety. Plaintiffs timely appealed. 

II. Standard of Review 

We review a district court’s grant of a motion to dismiss for failure to 

state a claim de novo. Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). 

We accept all well-pleaded facts as true and view those facts in the light most 

favorable to the plaintiff. Id. 

III. Discussion 

a. Duty to Provide Adequate Medical Care 

The central issue in this case is whether Defendants had an affirmative 

constitutional duty to provide adequate medical care to Ms. Odutayo. The 

Due Process Clause of the Fourteenth Amendment “forbids the State itself 

to deprive individuals of life, liberty, or property without ‘due process of 

law,’ but its language cannot fairly be extended to impose an affirmative 

obligation on the State to ensure that those interests do not come to harm 

through other means.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 

U.S. 189, 195 (1989). In DeShaney, a young boy and his mother filed a § 1983 

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action against local child protection officials alleging that they failed to 

protect the boy from severe beatings by his father. Id. at 192-93. Addressing 

the viability of his substantive due process claim, the Supreme Court 

recognized two possible exceptions to the general rule that a State has no 

affirmative duty to provide governmental aid under the Fourteenth 

Amendment. 

First, “when the State takes a person into its custody and holds him 

there against his will, the Constitution imposes upon it a corresponding duty 

to assume some responsibility for his safety and general well-being.” Id. at 

199-200. “[I]t is the State’s affirmative act of restraining the individual’s 

freedom to act on his own behalf—through incarceration, 

institutionalization, or other similar restraint of personal liberty—which is 

the ‘deprivation of liberty’ triggering the protections of the Due Process 

Clause, not its failure to act to protect his liberty interests against harms 

inflicted by other means.” Id. at 200; see also Walton v. Alexander, 44 F.3d 

1297, 1299 (5th Cir. 1995) (en banc) (“[A] ‘special relationship’ only arises 

when a person is involuntarily confined or otherwise restrained against his 

will pursuant to a governmental order or by the affirmative exercise of state 

power.”). Following this exception, we have found that special relationships 

exist between the State and prisoners, involuntarily committed mental 

patients, people suspected of crimes injured during arrests, and children who 

are removed from their homes and placed under state supervision. M. D. by 

Stukenberg v. Abbott, 907 F.3d 237, 249 (5th Cir. 2018). 

Second, the Supreme Court alluded to a state’s duty to protect arising 

when the state creates a danger or makes an individual more vulnerable to 

that danger. DeShaney, 489 U.S. at 201 (“While the State may have been 

aware of the dangers that Joshua faced in the free world, it played no part in 

their creation, nor did it do anything to render him any more vulnerable to 

them.”). This exception is now known as the “state-created danger” 

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doctrine. While ten other circuits have adopted it, we have yet to do so. Fisher 

v. Moore, --- F.4th ----, 2023 WL 4539588, at *7 (5th Cir. July 14, 2023) 

(Higginson, J., and Douglas, J., dissenting from denial of rehearing en banc); 

Irish v. Fowler, 979 F.3d 65, 73-75 (1st Cir. 2020) (distilling the uniform 

requirements of the doctrine across nine other circuits and adopting the 

doctrine). 

b. Special Relationship 

Relying on the first exception, Plaintiffs argue they sufficiently alleged 

their mother had a special relationship with the state because the Defendants 

involuntarily restrained her. 

Our sister circuits have rejected similar claims that people placed in 

ambulances were in custody for purposes of DeShaney. In Jackson v. Schultz, 

the Sixth Circuit considered whether an unconscious gunshot victim was 

involuntarily retrained when EMTs moved him from a crime scene into an 

ambulance where he later died. 429 F.3d 586, 588 (6th Cir. 2005). It first 

explained that “[i]t is not a constitutional violation for a state actor to render 

incompetent medical assistance or fail to rescue those in need.” Id. at 590. 

Turning to the allegations at hand, it found they did not show he was in 

custody: 

The EMTs did not cause decedent to be shot nor did they 

render him unconscious. There is no allegation that the EMTs 

restrained or handcuffed the decedent. There is no allegation 

that the decedent was not free to leave the ambulance or be 

removed from the ambulance. Decedent’s liberty was 

‘constrained’ by his incapacity, and his incapacity was in no 

way caused by the defendants. In sum, no set of facts consistent 

with the allegations shows that the EMTs did anything to 

restrain the decedent’s liberty. 

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Id. at 591. Consequently, the court found no constitutional violation under 

the custody exception based on the facts alleged. Id.

In Wideman v. Shallowford Cmty. Hosp., Inc., the plaintiff was pregnant 

and called 911 when she began experiencing abdominal pain. 826 F.2d 1030, 

1031 (11th Cir. 1987). She requested that EMS personnel drive her to her 

doctor at Piedmont Hospital, but they instead took her against her wishes to 

a different hospital. Id. She was finally transferred to Piedmont after a lengthy 

delay, but her doctor could not stop her labor. Id. She gave birth to a 

premature baby, and the baby survived for only four hours. Id. She then sued 

the county and its employees claiming they violated her constitutional right 

to adequate medical treatment. Id. Acknowledging that there is no general 

constitutional right to medical care from the state, the Eleventh Circuit 

concluded that the county “did not exercise a degree of coercion, dominion, 

or restraint over” her to form a special relationship: 

The County did not force or otherwise coerce her into its 

ambulance; it merely made the ambulance available to her, and 

she entered it voluntarily. [Plaintiff]’s physical condition at the 

time might have required her to seek immediate medical help, 

and that need might have induced her to make use of the 

service provided by the County, hoping that she could 

convince the EMS employees to take her where she wanted to 

go. Her physical condition, however, cannot be attributed to 

the County. 

Id. at 1036. Accordingly, while her state tort law claims against the county 

and its employees may have been meritorious, she failed to sufficiently allege 

a constitutional violation. Id. at 1037. 

Here, like the plaintiffs in Jackson and Wideman, the state did not 

cause Ms. Odutayo’s underlying health conditions. There is no allegation 

that Defendants restrained Ms. Odutayo in any way such as by using 

handcuffs. Plaintiffs also did not allege that the Defendants forced Ms. 

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Odutayo to get on the stretcher or in the ambulance against her will. To the 

contrary, their complaint alleges that the EMS crew told her to get up and 

walk to the stretcher and she did so. While their brief claims otherwise, 

Plaintiffs did not allege that they lacked the option of calling a different 

ambulance service. In sum, Plaintiffs have not alleged facts sufficient to show 

that their mother was in custody for purposes of DeShaney. Thus, the district 

court correctly dismissed Plaintiffs’ claims for failure to state a constitutional 

violation against Defendants. The district court also correctly dismissed 

Plaintiffs’ claim against the County because every Monell claim “fail[s] 

without an underlying constitutional violation.” Whitley, 726 F.3d at 648. 

IV. Conclusion 

There is no freestanding Fourteenth Amendment right to adequate 

medical care for private citizens. As the Supreme Court explained, it is the 

state’s affirmative act of taking a person into custody and holding them 

against their will that implicates a due process interest. DeShaney, 489 U.S. 

at 200. The mere fact that Ms. Odutayo was placed in an ambulance did not 

amount to custody, so Plaintiffs cannot proceed with their constitutional 

claims. 

We AFFIRM the district court’s judgment. 

Case: 22-20423 Document: 00516823272 Page: 7 Date Filed: 07/17/2023